EXHIBIT 10.1.8
STOCK PURCHASE AGREEMENT
Among
SLF CORPORATION,
KSCO ACQUISITION CORPORATION,
And
THE STOCKHOLDERS OF
KSCO ACQUISITION CORPORATION
Dated as of October 10, 1997
TABLE OF CONTENTS
Page
----
Article I
PURCHASE AND SALE ......................................................... 1
Section 1.1 Purchase and Sale ........................................... 1
Section 1.2 Purchase Price .............................................. 1
Section 1.3 Closing .................................................... 2
Section 1.4 Deliveries at Closing ...................................... 2
Article II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY ............................. 3
Section 2.1 Organization and Qualification ............................. 3
Section 2.2 Corporate Authorization .................................... 3
Section 2.3 Financial Data ............................................. 3
Section 2.4 Ownership of Stock ......................................... 4
Section 2.5 Consents and Approvals ..................................... 4
Section 2.6 Litigation ................................................. 4
Section 2.7 Compliance with Law ........................................ 4
Section 2.8 Tax Matters ................................................ 5
Section 2.9 Employee Benefit Plans ..................................... 8
Section 2.10 Intellectual Property ....................................... 10
Section 2.11 Real Property .............................................. 10
Section 2.12 Material Contracts .......................................... 11
Section 2.13 Personal Property .......................................... 12
Section 2.14 Environmental and Safety Matters ........................... 12
Section 2.15 Employee Relations ......................................... 14
Section 2.16 Business Insurance .......................................... 14
Section 2.17 Disclaimer ................................................. 14
Article III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS ........................ 14
Section 3.1 Authorization ............................................... 14
Section 3.2 Consents and Approvals ..................................... 15
Section 3.3 Capitalization; Ownership .................................. 15
Section 3.4 Affiliate Transactions ..................................... 15
Section 3.5 Brokers .................................................... 15
Section 3.6 Employment Arrangements .................................... 16
Section 3.7 Representations and Warranties of the Company .............. 16
i
Article IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER ........................... 16
Section 4.1 Organization and Qualification ............................. 16
Section 4.2 Authorization .............................................. 16
Section 4.3 Consents and Approvals ..................................... 16
Section 4.4 Financing .................................................. 17
Section 4.5 Litigation ................................................. 17
Section 4.6 Brokers .................................................... 17
Article V
COVENANTS ................................................................. 17
Section 5.1 Conduct of Business ........................................ 17
Section 5.2 Filings .................................................... 19
Section 5.3 Confidentiality; Access to Information ..................... 19
Section 5.4 Public Announcements ....................................... 20
Section 5.5 Xxxx-Xxxxx-Xxxxxx .......................................... 20
Section 5.6 Existing Indebtedness ...................................... 20
Section 5.7 Notification of Certain Matters ............................ 21
Section 5.8 Parachute Payments ......................................... 21
Section 5.9 Shareholders Agreement ..................................... 21
Section 5.10 Financial Statements ....................................... 21
Article VI
CONDITIONS TO CLOSING .................................................... 22
Section 6.1 Conditions to Each Party's Obligation ...................... 22
Section 6.2 Conditions to Obligation of the Purchaser .................. 22
Section 6.3 Conditions to Obligation of the Company .................... 23
Article VII
TERMINATION .............................................................. 24
Section 7.1 Termination ................................................ 24
Section 7.2 Effect of Termination ...................................... 25
Article VIII
GENERAL PROVISIONS ....................................................... 25
Section 8.1 Rules of Construction ...................................... 25
Section 8.2 Survival ................................................... 26
Section 8.3 Notices .................................................... 26
ii
Section 8.4 Governing Law ............................................. 27
Section 8.5 Entire Agreement ........................................... 27
Section 8.6 Amendment; Waiver .......................................... 27
Section 8.7 Assignability .............................................. 28
Section 8.8 Binding Effect ............................................. 28
Section 8.9 Third-Party Beneficiaries ................................... 28
Section 8.10 Counterparts ............................................... 28
Section 8.11 Expenses ................................................... 28
Section 8.12 Certain Taxes .............................................. 28
Section 8.13 Judicial Proceedings ....................................... 28
iii
SCHEDULES
Schedule A Stockholders and Optionholders
Schedule 2.1 List of Subsidiaries
Schedule 2.4 Outstanding Capital Stock of Subsidiaries
Schedule 2.5 Company Consents and Approvals
Schedule 2.6 Litigation
Schedule 2.7 Compliance with Laws
Schedule 2.8 Tax Matters
Schedule 2.9 Benefit Plans
Schedule 2.10 Intellectual Property
Schedule 2.11 Owned and Leased Real Property
Schedule 2.12 Contracts
Schedule 2.13 Title to Property
Schedule 2.14 Environmental and Safety Matters
Schedule 2.15 Employee Relations
Schedule 3.2 Stockholder Consents and Approvals
Schedule 3.4 Affiliate Transactions
Schedule 4.3 Purchaser Consents and Approvals
Schedule 5.2 Required Filings and Consents
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of October __, 1997, among SLF
CORPORATION, a Delaware corporation (the "Purchaser"), KSCO ACQUISITION
CORPORATION, a Delaware corporation (the "Company"), and each of the
stockholders of the Company set forth on Schedule A hereto (each, a
----------
"Stockholder" and collectively the "Stockholders").
The Stockholders own all of the outstanding common stock, par
value $.01 per share, of the Company (the "Common Stock"). The Company owns all
of the capital stock of Xxxxxxx Fasteners Inc., a Delaware corporation
("Xxxxxxx"). The Stockholders desire to sell, and the Purchaser desires to
-------
purchase, the Common Stock on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties and covenants contained herein, the parties agree as
follows:
ARTICLE I
PURCHASE AND SALE
Section 1.1 Purchase and Sale. Upon the terms and subject to the
-----------------
conditions of this Agreement, at the Closing (as defined in Section 1.3), the
Purchaser shall purchase from each Stockholder, and each Stockholder shall sell
and transfer to the Purchaser, all right, title and interest of such Stockholder
in and to the shares of Common Stock set forth opposite such Stockholder's name
on Schedule A hereto.
----------
Section 1.2 Purchase Price.
--------------
(a) In consideration for the sale and transfer of the Common
Stock at the Closing, the Purchaser shall pay (i) to each Stockholder an amount
in cash equal to the Per Share Purchase Price (as defined below) multiplied by
the number of shares of Common Stock held by such Stockholder, and (ii)
subsequent to the transfer in clause (i) above, to each holder of options to
purchase Common Stock (the "Options") set forth on Schedule A (the
----------
"Optionholders") an amount in cash equal to the Per Share Purchase Price
multiplied by the number of shares of Common Stock represented by options held
by such person (other than any Option as to which the Company and the holder
thereof agree to be rolled over into rollover options (the "Rollover Options")
as reflected on Schedule A, less the aggregate exercise price therefor; provided
----------
that the aggregate amount paid by the Purchaser shall not exceed the Purchase
Price (as defined below).
1
(b) The Purchase Price shall be equal to $181,150,000 less (i)
----
$9.8 million, which represents the assumed amount of certain unfunded pension
liabilities of Xxxxxxx as of the Closing Date, (ii) $2.6 million, which
represents the present value of the cash payment stream to Saltire Industrial
Corporation and First City Diversified Inc. under an arrangement relating to
certain environmental liabilities as of the Closing Date, (iii) $.8 million,
which represents the amount of indebtedness outstanding under certain
capitalized leases that will not be repaid at Closing, (iv) the amount of any
Indebtedness described in Section 5.6(iii)-(v) that the Purchaser notifies the
Company in writing by October 31, 1997 shall not be repaid ("Purchaser Specified
Indebtedness") and (v) an amount equal to the Per Share Purchase Price
multiplied by the number of shares of Common Stock represented by Rollover
Options, less the aggregate exercise price therefor. The Per Share Purchase
Price shall be equal to the quotient obtained by (x) the Purchase Price plus
----
the amount representing the aggregate exercise price of the Options (other than
any Rollover Options), divided by (y) the number of shares of Common Stock held
by the Stockholders plus the number of shares of Common Stock represented by
----
the Options (other than any Rollover Options) .
Section 1.3 Closing. The closing of the purchase and sale of the
-------
Common Stock pursuant to Section 1.1 (the "Closing") shall be held at the
offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
10:00 a.m. (local time) on November 26, 1997 (the "Closing Date"), or at such
other place and time as the Purchaser and the Company may mutually agree.
Section 1.4 Deliveries at Closing. At the Closing, (i) each
---------------------
Stockholder shall deliver to the Purchaser certificates representing the shares
of Common Stock sold by such Stockholder duly endorsed for transfer or
accompanied by a duly executed stock power with all appropriate stock transfer
tax stamps affixed, and all books and records of the Company (in whatever form)
to the extent not located at the Company's offices, (ii) each Optionholder shall
surrender the option agreement evidencing such holder's Options (other than any
Rollover Options), and (iii) the Purchaser shall deliver to (x) the holder of
any Indebtedness the amount requested to be paid to such holder by the
Stockholders pursuant to written wire instructions delivered at least two
business days prior to Closing to the Purchaser and (y) to each Stockholder and
each holder of Options (other than Rollover Options) such person's pro rata
portion of the excess of the Purchase Price as provided in Section 1.2(a) over
any amounts paid to the Stockholders' designees pursuant to clause (x).
2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser as follows:
Section 2.1 Organization and Qualification. The Company (i) is a
------------------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, (ii) has the requisite corporate power to carry on its
business as now being conducted, and (iii) is duly qualified as a foreign
corporation in good standing in each jurisdiction in which the conduct of its
business requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a Material Adverse
Effect (as defined in Section 8.1.1). The Company owns, directly or indirectly,
all of the capital stock of each of the corporations set forth on Schedule 2.4
------------
except to the extent set forth on Schedule 2.4 (collectively, the
------------
"Subsidiaries"). Each Subsidiary is duly and validly organized and in good
standing under the laws of the jurisdiction of its formation, and each
Subsidiary is duly qualified as a foreign corporation in good standing in each
jurisdiction where the conduct of its business requires such qualification,
except where the failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect. The Company does not own, and does
not have any obligation to acquire, any material equity interest in any business
enterprise other than the Subsidiaries.
Section 2.2 Corporate Authorization. The execution, delivery and
-----------------------
performance by the Company of this Agreement and the consummation of the
transactions contemplated hereby are within the Company's corporate powers and
have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general application
affecting the enforcement of creditors' rights generally.
Section 2.3 Financial Data. The Company has previously furnished to
--------------
the Purchaser copies of the Company's audited balance sheets and related
statements of income and cash flows as of and for the fiscal years ended
December 31, 1996 and 1995 and its unaudited balance sheet and related
statements of income and cash flows as of and for the eight-month periods ended
August 31, 1997 and 1996 (collectively, the "Financial Statements"). The
Financial Statements (i) fairly present the financial condition of the Company
as of the dates thereof and the results of operations and cash flows of the
Company for the periods covered thereby; (ii) in the case of audited Financial
Statements, have been prepared in accordance with generally accepted accounting
principles consistently applied; and (iii) in the case of unaudited interim
Financial Statements, have been prepared in accordance with the Company's
historical accounting practices consistently applied and are subject to normal
year-end adjustments. Since December 31, 1996, there has been no
3
material adverse change in the operations or financial condition of the Company
and the Subsidiaries, taken as a whole.
Section 2.4 Ownership of Stock. The Company's issued and outstanding
------------------
capital stock consists of 8,880,102 shares of Common Stock. The Common Stock
is duly authorized and issued, is fully paid and non-assessable, and is owned of
record by the Stockholders as set forth on Schedule A. The issued and
----------
outstanding capital stock of each Subsidiary is set forth on Schedule 2.4
------------
hereto, all of which is held by the Company or another Subsidiary, except as
otherwise set forth on Schedule 2.4. Other than the Options, neither the
------------
Company nor any Subsidiary has any outstanding options, warrants or similar
rights to acquire, or any securities convertible into or exchangeable for, any
of its capital stock. Upon consummation of the transactions contemplated
herein, the Purchaser will own the entire equity interest in the Company.
Section 2.5 Consents and Approvals. Except as set forth on Schedule
---------------------- --------
2.5 hereto, the execution, delivery and performance by the Company of this
---
Agreement and the consummation of the transactions contemplated hereby require
no action on its part by or in respect of, or any filing with or notice to, any
governmental or regulatory body, agency or official which, if not obtained or
made, would have a Material Adverse Effect. Except as set forth on Schedule
--------
2.5, neither the execution, delivery and performance by the Company of this
---
Agreement, nor the consummation of the transactions contemplated hereby, will
(a) violate, conflict with, or result in a breach of, any provision of the
charter or bylaws of the Company or any Subsidiary or of any applicable law,
regulation, rule, order, judgment, decree or writ of any foreign, federal, state
or local governmental or regulatory authority or body or court (collectively,
"Law") or (b) result in a default (or give rise to any penalty or give to any
third party a right of termination, cancellation, acceleration or result in the
creation of any material Encumbrance) under, any of the terms, conditions or
provisions of any Material Contract (as defined in Section 2.12) to which the
Company or any Subsidiary is a party or by which it is bound, except for such
violations, breaches or defaults which would not, individually or in the
aggregate, have a Material Adverse Effect.
Section 2.6 Litigation. Except as set forth on Schedule 2.6 hereto,
---------- ------------
to the Company's knowledge, there are no claims, actions, suits, approvals,
investigations, informal objections, complaints or proceedings pending against
or affecting the Company or any Subsidiary before any court, arbitrator or
administrative, governmental or regulatory authority or body, nor to the
Company's knowledge is the Company or any Subsidiary, or any of their respective
properties or assets subject to any order, judgment, writ, injunction or decree,
except in either case for matters which would not, individually or in the
aggregate, have a Material Adverse Effect.
Section 2.7 Compliance with Law. Except as set forth on Schedule 2.7
------------------- ------------
hereto, neither the Company nor any Subsidiary is in violation of any Law,
except where any such
4
violation would not, individually or in the aggregate, have a Material Adverse
Effect. Except as set forth on Schedule 2.7, the Company and each Subsidiary
------------
have all permits, approvals, licenses and franchises from governmental
authorities required to conduct their business as now being conducted
(collectively "Permits"), and is in compliance with all such Permits, except for
such Permits the absence of which would not, individually or in the aggregate,
have a Material Adverse Effect.
Section 2.8 Tax Matters.
-----------
(a) "Taxes," as used in this Agreement, means (i) any federal
-----
income taxes, any other federal, county, local or foreign taxes, fuel or
energy taxes, utility taxes, charges, fees, levies, or other assessments,
including, without limitation, all net income, gross income, sales, use ad
valorem, windfall or other profits, transfer, gains, profits, excise, value
added, franchise, real and personal property, gross receipt, capital stock,
production, business and occupation, social security, workers compensation,
unemployment compensation, disability, employment, payroll, license, estimated,
net worth, stamp, custom duties, severance or withholding taxes or charges
imposed by any governmental entity, and includes any interest and penalties
(civil or criminal) on or additions to any such taxes, charges, fees, levies or
other assessments, and (ii) any liability for amounts described in (i) by reason
of the Company or any Subsidiary (or predecessor of either) having been a member
of an affiliated group of corporations filing a consolidated federal income Tax
return or otherwise joining a consolidated, combined or unitary Tax Return and
(iii) any liability for amounts described in (i) pursuant to any tax sharing
agreement or arrangement, or liability for such amounts as transferee or
successor, "Tax Return," as used in this Agreement, means any report, return
----------
or other information required to be supplied to a governmental entity with
respect to Taxes, including, where permitted or required, combined or
consolidated returns for any group of entities that includes the Company or any
Subsidiary.
(b) Except as set forth on Schedule 2.8 hereto, the Company and
------------
each Subsidiary have timely filed or caused to be filed all federal income Tax
Returns and all other material tax returns required to be filed with respect to
the Company or any Subsidiary on or prior to the date hereof. All Taxes due in
respect of the periods covered by such Tax Returns (whether or not shown on any
Tax Return) and for any other tax periods ending on or prior to the date hereof
(whether or not shown on any Tax Return) have been paid or adequate accruals
have been established for the payment of such taxes. As of the Closing Date,
all material Taxes due in respect of any periods ending on or prior to the
Closing Date, and any period or portion of a period through and including the
Closing Date, will have been paid or adequate accruals will have been
established for the payment thereof, and as of the Closing Date, all Tax Returns
required to be filed in respect of any periods ending on or prior to the Closing
Date will be timely filed. Except as set forth on Schedule 2.8, no audit
------------
examination, deficiency assessment, refund litigation or any other
administrative or court proceedings are presently pending or threatened with
regard
5
to any Taxes or Tax Returns of the Company or any Subsidiary. Any such
disclosure in Schedule 2.8 pursuant to the immediately prior sentence herein
------------
sets forth the type of Tax and Tax periods subject to any such audit
examination, deficiency assessment, refund litigation, or any other
administrative or court proceeding; and, whether an indemnification from any
person or entity exists to cover any liability which could arise from such audit
examination, deficiency assessment, refund litigation, or any other
administrative or court proceeding, and the scope and conditions, if any, of
such indemnification. Neither the Company nor any Subsidiary has, or will have
as of the Closing Date, any material liability for any Taxes in excess of the
amounts paid or reserves or accruals established therefor.
(c) All Tax Returns filed by the Company and each Subsidiary are
(and, as to Tax Returns not filed as of the date hereof, will be) true, correct
and complete in all material respects. Neither the Company nor any Subsidiary is
delinquent in the payment of any material Tax and, except as set forth on
Schedule 2.8 hereto, none of them has requested any extension of the time within
------------
which to file any Tax Returns in respect of any fiscal year or portion thereof
which have not since been filed. Except as set forth on Schedule 2.8, no
------------
deficiencies for any Tax have been proposed, asserted or assessed (tentatively
or otherwise) against the Company or any Subsidiary which have not been settled
and paid. There are currently no agreements in effect with respect to the
Company or any Subsidiary to extend the period of limitations for the assessment
or collection of any Tax and there is not currently pending any request for such
an agreement.
(d) None of the transactions contemplated hereby will result in
the Company or any Subsidiary making or being required to make any "excess
parachute payment" as that term is defined in (S) 280G of the Code.
(e) There are no Tax liens upon the assets of the Company or any
of the Subsidiaries except liens for Taxes not yet due.
(f) The Company and each of the Subsidiaries have complied (and
until the Closing Date will comply) in all material respects with the provisions
of the Internal Revenue Code of 1986, as amended (the "Code") (and any
corresponding foreign, state or local law) relating to the payment and
withholding of Taxes, including, without limitation, the withholding and
reporting requirements under Code (S)(S) 1441 through 1464, 3401 through 3606,
and 6041 and 6049, as well as similar provisions under any other laws, and have,
within the time and in the manner prescribed by law, withheld from employee
wages and have duly set aside or paid over to the proper governmental
authorities all amounts required.
(g) Except set forth on Schedule 2.8, no power of attorney
------------
currently in force has been granted by the Company or any Subsidiary concerning
any Tax matter.
6
(h) Except as set forth on Schedule 2.8, neither the Company
------------
nor any Subsidiary has received a Tax Ruling (as defined below) or entered into
a Closing Agreement (as defined below) with any taxing authority that would have
a continuing adverse effect after the Closing Date. "Tax Ruling," as used in
this Agreement, shall mean a written ruling of a taxing authority relating to
Taxes. "Closing Agreement," as used in this Agreement, shall mean a written and
legally binding agreement with a taxing authority relating to Taxes.
(i) The Company and the Subsidiaries have made available to
Buyer complete and accurate copies, covering all years ending on or after
December 31, 1992, of (i) all Tax Returns, and any amendments thereto, filed by
the Company or any of the Subsidiaries, (ii) all audit reports received from any
taxing authority relating to any Tax Return filed by the Company or any of the
Subsidiaries and (iii) any Closing Agreements entered into by the Company or any
of the Subsidiaries with any taxing authority.
