THIRD AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
Exhibit 10.7
THIRD AMENDMENT TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT (this “Amendment”), dated as of November 10, 2011, is entered into by and among the Lenders signatory hereto, PNC BANK, NATIONAL ASSOCIATION (“PNC”), in its capacity as agent for the Lenders (in such capacity “Agent”), GENERAL ELECTRIC CAPITAL CORPORATION and PNC, as co-collateral agents (in such capacities, the “Co-Collateral Agents” and each a “Co-Collateral Agent”), TWIST BEAUTY PACKAGING HOLDING CORP., a Delaware corporation (“U.S. Parent Holdco”), and its Subsidiaries signatory hereto. Terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement defined below.
RECITALS
A. The Lenders, Agent, the Co-Collateral Agents, U.S. Parent Holdco, BEAUTY PACKAGING CANADA HOLDINGS, INC., an Ontario corporation (“Canadian Parent Holdco” and together with U.S. Parent Holdco, the “Parent Holdcos” and each a “Parent Holdco”), XXXXX AMERICAS, INC., a Delaware corporation (“Xxxxx Americas”), XXXXX COSMETICS AMERICA, INC., a Delaware corporation (“Xxxxx Cosmetics”), XXXXX BEAUTY SOLUTIONS USA, LLC, a New York limited liability company (“Xxxxx Solutions”), XXXXX MEXICANA, LP, a Texas limited partnership (“Xxxxx Mexicana” and, collectively with Xxxxx Americas, Xxxxx Cosmetics and Xxxxx Solutions, the “U.S. Borrowers” and each a “U.S. Borrower”), XXXXX CANADA INC., an Ontario corporation (“Xxxxx Canada” and collectively with the U.S. Borrowers, the “Existing Borrowers” and each an “Existing Borrower”) have previously entered into that certain Revolving Credit, Term Loan and Security Agreement, dated December 17, 2010, as amended by that certain First Amendment to Revolving Credit, Term Loan and Security Agreement dated January 18, 2011 and that certain Second Amendment to Revolving Credit, Term Loan and Security Agreement and Waiver, dated August 31, 2011 (as amended, and as further amended, modified and supplemented from time to time, the “Credit Agreement”), pursuant to which the Lenders have made certain loans and financial accommodations available to the Existing Borrowers. Xxxxx
B. Pursuant to the terms of that certain Contribution and Asset Purchase Agreement, dated as of November 10, 2011 (in the form attached hereto as Exhibit A, and together with all schedules and exhibits thereto, the “Eyelematic Acquisition Agreement”), by and among Xxxxx Metal Americas, Inc., a Delaware corporation (“Xxxxx Metal” and together with the Existing Borrowers, the “Borrowers” and each a “Borrower”), Xxxxx Metal Real Estate, Inc., a Delaware corporation (“Xxxxx Real Estate”), Xxxxx Metal Holding Corp., a Delaware corporation (“Xxxxx Metal Holding” and, together with Xxxxx Metal and Xxxxx Real Estate, the “New Loan Parties” and each a “New Loan Party”), Eyelematic Manufacturing Company, Incorporated, a Connecticut corporation (“Eyelematic”), Echo Manufacturing, Inc., a Connecticut corporation (“Echo”), Seemar Real Estate, LLC, a Connecticut limited liability company (“Seemar” and, together with Eyelematic and Echo, the “Eyelematic Sellers”), and certain stock holders of the Eyelematic Sellers, (i) Xxxxx Metal Holding shall contribute $5,250,000 in cash to Xxxxx Metal in exchange for all of the issued and outstanding voting common Equity Interests of Xxxxx
Metal, (ii) the Eyelematic Sellers shall contribute the assets and liabilities specified therein to Xxxxx Metal in exchange for $5,250,000 and all of the issued and outstanding non-voting preferred Equity Interests of Xxxxx Metal, (iii) Xxxxx Real Estate shall purchase from Eyelematic and Seemar the Real Property described therein for an aggregate purchase price of $4,750,000 and (iv) Xxxxx Real Estate shall lease from Seemar the Real Property described therein for an aggregate rent of $200,000 (clauses (i) - (iv) collectively, the “Eyelematic Acquisition”).