(j) Except as set forth on Schedule 2.8 neither the Company
------------
nor any Subsidiary is a party to, is bound by, or has any obligation under any
tax sharing or similar agreement; and none of the Company or any Subsidiary (i)
has been a member of an affiliated group filing a consolidated federal income
tax return (other than a group the common parent of which was the Company) or
(ii) has any liability for the Taxes of any person or entity (other than any of
the Company and the Subsidiaries) under Treasury regulation (S) 1.1502-6 (or any
similar provision of state, local or foreign law), as a transferee or successor,
by contract, or otherwise.
(k) Neither the Company nor any Subsidiary has made an election
under (S) 341(f) of the Code.
(l) Except as set forth on Schedule 2.8, no property of the
------------
Company or any Subsidiary is property that the Company or any such Subsidiary
or any party to this transaction is or will be required to treat as being owned
by another person pursuant to the provisions of Code (S) 168(f)(8) (as in effect
prior to its amendment by the Tax Reform Act of 1986) or is tax-exempt use
property within the meaning of Code (S) 168.
(m) Except as set forth on Schedule 2.8, neither the Company
------------
nor any Subsidiary is required to include in income any adjustment pursuant
to Code (S) 481(a) by reason of a voluntary change in accounting method
initiated by the Company or any Subsidiary, and, to the Company's knowledge, the
Internal Revenue Service (the "IRS") has not proposed any such adjustment or
change in accounting method.
(n) No election under Code (S) 338 (or any predecessor
provision) has been made by or with respect to the Company or any of the
Subsidiaries or any of their respective assets or properties.
7
(o) Except as set forth on Schedule 2.8, neither the Company
------------
nor any Subsidiary has engaged in any intercompany transactions within the
meaning of Treasury Regulations (S) 1.1502-13 for which any income or gain will
remain unrecognized as of the close of the last taxable year prior to the
Closing Date.
(p) Except as set forth on Schedule 2.8, neither the Company
------------
nor any Subsidiary owns any stock or other equity interest in any entity that
(i) would be considered a Passive Foreign Investment Company pursuant to (S)
1296 of the Code, or (ii) would be considered a Foreign Investment Company
pursuant to (S) 1246 of the Code.
(q) Except as set forth on Schedule 2.8, no Subsidiary has
------------
earned any income that will be required to be included in the Company's or any
Subsidiary's current year income tax return pursuant to (S) 951 of the Code, or
would otherwise be required to be included in the Company's or any Subsidiary's
current year income tax return pursuant to (S) 951 of the Code but for the
application of (S) 952(c) of the Code.
(r) Except as set forth on Schedule 2.8, no deduction or credit
------------
claimed on any Tax Return, or that could be claimed on any Tax Return with
respect to periods up to and including the Closing Date, will be subject to
limitations, including any limitations on any built in losses, deductions or
credits, pursuant to (S)(S) 382, 383 or 384 of the Code.
(s) Except as set forth on Schedule 2.8, no contributions have
------------
been, or will be, made to the capital of the Company on or after October 6,
1995.
Section 2.9 Employee Benefit Plans.
----------------------
(a) The Company has made available to the Purchaser true and
complete copies of each pension, profit-sharing, bonus, incentive, deferred
compensation, severance pay, retirement or other material employee benefit plan,
agreement or arrangement within the meaning of (S) 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") and any stock
option, stock bonus, or other stock-based compensation plan, agreement or
arrangement, currently maintained or contributed to by the Company or any
Subsidiary for the benefit of any of its employees or as to which the Company or
any Subsidiary may otherwise have any liability (collectively, the "Plans"), all
of which are set forth on Schedule 2.9 (except those that will be terminated
------------
on or prior to the Closing Date).
(b) Except as set forth on Schedule 2.9 hereto, (i) each Plan
------------
that is an "employee pension benefit plan" within the meaning of Section 3(2)
of ERISA that is intended to qualify under (S) 401(a) of the Code is being
operated and administered in compliance with (S) 401(a) of the Code, except
where any such failure to comply would not have a Material Adverse Effect, and a
favorable determination letter has been obtained from the Internal Revenue
Service (the "IRS") for each such Plan; (ii) no Plan is subject to
8
the minimum funding requirements of (S) 412 of the Code or (S) 302 of ERISA or
is otherwise subject to Title IV of ERISA; (iii) except where such events would
not, individually or in the aggregate, have a Material Adverse Effect, there has
been no non-exempt "prohibited transaction" within the meaning of (S) 406 of
ERISA or (S) 4975 of the Code involving the assets of any Plan; (iv) all
required employer contributions to each Plan have been made when due (or, in the
case of contributions not yet due, have been accrued on the Company's financial
statements and records); (v) the Company has made available to the Purchaser as
to each Plan a true and correct copy of (x) the most recent annual report (Form
5500) filed with the IRS, if applicable, (y) the most recent actuarial valuation
report, if applicable and (z) each plan, trust agreement, group annuity contract
and insurance contract, if any, relating to such Plan; (vi) each Plan has been
administered in compliance with the applicable provisions of ERISA and the Code
and the terms of such Plan, except where any such failure to comply would not
have a Material Adverse Effect, (vii) with respect to each Plan subject to (S)
412 of the Code or (S) 302 of ERISA, no such Plan has incurred an accumulated
funding deficiency, whether or not waived; (viii) there are no pending or, to
the knowledge of the Company, threatened investigations or claims by the
Internal Revenue Service, Department of Labor, Pension Benefit Guaranty
Corporation or any other governmental agency, relating to any of the Plans, and
(ix) there are not pending or, to the knowledge of the Company, threatened
termination proceedings, pending claims (except claims for benefits payable in
the normal operation of the Plans), suits or proceedings against or involving
any Plan or asserting any rights to or claims for benefits under any Plan that
could give rise to a Material Adverse Effect, and, to the knowledge of the
Company, there are not any facts that could give rise to a Material Adverse
Effect in the event of any such investigation, claim, suit or proceeding.
(c) Except as set forth on Schedule 2.9, neither the Company
------------
nor any Subsidiary (i) has any actual or potential withdrawal liability with
respect to any multiemployer pension plan, or (ii) has any obligation to provide
any welfare benefits to retired or former employees other than continuation of
insurance coverage required by applicable law, or (iii) has incurred any
liability under Title IV of ERISA (other than for Pension Benefit Guaranty
Corporation premiums, all of which have been paid when due).
(d) Except as disclosed on Schedule 2.9, no employee of the
------------
Company or any of its Subsidiaries will be entitled to any additional benefits
or any acceleration of the time of payment or vesting of any benefits under any
Plan or agreement as a result of the transactions contemplated by this
Agreement.
(e) Each material Foreign Plan (as defined below), to the extent
any benefits provided thereunder are not mandated by the laws of the applicable
foreign jurisdiction, is set forth on Schedule 2.9. The Company and each of its
------------
Subsidiaries, as applicable, have maintained and administered such Foreign Plans
in compliance with all applicable laws and all required contributions have been
made to the Foreign Plans, except
9
where the failure to comply or make contributions would not have a Material
Adverse Effect. For purposes hereof, the term "Foreign Plan" shall mean any
plan, program, policy, arrangement or agreement maintained or contributed to by,
or entered into with, the Company or any Subsidiary with respect to employees
(or former employees) employed outside the United States.
Section 2.10 Intellectual Property. Schedule 2.10 hereto
--------------------- -------------
sets forth a true and correct list of all registered patents, trademarks and
copyrights (or applications therefor) held by the Company or any Subsidiary. The
Company and each Subsidiary possess ownership of all trade names, trademarks,
service marks, trade secrets and other proprietary intellectual property rights
(the "Intellectual Property") used in the operation of their business, except
where the failure of the Company or such Subsidiary to own or have the right to
use any Intellectual Property would not, individually or in the aggregate, have
a Material Adverse Effect. None of the Company or the Subsidiaries (i) is
infringing upon the Intellectual Property of others or (ii) has received any
notice of infringement upon or conflict with respect to Intellectual Property of
others or (iii) has received any notice challenging or questioning the validity
or effectiveness of any license or agreement held by the Company or any
Subsidiary with respect to Intellectual Property used in the operation of its
business, except as would not, individually or in the aggregate, have a Material
Adverse Effect. To the knowledge of the Company, no person is using any
Intellectual Property that is confusingly similar to, which infringes upon, or
which violates the Company's rights with respect to the Intellectual Property of
the Company or any of its Subsidiaries.
Section 2.11 Real Property.
-------------
(a) Schedule 2.11 hereto sets forth a complete list of all real
-------------
property owned by the Company and the Subsidiaries (each an "Owned Property").
The Company or a Subsidiary, as the case may be, has good and marketable fee
title to the Owned Properties, free and clear of all mortgages, liens, security
interests, easements, restrictive covenants, rights-of-way and other
encumbrances ("Encumbrances") other than (i) Encumbrances that are disclosed on
Schedule 2.11; (ii) liens for taxes, fees, levies, duties or other governmental
-------------
charges of any kind which are not yet delinquent or are duly reserved for and
being contested in good faith by appropriate proceedings which suspend the
collection thereof; (iii) liens for mechanics, material, laborers, employees,
suppliers or similar liens arising by operation of law for sums which are not
yet delinquent or which are duly reserved for and being contested in good faith
by appropriate proceedings or with respect to which arrangements for payment
and/or release have been made; (iv) platting, subdivision, zoning, building and
other similar legal requirements; and (v) easements, restrictive covenants,
rights-of-way, reservations of mineral or oil and gas interests, encroachments
and other similar encumbrances, whether or not of record, which do not
materially detract from the value of the real property subject thereto or impair
in any
10
material respect the operation of the Company's business (the Encumbrances
described in clauses (i) through (v) above are hereinafter referred to
collectively as "Permitted Liens").
(b) Schedule 2.11 sets forth a complete list of all real
-------------
property leased by the Company and the Subsidiaries (each a "Leased Property").
The Company or a Subsidiary, as the case may be, has (assuming good title in the
landlord) a valid leasehold interest in the Leased Properties, in each case free
and clear of all Encumbrances other than Permitted Liens.
(c) To the Company's knowledge, there are no eminent domain
proceedings pending or threatened against any Owned Property or Leased Property.
Section 2.12 Material Contracts. Except as listed or described on
------------------
Schedule 2.11 and Schedule 2.12 hereto, as of the date hereof, neither the
------------- -------------
Company nor any Subsidiary is a party to or bound by any written or oral leases,
agreements, instruments, or other contracts or legally binding contractual
commitments ("Contracts") that are of a type described below (collectively, the
"Material Contracts"):
(i) any collective bargaining arrangement with any labor union;
(ii) any Contract for capital expenditures or the acquisition or
construction of fixed assets in excess of $100,000;
(iii) any Contract for the purchase or sale of inventory,
materials, supplies, merchandise, machinery, equipment, parts or other
property, assets, or services requiring aggregate future payments in excess of
$100,000 (other than standard inventory purchase orders executed in the
ordinary course of business);
(iv) any Contract relating to the borrowing of money or the
guaranty of another person's borrowing of money;
(v) any Contract granting any person a lien on all or any part
of assets;
(vi) any Contract granting to any person a first refusal, first
offer or similar preferential right to purchase or acquire any of its assets;
(vii) any Contract under which the Company or any Subsidiary is
(A) a lessee or sublessee of any machinery, equipment, vehicle (including fleet
equipment) or other tangible personal property, or (B) a lessor of any property,
in either case having an original value in excess of $500,000;
11
(viii) any Contract limiting, restricting or prohibiting it from
conducting business anywhere in the United States or elsewhere in the world or
any Contract limiting the freedom of the Company to engage in any line of
business or to compete with any other Person;
(ix) any joint venture or partnership Contract;
(x) Contracts, singly or in the aggregate, requiring future
payments of $500,000 or more that require the consent of the other party thereto
in connection with the transactions contemplated hereby; and
(xi) any material employment Contract with any employee.
The Company has made available to the Purchaser a true and
complete copy of each written Material Contract, including all amendments or
other modifications thereto. Except as set forth on Schedule 2.12 hereto, to
-------------
the Company's knowledge, each Material Contract is a valid and binding
obligation of each party thereto, enforceable in accordance with its terms,
subject only to bankruptcy, reorganization, receivership and other laws
affecting creditors' rights generally. Except as set forth on Schedule 2.12, the
-------------
Company or a Subsidiary, as the case may be, has performed all obligations
required to be performed by it under the Material Contracts and the Company or
such Subsidiary, as the case may be, is not in breach or default thereunder,
except for breaches or defaults which will not, individually or in the
aggregate, have a Material Adverse Effect.
Section 2.13 Personal Property. Except as set forth on Schedule
----------------- --------
2.13 hereto, the Company and each Subsidiary has good and marketable title to
----
the assets reflected on its books and records as owned by it (other than real
property) free and clear of all Encumbrances other than Permitted Liens.
Section 2.14 Environmental and Safety Matters. Except as set forth
--------------------------------
on Schedule 2.14 hereto and except for such of the following as, individually or
-------------
in the aggregate, could not have a reasonable possibility of resulting in a
Material Adverse Effect: (i) the Company and each Subsidiary is in compliance
with all applicable Environmental Laws (as defined below) and no Environmental
Law could reasonably be expected to interfere with current operations of the
Company or any Subsidiary; (ii) neither the Company nor any Subsidiary has
received a notice, report or information regarding any noncompliance, any
liabilities (whether accrued, absolute, contingent, unliquidated or otherwise),
or any corrective, investigatory, removal or remedial obligations, arising under
applicable Environmental Laws with respect to its past or present operations or
properties or those of its predecessors in interest; (iii) each of the Company
and its Subsidiaries have obtained, and are and have been in compliance with all
terms and conditions of, all permits, licenses and other authorizations required
pursuant to Environmental Laws for their occupation of the Owned
12
Properties and the Leased Properties and the conduct of their business, and
neither the Company nor any of its Subsidiaries has any reason to believe that
any permits, licenses, or other authorizations scheduled to expire within the
next three years (a) will not be renewed or (b) will require material
expenditures in connection with such renewal; (iv) there are no agreements,
judgments, decrees or orders by which the Company or any of its Subsidiaries is
bound, which could reasonably be expected to give rise to any liability of the
Company or any of its Subsidiaries under Environmental Laws; and (v) neither the
Company nor any of its Subsidiaries is subject to any judicial or administrative
proceeding or, to the knowledge of the Company, investigation alleging the
violation of, or liability under, Environmental Laws and no such proceeding or
investigation is contemplated or threatened. Except as set forth in Schedule
--------
2.14 hereto, (i) the transactions contemplated by this Agreement do not impose
----
any obligations under Environmental Laws for site investigation or cleanup or
notification to or consent of any government agencies or third parties; (ii) no
lien has been asserted or recorded, or the knowledge of the Company, threatened,
under any Environmental Law with respect to any facility, property, asset or
inventory currently owned, leased or operated by the Company or any of its
Subsidiaries; and (iii) no property now or formerly owned, leased or operated by
the Company or any of its Subsidiaries or, to the knowledge of the Company, any
of their respective predecessors in interest, is (a) listed or proposed for
listing on the National Priorities List promulgated pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or (b) listed on the Comprehensive Environmental Response,
Compensation and Liability Information System List promulgated pursuant to
CERCLA or (c) included on any similar list maintained by any governmental
authority including, without limitation, those relating to petroleum and its
constituents and derivatives. A complete list of all material permits, licenses
or other authorizations held by the Company and each Subsidiary pursuant to
Environmental Laws for the operation of the Owned Properties and the Leased
Properties and the conduct of the business of the Company and each of its
Subsidiaries, and the expiration date of each, is set forth on Schedule 2.14
-------------
hereto. The Company has made available to the Purchaser or its advisors or
consultants true, complete and correct copies of all environmental reports,
analyses, tests or monitoring in the possession of or available to the Company
during the past three years pertaining to any Owned Property or Leased Property.
As used in this Agreement, "Environmental Laws" shall mean all foreign, federal,
state or local statutes, laws, codes, rules, regulations, ordinances, orders,
standards, permits, licenses or requirements (including consent decrees,
judicial decisions and administrative orders), presently in force, as amended or
reauthorized, pertaining to the protection, preservation, conservation or
regulation of the environment, or imposing requirements relating to public or
employee health and safety, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. (S)
9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. (S)
6901 et seq., the Emergency Planning and Community Right to Know Act, 42 U.S.C.
(S) 11001 et seq., the Clean Air Act, 42 U.S.C. (S) 7401 et seq., the Federal
Water Pollution Control Act, 33 U.S.C. (S) 1251 et seq., the Toxic Substances
Control Act, 15 U.S.C.
13
(S) 2601 et seq., the Safe Drinking Water Act, 42 U.S.C. (S) 300F et seq., and
the Occupational Safety and Health Act, 29 U.S.C. (S) 651 et seq., each as
amended or reauthorized.
Section 2.15 Employee Relations. Except as set forth on Schedule
------------------ --------
2.15 hereto, within the last two years, neither the Company nor any of its
----
Subsidiaries has experienced any strike, picketing, boycott, work stoppage or
slowdown or other labor dispute, nor to the knowledge of the Company is any such
event or any organizing effort threatened against it. Except as set forth on
Schedule 2.6 hereto, there is no pending charge or complaint of unfair labor
------------
practice, employment discrimination or similar matters against the Company or
any Subsidiary relating to the employment of labor.
Section 2.16 Business Insurance. Each of the Company and the
------------------
Subsidiaries has in full force (i) all workers' compensation or similar
insurance required by the laws of any jurisdiction in which any material
operations of the Company or any of the Subsidiaries are conducted, (ii)
business interruption insurance covering risk of loss as a result of cessation
of any substantial part of the business conducted by the Company or any of the
Subsidiaries for such periods as are customary for companies of established
reputation engaged in the same or similar business and similarly situated, and
(iii) comprehensive general liability insurance, fire and casualty insurance
policies and public liability insurance providing coverage in such amount as is
customary for companies of established reputation engaged in the same or similar
business and similarly situated. The Company has not received any notice of
cancellation of any of the policies. To the knowledge of the Company, there
exists no breach by the insured under any such policy which gives the insurer
the right thereunder to terminate such policy.
Section 2.17 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS
----------
ARTICLE II, THE COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, represents and warrants as
to itself to the Purchaser as follows:
Section 3.1 Authorization. The execution, delivery and performance
-------------
by such Stockholder of this Agreement and the transactions contemplated hereby
are within the requisite power of such Stockholder and have been duly authorized
by all necessary action on the part of such Stockholder. This Agreement
constitutes a valid and binding obligation
14
of such Stockholder, enforceable against such Stockholder in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws of general application affecting the
enforcement of creditors' rights generally.
Section 3.2 Consents and Approvals. Except as set forth on Schedule
---------------------- --------
3.2 hereto, the execution, delivery and performance by such Stockholder of this
---
Agreement and the consummation by such Stockholder of the transactions
contemplated hereby require no action by or in respect of, or any filing with or
notice to, any governmental or regulatory body, agency or official which, if not
obtained or made, will prevent, materially delay or materially burden the
transactions contemplated by this Agreement. Neither the execution, delivery
and performance of this Agreement, nor the consummation of the transactions
contemplated hereby, will (a) if such Stockholder is not an individual, violate,
conflict with or result in a breach of, any provision of the organizational
documents of such Stockholder or (b) result in a default (or give rise to any
right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
franchise, permit, lease, agreement or other instrument to which such
Stockholder is a party, or by which its properties or assets may be bound,
except for such violations, breaches or defaults which would not prevent or
materially delay consummation of the transactions contemplated hereby.