C. Pursuant to the terms of the Credit Agreement (i) Xxxxx Metal is required, and has agreed, to become a U.S. Borrower under the Credit Agreement and (ii) Xxxxx Real Estate and Xxxxx Metal Holding are required, and have agreed to become U.S. Guarantors of the Obligations.
D. The parties hereto now wish to further amend the Credit Agreement on the terms set forth herein in order to, among other things, join Xxxxx Metal to the Credit Agreement and permit the Eyelematic Acquisition.
E. The Parent Holdcos and the Borrowers are entering into this Amendment with the understanding and agreement that, except as specifically provided herein, none of Agent’s, any Co-Collateral Agent’s or any Lender’s rights or remedies as set forth in the Credit Agreement or any Other Document is being waived or modified by the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Joinder of Xxxxx Metal.
(a) In accordance with Section 7.12 of the Credit Agreement, Xxxxx Metal is required, and does agree, to expressly join the Credit Agreement as a U.S. Borrower, and hereby agrees that it shall be deemed a party to the Credit Agreement as if Xxxxx Metal were originally signatory thereto. Xxxxx Metal hereby agrees to be bound by, and a maker and obligor of, all representations, warranties, indemnities, undertakings, covenants, limitations, waivers, exclusions, acknowledgements and agreements under the Credit Agreement relating to, pertaining to, or binding upon, a U.S. Borrower or made or agreed to by a U.S. Borrower to or for the benefit of the Agent and/or any of the Lenders.
(b) Without limiting the foregoing: (a) Xxxxx Metal, as security for the payment and performance in full of the Obligations, does hereby grant, assign, and pledge to Agent, for the benefit of the U.S. Lenders, a security interest in and Lien on all personal property of Xxxxx Metal including all property of the type described in the Credit Agreement as “Collateral” and (b) Xxxxx Metal appoints Xxxxx Americas as its U.S. Borrowing Agent in accordance with the terms of Section 15.18 of the Credit Agreement. The information on the attached Schedules 4.5, 4.15(h), 5.2(b), 5.4 and 5.6 hereto is hereby added to Schedules 4.5, 4.15(h), 5.2(b), 5.4 and 5.6 to the Credit Agreement. The joinder provided for herein is a supplement to, and not a novation of, the Credit Agreement, which remains in full force and effect.
2. Amendments to Credit Agreement.
(a) The following defined terms are hereby added to Section 1.2 of the Credit Agreement in their proper alphabetical order:
“Acquired Leased Real Property” shall mean the Real Property commonly known as 0 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx.
“Acquired Owned Real Property” shall mean the Real Property (a) commonly known as (i) 00 Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx and (ii) 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx and (b) more specifically described on Exhibit A-1.
“Xxxxx Metal” shall mean Xxxxx Metal Americas, Inc., a Delaware corporation.
“Xxxxx Metal Holding” shall mean Xxxxx Metal Holding Corp., a Delaware corporation.
“Xxxxx Real Estate” shall mean Xxxxx Metal Real Estate, Inc., a Delaware corporation.
“Xxxxx Solutions Europe” shall mean Xxxxx Beauty Solutions Europe, a société par actions simplifiée organized and existing under the laws of France, formerly known as Cosmetech Mably Europe.
“CMI Hong Kong” shall mean Cosmetech International (H.K.) Ltd., an entity formed under the laws of Hong Kong.
“CMI Hong Kong Guaranty” shall mean the guaranty by Xxxxx Solutions of no more than $2,040,000 of the obligations of CMI Hong Kong pursuant to documentation which has been received by the Co-Collateral Agents prior to the execution thereof for confirmation by the Co-Collateral Agents .
“Eyelematic Acquisition” shall mean the transactions contemplated by the Eyelematic Acquisition Documents.
“Eyelematic Acquisition Agreement” shall mean that certain Contribution and Asset Purchase Agreement, dated as of November 10, 2011, by and among Xxxxx Metal, Xxxxx Metal Holding, Xxxxx Metal Real Estate, the Eyelematic Sellers and certain stock holders of the Eyelematic Sellers, as in effect on November 10, 2011, together with all schedules and exhibits thereto, and with such amendments and modifications thereto as are not prohibited under the terms of this Agreement.
“Eyelematic Acquisition Documents” shall mean, collectively, the Eyelematic Acquisition Agreement, the Escrow Agreement (as defined in the Eyelematic Acquisition Agreement) and the New Lease (as defined in the Eyelematic Acquisition Agreement, in each case, with such amendments and modifications thereto as are not prohibited under the terms of this Agreement.
“Eyelematic Sellers” shall mean Eyelematic Manufacturing Company, Inc., a Connecticut corporation, Echo Manufacturing, Inc., a Connecticut corporation, and Seemar Real Estate, LLC, a Connecticut limited liability company.
“Permitted Preferred Equity Interests” shall mean, with respect to any Person, any class or classes (however designated) of Equity Interests of such Person that are preferred with respect to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over any other class of Equity Interests of such Person which (a) are non-voting and (b) are not mandatorily or optionally redeemable or subject to any other payment obligation (including any obligation to pay dividends, other than dividends payable in additional shares of Equity Interests of such Person) on or before a date that is less than ninety (90) days after the last day of the Term or, if such redemption is required due to a change in the ownership of the Equity Interests of such Person or a liquidation of such Person, are expressly subordinated in right of payment to the Obligations.
“Permitted Sale Leaseback Transactions” shall mean one or more sales by Xxxxx Real Estate of one or more parcels of the Acquired Owned Real Property and the concurrent leasing by Xxxxx Metal of such Acquired Owned Real Property under customary terms and on an arm’s length basis.
(b) The defined term “Capital Expenditures” set forth in Section 1.2 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“ “Capital Expenditures” shall mean expenditures made or liabilities incurred for the acquisition of any fixed assets or improvements, replacements, substitutions or additions thereto which have a useful life of more than one year, including the total principal portion of Capitalized Lease Obligations, which, in accordance with GAAP, would be classified as capital expenditures; provided, however, that the following shall not constitute Capital Expenditures: (a) expenditures to the extent that they are made by a Parent Holdco or any of its Subsidiaries as part of the consideration for a Permitted Acquisition, (b) expenditures to the extent that they are made by a Parent Holdco or any of its Subsidiary to effect leasehold improvements to any property leased by such Person as lessee, to the extent that such expenses have been reimbursed in cash by the landlord that is not a Loan Party, (c) expenditures to the extent that they are actually paid for by a third party (excluding any Loan Party) or funded by an equity contribution from Sun Capital and/or other co-investors or funded by Permitted Sponsor Subordinated Debt and for which no Loan Party has provided or is required to provide or incur, directly or indirectly, any consideration or monetary obligation to such third party or any other person (whether before, during or after such period), (d) property, plant and equipment taken in settlement of accounts, (e) subject to the prior written consent of Agent in its Permitted Discretion, expenditures to the extent that they are financed with the proceeds of the sale or issuance by any Loan Party of their Equity Interests, (f) expenditures to the extent that they are made with the proceeds of funds permitted to be reinvested pursuant to Section 2.21(c)(i) and (g) lease payments made in connection with the Permitted Sale Leaseback Transactions.”
(c) Clause (ii) of the defined term “Change of Control” set forth in Section 1.2 of the Credit Agreement is hereby amended to read as follows:
“(ii) U.S. Parent Holdco ceases to directly, or indirectly through another U.S. Borrower, own and control, free and clear of all Liens (other than Permitted Collateral Encumbrances), all of the Equity Interests of each U.S. Borrower (other than, with respect to Xxxxx Metal, Permitted Preferred Equity Interests),”
(d) The defined term “Consulting Agreement” set forth in Section 1.2 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“ “Consulting Agreement” shall mean shall mean the consulting agreement by and between the Sun Capital Manager and any of the Loan Parties governing the payment of consulting, management or other such fees to the Sun Capital Manager dated July 11, 2011 as amended, restated supplemented or otherwise modified from time to time as permitted under this Agreement.”
(e) The defined term “EBITDA” set forth in Section 1.2 of the Credit Agreement is hereby amended by adding the following to the end of such defined term:
“For avoidance of doubt, EBITDA associated with any entity or assets acquired pursuant to a Permitted Acquisition shall only be included in the calculation of EBITDA under this Agreement for the applicable measurement periods following the date such entity or assets were acquired and no historical EBITDA of such entity or assets shall be included in any calculation of EBITDA for purposes of measuring compliance with the covenant set forth in Section 6.5.”