Section 3.3 Capitalization; Ownership. The Company's issued and
-------------------------
outstanding capital stock consists of 8,880,102 shares of Common Stock. All
such shares of Common Stock are duly authorized and issued, are fully paid and
non-assessable, and are owned of record and beneficially by the Stockholders.
Upon delivery of such shares and payment therefor pursuant hereto, good and
valid title to such shares, free and clear of all Encumbrances, will pass to the
Purchaser.
Section 3.4 Affiliate Transactions. Except as disclosed on Schedule
---------------------- --------
3.4, and except for any agreement that will be terminated on or prior to Closing
---
without liability to, or obligation of, the Company or any Subsidiary, neither
the Company nor any Subsidiary is a party to any agreement or transaction with
KSCO or any of its Affiliates or to any other material agreement or material
transaction with any Stockholder or any other Affiliate of any Stockholder
(other than any Subsidiary).
Section 3.5 Brokers. Except for fees payable by the Company to
-------
Xxxxxxx, Xxxxx & Co., no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Company. The Stockholders shall pay all payments to Xxxxxxx,
Sachs & Co. owed by the Company or any Subsidiary in connection with the
transactions contemplated hereby and such agreement with Xxxxxxx, Xxxxx & Co.
shall be terminated concurrent with the Closing.
15
Section 3.6 Employment Arrangements. Except for the employment
-----------------------
Contracts listed on Schedule 2.12 and Plans listed on Schedule 2.9, neither the
------------- ------------
Company nor any Subsidiary is a party to any employment agreement or arrangement
with any employee, including, without limitation, any agreement or arrangement
providing for payments (including, without limitation, any severance payments)
by the Company or any Subsidiary to any employee, other than any such agreement
or arrangement that terminates effective as of the Closing.
Section 3.7 Representations and Warranties of the Company. The sale
---------------------------------------------
of the Common Stock by such Stockholder pursuant to this Agreement is not
prompted by any material and adverse information concerning the Company or any
Subsidiary that has not been disclosed in this Agreement or the financial
statements referred to in Section 2.3. Such Stockholder is aware of no
representation or warranty made by the Company in this Agreement which is not
true and complete in all material respects.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company and each
Stockholder as follows:
Section 4.1 Organization and Qualification. The Purchaser is a
------------------------------
corporation duly formed, validly existing and in good standing under the laws of
the State of Delaware. The Purchaser has the requisite corporate power to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. The Purchaser is duly qualified as a foreign corporation
in good standing in each jurisdiction in which the conduct of its business
requires such qualification, except where the failure to be so qualified would
not prevent or materially delay consummation of the transactions contemplated
hereby.
Section 4.2 Authorization. The execution, delivery and performance
-------------
by the Purchaser of this Agreement and the transactions contemplated hereby are
within the corporate powers of the Purchaser and have been duly authorized by
all necessary corporate action. This Agreement constitutes a valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws of general application affecting
the enforcement of creditors' rights generally.
Section 4.3 Consents and Approvals. Except as set forth on Schedule
---------------------- --------
4.3 hereto, the execution, delivery and performance by the Purchaser of this
---
Agreement and the consummation of the transactions contemplated hereby require
no action by or in respect
16
of, or any filing with or notice to, any governmental or regulatory body, agency
or official which, if not obtained or made, will prevent, materially delay or
materially burden the transactions contemplated by this Agreement. Neither the
execution, delivery and performance by the Purchaser of this Agreement, nor the
consummation by the Purchaser of the transactions contemplated hereby, will (a)
violate, conflict with, or result in a breach of, any provision of the charter
or bylaws of the Purchaser or (b) result in a default (or give rise to any right
of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
franchise, permit, lease, agreement or other instrument or obligation to which
the Purchaser is a party, or by which its properties or assets may be bound,
except for such violations, breaches or defaults which would not prevent or
materially delay consummation of the transactions contemplated hereby.
Section 4.4 Financing. The Purchaser currently has sufficient funds
---------
on hand, or has sufficient borrowing availability or commitments from
responsible financial institutions (copies of which have previously been
furnished to the Company by the Purchaser), to enable the Purchaser to finance
the consummation of the transactions contemplated hereby and to pay related fees
and expenses.
Section 4.5 Litigation. There are no claims, actions, suits,
----------
approvals, investigations, informal objections, complaints or proceedings
pending against the Purchaser before any court, arbitrator, or administrative,
governmental or regulatory authority or body, nor is the Purchaser subject to
any order, judgment, writ, injunction or decree, except in either case for
matters which will not prevent, materially delay or materially burden the
transactions contemplated hereby.
Section 4.6 Brokers. No broker, finder or investment banker is
-------
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated hereby based upon arrangements made by or on
behalf of the Purchaser.
ARTICLE V
COVENANTS
Section 5.1 Conduct of Business. Except as contemplated by this
-------------------
Agreement or otherwise consented to in writing by the Purchaser, during the
period from the date of this Agreement to the Closing Date, the Company shall,
and shall cause each of the Subsidiaries to conduct their business in the
ordinary course of business of the Company and the Subsidiaries consistent with
past practice (including, without limitation by (a) preserving its present
business organization and relationships, (b) keeping available the present
services of its employees, and (c) preserving the rights, franchises, goodwill
and relations of its
17
customers and others with whom business relationships exist (including
licensors, suppliers, distributors, and clients), all as may be required to
carry on the business in the ordinary course of the Company and the Subsidiaries
consistent with past practice), and the Company will not, and will not permit
any of the Subsidiaries to, intentionally take any actions that could reasonably
be expected to have a Material Adverse Effect. Without limiting the generality
of the foregoing, and except as otherwise expressly provided in this Agreement,
prior to the Closing Date, the Company will not, and will not permit any of the
Subsidiaries to, without the prior written consent of the Purchaser:
(i) sell, pledge, dispose of or encumber its assets, except for
sales of inventory and sales of obsolete assets and assets concurrently
replaced with similar assets, in each case in the ordinary course of its
business;
(ii) except as otherwise required by law or by any existing
plan, arrangement or agreement, materially increase the compensation or
benefits payable to any employee of the Company or any of its
Subsidiaries or enter into, adopt, amend or terminate any employee
benefit plan or any material employment agreement;
(iii) declare or make any dividends or other distributions on
the Common Stock, or repurchase or otherwise reacquire for value any
shares of Common Stock;
(iv) issue any shares of capital stock, or any warrants, options
or other rights to purchase or acquire any capital stock, other than the
issuance of Common Stock upon the exercise of Options;
(v) incur any indebtedness for borrowed money other than
borrowings for working capital purposes under existing credit facilities
in the ordinary course of business;
(vi) amend any Tax Return, change any method of Tax accounting,
make any elections that have any effect on any Tax Return, file for or
make any refund claims relating to any Tax or any Tax Return or settle
any issues arising in any Tax audit or contest.
(vii) enter into any material Contract (including without
limitation any arrangement with any governmental body) or any amendment,
cancellation or termination of any material Contract, including without
limitation any Contract with any governmental body or agency, or take
any action impairing its rights under any material Contract or take, or
fail to take, any action that constitutes a material breach or default
under any material Contract;
18
(viii) amend or propose to amend the charter or bylaws of the Company or
any Subsidiary; or
(ix) agree to do any of the foregoing.
The Company represents and warrants that, since August 31, 1997, (x)
the Company and the Subsidiaries have conducted their business in the ordinary
course of business of the Company and the Subsidiaries consistent with past
practice, and (y) without limiting the generality of the foregoing, neither the
Company nor any Subsidiary has taken any action that could reasonably be
expected to have a Material Adverse Effect or otherwise done anything described
in the foregoing clauses (i) through (ix) except as may be disclosed in the
Schedules to this Agreement.
Section 5.2 Filings. Each of the Company, the Stockholders and the
-------
Purchaser shall exercise reasonable best efforts to take or cause to be taken
all actions, and to do or cause to be done all things necessary, proper or
advisable under applicable laws to consummate and make effective, as soon as
reasonably practicable, the transactions contemplated hereby. Without limiting
the generality of the foregoing, each of the Company, the Stockholders and the
Purchaser (a) shall make all required filings with or applications to
governmental bodies and other regulatory authorities set forth on Schedules 5.2
-------------
and 2.5 hereto no later than five business days after the execution of this
-------
Agreement, and (b) shall exercise reasonable best efforts to (x) obtain all
necessary waivers, consents and approvals from other parties to Material
Contracts as identified by the Purchaser and set forth on Schedules 5.2 and 2.5
---------------------
and to oppose, lift or rescind any injunction or restraining order or other
order adversely affecting the ability of the parties to consummate the
transactions contemplated hereby, and (y) otherwise fulfill all conditions to
this Agreement.
Section 5.3 Confidentiality; Access to Information. That certain
--------------------------------------
letter agreement between the Purchaser and Xxxxxxx, Xxxxx & Co. on behalf of
Xxxxxxx (the "Confidentiality Agreement") with respect to, among other things,
confidential treatment of information provided by the Company and its
representatives to the Purchaser and its representatives shall remain in full
force and effect and shall survive the execution and delivery of this Agreement
and the termination of this Agreement for any reason whatsoever. Subject to the
terms of the Confidentiality Agreement, from the date hereof to the Closing
Date, the Company shall, and shall cause its officers, directors, employees and
agents to, afford the directors, officers, employees, agents, representatives
and advisors of the Purchaser complete access at all reasonable times to its
officers, employees, agents, properties, books, records and contracts, and shall
furnish the Purchaser all financial, operating, tax and other data and
information relating to the Company and the Subsidiaries as the Purchaser may
reasonably request; provided that after the execution of this Agreement, the
Purchaser shall not be entitled to conduct soil or groundwater sampling and
testing of the facilities and properties of the Company or any Subsidiary;
provided further that no documents that have been
19
provided to the Purchaser on or prior to October 13, 1997 shall serve as a basis
for asserting at any time after October 31, 1997 that there has been a breach of
any representation or warranty under Section 2.14.
Section 5.4 Public Announcements. The Company and the Purchaser
--------------------
shall consult with each other before issuing any press release or otherwise
making any public statements with respect to this Agreement or the transactions
contemplated hereby and shall not issue any such press release or make any such
public statement prior to such consultation, except as may be required by law.
Section 5.5 Xxxx-Xxxxx-Xxxxxx. The Purchaser shall pay and be
-----------------
solely responsible for the applicable filing fee under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended and the regulations promulgated
thereunder (the "HSR Act"), with respect to the transaction contemplated hereby.
The Purchaser and the Company shall file, upon the execution of this Agreement,
the notice required by the HSR Act and shall request early termination of the
applicable waiting periods thereunder and shall use its reasonable best efforts
to cause such waiting period to expire or be terminated on or before the date
which is one month after the date hereof.
Section 5.6 Existing Indebtedness. The Stockholders shall cause the
---------------------
Company to, and the Company shall use its reasonable best efforts to, concurrent
with the Closing, (x) terminate all agreements or instruments governing the
Indebtedness and (y) repay and satisfy and discharge all obligations thereunder.
"Indebtedness" shall mean (i) all outstanding indebtedness, as of the Closing
Date, under that certain Amended and Restated Credit Agreement among the
Company, Xxxxxxx, PCI Group, Inc., Xxx Fastener Company, L.L.C., Bank Indosuez,
and the various Banks party thereto, dated as of January 24, 1996, as amended
("Credit Facility"), (ii) that certain Master Lease Agreement by and between
General Electric Capital Corporation and Xxxxxxx dated November 7, 1996 ("GECC
Agreement"), (iii) unless the Purchaser notifies the Company otherwise in
writing by October 31, 1997, all outstanding indebtedness as of the Closing Date
under that certain Credit Facility between Unifast-Xxxxxxx, X.X. and Credit
General dated March 8, 1996 (as amended September 9, 1996 and June 9, 1997)
("Credit General Agreement"), (iv) unless the Purchaser notifies the Company
otherwise in writing by October 31, 1997, all outstanding indebtedness as of the
Closing Date under those certain credit facilities between Unifast-Xxxxxxx, X.X.
and Invest Borinage-Centre and S.A. I.M.B.C. Objectif No. 1, each dated April
12, 1996, (v) unless the Purchaser notifies the Company otherwise in writing by
October 31, 1997, all other indebtedness for borrowed money or evidenced by
notes, bonds or other instruments of the Company or any Subsidiary (other than
indebtedness incurred in the ordinary course of business to purchase office
equipment and vehicles of the Company and its Subsidiaries secured by purchase
money security interests as disclosed on Schedule 2.13), (vi) the fees and
-------------
expenses of Xxxxxxx, Sachs & Co. payable by the Company or any Subsidiary in
connection with the transactions contemplated hereby, and
20
(vii) the fees and expenses of the Company (including, without limitation, fees
and expenses of its counsel and of KSCO II Acquisition Company, L.P. and KSCO
Acquisition Company, L.P. (together, "KSCO")) in connection with the
----
transactions contemplated hereby.
Section 5.7 Notification of Certain Matters. The Company and the
-------------------------------
Stockholders shall give prompt written notice to the Purchaser of (i) the
occurrence, or failure to occur, of any event or existence of any condition that
has caused or could reasonably be expected to cause any representation or
warranty of the Company or any Stockholder contained in this Agreement to be
untrue or inaccurate in any material respect at any time after the date of this
Agreement, up to and including the Closing Date, and (ii) any failure of the
Company or any Stockholder to comply with or satisfy, in any respect, any
material covenant, condition or agreement to be complied with or satisfied under
this Agreement. Such notice shall not affect Section 6.2.1.
Section 5.8 Parachute Payments. The Company and the Stockholders
------------------
shall take all action necessary in order that no payment or distribution made,
or benefit provided (including, without limitation, the acceleration of any
payment, distribution or benefit and the acceleration of exercisability of any
stock option), by the Company or any Subsidiary to or for the benefit of any
employee would constitute an "excess parachute payment" under (S) 280G of the
Code.
Section 5.9 Shareholders Agreement. The Company and the Stockholders
----------------------
agree that the Shareholders Agreement dated October 17, 1995 among the Company
and its stockholders shall be terminated effective as of the Closing, with no
obligation or payment to the Company or any Subsidiary.
Section 5.10 Financial Statements. The Company shall cause its
--------------------
independent auditors to promptly deliver to the Purchaser the following
financial statements of the Company and its Subsidiaries to be included in the
offering memorandum relating to the offering of securities (the "144A Offering")
to finance the purchase of the Common Stock and related transactions: (i)
consolidated statements of operations for the three years ended December 31,
1996 and consolidated balance sheets at December 31, 1996 and 1995, all
accompanied by a report of independent auditors (without qualification or
exception as to scope), (ii) consolidated statements of operations for the nine
months ended September 30, 1997 and 1996 and consolidated balance sheet at
September 30, 1997, (iii) pro forma consolidated statements of operations for
the year ended December 31, 1996 and the nine months ended September 30, 1997
and pro forma consolidated balance sheet at September 30, 1997 and (iv) to the
extent they would be required under Regulation S-X ("Regulation S-X") under the
Securities Act of 1933, as amended (the "Securities Act") in an offering of
securities registered under the Securities Act, financial statements of each
business acquired by the Company or any Subsidiary, accompanied by a report of
independent auditors, each of the items under clauses (i) through (iv) which
shall (x) be prepared in compliance with
21
U.S. generally accepted accounting principles consistently applied and (y)
comply with Regulation S-X as it applies to offerings of securities registered
under the Securities Act. The Company shall cause its independent auditors to
deliver, at the time of the 144A Offering, a "comfort letter" to the initial
purchasers in the 144A Offering in customary form for similar offerings,
including customary language as to SAS 71 review of the financial statements
referred to in clause (ii).
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1 Conditions to Each Party's Obligation. The respective
-------------------------------------
obligations of each party to effect the transactions contemplated hereby are
subject to the satisfaction or waiver prior to the Closing Date of the following
conditions:
6.1.1 No Legal Prohibition. No statute, rule, regulation or
--------------------
order shall be enacted, promulgated, entered or enforced by any court or
governmental authority which would prohibit consummation by such party of the
transactions contemplated hereby.
6.1.2 No Injunction. Such party shall not be prohibited by any
-------------
order, ruling, consent, decree, judgment or injunction of a court or regulatory
agency of competent jurisdiction from consummating the transactions contemplated
hereby.
6.1.3 Xxxx-Xxxxx-Xxxxxx. The applicable waiting
-----------------
period under the HSR Act shall have expired or been terminated.
Section 6.2 Conditions to Obligation of the Purchaser. The
-----------------------------------------
obligation of the Purchaser to effect the transactions contemplated hereby shall
be subject to the satisfaction or waiver, prior to or at the Closing, of the
following conditions:
6.2.1 Representations and Covenants. Except as expressly
-----------------------------
contemplated by this Agreement, the representations and warranties of the
Company and each Stockholder contained in this Agreement shall be true and
correct on and as of the Closing Date with the same force and effect as though
made on and as of the Closing Date, except for such breaches of representations
and warranties as, individually or in the aggregate, do not have a Material
Adverse Effect. The Company and each Stockholder shall have performed and
complied in all material respects with all covenants and agreements required by
this Agreement to be performed or complied with by it on or prior to the Closing
Date.
22
6.2.2 Approvals. All governmental and third-party approvals,
---------
consents, permits or waivers set forth on Schedules 2.5 and 5.2 shall have been
---------------------
obtained in form and substance reasonably satisfactory to the Purchaser.
6.2.3 Kohlberg Agreements. All agreements of the Company or any
-------------------
Subsidiary with KSCO or any of their Affiliates shall have been canceled, or
shall be canceled effective as of the Closing, with no payment or cost of any
nature to the Company, any Subsidiary or the Purchaser.
6.2.4 Existing Indebtedness. Concurrent with the Closing, all of the
---------------------
Indebtedness (other than any Purchaser Specified Indebtedness) shall have been
terminated and all obligations with respect thereto satisfied, subject to the
payment of the Purchase Price at the Closing Date as directed by the
Stockholders in writing.
6.2.5 Non-foreign Status. Each of the Stockholders shall deliver to
------------------
the Purchaser an affidavit of non-foreign status in the form required by (S)
1445 of the Code and the Treasury regulations promulgated thereunder, signed
under penalty of perjury.
6.2.6 Opinion. Hunton & Xxxxxxxx (as to the Company and Xxxxxxx),
-------
Xxxxx & Xxxxxxx L.L.P. (as to Unifast-Xxxxxxx, X.X.) and Xxxxxxxxxx Xxxxxxxx
Xxxxx Xxxxxx (as to 158856 Canada, Inc., aka Xxxxxxx Canada Inc.) shall have
delivered an opinion substantially in the form of Exhibit A.
---------
6.2.7 Officer's Certificate. The Chief Executive Officer and the
---------------------
Chief Financial Officer of the Company shall have delivered a certificate
substantially in the form of Exhibit B.
---------
6.2.8 Secretary's Certificate. The Secretary of the Company and the
-----------------------
Secretary of KSCO shall have delivered a certificate substantially in the form
of Exhibit C.
---------
Section 6.3 Conditions to Obligation of the Company. The obligation
---------------------------------------
of the Company to effect the transactions contemplated hereby shall be subject
to the satisfaction or waiver, prior to or at the Closing, of the following
conditions:
6.3.1 Representations and Covenants. Except as expressly contemplated
-----------------------------
by this Agreement, the representations and warranties of the Purchaser contained
in this Agreement shall be true and correct in all material respects on and as
of the Closing Date with the same force and effect as though made on and as of
the Closing Date. The Purchaser shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by the Purchaser on or prior to the Closing
Date.
23
6.3.2 Approvals. All governmental and third-party approvals,
---------
consents, permits or waivers set forth on Schedule 5.2 shall have been obtained
------------
in form and substance reasonably satisfactory to the Company.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated at any time
-----------
prior to the Closing:
7.1.1 By mutual written consent of the Purchaser, the Company
and KSCO.