(f) The defined term “Extraordinary Receipts” set forth in Section 1.2 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“ “Extraordinary Receipts” means any cash received by any Parent Holdco or any of its Subsidiaries not in the ordinary course of business (excluding casualty proceeds described in Section 2.21(c)(i) hereof and foreign, United States, state or local tax refunds), including: (i) pension plan reversions, (ii) proceeds of insurance (other than business interruption insurance proceeds arising with respect to losses of an operating segment of the Twist North America Group that do not provide 10% or more of the revenues of the Twist North America Group), (iii) judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, (iv) condemnation awards (and payments in lieu thereof), (v) indemnity payments (other than those received pursuant to the Eyelematic Acquisition Documents) and (vi) any purchase price adjustment received in connection with any purchase agreement (other than those received pursuant to the Eyelematic Acquisition Documents).”
(g) The defined term “Maximum Revolving Advance Amount” set forth in Section 1.2 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“ “Maximum Revolving Advance Amount” shall mean, as of any date of determination, (a) $60,000,000 as such amount may be decreased pursuant to Section 2.21(a) minus (b) the then outstanding principal balance of the Initial Term Loan.”
(h) The defined term “Permitted Acquisition” set forth in Section 1.2 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“ “Permitted Acquisitions” shall mean the purchase or other acquisition by a Borrower or a Subsidiary of a Borrower of all or substantially all of the assets of any Person or of an operating division or line of business of a Person, or the purchase or other acquisition (whether by means of a merger, consolidation, or otherwise) by a Borrower or a Subsidiary of a Borrower of all or substantially all of the Equity Interest of any Person so long as:
(a) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of such proposed acquisition,
(b) other than with respect to the Eyelematic Acquisition, average Undrawn Availability during the thirty (30) day period immediately prior to such acquisition after giving pro forma effect to such acquisition, and immediately after giving effect to such acquisition Undrawn Availability will be, $10,000,000 or greater,
(c) the aggregate cash consideration (including earn-outs and other deferred payment obligations) payable in respect of such Permitted Acquisition, when aggregated with the cash consideration (including earn-outs and other deferred payment obligations) paid or payable in respect of all other Permitted Acquisitions, other than the Eyelematic Acquisition, does not exceed $10,000,000,
(d) exclusive of the Eyelematic Acquisition, no more than two (2) Permitted Acquisitions are consummated in any one Fiscal Year and no more than four (4) Permitted Acquisitions are consummated during the Term,
(e) such proposed acquisition is consensual and the assets being acquired, or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Borrowers or a business reasonably ancillary or incidental thereto,
(f) the assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the United States or Canada and/or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States or Canada,
(g) except with respect to the Eyelematic Acquisition, Borrowing Agent has provided Agent with written notice of the proposed acquisition at least 15 Business Days prior to the anticipated closing date thereof and has delivered to Agent (a) the due diligence package relative to the proposed acquisition, including forecasted balance sheets, profit and loss statements, and cash flow statements of the Person to be acquired (to the extent available), all prepared on a basis consistent with such Person’s historical financial statements, together with appropriate supporting details and a statement of underlying assumptions for the 1 year period following the date of the proposed acquisition, on a quarter by quarter basis), in form and substance (including as to scope and underlying assumptions) satisfactory to Agent in its Permitted Discretion, (b) written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including pro forma adjustments arising out of events which are directly attributable to such proposed acquisition, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions to be satisfactory to Agent in its Permitted Discretion) created by adding the historical on a financial statements of Twist North America Group on a Combined and Consolidated Basis (including the combined financial statements of any other Person or assets that were the subject of a prior Permitted Acquisition during the relevant period) to the historical consolidated financial statements of the Person to be acquired (or the historical financial statements related to the assets to be acquired) pursuant to the proposed acquisition, the Loan Parties (i) would have been in compliance with the covenants in Sections 6.5 and 7.6 hereof for the 4 fiscal quarters ended immediately prior to the proposed date of consummation of such proposed acquisition, and (ii) are projected to be in compliance with the covenants in Sections 6.5 and 7.6 hereof for the 4 fiscal quarters ended one year after the proposed date of consummation of such proposed acquisition and (c) not later than 5 Business Days prior to the anticipated closing date of the such acquisition, copies of the substantially final acquisition agreement and other material documents relative to the proposed acquisition, which agreement and documents must be reasonably acceptable to Agent,