7.1.2 In writing by the Company and KSCO:
(i) if the Closing Date shall not have occurred on or before
November 26, 1997, or such later date on which the applicable waiting
period under the HSR Act shall have expired or been terminated (provided
such later date is on or before December 1, 1997), other than as a
result of a material breach by the Company or the Stockholders of their
representations, warranties or other obligations hereunder, provided,
that if the Closing Date shall not have occurred due to a material
breach by the Company or the Stockholders, Purchaser shall have provided
written notice of such breach to the Company within 2 business days of
such breach and shall, within 10 business days of such breach, either
terminate this Agreement or consummate the transactions contemplated
herein; or
(ii) if, prior to the Closing Date, the Purchaser fails to
perform in any material respect any of its obligations under this
Agreement or the Purchaser has breached in any material respect any of
its representations or warranties, and such failure or breach has not
been cured within 15 days after receipt of written notice of such
failure or breach from the Company.
7.1.3 In writing by the Purchaser:
(i) if the Closing Date shall not have occurred on or before
November 26, 1997, or such later date on which the applicable waiting
period under the HSR Act shall have expired or been terminated (provided
such later date is on or before December 1, 1997), other than as a
result of a material breach by the Purchaser of its representations,
warranties or other obligations hereunder, provided, that if the Closing
Date shall not have occurred due to a material breach by the Purchaser,
Company or the Stockholders shall have provided written notice of such
breach to
24
the Purchaser within 2 business days of such breach and shall, within 10
business days of such breach, either terminate this Agreement or
consummate the transactions contemplated herein; or
(ii) if, prior to the Closing Date, the Company or any
Stockholder fails to perform in any material respect any of their
obligations under this Agreement or the Company or any Stockholder has
breached in any material respect any of their representations or
warranties, and such failure or breach has not been cured within 15 days
after receipt of written notice of such failure or breach from the
Purchaser.
Section 7.2 Effect of Termination. In the event of termination of
---------------------
this Agreement by the Purchaser or the Company and KSCO as provided in Section
7.1 hereof, all obligations of the parties under this Agreement shall terminate
without liability of any party to any other party, except (i) that the
obligations set forth in Section 8.11 of this Agreement and in the
Confidentiality Agreement shall survive any such termination and (ii) for
liability for any intentional breach of this Agreement.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1 Rules of Construction.
---------------------
8.1.1 Material Adverse Effect. For purposes of this Agreement,
-----------------------
a "Material Adverse Effect" shall mean a material adverse effect on the
operations or financial condition of the Company and the Subsidiaries, taken as
a whole, or on the Company's and the Stockholders' ability to consummate the
transactions contemplated by this Agreement.
8.1.2 Knowledge. Where a representation or warranty is stated
---------
based on the knowledge of the Company, such phrase shall refer to the actual
knowledge of Xxxxxxx X. Xxxxxxx, Xx., Xxxxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxxx X.
Xxxxxx, Xxxx X. Xxxxxxxxx, and Xxxxxx X. Xxxxx.
8.1.3 Schedules. Any matter disclosed on any of the schedules
---------
attached hereto for any purpose of this Agreement shall be deemed to be
disclosed on each of the schedules regardless of whether such disclosure is
actually set forth.
8.1.4 Headings. The headings contained in this Agreement are
--------
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
25
8.1.5 Severability. If any provision of this Agreement, or the
------------
application thereof to any person, place or circumstance, shall be held by a
court of competent jurisdiction to be illegal, invalid, unenforceable or void,
then such provision shall be enforced to the extent that it is not illegal,
invalid, unenforceable or void, and the remainder of this Agreement, as well as
such provision as applied to other persons, places or circumstances, shall
remain in full force and effect.
Section 8.2 Survival. The representations and the warranties
--------
of the Company shall not survive the Closing. All other representations and
warranties shall survive.
Section 8.3 Notices. All notices, demands, or other
-------
communications to be given or delivered under or by reason of the provisions
of this Agreement will be in writing and shall be deemed to have been duly given
or delivered when (i) delivered personally, (ii) sent by telephone facsimile
transmission or (iii) sent via a nationally recognized overnight courier to the
recipient for next business day delivery. Such notices, demands and other
communications will be sent to the address indicated below:
(i) If to the Company or any Stockholder:
c/x Xxxxxxx Fasteners Inc.
Highway 000 Xxxxx/000 Xxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
with copies to:
Kohlberg & Company
000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
and
Xxxxxx & Xxxxxxxx
XxxxxxxXxxx Xxxxx - Xxxxx 0000
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000-0000
Attention: X. X. Xxxxxx, Esq.
Fax: (000) 000-0000
26
(ii) If to the Purchaser:
c/o Saratoga Partners III, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Fax: (000) 000-0000
or to such other address as any party may specify by notice given to the other
party in accordance with this Section 8.3. The date of giving any such notice
shall be (i) the date of hand delivery, (ii) the date sent by telephone
facsimile if a business day or the first business day thereafter or (iii) the
business day after delivery to the overnight courier service.
Section 8.4 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
Section 8.5 Entire Agreement. This Agreement (including attached
----------------
exhibits and schedules) and the Confidentiality Agreement constitute the entire
agreement among the parties with respect to the subject matter of this Agreement
and supersede any prior agreement or understanding, whether written and oral,
among the parties or between any of them with respect to the subject matter of
this Agreement. There are no representations, warranties, covenants, promises
or undertakings, other than those expressly set forth or referred to herein.
Section 8.6 Amendment; Waiver. This Agreement may be amended,
-----------------
modified or waived only by a written agreement signed by the Purchaser, the
Company and KSCO. With regard to any power, remedy or right provided in this
Agreement or otherwise available to any party, (iii) no waiver or extension of
time shall be effective unless expressly contained in a writing signed by the
waiving party, (iv) no alteration, modification or
27
impairment shall be implied by reason of any previous waiver, extension of time,
delay or omission in exercise or other indulgence, and (v) waiver by any party
of the time for performance of any act or condition hereunder does not
constitute a waiver of the act or condition itself.
Section 8.7 Assignability. Neither the rights nor the obligations of
-------------
any party to this Agreement may be transferred or assigned. Any purported
assignment of this Agreement or any of the rights and obligations hereunder
shall be null, void and of no effect.
Section 8.8 Binding Effect. This Agreement shall be binding upon and
--------------
shall inure to the benefit of the parties and their respective successors and,
if applicable, permitted assigns.
Section 8.9 Third-Party Beneficiaries. Each party intends that this
-------------------------
Agreement shall not benefit or create any right or cause of action in any person
other than the parties hereto.
Section 8.10 Counterparts. This Agreement may be executed in one or
------------
more counterparts, each of which shall constitute an original but when taken
together shall constitute but one instrument.
Section 8.11 Expenses. Each party to this Agreement shall bear all
--------
of its own expenses in connection with the execution, delivery and performance
of this Agreement and the transactions contemplated hereby, including without
limitation all fees and expenses of its agents, representatives, counsel and
accountants.
Section 8.12 Certain Taxes. All transfer, documentary, sales, use,
-------------
stamp, registration and other such Taxes and fees (including any penalties and
interest) incurred in connection with this Agreement (including any New York
City Transfer Tax and any similar tax imposed in other states, subdivisions or
under foreign law) shall be paid by the Stockholders when due, and Stockholders
will, at their own expense, file all necessary Tax Returns and other
documentation with respect to such transfer, documentary, sales, use, stamp,
registration and other Taxes and fees, and if required by applicable law,
Purchaser will, and will cause its affiliates to, join in the execution of any
such Tax Returns and other documentation.
Section 8.13 Judicial Proceedings. ANY JUDICIAL PROCEEDING INVOLVING
--------------------
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (EACH, A "DISPUTE") SHALL BE BROUGHT
ONLY IN A FEDERAL OR STATE COURT LOCATED IN THE STATE OF NEW YORK, THE CITY OF
NEW YORK, BOROUGH OF MANHATTAN, AND EACH OF THE PARTIES HERETO
28
(I) UNCONDITIONALLY ACCEPTS THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY
RELATED APPELLATE COURT AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY AND (II) IRREVOCABLY WAIVES ANY OBJECTION SUCH PARTY MAY NOW
HAVE OR HEREAFTER HAS AS TO THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN
SECTION 8.3 HEREOF. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING A DISPUTE.
* * * *
[Signatures commence on following page]
29
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date first written above.
KSCO ACQUISITION CORPORATION
By: _______________________________________
Name: _________________________
Title: ________________________
SLF CORPORATION
By: ______________________________________
Name: _________________________
Title: ________________________
KSCO ACQUISITION COMPANY, L.P.
By: _______________________________________
Name: _________________________
Title: ________________________
KSCO II ACQUISITION COMPANY, L.P.
By: _______________________________________
Name: _________________________
Title: ________________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
30
________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxx X. Xxxxxxx
_________________________________________
Xxxxxx X. Xxxxx
_________________________________________
Xxxxxx X. Xxxxx
_________________________________________
Xxxxxxx X. Xxxxxx
_________________________________________
Xxxx X. Xxxxxxxxx
31
SCHEDULES TO
STOCK PURCHASE AGREEMENT
Note: The disclosures contained herein shall not be deemed to establish
materiality standards as may be provided in the Stock Purchase Agreement.
SCHEDULE A
----------
STOCKHOLDERS AND OPTIONHOLDERS
SHARES OF NUMBER
COMMON OF
NAME OF STOCKHOLDER/OPTIONHOLDER STOCK OPTIONS
----------------------------------- --------- -------
KSCO Acquisition Company, L.P. 7,800,000
KSCO II Acquisition Company, L.P. 1,010,102
Xxxxxxx X. Xxxxxxx 40,000 161,500
Xxxxx X. Xxxxxxx 10,000 242,325
Xxxxxxx X. Xxxxxx 161,500
Xxxx X. Xxxxxxxxx 80,775
Xxxxxx X. Xxxxx 10,000 161,500
Xxxxxx X. Xxxxx 10,000 161,500
SCHEDULE 2.1
LIST OF SUBSIDIARIES
--------------------
SUBSIDIARY PARENT
---------- ------
Xxxxxxx Fasteners Inc. KSCO Acquisition Corporation
PCI Group, Inc. Xxxxxxx Fasteners Inc.
Xxx Fastener Company, L.L.C. Xxxxxxx Fasteners Inc.
Scomex, Inc. Xxxxxxx Fasteners Inc.
Xxxxxxx Puerto Rico, Inc. Xxxxxxx Fasteners Inc.
Unifast-Xxxxxxx X.X. Xxxxxxx Fasteners Inc.
158856 Canada Inc./1/ Xxx Fastener Company, L.L.C.
Xxxxx X.X. Unifast-Xxxxxxx X.X.
Xxxxxxx Fasteners, S.A. de C.V. Scomex, Inc.
Xxxxxxx Fasteners Mexico, S.A. de C.V./2/ Xxxxxxx Fasteners Inc.
/1/ Currently in process of changing legal name of this subsidiary to Xxxxxxx
Canada Inc. Effective January 3, 1997, Xxx Fastener (Canada) Inc. and 2859-
1980 Quebec Inc. (f/k/a Xxxxxxx Canada Inc.) were liquidated into 158856
Canada Inc. Xxx Fastener (Canada) Inc. was legally dissolved, effective
September 23, 1997. 0000-0000 Xxxxxx Inc. currently has no assets or
liabilities and is in the process of being legally dissolved.
/2/ This is a subsidiary of Xxxxxxx Fasteners Inc. which currently has no assets
or liabilities and is in the process of being legally dissolved.
SCHEDULE 2.4
Outstanding Capital Stock of Subsidiaries
-----------------------------------------
Xxxxxxx Fasteners Inc. Authorized: 1,000 Shares of common stock, $.01 par value.
20,000 Shares of preferred stock, $.01 par value.
Issued: 100 Shares of common stock
PCI Group, Inc. Authorized 20,000 Shares of common stock, $.01 par value.
Issued: 6,000 Shares
Xxx Fastener
Company, L.L.C. The membership interests in Xxx Fastener Company,
L.L.C. are held solely by Xxxxxxx Fasteners Inc.
Scomex, Inc. Authorized: 10,000 Shares of common stock, $.01 par value.
Issued: 1 Share
Xxxxxxx Puerto Rico, Inc. Authorized: 20,000 Shares of common stock, no par value.
Issued: 5,068 Shares
Unifast-Xxxxxxx X.X. Authorized: 100,108 Shares of common stock BEF 1,000 par value
Issued: 50,108 Shares/1/
000000 Xxxxxx Inc. Authorized: An unlimited number of seven (7) classes of stock
Issued: Class B - 2,611,736 Shares issued to Xxx Fastener Company, L.L.C.
Class B - 10 Shares, issued to Xxxxxxx Fasteners Inc.
Class C - 2,000 Shares, issued to Xxx Fastener Company, L.L.C.
Class D - 303,922 Shares, issued to Xxx Fastener Company, L.L.C.
Class E - 11,754 Shares, issued to Xxx Fastener Company, L.L.C.
---------------
/1/ 10 Shares held by Xxxxx Xxxxxx, Managing Director and President of the Board
of Directors of Unifast-Xxxxxxx X.X.
Xxxxx X.X. Authorized: 2,500 Shares of common stock, 100 FF par value
Issued: 2,500 Shares
Xxxxxxx Fasteners, Authorized: 100,000 Shares of common stock, one peso par value
S.A. de C.V. Issued: 100,000 Shares/1/
---------------
/1/ One share held by Xxxxx Xxxxxxx, President of Xxxxxxx Fasteners, S.A. de
C.V.
SCHEDULE 2.5
Company Consents and Approvals
------------------------------
1. Expiration or early Termination of the applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the
regulations promulgated thereunder.
2. Consent of Banque Indosuez and the other Banks as required under that
certain Amended and Restated Credit Agreement among the Company, Xxxxxxx
Fasteners Inc., PCI Group, Inc., Xxx Fastener Company, L.L.C. and the Banks
party thereto, dated as of January 24, 1996, as amended ("Credit
Facility").
3. Consent of General Electric Capital Corporation ("GECC") as required under
that certain Master Lease Agreement dated November 7, 1996 between GECC and
Xxxxxxx Fasteners Inc. to the extent that the Working Capital Facility
under the Credit Facility is terminated and not replaced.
4. Approval by the holders of majority of the Common Stock of the Company is
required under that certain Shareholders Agreement by and among the
Company, KSCO Acquisition Company, L.P. and the stockholders of the
Company, dated October 17, 1995, as amended.
5. Receipt of informal "no objection" letter from Belgian Ministry of Economic
Affairs in connection with the Belgian Law of August 5, 1991 on the
protection of economic competition.
6. A notice filing is required in Puerto Rico to effect an indirect change in
control of Xxxxxxx Puerto Rico, Inc. to the extent that the tax-exemption
certificate held by Xxxxxxx Puerto Rico, Inc. is not surrendered.
7. Leases:
a. Consent is required under that certain Standard Industrial Lease by
and between The Equitable Life Assurance Society of the United States
and Xxxxxxx Fasteners Inc. dated February 5, 1997 (Nashville
Warehouse).
b. Landlord consent required pursuant to Section 21 of that certain Lease
Agreement between Xxxx-America Realty Corporation, as successor to
Century Lake, L.P., as landlord, and Xxxxxxx Fasteners Inc., as
Tenant, dated December 7, 1994 (Duluth, Georgia).
c. Landlord consent required pursuant to Article XIII of that certain
Lease between 1913 Realty Associates, as landlord, and Xxxxxxx
Fasteners Inc., as tenant, dated July 11, 1990 (Clifton, NJ).
8. Other Material Agreements:
a. An Assignment and Assumption Agreement with Saltire Industrial
Corporation ("Saltire") and First City Diversified Inc. ("First City
Diversified") is required to assign the obligations of Saltire and
First City Diversified under that certain Stock Purchase Agreement
among the Company, Saltire and First City Diversified dated September
25, 1995, to the extent that such obligations are to be assigned to
Purchaser.
9. ERISA/Employee Benefit Plans - the transactions contemplated by this
Agreement may give rise to one or more reportable events, requiring notice
to the Pension Benefit Guaranty Corporation.
See also Schedule 2.14.
-------------
SCHEDULE 2.6
Litigation
----------
1. See attached with regard to Ideal Fastener litigation.
2. Workers Compensation: Fashion Development Center Inc. employee Xxxxxxxx
Xxxxxxxx allegedly injured by Company equipment. Claim made February 27,
1997 by ITT Hartford as insurer of Fashion Development Center. Status:
Investigation is ongoing by Xxxxxxx Fasteners Inc.'s insurance adjuster
concerning the Company's exposure.
3. Personal Injury: Claim filed against Xxxxxxx Fasteners Inc. and its
employee in suit styled Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx vs. The
----------------------------------------------
Metropolitan Government of Nashville Davidson County and Xxxx Xxxxxx and
------------------------------------------------------------------------
Xxxxxx Xxxxxx Xx. Complaint No. 97C126 in Circuit Court of Davidson County,
--------------------------------------
Tennessee.
Xxxxxxx is insured and is represented by insurer's counsel in this matter.
Xxxxxxx has filed a complaint in connection with same matter, which has
been consolidated with the original personal injury action. Discovery is
ongoing.
4. Personal Injury: Claim filed against Xxxxxxx Fasteners Inc.'s employee in
action styled Xxxxxx X. Xxxxxx vs. Xxxxxxxxxxx X. Xxxxxxx, National Car
---------------------------------------------------------
Rental, in Superior Court of Gwinnett County, GA. Answer has been filed by
------
counsel selected by Xxxxxxx'x insurer.
See also Schedule 2.14.
-------------
M E M O R A N D U M
TO: File DATE: September 3, 1997
FROM: Xxxxx X. Xxxxx FILE: 50558.000013
XXXXXXX FASTENERS INC. V. IDEAL FASTENER CORP. -- LITIGATION SUMMARY
--------------------------------------------------------------------
In February 1996, Xxxxxxx Fasteners Inc. ("Xxxxxxx"), sold its Zipper
Division to Ideal Fastener Corp. ("Ideal"), a Delaware corporation with its
principal place of business in Oxford, North Carolina. The contract by which
the parties consummated this sale is styled the "Asset Acquisition Agreement".
Under the terms of the Agreement, Ideal purchased Xxxxxxx'x entire zipper
operation, including plant equipment, field equipment (equipment owned by
Xxxxxxx but leased to its customers and located at the customers' places of
business), inventory (including raw materials, work-in-process, and finished
goods), contracts, permits and licenses, goodwill, and other tangible and
intangible assets. Ideal paid for the Division by making a $200,000 cash
payment and executing a Note and Security Agreement in Xxxxxxx'x favor in the
amount of $1,674,512. Per the Agreement, the parties adjusted the amount of the
Note in April 1996 to account for changes and conversion of inventory during the
transition period. The adjusted amount of the Note was approximately
$1,450,000. The interest rate on the Note is 4%. Hunton and Xxxxxxxx partner
J. Xxxxxxx Xxxxxxx and associate Xxxxx X. Xxxxxx served as counsel for Xxxxxxx
for the initial deal, but were not involved with the subsequent adjustment.
The installment payments due under the Note are tied to specific assets
transferred under the Asset Acquisition Agreement. For example, there is a
series of monthly installments expressly marked as payment for the field
equipment; there are also two series of quarterly installments expressly marked
as payment for different types of inventory. These various series of payments
have run concurrently from the date of the Agreement. The final payment is due
in February 1999.