(h) except with respect to the Eyelematic Acquisition, Borrowing Agent has provided Agent with cash flow projections, projected statements of operations and projected balance sheets of the Twist North America Group on a Combined and Consolidated Basis, as of the date of, and after giving to, the proposed acquisition, for the three year period following such acquisition (on a month-by-month basis for the first year following the date of such acquisition and on a year by year basis for each year thereafter) (the “Permitted Acquisition Projections”) and the covenants set forth in Sections 6.5 and 7.6, and any related defined terms, shall have been amended, in a manner mutually acceptable to the Co-Collateral Agents and the Borrowers, based upon the Permitted Acquisition Projections;
(i) no Indebtedness will be incurred, assumed, or would exist with respect to any Parent Holdco or any if its Subsidiaries as a result of such acquisition, other than Indebtedness permitted under Section 7.8 hereof and no Liens will be incurred, assumed, or would exist with respect to the assets of any Parent Holdco or any of its Subsidiaries as a result or such acquisition other than Permitted Encumbrances, and
(j) concurrently with the consummation of such acquisition, the applicable Loan Parties shall have complied with the provisions of Section 7.12 hereof with respect to any Person so acquired.
Notwithstanding the foregoing, no Receivables or Inventory acquired by a Loan Party in a Permitted Acquisition shall be included as Eligible Receivables or Eligible Inventory until a field examination (and, if required by Co-Collateral Agents in their Permitted Discretion, an Inventory appraisal) with respect thereto has been completed to the satisfaction of Co-Collateral Agents, including the establishment of Reserves required in Co-Collateral Agents’ Permitted Discretion; provided that (x) field examinations and appraisals in connection with Permitted Acquisitions shall not count against the limited number of field examinations or appraisals for which expense reimbursement may be sought as provided in Section 4.7 and (y) the Co-Collateral Agents acknowledge and agree that a field examination with respect to the Receivables and Inventory acquired in the Eyelematic Acquisition has been completed.”
(i) The defined term “Permitted Consulting Fees” set forth in Section 1.2 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“ “Permitted Consulting Fees” shall mean the consulting and transaction fees payable to Sun Capital Manager pursuant to the Consulting Agreement, to the extent that (a) both before and after giving effect to the payment of such fees, no Default or Event of Default exists or would arise as a result of such payment or (b) the payment of such fee is fully-funded with proceeds of a cash equity contribution from Sun Capital and evidence of the receipt of, and payment of such amounts has been provided to Agent, in form and substance acceptable to Agent; and for the avoidance of any doubt, the Permitted Consulting Fees, that are either not permitted to be paid to the Sun Capital Manager due to the restrictions in this Agreement or which are not paid to the Sun Capital Manager as a result of the Sun Capital Manager agreeing to postpone their payment, shall be permitted to accrue and may be paid to the Sun Capital Manager at a later date to the extent that such payment satisfies the conditions to payment set forth in clause (a) or (b) above.”
(j) The defined term “Permitted Joint Venture” set forth in Section 1.2 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“ “Permitted Joint Venture” shall mean CMI Hong Kong, TPI-Plastimec S.A., an entity organized under the laws of Argentina, and any other joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form, to which a Loan Party or Subsidiary thereof is a party, in each case, so long as (a) all books, records and operations of such Person are maintained separately from the Loan Parties, (b) except for the CMI Hong Kong Guaranty, no Loan Party or Subsidiary thereof provides, or is required to provide, any assets or funds to capitalize or fund the operations of such joint venture, partnership or similar arrangement and (c) prior to or concurrent with the formation thereof, Agent shall have received the Governing Documents of such joint venture, partnership or similar arrangement.”
(k) The defined term “Permitted Purchase Money Indebtedness” set forth in Section 1.2 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“ “Permitted Purchase Money Indebtedness” shall mean aggregate Indebtedness (which for avoidance of doubt, shall not include lease obligations incurred pursuant to the Permitted Sale Leaseback Transactions), secured by Liens of the type described in clause (h) of the definition of Permitted Encumbrances which does not exceed $2,000,000 at any time.”
(l) The defined term “Permitted Sponsor Acquisition Subordinated Debt” set forth in Section 1.2 of the Credit Agreement is hereby amended by (i) replacing the amount “$9,575,571.89” set forth in the introductory sentence thereof with the amount “$10,575,571.89” and (ii) amending and restating clause (g) thereof to read as follows:
“(g) the Loan Agreements (i) dated July 21, 2010, between Xxxxx Solutions Europe, as lender, and Xxxxx Solutions, as borrower, with respect to a loan in the amount of $3,000,000, of which $2,000,000 is outstanding as of the Closing Date and (ii) dated November 10, 2011, between Xxxxx Solutions Europe, as lender, and Xxxxx Solutions, as borrower, with respect to a loan in the amount of $1,000,000.”
(m) Section 2.1(a)(i)(y)(A) of the Credit Agreement is hereby amended and restate to read in its entirety as follows:
“(A) 85% (the “U.S. Receivables Advance Rate”) of U.S. Eligible Receivables; provided, however, (1) the aggregate amount of U.S. Revolving Advances with respect to such Receivables arising from sales of tooling, when aggregated with Canadian Revolving Advances with respect to Canadian Eligible Receivables that arise from sales of tooling shall not at any time exceed $2,000,000 and (2) the aggregate amount of U.S. Revolving Advances with respect to such Receivables arising from Domestic Customer Subsidiary Sales, when aggregated with Canadian Revolving Advances with respect to Canadian Eligible Receivables that arise from Domestic Customer Subsidiary Sales shall not at any time exceed $2,500,000, plus”
(n) Section 2.1(a)(i)(y)(B) of the Credit Agreement is hereby amended and restate to read in its entirety as follows:
“(B) the lesser of (a) 65% of the book value of the U.S. Eligible Inventory (the “U.S. Inventory Advance Rate”), (b) 85% of the book value of Inventory of the U.S. Borrowing Base Parties of the type appraised in determining the NOLV Factor, multiplied by the NOLV Factor or (c) $20,000,000 minus the Dollar equivalent of the amount of Canadian Revolving Advances made pursuant to clause (y)(B) of Section 2.1(b)(i); provided, however, the aggregate amount of U.S. Revolving Advances with respect to such Inventory which is in-transit Inventory, when aggregated with Canadian Revolving Advances with respect to Canadian Eligible Inventory that is in-transit Inventory shall not at any time exceed $2,500,000; provided, further, the aggregate amount of U.S. Revolving Advances with respect to such Inventory which is owned by
Xxxxx Metal shall not exceed $1,500,000 at any time prior to the receipt by Co-Collateral Agents of evidence satisfactory to the Co-Collateral Agents that the Loan Parties have fully implemented a perpetual inventory system satisfactory to the Co-Collateral Agents (the “Perpetual Inventory System”); provided further, that if the Perpetual Inventory System has not been fully implemented on or before November 10, 2012, then Inentory owned by Xxxxx Metal shall thereafter no longer constitute Eligible Inventory for any purposes hereunder, minus”
(o) Section 2.1(b)(i)(y)(A) of the Credit Agreement is hereby amended and restate to read in its entirety as follows:
“(A) 85% (the “Canadian Receivables Advance Rate”) of Canadian Eligible Receivables; provided, however, (1) the aggregate amount of Canadian Revolving Advances with respect to such Receivables arising from sales of tooling, when aggregated with U.S. Revolving Advances with respect to U.S. Eligible Receivables that arise from sales of tooling shall not at any time exceed $2,000,000 and (2) the aggregate amount of Canadian Revolving Advances with respect to such Receivables arising from Domestic Customer Subsidiary Sales, when aggregated with U.S. Revolving Advances with respect to U.S. Eligible Receivables that arise from Domestic Customer Subsidiary Sales shall not at any time exceed $2,500,000, plus”
(p) Section 2.4 of the Credit Agreement is hereby amended and restate to read in its entirety as follows:
“2.4 Term Loan. On the Closing Date, each U.S. Lender, made a term loan to U.S. Borrowers in an amount equal to such U.S. Lender’s U.S. Commitment Percentage of $15,500,000 (the “Initial Term Loan”). Subject to the terms and conditions of this Agreement, on November 10, 2011, each U.S. Lender, severally and not jointly, will make a term loan to U.S. Borrowers in the sum equal to such U.S. Lender’s U.S. Commitment Percentage of $4,629,100 (the “Additional Term Loan” and, together with the Initial Term Loan, the “Term Loan”). Subject to acceleration upon the occurrence of an Event of Default under this Agreement or termination of this Agreement (a) the Initial Term Loan shall be, with respect to principal, payable in quarterly installments