Since April 1996, Ideal has failed to make several payments when due, or
has made only partial payments, based on Ideal's assertions that it did not
receive certain items or quantities of the equipment and inventory that it
purchased under the Asset Acquisition Agreement. On April 2, 1997, Hunton and
Xxxxxxxx partner Xxxxxxxx X. Xxxxxxx XX sent a letter to Ideal demanding payment
of all past due amounts and informing Ideal of Xxxxxxx'x intent to accelerate
the Note payments and to initiate litigation if Ideal did not cure the default.
At that time, the total default was $299,633.00. Ideal refused to make the
requested payment.
On April 21, 1997, Xxxxxxx filed a Complaint against Ideal in the Superior
Court of Habersham County, Georgia. In the Complaint, Xxxxxxx stated one cause
of action for breach of the Note and prayed for damages in the amount of at
least $776,044.00, which is the accelerated amount due under the Note. Ideal
served its Answer and Counterclaim on June 16, 1997. In its Counterclaim, Ideal
alleged that Xxxxxxx breached the Asset Acquisition Agreement by failing to
deliver all of the assets purchased and prayed for a set-off of the amount due
under the Note in
the amount of at least $445,000.00. At this time, the parties are engaged in
discovery. The discovery period must end no later than December 16, 1997.
2
SCHEDULE 2.7
Compliance with Laws
--------------------
See Schedule 2.14.
-------------
SCHEDULE 2.8
Tax Matters
-----------
2.8(b)
------
The following tax returns which were filed after the due date;
. Xxx Fastener (Canada) Inc. for the tax year ended January 23, 1996.
. 000000 Xxxxxx Inc. for the tax year ended January 23, 1996.
. Xxx Fastener Company, LLC for the year ended January 27, 1996.
PCI Group, Inc. has been notified by the Internal Revenue Service of an
impending federal income tax return review with respect to its tax year ended
September 30, 1994. Xxxxxxx is not aware of any material misstatements or
liability exposure items and does not expect any material additional tax
liability as a result of this audit.
The Stockholders are obligated pursuant to Section 5.6 of the Agreement to cause
the Company to discharge certain indebtedness, and some of the Purchase Price
may, by way of an actual or deemed contribution to the capital of the Company,
be used to discharge that indebtedness. The following amounts were contributed
to the capital of the Company subsequent to October 5, 1995:
Date on Stock
stock cert. certificate# Shares Shareholder Amount
------------- ------------ --------- --------------------------------- -----------
10/17/95 2 7,200,000 KSCO Acquisition Company, L.P. $18,000,000
10/17/95 3-6 70,000 Various management members 175,000
02/23/96 8 800,000 KSCO II Acquisition Company, L.P. 2,000,000
02/23/96 9 200,000 KSCO II Acquisition Company, L.P. 500,000
02/23/96 10 600,000 KSCO Acquisition Company, L.P. 1,500,000
02/23/96 11 10,102 KSCO II Acquisition Company, L.P. 25,255
-----------
$22,200,255
===========
Pursuant to Section 10.1 of the 1995 Stock Purchase Agreement by and among
Xxxxxxx Fasteners Inc. (the "Buyer"), Xxxx X. Xxxxxxxxxx and Xxxx X. Xxxxxxxxx,
Xx. (the "Sellers"), dated December 20, 1995 (the "PCI Agreement"), for all of
the outstanding stock of PCI Group, Inc.
("PCI"), the Sellers agreed to indemnify the Buyer for all Tax Claims (as
defined in the PCI Agreement) arising out of any breach of any representation or
warranty of the PCI Agreement, subject to certain limits described in Section
10.4 of the PCI Agreement. The Seller initially funded an Escrow Account (as
defined in the PCI Agreement) in the amount of $500,000 to cover indemnification
claims, including Tax Claims, under the PCI Agreement. However, pursuant to a
Settlement Agreement & Release among Buyer and Sellers, dated July 17, 1997 (the
"Settlement Agreement"), Buyer and Sellers agreed to distribute all of the funds
in the Escrow Account in accordance with the terms of such Settlement Agreement.
The indemnification period provided in Section 10.4 of the PCI Agreement for Tax
Claims expires on January 24, 1999.
2.8(j)
------
Xxxxxxx joined in the filing of a consolidated federal income tax return with
Xxxxx Holdings, Inc. prior to the 1995 acquisition by KSCO.
SCHEDULE 2.9
Benefit Plans
-------------
2.9(a)
------
1. Xxxxxxx Fasteners Inc. Management Incentive Plan.
2. Incentive Plan for Service Technicians and Service Managers.
3. Incentive Plan for Salesmen.
4. Incentive Plan for Division, Regional and District Managers.
5. Xxxxxxx Fasteners Inc. Savings and Retirement Plan for Salaried Employees.
6. Xxxxxxx Fasteners Inc. Retirement Plan for Salaried Employees (frozen).
7. Xxxxxxx Fasteners Inc. Hourly Employees Life Insurance.
8. Xxxxxxx Fasteners Inc. Salaried Employees Life/Long Term Disability Plan.
9. Xxxxxxx Fasteners Inc. Vision Care Plan.
10. Xxxxxxx Fasteners Inc. Medical Insurance Plan.
11. Xxxxxxx Fasteners Inc. Dental Insurance Plan.
12. Xxxxxxx Fasteners Inc. Short Term Disability Plan.
13. Xxxxxxx Fasteners Inc. Severance Plan for Bi-Weekly Non-Exempt and Monthly
Exempt Salaried Employees.
14. Other miscellaneous policies as set forth in the Xxxxxxx Fasteners Inc.
Employee Handbook - Hourly.
15. Other miscellaneous policies as set forth in the Xxxxxxx Fasteners Inc.
Employee Handbook - Salaried.
16. Xxxxxxx Fasteners Inc. Substance Abuse Policy.
17. Informal arrangements with respect to the payment of compensation to
certain employees and former employees after their termination of
employment.
18. Xxxxxxx Fasteners Inc. Consulting Agreements with:
a. Xxx Xxxxx dated 4/1/97.
b. Xxxxxxx Xxxxxxxxx dated 7/29/97.
c. Xxxxx Xxxxxxxxxx dated 2/9/96.
d. Xxxxx Xxxxx dated 2/12/96.
19. Xxxxxxx Fasteners Inc. Relocation Policy and Procedure - New Employee.
20. Xxxxxxx Fasteners Inc. Relocation Policy and Procedure - Transferring
Employee.
21. Life Insurance program for Xx. Xxxxx Xxxxxxxxxx.
22. Xxxxxxx Fasteners Inc. Business Travel Accident Plan.
23. Xxxxxxx Voluntary Accidental Death & Dismemberment Plan.
24. Certain retiree benefits provided for former hourly employees of the
Watertown, Connecticut Plant under plans administered by Monumental
Insurance and UNUM Life and former PCI employees under plans administered
by Pilgrim Healthcare and Fort Dearborn Life Insurance Company.
25. Mandated healthcare coverage maintained by Canadian and Belgian government.
26. Xxxxxxx Fasteners Inc. Non-Qualified Supplemental Retirement Plan.
27. Use of Company vehicle provided to key managers and salesman and technical
sales reps.
28. Unifast-Xxxxxxx X.X. has benefit plans unique to that operation, including
but not limited to employee benefits, pension plans and life insurance.
29. Informal arrangements with two former employees who are receiving Long Term
Disability Compensation.
30. KSCO Acquisition Corporation Stock Option Plan.
31. Secondment Agreement between Xxxxxxx Fasteners Inc. and Unifast-Xxxxxxx
X.X. and Mr Xxxxx Xxxxxx (not dated).
2.9(b)
------
1. Xxxxxxx Fasteners Inc. Retirement Plan for Salaried Employees (frozen) is
subject to the minimum funding requirements of Section 412 of the Code and
Section 302 of ERISA and is otherwise subject to Title IV of ERISA.
2. Xxxxxxx Fasteners Inc. Savings and Retirement Plan for Salaried Employees
for the period 2/95-7/97 was not administered according to its terms for
enrollment (plan calls for 90-day waiting period - administered first of
month following 90-day waiting period). The Plan was amended 8/1/97 to
conform to how it was being administered.
3. No assurances are provided regarding the arrangements referred to in
Schedule 2.9(a) as "Informal arrangements with respect to the payment of
---------------
compensation to certain employees and former employees after their
termination of employment" with respect to any of the representations and
warranties set forth in Schedule 2.9(b).
---------------
4. No assurances are provided regarding the arrangements referred to in
Schedule 2.9(a) as "Informal arrangements with two former employees who are
---------------
receiving Long Term Disability Compensation" with respect to any of the
representations and warranties set forth in Schedule 2.9(b).
---------------
2.9(c)
------
1. Certain retiree benefits provided for former hourly employees of the
Watertown, Connecticut Plant under plans administered by Monumental
Insurance and UNUM Life and former PCI employees under plans administered
by Pilgrim Healthcare and Fort Dearborn Life Insurance Company.
2. No assurances are provided regarding the ability to amend or terminate any
retiree benefits.
3. No assurances are provided regarding the arrangements referred to in
Schedule 2.9(a) as "Informal arrangements with respect to the payment of
---------------
compensation to certain employees and former employees after their
termination of employment" with respect to the representations and
warranties set forth in Schedule 2.9(c).
---------------
4. No assurances are provided regarding the arrangements referred to in
Schedule 2.9(a) as "Informal arrangements with two former employees who are
---------------
receiving Long Term Disability Compensation" with respect to any of the
representations and warranties set forth in Schedule 2.9(c).
---------------
2.9(d)
------
1. Certain options granted under the KSCO Acquisition Corporation Stock Option
Plan will vest as a result of the transactions contemplated by this
Agreement.
2. No assurances are provided regarding any benefits that may become payable
as a result of the transactions contemplated by this Agreement from other
than the Company or any of its Subsidiaries.
2.9(e)
------
1. Mandated healthcare coverage maintained by the Canadian and Belgian
governments.
2. Unifast-Xxxxxxx X.X. has benefit plans unique to that operation, including
but not limited to employee benefits, pension plans and life insurance.
See also Schedule 2.12(i).
----------------
See also Schedule 2.9(a) items 18d and 33.
---------------
SCHEDULE 2.10
Xxxxxxx Fasteners Inc.
Intellectual Property
---------------------
2.10(a) - U.S. Patents
Patent No. Issued Expires Title & Inventor Case No.
---------- ------ ------- ---------------- --------
D-301,567 06/13/89 06/13/2003 Snap Fastener Element 00-X
Xxxxx X. Xxxxx
(Design patent)
4,131,223 12/26/78 12/05/97 Apparatus for Gapping a Slide Fastener 55-C-S
Xxxxxxx X. Xxxxxx
4,135,287 01/23/79 01/16/98 Methods of Attaching Snap Fasteners N/A
Xxxxxxx X. Xxxxxxxxxx Assigned to Xxx
Fastener, a
division of U.S.
Industries, Inc.
No assignment to
Xxxxxxx Fasteners
Inc. through
acquisition of
Xxx Fastener
Company, L.L.C.
yet made of record
4,169,421 10/02/79 07/03/98 Apparatus for Affixing Slide Fastener Elements 52-C-S-C
to Fabric
Xxxxxxxx X. Xxxxxx
4,206,669 06/10/80 11/15/98 Apparatus for Gapping Zipper Chain 58-C-S
Xxxxx & Xxxxxx Xxxxxx
4,297,954 11/03/81 05/9/2000 Apparatus for Attaching Slide Fastener 61-C-S-C
Elements to Fabric
Xxxxx X. Xxxxxxxx
4,309,806 01/12/82 01/21/2000 Apparatus and Method for Applying a Snap N/A
Fastener to a Sheet Material Assigned to U.S.
Xxxxxxxxx Xxxxxxx Industries, Inc.
No assignment to
Xxxxxxx Fasteners
Inc. through
acquisition of
Xxx Fastener
Company, L.L.C.
yet made of record
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Patent No. Issued Expires Title & Inventor Case No.
---------- ------ ------- ---------------- --------
4,454,650 06/19/84 08/23/2002 Upper Jaw and Tool Assembly for Fastener N/A
Attaching Machine Assigned to U.S.
Xxxxxxx X. Silver Industries, Inc.
No assignment to
Xxxxxxx Fasteners
Inc. through
acquisition of
Xxx Fastener
Company, L.L.C.
yet made of record
4,793,029 12/27/88 02/19/2008 Tiltable Button Having Anti-Rotation Means 00-X
Xxxxx X. Xxxxx
4,796,339 01/10/89 02/17/2008 One-Way Snap Fastener 00-X
Xxxxx X. Xxxxx
4,852,251 08/01/89 06/07/2008 Gripping Eyelet Die Tool Assembly 93-C
Xxxxxx X. Xxxxxxx
4,903,881 02/27/90 11/09/2008 Portable Fastener Setting Press N/A
Xxxxxx X. Xxxxxxx, Xx.
4,978,048 12/18/90 09/18/2009 Fastener Setting Machine Having Double-Acting 80-C
Drive Means
Xxxxx Xxxxx Xxxxxxx
5,069,952 12/03/91 04/22/2011 Zipper Tape 83-C
Xxxxx X. Xxxxxxxxxxxxx
5,100,019 03/31/92 02/25/2011 Feed Assembly for Serially Delivering Selected 82-C-REV
Numbers of Fastener Parts from Alternate
Sources to an Attaching Machine
Xxxxx X. Xxxx & Xxxxxx Xxxxxxxx
5,234,147 08/10/93 08/17/2012 Setting Machine Having Moveable Upper Receiver 00-X
Xxxxxx Xxxxxxxxx
5,261,515 11/16/93 to expire Safety Disconnect for the Pedal Operator Rod 85-C
11/16/97 of an Attaching Machine
Xxxx X. Xxxxxx & Xxxx X. Xxxx
5,329,683 07/19/94 06/29/2013 Fastener Setting Apparatus Having Reinforcing 87-C
Tape Feeder
Xxxx X. Xxxxxx & Xxxx X. Xxxx
5,349,890 09/27/94 09/27/2013 Apparatus for Severing Off Pieces from an 86-C-C
Endless Web
Xxxx X. Xxxxxx & Xxxx X. Xxxx
5,463,807 11/07/95 09/08/2014 Attaching Machine for Attaching Fasteners 89-C
Xxxxx Xxxxxxxxx
Page 2 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Patent No. Issued Expires Title & Inventor Case No.
---------- ------ ------- ---------------- --------
5,577,395 11/26/96 05/04/2015 Clip for an Identification Bracelet 90-C
Xxxxxx X. Xxxxxxxxxx
5,636,427 06/10/97 10/06/2015 Hand-Held Snap Fastener Closer 91-C
Xxxxxxx X. Xxxx
2.10(b) - PENDING U.S. PATENT APPLICATIONS
There are no U.S. patent applications pending at this time.
2.10(c) - FOREIGN PATENTS
Patent No. Issued Expires Title & Inventor Case No.
---------- ------ ------- ---------------- --------
Design No. 11/16/80 11/16/2005 Pants Fastener Element N/A
803,424 Xxxxxx X. Xxxx Assigned to U.S.
France Industries, Inc.
No assignment to
Xxxxxxx Fasteners
Inc. through
acquisition of
Xxx Fastener
Company, L.L.C.
yet made of record
2,099,064 01/31/95 06/23/2013 Setting Machine Having Moveable Upper Receiver 84-C
Canada Xxxxxx Xxxxxxxxx
Page 3 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
2.10(d) - PENDING FOREIGN PATENT APPLICATIONS
Application No. Filing Date State Title & Inventor Case No.
--------------- ----------- ----- ---------------- --------
Ser. No. 11/09/89 Publicly Portable Fastener Setting Press 94-C
1-292122 disclosed Xxxxxx X. Xxxxxxx, Xx.
Japan 07/23/90,
02-187297
Request for
examination
11/09/96
Ser. No. 10/23/89 Publicly Portable Fastener Setting Press 94-C
89-15183 disclosed Xxxxxx X. Xxxxxxx, Xx.
Korea 06/01/90,
90-7556
Request for
examination
10/23/94
PCT/US95/108 08/25/95 Entered Attaching Machine for Attaching Fasteners 89-C
12 national phase Xxxxx Xxxxxxxxx
PCT in UK 03/06/97
and Germany
03/07/97
2.10(e) - U.S. TRADEMARK REGISTRATIONS
Trademark Registration No. Registration Date Expiration Date Class(es)
--------- ---------------- ----------------- --------------- ---------
COLOR-SNAP 1,240,463 05/31/83 05/31/2003 I-26; US-40
COMMON SENSE 1,773,067 05/25/93 05/25/2003 I-26; US-40
Design of Encircled Dot 694,121 03/08/60 03/08/2000 I-6, 17, 20; US-13
Design of Encircled Dot 694,167 03/08/60 03/08/2000 I-9; US-21
Design of Round Dot 121,544 05/07/18 05/07/98 I-26; US-40
DOT 127,721 12/02/19 12/02/99 I-26; US-40
DOT 276,809 10/28/30 10/28/2000 I-26; US-13
DOT 434,811 12/09/47 12/09/2007 I-9; US-21
Page 4 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Trademark Registration No. Registration Date Expiration Date Class(es)
--------- ---------------- ----------------- --------------- ---------
DOT 507,337 03/08/49 03/08/2009 I-26; US-40
DOT 515,518 09/27/49 09/27/2009 I-26; US-13
DOT and Design 699,061 06/07/60 06/07/2000 I-26; US-40
DOT and Design 701,200 07/19/60 07/19/2000 I-6, 17, 20; US-13
DOT SNAPPERS 516,339 10/18/49 10/18/2009 I-26; US-40
FASHION FASTENERS 1,466,428 11/24/87 11/24/2007 I-26; US-40
GINGER SNAPS 1,025,305 11/18/75 11/18/2005 I-26; US-40
GRIPPER/1/ 347,023 06/15/37 06/15/2007 I-26; US-40
GRIPPER/1/ 379,520 07/16/40 07/16/2000 I-26; US-40
GRIPPER/1/ 526,570 06/20/50 06/20/2000 I-26; US-13
GRIPPER 1,727,802 10/27/92 10/27/2002 I-26; US-13, 40
INVINCIBLE/2/ 256,432 05/14/29 05/14/2009 I-26; US-26
KLIKIT (Stylized)/3/ 504,297 11/30/48 11/30/2008 I-26; US-40
KLIKON (Stylized)/3/ 679,340 05/26/59 05/26/99 I-26; US-40
LIFT THE DOT (Block 729,340 04/03/62 04/03/2002 I-6; US-13
Letters)
MIGHTY SNAPS 1,050,745 10/19/76 10/19/2006 I-26; US-40
MIRAGE 1,111,199 01/16/79 01/16/99 I-6; US-13
NYLAIRE 739,634 10/23/62 10/23/2002 I-26; US-13
PC1 and Design/2/ 809,780 06/14/66 06/14/2006 I-3, 6, 8, 21; US-13
POWR SNAPPER (Stylized) 2,069,379 06/10/97 06/10/2007 I-7; US-13, 19, 21, 23, 31,
34, 35
PULL THE DOT (Block 729,341 04/03/62 04/30/2002 I-6; US-13
Letters)
-------------------------------------
/1/ Exclusive License granted in June 1990 to Dowbrands Inc. in the field of
plastic bags having zip-type lock.
/2/ No assignment to Xxxxxxx Fasteners Inc. through acquisition of PCI Group,
Inc., yet made of record.
/3/ No assignment to Xxxxxxx Fasteners Inc. through acquisition of Xxx Fastener
Company, L.L.C., yet made of record.