on the first day of each quarter, commencing April 1, 2011, in equal installments of $567,857 and (b) the Additional Term Loan shall be, with respect to principal, payable in quarterly installments on the first day of each quarter, commencing January 1, 2012, in equal installments of $185,164. Further, the remaining unpaid principal balance of the Term Loan shall be due and payable in full on the last day of the Term. The Term Loan shall, if requested by any Lender, be evidenced by one or more secured promissory notes issued to such Lender(s) (collectively, the “Term Note”) in substantially the form attached hereto as Exhibit 2.4. The Term Loan may consist of Domestic Rate Loans or Eurodollar Rate Loans, or a combination thereof, as U.S. Borrowing Agent may request. In the event that U.S. Borrowing Agent desires to obtain or extend a Eurodollar Rate Loan or to convert a Domestic Rate Loan to a Eurodollar Rate Loan, U.S. Borrowing Agent shall comply with the notification requirements set forth in Sections 2.2(b)(i) and 2.2(b)(iii) and the provisions of Sections 2.2(b)(i) through 2.2(b)(vi) shall apply.”
(q) Section 2.21(c)(i) of the Credit Agreement is hereby amended by changing the parenthetical reading “(other than dispositions permitted under Sections 4.3(a), 4.3(d),4.3(e), 4.3(f), 4.3(h) or 4.3(i))” set forth therein with the “(other than dispositions permitted under Sections 4.3(a), 4.3(d),4.3(e), 4.3(f), 4.3(h), 4.3(i) or 4.3(k))”.
(r) Section 2.21(c)(iii) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“(iii) When any Parent Holdco or any Subsidiary thereof receives any proceeds of the sale of the Acquired Owned Real Property, indemnity payments received in connection with the Eyelematic Acquisition and purchase price adjustments received in connection with the Eyelematic Acquisition, U.S. Borrowers shall repay the Revolving Advances (without a corresponding reduction to the Maximum Revolving Advance Amount) in an amount equal to 100% of the Net Cash Proceeds thereof, such repayment to be remitted to Agent in the manner set forth in Section 4.15(h)(i). The foregoing shall not be deemed to be implied consent to any event or condition giving rise to any such proceeds which would otherwise constitute a Default or Event of Default under this Agreement.”
(s) Section 4.3(i) of the Credit Agreement is hereby amended by deleting the word “and” at the end of clause (i) thereof, changing the “.” at the end of clause (j) thereof to “; and” and adding the following as clause (k) thereof:
“(k) the Permitted Sale Leaseback Transactions.”
(t) Section 4.15(h)(i) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“(i) All proceeds of assets of the U.S. Loan Parties and any other amounts payable to any U.S. Loan Party at any time, shall be deposited by the U.S. Loan Parties into either (A) a collection account established at a U.S. bank or banks (each such bank, a “U.S. Blocked Account Bank”) pursuant to an arrangement with such U.S. Blocked Account Bank as may be selected by U.S. Borrowing Agent and be acceptable to Agent or (B) a collection account established at the Agent for the deposit of such proceeds (all such accounts the “U.S. Collection Accounts”). All proceeds of assets of the Canadian Loan Parties and any other amounts payable to any Canadian Loan Party at any time shall be deposited by the Canadian Loan Parties into either (A) a collection account established at a Canadian bank or banks (each such bank, a “Canadian Blocked Account Bank”) or (B) a collection account established at PNC Canada or an Affiliate of PNC for the deposit of such proceeds (all such accounts the “Canadian Collection Accounts” and together with the U.S. Collection Accounts, the “Collection Accounts”). Each applicable Loan Party, Agent and each applicable Blocked Account Bank shall, on or before January 31, 2011 (or such longer period as Agent may approve), enter into a deposit account control agreement in form and substance satisfactory to Agent directing, with respect to the U.S. Collection Accounts, such Blocked Account Bank to transfer, on each Business Day, such funds so deposited to Agent, either to any account maintained by Agent at said Blocked Account Bank or by wire transfer to appropriate account(s) of Agent. All funds
deposited in such U.S. Collection Accounts shall immediately become the property of Agent and Loan Parties shall obtain the agreement by such Blocked Account Bank to waive any offset rights against the funds so deposited. Neither Agent nor any Lender assumes any responsibility for such collection account arrangement, including any claim of accord and satisfaction or release with respect to deposits accepted by any Blocked Account Bank thereunder.”