Page 5 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Trademark Registration No. Registration Date Expiration Date Class(es)
--------- ---------------- ----------------- --------------- ---------
RAM 1,518,088 12/27/88 12/27/2008 I-26; US-13
XXX-KLIKIT and Design/1/ 381,615 10/01/40 10/01/2000 I-26; US-40
ROLET/2/ 387,522 05/20/41 05/20/2001 I-26; US-13
SAFELOK 1,135,500 05/20/80 05/20/2000 I-6; US-13
XXXXXXX 865,194 02/25/69 02/25/2009 I-6, 12; US-13
XXXXXXX 1,142,231 12/09/80 12/09/2000 I-7, 9, 11, 14, 20; XX-00, 00,
00, 00, 00, 00
XXXXXXX 1,779,022 06/29/93 06/29/2003 I-26; US-40
SPEEDY RIVETS (Block 594,756 09/07/54 09/07/2004 I-6; US-13
Letters)
SPORTSNAPS 1,145,502 01/06/81 01/06/2001 I-26; US-40
TAG LOCK 1,426,606 01/27/87 01/27/2007 I-20; US-13, 50
WHIPPER SNAP 1,561,119 10/17/89 10/17/2009 I-26; US-40
2.10(f) - PENDING U.S. TRADEMARK APPLICATIONS
Trademark Application No. Filing Date Class(es)
--------- --------------- ----------- ---------
ECHOTECH and Design 75/036,838 12/21/95 I-26; US-37, 39, 40, 42, 50
-----------------------------------
/1/ No assignment to Xxxxxxx Fasteners Inc. through acquisition of Xxx Fastener
Company, L.L.C., yet made of record.
/2/ No assignment to Xxxxxxx Fasteners Inc. through acquisition of PCI Group,
Inc., yet made of record.
Page 6 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
2.10(g) - FOREIGN TRADEMARK REGISTRATIONS
Country Trademark Registration No. Registration Date Expiration Date Class(es)
------- --------- ---------------- ----------------- --------------- ---------
Algeria GRIPPERS 28,465 11/20/77 11/08/97/1/ I-26
Argentina DOT 1.182.895/1 11/07/45 11/07/95/1/ I-16
DOT 1.166.843/2 05/02/55 03/01/95/1/ I-6
Australia/2/ GRIPPER A71751 01/18/38 01/18/2008 I-26
PERMEX A562,583 08/27/91 08/27/98 I-26
XXX-KLIKIT/3/ 87473 06/13/2002
XXXXXXX B198347 11/02/65 11/02/2000 I-26
Belgium DRITZ 108,607 06/23/66 Perpetual
Benelux GRIPPERS 79940 11/22/71 11/22/97/1/ I-26
KLIKIT/3/ 26737 04/27/71 04/27/2005 X-00, 00
XXXXXXX 00000 11/22/71 11/22/2005 I-6, 7, 8, 9,
11, 12, 16, 17,
21, 26
SPORTSNAPS 385,899 11/03/82 11/03/2002 I-26
KLIKIT 554345 06/30/94 06/30/2004 X-0, 0, 00, 00
Xxxxxxxxxxxxxx GRIPPERS 59/38 01/12/76 01/12/2006 I-26
XXXXXXX 65/3985 10/04/65 10/04/2005 I-26
Brazil/4/ DOT 002493250 07/29/20 08/07/2000 12
GRIPPERS 002893070 02/13/39 02/13/2004 I-26
XXX-KLIKIT/3/ 815558279 09/29/2002
Cambodia/2/ GRIPPER 909 07/14/92 07/14/2002 I-26
PERMEX 911 07/14/92 07/14/2002 I-26
------------------------------------
/1/ Renewal application has been filed.
/2/ Non-Exclusive License to Xxxxxxx-Japan (Agreement of July 6, 1989).
/3/ No assignment to Xxxxxxx Fasteners Inc. through acquisition of Xxx Fastener
Company, L.L.C., yet made of record.
/4/ In Brazil, XXXXXXX is registered for Snap Fasteners to a Third Party (Ritas
de Brazil).
Page 7 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Country Trademark Registration No. Registration Date Expiration Date Class(es)
------- --------- ---------------- ----------------- --------------- ---------
XXXXXXX 910 07/14/92 07/14/2002 I-26
Canada CONMAR N.S. 51/13514 12/23/39 12/23/99
Design of Guardsman N.S. 51/13516 12/23/39 12/23/99
DOT TMDA26,319 04/23/20 04/23/2000
DOT and Design TMA158,479 09/27/68 09/27/98
DOT SNAPPERS TMA154,717 12/22/67 12/22/97/1/
DRITZ TMA155,404 02/09/68 02/09/98
GRIPPERS N.S. 32/8870 07/02/37 07/02/97/1/
PCI PLYMOUTH and Design/2/ 210,241 10/24/75 10/24/2005
XXX-KLIKIT/3/ 15,862 06/30/41 06/30/2001
XXXXXXX TMA171,274 09/18/70 09/18/2000
Chile DOT 381,567 08/04/41 11/19/2001 I-26
GRIPPERS 382817 10/01/41 11/07/2001 I-26
XXXXXXX 400040 09/02/82 01/12/2003 I-26
China/4/ GRIPPER 159,919 07/15/82 07/14/92/1/ 21
GRIPPER 159,922 07/15/82 07/14/2002 30
PERMEX 202,394 12/15/83 12/14/2003 56
XXXXXXX 159,920 07/15/82 07/14/2002 21
XXXXXXX 159,923 07/15/82 07/14/2002 30
Colombia GRIPPER 21,022 02/01/47 02/11/97/1/ I-26
Czechoslovakia GRIPPERS 98991 02/16/38 02/16/98
Denmark XXXXXXX XX 360 1966 02/05/66 02/05/2006 I-7, 11, 12, 26
------------------------------------
/1/ Renewal application has been filed.
/2/ No assignment to Xxxxxxx Fasteners Inc. through acquisition of PCI Group,
Inc., yet made of record.
/3/ No assignment to Xxxxxxx Fasteners Inc. through acquisition of Xxx Fastener
Company, L.L.C., yet made of record.
/4/ Non-Exclusive License to Xxxxxxx-Japan (Agreement of July 6, 1989).
Page 8 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Country Trademark Registration No. Registration Date Expiration Date Class(es)
------- --------- ---------------- ----------------- --------------- ---------
Ecuador GRIPPER 614/91 12/15/80 12/15/95/1/
Finland DOT 53,884 01/04/69 01/04/99 X-0, 0, 00, 00,
00
Xxxxxx DOT 1,558,071 03/03/20 11/02/99 I-6, 9, 12, 25,
26
DOT 1,444,114 11/30/67 11/25/97/1/ X-0, 0, 00, 00,
00
XXXXX 1,515,442 05/15/64 02/20/99 I-26
GRIPPERS 1,434,868 01/17/38 11/12/97/1/ I-26
KLIKIT/2/ 1,578,496 03/02/90 03/01/2000 I-26
XXXXXXX 1,229,559 09/12/68 03/07/2003 I-6, 7, 8, 9,
11, 12, 16, 17,
21, 26
SPORTSNAPS 1,218,931 11/15/82 11/14/2002 I-26
Germany DOT 818,790 04/26/66 12/20/2003 I-6, 9, 11, 26
KLIKIT/2/ 2002792 08/01/91 11/16/2000 I-26
PIAZZI 1,088,292 02/25/86 06/11/2005 I-26
XXXXXXX 809,734 09/17/65 12/07/2004 I-4, 6, 7, 8, 9,
10, 11, 12, 16,
21, 26
XXXXXXX GRIPPER 1,074,143 02/25/85 08/25/2004 I-26
Guatemala XXXXXXX 54329 02/01/88 01/31/98 I-26
Honduras XXXXXXX 47,708 05/21/87 05/21/97/1/ I-26
Hong Kong/3/ DRITZ B1358/64 02/20/64 02/20/99 I-26
GRIPPER B-5887/74 10/20/70 10/20/2005 I-26
PERMEX 2316/1983 04/08/83 04/08/2004 I-26
-----------------------------------
/1/ Renewal application has been filed.
/2/ No assignment to Xxxxxxx Fasteners Inc. through acquisition of Xxx Fastener
Company, L.L.C., yet made of record.
/3/ Non-Exclusive License to Xxxxxxx-Japan (Agreement of July 6, 1989).
Page 9 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Country Trademark Registration No. Registration Date Expiration Date Class(es)
------- --------- ---------------- ----------------- --------------- ---------
XXXXXXX A609/68 04/05/66 04/05/2001 I-26
WHIPPER 2317/1983 04/08/83 04/08/2004 I-26
India/1/ PERMEX 403,532 03/30/83 03/30/2004 I-26
XXXXXXX 231597B 10/06/65 10/06/2000 I-26
WHIPPER B403,533 03/30/83 03/30/2004 I-26
Indonesia/1/ GRIPPER 308,468 09/30/83 03/30/2003 I-26
PERMEX 308,469 10/10/83 04/10/2003 I-26
XXXXXXX 213,916 12/03/65 01/22/97/2/ I-26
Ireland DOT 44,192 03/02/20 03/02/2004 I-26
DOT 46,888 02/06/35 02/05/2005 I-26
Israel GRIPPER 10,361 08/16/49 08/16/98 I-26
Italy DOT 461,266 03/31/20 03/31/2004 I-26
DRITZ 503,359 05/24/66 05/24/2006 I-26
GRIPPER 505,418 06/18/48 03/20/2007 I-26
XXXXXXX 465,677 03/31/65 10/28/2005 I-26
SPORTSNAPS 413,791 03/10/86 11/16/2002 I-26
Japan/3/ DOT 2720491 04/11/97 04/11/2007 10
GRIPPER (in English) 877,663 10/24/70 10/24/2000 21
GRIPPER (in Katakana) 908,097 07/08/71 07/08/2001 21
GRIPPER SHIRT (in 1,557,550 12/24/82 12/24/92/2/ 17
English)
GRIPPER SHIRT (in 1,557,551 12/24/82 12/24/92/4/ 17
Katakana)
------------------------------------
/1/ Non-Exclusive License to Xxxxxxx-Japan (Agreement of July 6, 1989).
/2/ Renewal application has been filed.
/3/ Exclusive License to all Japanese registrations granted to Xxxxxxx-Japan
(Agreement of July 6, 1989).
/4/ Renewal application has been filed.
Page 10 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Country Trademark Registration No. Registration Date Expiration Date Class(es)
------- --------- ---------------- ----------------- --------------- ---------
GRIPPERS 321129 09/08/39 05/07/98 36
XXXXXXX (in English) 780138 05/06/68 02/06/98 21
XXXXXXX (in Katakana) 797099 11/12/68 08/12/98 21
WHIPPER 973,078 07/25/72 04/25/2002 21
Korea (South)/1/ GRIPPER 20954 01/12/71 01/11/2001 45
PERMEX 96,361 11/08/83 11/08/2003 45
XXXXXXX 59,124 12/08/78 12/08/98 45
Laos GRIPPER 1070 07/21/92 07/21/2002 I-26
PERMEX 1071 07/21/92 07/21/2002 I-26
XXXXXXX 1072 07/21/92 07/21/2002 I-26
Malaysia (Malaya)/2/ GRIPPER 358/78 05/13/78 05/13/99 I-26
PERMEX M/99687 04/25/83 04/25/2004 I-26
XXXXXXX 258/65 10/09/65 10/09/2000 I-26
WHIPPER M/99688 04/25/83 04/25/2004 I-26
Mexico DOT 18,046 04/13/20 04/13/2005 I-26
GRIPPERS 37,474 01/13/37 07/13/2002 I-26
XXXXXXX 127,490 11/05/65 11/05/2005 I-3, 6, 8, 14,
16, 20, 21, 24,
26, 28, 31
New Zealand XXXXXXX B-79577 10/06/65 10/06/2000 I-7
XXXXXXX B-79578 10/06/65 10/06/2000 X-00
XXXXXXX X-00000 10/06/65 10/06/2000 X-00
XXXXXXX X-00000 10/06/65 10/06/2000 I-26
Norway DOT 79,008 04/16/90 04/16/2000 I-26
-----------------------------------
/1/ Non-Exclusive License to Xxxxxxx-Japan (Agreement of July 6, 1989).
Page 11 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Country Trademark Registration No. Registration Date Expiration Date Class(es)
------- --------- ---------------- ----------------- --------------- ---------
GRIPPERS 33228 01/05/38 01/05/98 I-26
XXXXXXX 68,135 10/04/65 02/11/96/1/ X-00, 00
Xxxxxxxx/0/ PERMEX 79,302 03/27/83 03/27/2005 I-26
XXXXXXX 79,303 03/27/83 03/27/2005 I-26
WHIPPER 79,304 03/27/83 03/27/2005 X-00
Xxxxx Xxx Xxxxxx/0/ XXXXXXX X0000X 09/16/75 09/15/2005 X-00
XXXXXXX X0000X 09/16/75 09/15/2005 I-26
Peru GRIPPER 15,293 11/29/46 02/25/2002 I-26
Philippines/2/ GRIPPER 49,134 08/14/51 09/07/2010 I-26
PERMEX 41,482 10/17/88 10/17/2008 I-16
XXXXXXX 36286 12/08/86 12/08/2006 X-0, 0, 00, 00,
00
Xxxxxx Xxxx GRIPPER 9,995 11/28/56 11/28/96/1/ 40
Singapore/2/ GRIPPER B75487 04/25/78 04/25/99 I-26
PERMEX 1810/83 04/11/83 04/11/2004 I-26
XXXXXXX A754/86 04/25/78 04/25/99 I-26
WHIPPER 1811/83 04/11/83 04/11/2004 X-00
Xxxxx Xxxxxx GRIPPER 59/38 01/12/38 01/12/96/1/ I-26
XXXXXXX 65/3985A 10/04/65 10/04/2005 I-26
Spain GRIPPERS 115,034 03/02/42 03/02/2002 I-6
SPORTSNAPS 1,020,722 12/05/83 12/05/2003 I-26
Sri Lanka/3/ GRIPPER 62,160 09/25/91 09/25/2001 I-26
PERMEX 45,939 04/22/83 04/22/2003 I-26
-------------------------------------
/1/ Renewal application has been filed.
/2/ Non-Exclusive License to Xxxxxxx-Japan (Agreement of July 6, 1989).
/3/ Non-Exclusive License to Xxxxxxx-Japan (Agreement of July 6, 1989).
Page 12 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Country Trademark Registration No. Registration Date Expiration Date Class(es)
------- --------- ---------------- ----------------- --------------- ---------
Swaziland XXXXXXX 465/83/SA 10/04/65 10/04/2005 I-26
Sweden GRIPPERS 49,446 01/17/38 01/17/98 X-0, 00
XXXXXX/0/ 00000 01/26/2001
XXXXXXX 116,434 05/20/76 05/20/2006 X-00, 00
Xxxxxxxxxxx DOT 305,165 05/18/20 04/03/2000 I-26
DRITZ 349,243 06/13/66 06/13/2006 X-0, 0, 0, 0,
00, 00, 00
XXXXXX/0/ 000000 02/18/85 02/17/2005 I-26
XXXXXXX 345603 10/05/65 10/05/2005 X-0, 0, 0, 0,
00, 00, 00
XXXXXXX GRIPPERS 293,878 05/03/78 05/03/98 I-6, 26
Taiwan/1/ GRIPPER 56,217 05/16/48 05/15/98 36
PERMEX 221,977 09/16/83 09/15/2003 49
XXXXXXX 147,179 01/16/81 01/15/2001 49
XXXXXXX XXXXXX 226,752 11/16/83 01/15/2001 49
Thailand/2/ GRIPPER 239741/ 01/14/93 01/14/2003 I-26
Kor12861
PERMEX 244139/ 04/26/83 04/26/2003 I-26
KorR3544
Transkei GRIPPERS 59/38 01/12/76 01/12/96/3/ I-26
XXXXXXX 65/3985 10/04/75 10/04/2005 X-00
Xxxxxx XXXXXXX 00000 04/06/81 04/06/2001
United Kingdom DOT 401,403 03/02/20 03/02/2004 I-26
DOT 550,623 04/24/34 04/24/2004 I-6, 9, 20, 26
DRITZ B861,080 03/03/64 03/03/99 I-26
-------------------------------------
/1/ No assignment to Xxxxxxx Fasteners Inc. through acquisition of Xxx Fastener
Company, L.L.C., yet made of record.
/2/ Exclusive License to all Japanese registrations granted to Xxxxxxx-Japan
(Agreement of July 6, 1989).
/3/ Renewal application has been filed.
Page 13 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Country Trademark Registration No. Registration Date Expiration Date Class(es)
------- --------- ---------------- ----------------- --------------- ---------
PIAZZI 1,243,388 06/05/85 06/05/2006 I-26
XXXXXXX B885,125 10/04/65 10/04/2000 I-26
XXXXXXX B885,124 10/04/65 10/04/2000 I-12
XXXXXXX B916,618 11/01/67 11/01/2002 I-26
Uruguay GRIPPERS 173,126 02/23/42 10/08/92/1/ 4, 5
Venda GRIPPERS 59/38 01/12/76 01/12/2006 I-26
Venezuela DOT 24,919 06/18/51 06/18/96/1/ 13
GRIPPERS 13,279 11/18/41 11/18/2001 40
XXXXXXX 59,781 08/11/70 08/11/2000 21
XXXXXXX 59,782 08/11/70 08/11/2000 40
XXXXXXX 59,783 08/11/70 08/11/2000 23
Vietnam/2/ GRIPPER 6171 03/19/92 03/19/2002 I-26
PERMEX 6172 03/19/92 03/19/2002 I-26
XXXXXXX 6173 03/19/92 03/19/2002 I-26
XXXXXXX XXXXXX 6174 03/19/92 03/19/2002 I-26
2.10(H) - PENDING FOREIGN TRADEMARK APPLICATIONS
Country Trademark Application No. Filing Date Class(es)
------- --------- --------------- ------------ ---------
Argentina XXXXXXX 2,014,568 12/21/95 I-26
Brazil GRIPPER 818842466 10/18/95 I-26
Colombia XXXXXXX 96019052 04/19/96 I-26
Japan/3/ PERMEX 57032/1983 06/21/83 21
--------------------------------
/1/ Renewal application has been filed.
/2/ Non-Exclusive License to Xxxxxxx-Japan (Agreement of July 6, 1989).
/3/ Exclusive License to all Japanese registrations granted to Xxxxxxx-Japan
(Agreement of July 6, 1989).
Page 14 of 15
SCHEDULE 2.10
INTELLECTUAL PROPERTY
Country Trademark Application No. Filing Date Class(es)
------- --------- --------------- ------------ ---------
XXXXXX (xx Xxxxxxxx) 00000/0000 00/00/00 00
Xxxx XXXXXXX 30056 01/09/97 I-26
Spain XXXXXXX 2,016,129 03/04/96 X-00
Xxx Xxxxx XXXXXXX 00000 09/15/80 I-26
XXXXXXX 41982 09/15/80 I-6
Thailand XXXXXXX 310,524 06/17/96 13
Xxxxx XXXXXXX I-26
2.10(i) - COPYRIGHT REGISTRATIONS
Xxxxxxx does not own any registered copyrights.
2.10-(j) - PENDING COPYRIGHT REGISTRATION APPLICATIONS
Xxxxxxx does not have any applications for copyright registration pending at
this time.
Page 15 of 15
SCHEDULE 2.11
Owned and Leased Real Property
------------------------------
1. Clarkesville, GA Facility: See attached Legal Description A
2. Unifast Facility, Belgium: See attached Legal Description B
3. Encumbrances: See Attachment C hereto. The Unifast facility is subject to
liens and encumbrances of public record and those arising under applicable
law.
4. Leases:
a. 00 Xxxxxxxx Xx. Xxxx #0, Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxxxxxx -
Real Estate Lease by and between Xxxx X. Xxxxxx, Xx. and Xxxx X.
Xxxxxx, as landlord, and Xxxxxxx Fasteners Inc., as tenant, dated as
of October 1, 1996.
b. 0 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxx - Lease by and between J. Xxxxxx
Xxxxxxxx, as lessor, and PCI Group, Inc., as lessee, dated June, 1995.
c. 00000 Xxxxxx Xxxxx, X-0, Xx Xxxx, Xxxxx 00000 - Land and Building
Lease by and between Vista Development Joint Venture II, as lessor,
and Xxxxxxx Apparel Fasteners, Inc. as lessee, dated February 1, 1995.
d. 000 Xxxxx Xxxxxx, Xxxx. X. Xxxxxxxxx, XX 00000 - Standard Industrial
Lease by and between The Equitable Life Assurance Society of the
United States, as landlord, and Xxxxxxx Fasteners Inc., as tenant,
dated February 5, 1997.
e. 0000 Xxxxxxxxx Xxxxxxx, Xxxxxx, XX 00000 - Lease Agreement by and
between Xxxx-America Realty Corporation, as successor to Century Lake,
L.P., as landlord, and Xxxxxxx Fasteners Inc., as tenant, dated
December 7, 1994.
f. 00 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 - Lease Agreement by and
between 1913 Realty Associates, as landlord, and Xxxxxxx Fasteners
Inc., as tenant, dated July 11, 1990.
g. 0000 Xxxxxxxx Xxxx, Xxxxx X-00, Xxxxxxxxx, XX 00000 - Lease Agreement
by and between NWI VI, Ltd., as landlord, and Xxxxxxx Fasteners Inc.,
as tenant, dated July, 1988, as amended.
h. Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 - Lease between Oxford
General Industries, Inc., as landlord, and Xxxxxxx Fasteners Inc. as
tenant, dated April 16, 1991.
i. 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx:
(i) Lease and Option Agreement by and between Rhode Island Industrial
Facilities Corporation, as lessor, and Xxx Fastener, Inc., dated
as of January 7, 1993; and
(ii) Modification and Assumption of Lease and Option Agreement, dated
as of January 27, 1995, by and among the Rhode Island Industrial
Facilities Corporation, Shawmut Bank, N.A., the Rhode Island
Industrial -Recreational Building Authority and Xxx Fastener
Company, L.L.C.
j. 1255 and 0000 Xxx Xxxxxxxxx Xx., Xxxxxxxx, Xxxxxx, Xxxxxx - Lease by
and between USI (Canada) Inc., as lessor, and Xxx Fastener (Canada)
Inc., as lessee, dated January 27, 1995.
k. 0000, Xxxxxxxxx Xxx XX, Xxxxxxxx (Xxxxxx) Xxxxxx - Lease Agreement by
and between Construction Maritel Inc., as lessor, and Xxxxxxx Canada
Inc., as lessee, dated November 15, 1995.
l. 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0 (9,261 sq. ft. of
garage space) - Commercial Lease between 253015921 Quebec Inc. and Xxx
Fastener (Canada), Inc., dated March 1, 1996.
m. E Street, Lot 78, (Section 3), Project No. 0000-000-00, Xxxxxxxx
Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxx 00000 - Lease Contract by and
between Puerto Rico Industrial Development Company, as landlord, and
Xxxxxxx Puerto Rico, Inc., as tenant, dated July 7, 1993.
n. 1 a 0 xxxxx xx Xxxxxxxx, Xxxx-xx-Xxxx (00000), Xxxxxx - Commercial
Lease between SNC "ACTI-CLUB XX XXXX" and Xxxxx XX, dated March 18,
1996.
o. Blvd. Independecia, 2733 Ote, Torreon, Coah., Mexico - Lease between
Inmobliaria Arminco, S.C. (as landlord) and Xxxxxxx Fasteners, S.A.
C.V. (as tenant), dated March 12, 1997 (not executed by Xxxxxxx).
SCHEDULE 2.12
Contracts
---------
2.12(i)
-------
1. Collective Labor Agreement of April 17, 1992 concluded at the level of
Unifast-Xxxxxxx X.X. for an indefinite period of time granting blue-collar
employees certain advantages, such as seniority premiums and extra
holidays.
2. Collective Labor Agreement of May 1, 1980 concluded at the level of
Unifast-Xxxxxxx for an indefinite period of time granting all employees
meal-vouchers of 225 BEF for every day actually worked.
3. See also Attachment 2.12(i) regarding Belgian trade unions, collective
---------- -------
labor agreements and labor management committees.
2.12(ii)
--------
None.
2.12(iii)
---------
From time to time, in the ordinary course of business, Xxxxxxx
Fasteners Inc. enters into hedging arrangements in connection with raw material
purchases.
2.12(iv)
--------
1. Amended and Restated Credit Agreement among the Company, Xxxxxxx Fasteners
Inc., PCI Group, Inc., Xxx Fastener Company, L.L.C. and the Banks party
thereto, dated as of January 24, 1996, as amended.
2. Master Lease Agreement dated November 7, 1996 between General Electric
Capital Corporation and Xxxxxxx Fasteners Inc.
3. Subordinated Promissory Note of June 11, 1996 between Xxxxxxx Fasteners
Inc. (lender) and Unifast-Xxxxxxx in an amount of BEF 5 million.
4. Loan Agreement of April 12, 1996 between S.A. Invest Borinage-Centre and
Unifast-Xxxxxxx in an amount of BEF 20 million.
5. Subordinated Loan Agreement of April 12, 1996 between S.A. I.M.B.C.
Objectif No. 1 and Unifast-Xxxxxxx in an amount of BEF 5 million.
6. Credit Facility Agreement of March 8, 1996 (as amended on September 9, 1996
and June 9, 1997) between Credit General and Unifast-Xxxxxxx in an amount
of BEF 33.4 million.
7. Credit Facility Agreement of April 12, 1996 between Credit General and
Xxxxx X.X., in an amount of BEF 80 million.
8. Credit Facility Agreement with Banque Bruxelles Xxxxxxx for BEF 3 million
is in the process of being negotiated.
2.12(v)
-------
1. Master Equipment Lease Agreement No. 31459, between Fleet Credit
Corporation (as Lessor) and Xxxxxxx Fasteners, Inc. (as Lessee), dated
April 30, 1993.
2. Lease No. 145068, between JLA Credit Corporation (as Lessor) and Xxxxxxx
Fasteners Inc. (as Lessee), dated June 3, 1997 (not executed by Lessor).
3. Lease No. 145068-002, between JLA Credit Corporation (as Lessor) and
Xxxxxxx Fasteners Inc. (as Lessee), dated August 18, 1997.
4. Xxxxxxx Fasteners Inc. in ordinary course acquires or leases various items
of equipment, such as office equipment and vehicles, many of which are
subject to liens. See also Schedule 2.13.
-------- ----
2.12 (vi)
---------
None.
2.12(vii)
---------
(A) Master Lease Agreement dated November 7, 1996, between General Electric
Capital Corporation and Xxxxxxx Fasteners Inc.
(B) Xxxxxxx Fasteners Inc. is a party to numerous attaching machine leases,
which provide the terms and conditions for the leasing of attaching
machines to customers.
2.12(viii)
----------
1. Non-Competition Agreement, dated July 6, 1989, by and between Xxxxxxx
Fasteners Inc. and BTR Nylex Ltd.
2. Xxxxxxx Fasteners Inc. is subject to a trademark license and technical
assistance agreement that is subject to confidentiality.
2.12(ix)
--------
None.
2.12(x)
-------
1. Amended and Restated Credit Agreement among the Company, Xxxxxxx Fasteners
Inc., PCI Group, Inc., Xxx Fastener Company, L.L.C. and the Banks party
thereto, dated as of January 24, 1996, as amended.
2. Master Lease Agreement dated November 7, 1996 between General Electric
Capital Corporation and Xxxxxxx Fasteners Inc. as described on Schedule 2.5
------------
item 3.
2.12(xi)
--------
1. Unifast-Xxxxxxx X.X. from time to time enters into "Blue Collar, Limited
Duration", "Blue Collar, Unlimited Duration" and "White Collar, Unlimited
Duration" Contracts, forms of which have been provided to Purchaser.
See also Schedule 2.9(a) items 18d and 33.
---------------
ATTACHMENT 2.12(i)
------------------
DISCLOSURE CONCERNING TRADE UNIONS, COLLECTIVE LABOR AGREEMENTS AND
LABOR MANAGEMENT COMMITTEES IN CONNECTION WITH THE
COMPANY'S EUROPEAN OPERATIONS.
1. Affiliation to a trade union
----------------------------
It cannot be known whether or not and, if so, to which trade union the employees
of Unifast-Xxxxxxx X.X. are affiliated. The affiliation to a trade union is a
private matter which does not have to be revealed to the employer.
2. Collective labor agreements and labor management committees
-----------------------------------------------------------
Most Belgian companies fall under the scope of a labor management committee,
which is a body with representatives of employers and employees. The labor
management committees are organized at a national level on the basis of a
certain type of trade or industry. Unifast-Xxxxxxx X.X. falls under the
competence of the labor management committee no. 209 for white collar workers of
the metallic sector and no. 111 for blue collar workers of the metallic sector.
The labor management committees draw up collective labor agreements which
provide general rules regarding employment, such as minimum wages, annual
premiums, number of vacation days, duration of work, general employment
conditions, etc. All relevant collective labor agreements are filed at the
Ministry of Employment and are to be considered as part of the overall
employment legislation.
3. Collective labor agreements on the level of the company
-------------------------------------------------------
It is also possible that collective labor agreements are negotiated at the level
of the company between the company and one or more trade unions represented at
the level of the company.
These agreements are only valid for one company. Unifast-Xxxxxxx X.X.
apparently has negotiated two collective labor agreements on the level of the
company which are to be considered as part of the employment rules at Unifast
Xxxxxxx X.X. These collective labor agreements are discussed in Schedule
--------
2.12(i).
-------
SCHEDULE 2.13
Title to Property
-----------------
See Attachment A.
------------
XXXXXXX FASTENERS INC.
----------------------
1. Liens in favor of Banks under the Credit Facility described on item 2 of
Schedule 2.5.
------------
UNIFAST - XXXXXXX X.X.
----------------------
1. Loan Agreement of April 12, 1996 between S.A. Invest Borinage-Centre and
Unifast-Xxxxxxx in an amount of BEF 20 million.
Collateral: a. 2nd rank mortgage pari passu with Credit General for BEF
20 million
b. 1st rank pledge of business pari passu with Credit General
for BEF 20 million
2. Credit Facility Agreement of March 8, 1996 (as amended on September 9, 1996
and June 9, 1997) between Credit General and Unifast-Xxxxxxx in an amount
of BEF 33.4 million.
Various pieces of collateral, including:
a. 1st rank mortgage for BEF 6.7 million
b. 2nd rank mortgage for BEF 24 million
c. 1st rank pledge of business for BEF 24 million
XXX FASTENER (CANADA) INC.
--------------------------
1. Conventional Hypothec without delivery granted on January 26, 1995 in favor
of Shawmut Bank, N.A. and published on February 1, 1995 under number 95-
0010378-0001. The Hypothec granted all present and future property,
corporeal and incorporeal, now owned or hereafter acquired. The Hypothec
is registered for an amount of $12,000,000 Canadian with interest thereon
at an annual rate of 25%; the expiration date of the registration is
January 27, 2005.
XXX FASTENER, INC.
------------------
1. Conventional Hypothec without delivery (published on 1993, formerly known
commercial pledge) in favor of Shawmut Bank, N.A. and published on August
3, 1994 under number 00-0000000-0000. The Hypothec is registered for an
amount of $9,132,500 U.S.; the expiration date of the registration is July
18, 2004.
2. Conventional Hypothec without delivery (published on 1993, formerly known
transfer property in stock) in favor of Shawmut Bank, N.A. and published on
July 21, 1994
under number 00-0000000-0000. The Hypothec granted all present and future
property in stock of the undertaking of the Grantor all goods, wares and
merchandise manufactured or produced by the Grantor or procured for such
manufacture or production. The Hypothec is registered for an amount of
$500,000 U.S. with interest thereon at an annual rate of 25%; the
expiration date of registration is July 18, 2004. A correction was
published on November 23, 1994 under 00-0000000-0000 concerning the
previous security, it should be pledge of debts instead of transfer of
property in stock. The description of the hypothecated assets should be
replaced by: "The grantor has assigned its rights in favor of the Holder in
the transfer of property in stock by 158856 Canada Inc. published under
number 00-0000000-0000."
3. Conventional Hypothec without delivery (published on 1993, formerly known
transfer property in stock) in favor of Shawmut Bank, N.A. and published on
July 21, 1994 under number 00-0000000-0000. The Hypothec granted all
present and future property in stock of the undertaking of the Grantor all
goods, wares and merchandise manufactured or produced by the Grantor or
procured for such manufacture or production. The Hypothec is registered
for an amount of $9,132,500 U.S. with interest thereon at an annual rate of
25%; the expiration date of registration is July 18, 2004.
158856 CANADA INC.
------------------
1. Conventional Hypothec without delivery granted on January 26, 1995 in favor
of Shawmut Bank, N.A. and published on February 1, 1995 under number 95-
0010378-0002. The Hypothec granted all present and future property,
corporeal and incorporeal, now owned or hereafter acquired. The Hypothec
is registered for an amount of $12,000,000 Canadian with interest thereon
at an annual rate of 25%; the expiration date of registration is January
27, 2005.
2. Floating Hypothec (published on 1993, formerly known floating charge) in
favor of The R-M Trust Company and published on July 25, 1994 under number
00-0000000-0000. The Hypothec granted all the undertaking and all the
property and assets for the time being, present and future. The Hypothec
is registered for an amount of $600,000 Canadian with interest thereon at
an annual rate of 25%; the expiration date of registration is July 20,
2004.
3. Conventional Hypothec without delivery (published on 1993, formerly known
floating charge) in favor of The R-M Trust Company and published on July
21, 1994 under number 00-0000000-0000. The Hypothec granted all the
undertaking and all the property and assets for the time being, present and
future. The Hypothec is registered for an amount of $600,000 Canadian with
interest thereon at an annual rate of 25%; the expiration date of
registration is July 18, 2004.
4. Conventional Hypothec without delivery (published on 1993, formerly known
pledge of debts) in favor of Shawmut Bank, N.A. and published on July 21,
1994 under number 00-0000000-0000. The Hypothec granted all debts,
accounts, claims receivables, choses in action, demands and money. The
Hypothec is registered for an amount of $9,132,500
Canadian with interest thereon at an annual rate of 21%; the expiration
date of registration is July 18, 2004.
5. Conventional Hypothec without delivery (published on 1993, formerly known
transfer property in stock) in favor of Xxx Fastener, Inc. and published on
July 21, 1994 under number 00-0000000-0000. The Hypothec granted all
present and future property in stock of the undertaking of the Grantor, all
goods, wares and merchandise manufactured or produced by the Grantor or
procured for such manufacture or production. The Hypothec is registered
for an amount of $500,000 U.S. with interest thereon at an annual rate of
25%; the expiration date of registration is July 18, 2004.
6. Conventional Hypothec without delivery (published on 1993, formerly known
commercial pledge) in favor of Xxx Fastener, Inc. and published on July 21,
1994 under number 00-0000000-0000. The Hypothec granted specific machinery
and equipment described in the statement. The Hypothec is registered for
an amount of $500,000 U.S.; the expiration date of registration is July 18,
2004. A subrogation to a hypothecary claim published on November 15, 1994
under number 00-0000000-0000 by the Holder in favor of Shawmut Bank, N.A.
A correction published on November 15, 1995 concerning the subrogation to a
hypothecary claim: the Grantor has assigned to Shawmut Bank, N.A. the loan
in capital, interest and costs and has subrogated Shawmut Bank, N.A. in all
its rights, title and interest under the loan and this Deed but none of its
obligations are assumed by Shawmut Bank, N.A.
7. Conventional Hypothec without delivery (published on 1993, formerly known
specific charge) in favor of The R-M Trust Company and published on July
21, 1994 under number 00-0000000-0000. The Hypothec granted specific
assets described in the statement. The Hypothec is registered for an
amount of $600,000 Canadian with interest thereon at an annual rate of 25%;
the expiration date of registration is July 18, 2004.
Attachment A
------------
SCHEDULE 2.13
LIENS
-----
UCC Matters.
**** See attached reports issued by CSC The United States Corporation
relating to filings for Scovill Fasteners Inc. in Habersham County, Georgia and
the Georgia Cooperative Authority relating to filings for Xxxxxxx Fasteners Inc.
====================================================================================================================================
FILE NO.
SECURED PARTY DEBTOR JURISDICTION & FILE DATE COLLATERAL DESCRIPTION ASSIGNMENT
------------------------------------------------------------------------------------------------------------------------------------
Zeno/MBM Xxxxxxx Fasteners Xxxxxxxx Xxxxxx, XX 00-00-0000 Specific Leased Equipment
Inc. (5/5/95) (Copier and Fax)
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas Xxxxxxx Fasteners Gwinnett County, GA 00-00-00000 Receivables, Contracts, Assignment To:
Inc. (11/2/95) Inventory, Accounts, Banque Indosuez
Equipment, Marks, Patents 1/26/96
and Copyrights, Goods, etc.
Amendment: 1/26/96
Release of
Collateral:
11/12/96
------------------------------------------------------------------------------------------------------------------------------------
General Electric Capital
Corporation Xxxxxxx Fasteners Gwinnett County, GA 00-00-00000 Equipment pursuant
Inc. (12/17/96) to a Master Lease
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Secretary of 200014 Leased Equipment
Commonwealth, MA (11/26/93)
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas Xxxxxxx Fasteners Secretary of 348680 Receivables, Contracts, Assignment To:
Inc. Commonwealth, MA (11/2/95) Inventory, Accounts, Banque Indosuez
Equipment, Marks, Patents 1/26/96
and Copyrights, Goods, etc.
Amendment:
1/26/96
Release of
Collateral:
11/12/96
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
FILE NO.
SECURED PARTY DEBTOR JURISDICTION & FILE DATE COLLATERAL DESCRIPTION ASSIGNMENT
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas Xxxxxxx Fasteners Secretary of State, 1147825 Receivables, Contracts, Assignment to:
Inc. ME (11/2/95) Inventory, Accounts, Banque Indosuez
Equipment, Marks, Patents 1/26/96
and Copyrights, Goods, etc.
Amendment:
1/26/96
Release of
Collateral:
11/12/96
------------------------------------------------------------------------------------------------------------------------------------
General Electric Capital Xxxxxxx Fasteners Secretary of State, 1201811 Equipment pursuant to a
Corporation Inc. ME Master Lease
------------------------------------------------------------------------------------------------------------------------------------
Not available at this time Xxxxxxx Fasteners Secretary of State, 1543109 Not available at this time
NJ
------------------------------------------------------------------------------------------------------------------------------------
Not available at this time Xxxxxxx Fasteners Secretary of State, 1718859 Not available at this time
NJ
------------------------------------------------------------------------------------------------------------------------------------
Not available at this time Xxxxxxx Fasteners Secretary of State, 1665815 Not available at this time
Inc. NJ
------------------------------------------------------------------------------------------------------------------------------------
Not available at this time Xxxxxxx Fasteners Secretary of State, 1739648 Not available at this time
Inc. NJ
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Passaic County, NJ FS062818 Lease Agreement - Equipment
(1/5/94)
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Secretary of State, 1054911 Lease Agreement - Equipment
NC (12/1/93)
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas Xxxxxxx Fasteners Secretary of State, 1278696 Receivables, Contracts, Assignment to:
Inc. NC (11/3/95) Inventory, Accounts, Banque Indosuez
Equipment, Marks, Patents 1/26/96
and Copyrights, Goods, etc.
Amendment:
1/26/96
Release of
Collateral:
11/12/96
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Secretary of State, 1369921 Lease Agreement - Equipment
NC (8/16/96
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
FILE NO.
SECURED PARTY DEBTOR JURISDICTION & FILE DATE COLLATERAL DESCRIPTION ASSIGNMENT
------------------------------------------------------------------------------------------------------------------------------------
General Electric Capital Xxxxxxx Fasteners Secretary of State, 1400318 Equipment pursuant to a
Corporation Inc. NC (11/21/96) Master Lease
------------------------------------------------------------------------------------------------------------------------------------
General Electric Capital Xxxxxxx Fasteners Secretary of State, 1407754 Equipment pursuant to a
Corporation Inc. NC (12/17/96) Master Lease
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Xxxxxxxx Xxxxxx, XX 000000 Lease Agreement - Equipment
(11/24/93)
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas Xxxxxxx Fasteners Xxxxxxxx Xxxxxx, XX 000000 Receivables, Contracts, Assignment to:
Inc. (11/3/95) Inventory, Accounts, Banque Indosuez
Equipment, Marks, Patents 1/26/96
and Copyrights, Goods, etc.
Amendment:
1/26/96
Release of
Collateral:
11/12/96
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Xxxxxxxx Xxxxxx, XX 000000 Lease Agreement - Equipment
(8/16/96)
------------------------------------------------------------------------------------------------------------------------------------
General Electric Capital Xxxxxxx Fasteners Xxxxxxxx Xxxxxx, XX 000000 Equipment pursuant to a
Corporation Inc. (12/27/96) Master Lease
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas Xxxxxxx Fasteners Secretary of State, 644502 Not available at this time Assignment to:
Inc. RI (11/2/95) Banque Indosuez
1/26/96
Amendment:
1/26/96
Release of
Collateral:
11/13/96
------------------------------------------------------------------------------------------------------------------------------------
Fidelity Asset Management Xxxxxxx Fasteners Secretary of State, 657216 Not available at this time
Inc. Inc. RI (9/30/96)
------------------------------------------------------------------------------------------------------------------------------------
General Electric Xxxxxxx Fasteners Secretary of State, 660312 Not available at this time
Inc. RI (12/17/96)
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
FILE NO.
SECURED PARTY DEBTOR JURISDICTION & FILE DATE COLLATERAL DESCRIPTION ASSIGNMENT
------------------------------------------------------------------------------------------------------------------------------------
Fidelity Asset Management Xxxxxxx Fasteners Secretary of State, 666151 Not available at this time
Inc. Inc. RI (5/13/97)
------------------------------------------------------------------------------------------------------------------------------------
Fleet Capital Corp. Xxxxxxx Fasteners Secretary of State, 666152 Not available at this time
Inc. RI (5/13/97)
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Secretary of State, 9300226137 Lease Agreement - Equipment
Inc. TX (11/29/93)
------------------------------------------------------------------------------------------------------------------------------------
Clarklift Of El Paso, Inc. Xxxxxxx Fasteners Secretary of State, 9500132304 One New Big Xxx Model PDC-
Inc. TX (7/5/95) 30-130 Walk Behind Forklift
(Equity Lease)
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas Xxxxxxx Fasteners Secretary of State, 9500210512 Receivables, Contracts, Assignment to:
Inc. TX (11/2/95) Inventory, Accounts, Banque Indosuez
Equipment, Marks, Patents 1/26/96
and Copyrights, Goods, etc.
Amendment:
1/26/96
Release of
Collateral:
11/18/96
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Secretary of State, 9600165625 Lease Agreement - Equipment
Inc. TX (8/21/96)
------------------------------------------------------------------------------------------------------------------------------------
General Electric Capital Xxxxxxx Fasteners Secretary of State, 0000000000 Equipment pursuant to Master
Corporation Inc. TX (11/21/96) Lease
------------------------------------------------------------------------------------------------------------------------------------
Clarklift of El Paso, Inc. Xxxxxxx Fasteners Secretary of State, 9700193452 One New Big Xxx Model PDC-
Inc. TX (9/16/97) 30-130 Walk Behind Forklift
(Equity Lease)
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners El Paso County, TX 8591 Lease Agreement - Equipment
Inc. (11/29/93)
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Secretary of State, 257419 Lease Agreement - Equipment
Inc. TN (11/30/93)
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
FILE NO.
SECURED PARTY DEBTOR JURISDICTION & FILE DATE COLLATERAL DESCRIPTION ASSIGNMENT
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas Xxxxxxx Fasteners Secretary of State, 499311 Receivables, Contracts, Assignment to:
Inc. TN (12/11/95) Inventory, Accounts, Banque Indosuez
Equipment, Marks, Patents 1/26/96
and Copyrights, Goods, etc.
Amendment:
1/26/96
Release of
Collateral:
11/12/96
------------------------------------------------------------------------------------------------------------------------------------
CLG, Inc. Xxxxxxx Fasteners Xxxxxxxx Xxxxxx, XX X00000 Lease Agreement - Equipment
Inc. (11/29/93)
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas KSCO Acquisition Department of 220909 Receivables, Inventory, Assignment to:
Corporation State, NY (11/2/95) Contracts, Accounts, Banque Indosuez
Equipment, Marks, Patents 1/26/96
and Copyrights, Goods, etc.
Amendment:
1/26/96
Release of
Collateral:
11/12/96
------------------------------------------------------------------------------------------------------------------------------------
Banque Paribas KSCO Acquisition Xxxxxxxxxxx Xxxxxx, 0000000 Receivables, Contracts, Assignment to:
Corporation NY (11/6/95) Inventory, Accounts, Banque Indosuez
Equipment, Marks, Patent 1/26/96
Copyrights, Goods, etc.
Amendment:
1/26/96
Release of
Collateral:
11/13/96
------------------------------------------------------------------------------------------------------------------------------------
Banque Indosuez PCI Group, Inc. Secretary of State, 1158725 Receivables, Contracts, Release of
d/b/a ME (1/26/96) Inventory, Accounts, Collateral:
Xxxxxxxx Bros. Equipment, Marks, Patents 11/12/96
Supply, Inc. and Copyrights, Goods, etc.
------------------------------------------------------------------------------------------------------------------------------------
Banque Indosuez PCI Group, Inc. Secretary of State, 1158726 Receivables, Contracts, Release of
ME (1/26/96) Inventory, Accounts, Collateral:
Equipment, Marks, Patents 11/12/96
and Copyrights, Goods, etc.
------------------------------------------------------------------------------------------------------------------------------------
Banque Indosuez Xxx Fastener Secretary of State, 647712 Not available at this time Release of
Company, L.L.C. RI (1/26/96) Collateral:
11/13/96
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
FILE NO.
SECURED PARTY DEBTOR JURISDICTION & FILE DATE COLLATERAL DESCRIPTION ASSIGNMENT
------------------------------------------------------------------------------------------------------------------------------------
Shawmut Bank Xxx Fastener GA Cooperative 000-00-000000 Not available at this time Continuation of
Company, L.L.C. Authority (2/21/95) Financing
(Filing made in Statement
Bartow County) #90-051137
------------------------------------------------------------------------------------------------------------------------------------
Banque Indosuez Xxx Fastener GA Cooperative 000-00-000000 Not available at this time Release of
Company, L.L.C. Authority (1/26/96) Collateral:
(Filing made in 11/12/96
Habersham County)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.14
Environmental And Safety Matters
--------------------------------
X. XXXXXXX FASTENERS INC.
1. Matters raised or referred to in the following document, except to the
extent Xxxxxxx is indemnified for such matters: Environmental Liability
Assessment of Xxxxxxx Apparel Fastener, Inc., dated October 1995, prepared by
ENVIRON Corporation for Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx. These matters
include, but are not in any way limited to, the following:
Clarkesville, Georgia Facility:
-------------------------------
(a) Post-closure care activities at the Clarkesville, Georgia
Facility pursuant to the Resource Conservation and Recovery Act;
(b) Historical disposal of the Facility's wastewater sludge,
including but not limited to disposal of such sludge at the City of
Clarkesville Landfill and disposal of sludge generated at the city-
owned wastewater treatment facility to which the Facility discharged
prior to 1973;
(c) Cyanide contamination in and around the plating department at the
Clarkesville, Georgia facility;
Watertown, Connecticut Facility: Liabilities associated with
--------------------------------
environmental remediation at the former Scovill facility in Watertown,
Connecticut, except to the extent that Xxxxxxx is indemnified for these
liabilities.
Waterbury, Connecticut Facility: Liabilities associated with environmental
--------------------------------
contamination at the former Xxxxxxx facility in Waterbury, Connecticut
except to the extent that Xxxxxxx is indemnified for these liabilities.
Newark, New Jersey Facility: Liabilities associated with environmental
----------------------------
contamination at the former Xxxxxxx facility in Newark, New Jersey, except
to the extent that Xxxxxxx is indemnified for these liabilities.
Old Southington Landfill Superfund Site: Liabilities associated with
----------------------------------------
environmental contamination at the Old Southington Landfill Superfund Site
except to the extent that Xxxxxxx is indemnified for these liabilities.
Solvents Recovery Service of New England Superfund Site: Liabilities
--------------------------------------------------------
associated with environmental contamination at the Solvents Recovery
Service of New England Superfund Site, except to the extent that Scovill is
indemnified for these liabilities.
1
2. From time to time, the Clarkesville Facility has experienced exceedances of
its National Pollutant Discharge Elimination System discharge permit limits.
The Facility will be seeking renewal of this permit in 1999. In light of a
review of pollutant loading for various water bodies in the State of Georgia
under the Clean Water Act and the Georgia Water Quality Control Act, it is
possible that expenditures for additional pollution control equipment will be
necessary as part of the permit renewal process.
3. The Clarkesville Facility may not be in full compliance with all applicable
air emissions regulations and is evaluating its compliance status. Renewal of
the existing permits and the requirements for application for new permits may be
affected by this analysis, and may require material expenditures.
4. The Clarkesville Facility experienced a release of partially-treated
wastewater on January 27, 1997.
5. The Clarkesville Facility has the following environmental permits:
(a) Hazardous Waste Facility Permit No. HW-088(D) (December 31, 1992)
(expires on December 31, 2002);
(b) Air Quality Permit No. 3963-068-8402 (June 15, 1982); amendments to
Air Quality Permit dated April 4, 1985, June 23, 1987, December 30, 1991
and March 21,1995;
(c) National Pollutant Discharge Elimination System Permit No. GA0001112
(April 29, 1994) (expires on March 31, 1999); and
(d) National Pollutant Discharge Elimination System Stormwater Discharge
General Permit No. GAR000000 (June 14, 1993) (expires on May 31, 1998).
X. XXX FASTENER COMPANY, L.L.C.
Rau Fastener Company (Providence, Rhode Island Facility)
--------------------------------------------------------
1. Matters raised or referred to in the following documents, except to the
extent Xxxxxxx is indemnified for such matters:
(a) Environmental Liability Assessment of PCI Group, Inc. and Xxx Fastener
Company, L.L.C., dated December 1995, prepared by ENVIRON Corporation for
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx.
(b) Letter from Xxxxxx X. Xxxxx of Region I of the United States
Environmental Protection Agency to Xx. Xxxx X. Xxxxxxxxx of Xxx Fastener
Company, L.L.C. dated March 20, 1996, regarding Request for Information
under Section 3007 of the Resource Conservation and Recovery Act, 42 U.S.C.
(S) 6927,
2
and Section 104 of the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. (S) 9604.
2. Liabilities associated with the closure and post-closure care of the
Providence, Rhode Island Facility in accordance with the Asset Closure Plan
dated March 20, 1996 and related correspondence, except to the extent Xxxxxxx is
indemnified for such matters.
Xxx (Canada) Facility:
----------------------
. Matters raised or referred to in the following documents (and attachments
thereto), except to the extent Xxx (Canada) is indemnified for such matters:
(a) Environmental Site Assessment of the Xxx Fasteners (Canada) Inc.
Manufacturing Facility, 0000-0000 Xxx Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx,
dated May 12, 1995, prepared by Technitrol-Eco, Inc. for Xxxxxx Industries
and PCI Group, Inc. ("Technitrol Report"), and corrections thereto (dated
May 18, 1995);
(b) Memorandum from Xxxxx Xxxxxxxxxx to X. Xxxxxxxxxx and Xxxx Xxxxxxxxx
regarding interim report on lease and environmental problem at Xxx Fastener
(Canada) Inc., dated May 31, 1995;
(c) Letter from Xxxxx-Xxxxxx Gravel to Xxxxx Xxxxxxxxxx regarding
environmental issues at Xxx Fastener (Canada), dated June 19, 1995;
(d) Letter from Xxxxx-Xxxxxx Gravel to Xxxxxx Industries regarding
environmental issues at Xxx Fastener (Canada), dated July 7, 1995;
(e) Letter from Xxxx Xxxxxx to Xxx Fastener (Canada) Inc. regarding
environmental issues at Xxx Fastener (Canada), dated July 28, 1995;
(f) Letter from Xxxxx-Xxxxxx Gravel to Xxxxx Xxxxxxxxxx regarding air
equipment at Xxx Fastener (Canada), dated August 2, 1995;
(g) Letter from Xxxxx-Xxxxxx Gravel to Xxxxx Xxxxxxxxxx regarding
environmental issues at Xxx Fastener (Canada), dated August 16, 1995.
(h) Memorandum from Xxxxx Xxxxxxxxxx to Xxxx Xxxxxxxxxx regarding status
of environmental issues and structural repairs at 0000 Xxx Xxxxxxxxx Xx.
Xxxxxxxx, dated November 16, 1995;
(i) Letter from Xxxxx X. Xxxxxxx to Xx. Xxxxx Xxxxxxxxxx regarding Xxx
Canada Lease Modification, dated December 1, 1995;
3
(j) Matters raised or referred to in the following document, except to the
extent Xxxxxxx Fasteners Inc. (the "Company") is indemnified for such
matters: Environmental Liability Assessment of PCI Group, Inc. and Xxx
Fastener Company, L.L.C., dated December 1995, prepared by ENVIRON
Corporation for Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx.
2. Matters raised or referred to by ENVIRON in any report, verbal or written,
provided to Purchasers regarding ENVIRON's September 1997 environmental
assessment of the Xxx (Canada) manufacturing facility, including but in no way
limited to issues related to the facility's air emissions control equipment and
penalties or fines releated to the failure to implement same.
3. Environmental Permits - As set forth in footnote 1 to Schedule 2.1 of this
Agreement, a corporate reorganization of the Canadian entities is under way.
This reorganization will necessitate the reissuance of the following permits to
the resulting entity, 158856 Canada Inc. (which is to be renamed "Xxxxxxx Canada
Inc.") from the current operating entity.
(a) Attestation de Conformite - Air (Air Discharge Permit) (April 3, 1990)
from the City of Montreal;
(b) Permis d'utilisation de deux systems existants d'application de
peinture au pistolet (May 17, 1984) from communaute Urbaine de Montreal
Service de l'Environment;
(c) Certificat d'Autorisation pour l'Exploitation d'une Usine de
Fabrication de Boutons-Pression et Autres Attaches Metalliques (March 18,
1991);
(d) Cession de Certificat d'Autorisation pour l'Exploitation d'une Usine
de Fabrication de Boutons-Pression et Autres Attaches Metalliques (May 8,
1995);
(e) Permis pour Deversement d'eaux Usees Industrielles (Waste Water
Discharge & Conditions Permit) (October 27, 1987) from the City of
Montreal;
(f) Certificat de Conformite (conformity certificate) (October 1990) from
the City of Montreal; and
(g) Any other permits or approvals that were made available to ENVIRON as
part of ENVIRON's September 1997 environmental assessment of the Xxx
(Canada) manufacturing facility.
4
Unifast
-------
1. Matters raised or referred to by ENVIRON in any report, verbal or written,
provided to Purchaser regarding ENVIRON's September 1997 environmental
assessment of the Unifast operations.
2. Environmental Permits:
(a) Authorization issued to S.A. Unifast Manufacturing from Belgian
Ministere de l'emploi et du Travail, Administration de l'Hygiene et de la
Medecine du Travail, for l'Acide Cyanhydrique et de derives organiques
cyanogenes (dated April 20, 1988).
(b) Boiler operating permit;
(c) Business Operating Permit (issued 1969) (up for renewal in 1999);
(d) Authorization to store Cyanide in the buildings (issued November 1973)
(up for renewal in April 1999) from the Government de la Province du
Hainaut; and
(e) Any other permits or approvals that were made available to ENVIRON as
part of its September 1997 environmental assessment of the Unifast
manufacturing facility.
3. Matters raised or referred to in the July 2, 1997 Evaluation Environmentale
of Unifast S.A. prepared by the Union Wallonne des Entreprises, including but
not limited to issues related to the expiration of Unifast's wastewater
discharge permit.
4. Unifast will need to apply for a Global Environmental Permit in 1999. This
permit will replace all of the facility's environmental permits. It is possible
that expenditures will be associated with the facility's application for and
implementation of the requirements of this Global Environmental Permit.
C. PCI GROUP, INC.
1. Matters raised or referred to in the following documents, except to the
extent Xxxxxxx is indemnified for such matters:
(a) Environmental Liability Assessment of PCI Group, Inc. and Xxx Fastener
Company, L.L.C., dated December 1995, prepared by ENVIRON Corporation for
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, including but in no way limited
to liabilities associated with the following matters:
5
(i) on-site soil and groundwater contamination at the former PCI
Facility in New Bedford, Connecticut, except to the extent the Company
is indemnified for such liabilities;
(ii) the listing of the PCI Facility in New Bedford, Connecticut on
the Massachusetts "List of Confirmed Disposal Sites and Locations to
be Investigated."; and,
(b) Report on Interim Phase II - Comprehensive Site Assessment, dated
October 1995, prepared by Xxxxx & Xxxxxxx, Inc. for Emhart Industries, Inc.
2. Matters raised or referred to in the Environmental Remediation and
Responsibility Agreement, dated December 17, 1987, between Emhart Industries and
PCI Group, Inc.
6
SCHEDULE 2.15
Employee Relations
------------------
1. In connection with the shutdown in 1996 of the Rau Fastener Company, L.L.C.
facility in Providence, Rhode Island and the PCI Group, Inc. facility in
New Bedford, Massachusetts, Xxx Fastener Company, L.L.C. and PCI Group,
Inc. entered into effects bargaining with the labor unions representing the
employees at such facilities. The effects bargainings resulted in
settlement agreements among the applicable parties, pursuant to which Xxx
Fastener Company, L.L.C. and PCI Group, Inc. made a payment to affected
employees. As a result of these settlement agreements, the Company is no
longer subject to any collective bargaining obligations or agreements in
connection with such facilities.
2. Unifast-Xxxxxxx X.X.:
a. Mid-1996 - Meeting between Unifast-Xxxxxxx employees and management,
headed by the social mediator of the Labor Management Committee
prompted by lack of communication between former General Manager
(Xx. Xxxxx) and employees. Meeting ended in reconciliation between
parties.
b. September 24, 1997 - Two separate half-hour work stoppages prompted by
blue-collar worker's claim that he did not receive an hourly premium
he claimed he was entitled to. Resolved via agreement with employees,
pursuant to which employees were granted nominal indemnity for
irregular hours worked.
SCHEDULE 3.2
Stockholder Consents and Approvals
----------------------------------
See Schedule 2.5 item 4.
-------------------
SCHEDULE 3.4
Affiliate Transactions
----------------------
None.
SCHEDULE 4.3
------------
See item 1 on schedule 2.5.
SCHEDULE 5.2
Required Filings and Consents
-----------------------------
1. Filings required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the regulations promulgated thereunder.
2. Receipt of informal "no objection" letter from Belgian Ministry of Economic
Affairs in connection with the Belgian Law of August 5, 1991 on the
protection of economic competition.
3. A notice filing is required in Puerto Rico to effect an indirect change in
control of Xxxxxxx Puerto Rico, Inc. to the extent that the tax-exemption
certificate held by Xxxxxxx Puerto Rico, Inc. is not surrendered.
4. Consents required with respect to Indebtedness.