(u) Section 6.5 of the Credit Agreement is hereby amended by replacing that portion of the table set forth therein that reads:
|
Four fiscal quarters ending December 31, 2011 |
|
The greater of (i) 80% of the amount of EBITDA reported in the Twist North America Group audited financial statements for Fiscal Year 2010 delivered to Agent pursuant to Section 9.7 and (ii)80% of the amount of EBITDA projected for Fiscal Year 2011 as set forth in the projections delivered to Agent pursuant to Section 9.12 |
|
|
|
|
|
Four fiscal quarters ending as of the last day of each fiscal quarter ending after December 31, 2011 |
|
80% of the amount of EBITDA reported in the Twist North America Group audited financial statements for Fiscal Year 2010 delivered to Agent pursuant to Section 9.7 |
With
|
Four fiscal quarters ending December 31, 2011 |
|
80% of the amount of EBITDA projected for Fiscal Year 2011 as set forth in the projections delivered to Agent pursuant to Section 9.12 |
(v) Section 6.10 of the Credit Agreement is hereby amended by adding the following as subsection (d) thereof:
“(m) Insurance Certificates. On or before November 17, 2011, deliver to Agent, in form and substance reasonably satisfactory to Agent, certificates of insurance with respect to the casualty insurance policies, together with loss payable endorsements on Agent’s standard form of loss payee endorsement naming Agent as loss payee, and liability insurance policies, together with endorsements naming Agent as a co-insured, of each of Xxxxx Metal, Xxxxx Real Estate and Xxxxx Metal Holding.”
(w) Section 7.4(m) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“(m) (i) the CMI Hong Kong Guaranty and (ii) equity investments in, or loans to, Foreign Subsidiaries that are not Loan Parties which are wholly-owned, directly or
indirectly, by a Loan Party in an aggregate amount not to exceed, during the Term, $5,000,000 minus the amount of the CMI Hong Kong Guaranty; provided that, with respect to this clause (ii), (A) average Undrawn Availability during the thirty (30) day period immediately prior to the making of such investment or loan after giving pro forma effect to such investment or loan, and immediately after giving effect to such investment or loan Undrawn Availability will be, $10,000,000 or greater, (B) no Default or Event of Default shall have occurred and be continuing immediately prior to or after giving effect to such investment or loan, (C) on a pro forma basis after giving effect to such investment or loan, the Loan Parties would be in compliance with the covenant set forth in Section 7.6 when measured as of the last day of the most recently ended fiscal quarter, (D) in the case of any loans, such loan is evidenced by a note endorsed and delivered to the Agent (and the Agent shall have a first priority perfected security interest therein (subject only to Permitted Encumbrances)) and (E) in the case of any equity investment, subject to the limitations set forth in the definition of “Collateral”, the Equity Interests acquired with respect thereto are pledged to, and the original certificates evidencing the same are delivered to, the Agent (together with executed stock powers and irrevocable proxies relating thereto in form and substance reasonably satisfactory to Agent) and the Agent shall have a first priority perfected security interest therein (subject only to Permitted Encumbrances);”
(x) Section 7.4(n) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“(n) loans by the Borrowers (or any of them) to U.S. Parent Holdco and in turn by U.S. Parent Holdco to Twist Beauty Packaging UK Ltd. (“Twist UK”) in an aggregate amount not to exceed $35,000,000 at any one time outstanding to the extent (i) each such loan to Twist UK is evidenced by a note endorsed and delivered to the Agent (and the Agent shall have a first priority perfected security interest therein (subject only to Permitted Encumbrances)), (ii) no Default or Event of Default shall have occurred and be continuing immediately prior to or after giving effect to the making of each such loan and (iii) average Undrawn Availability during the thirty (30) day period (or if less than 30 days have elapsed since the Closing Date, during the number of days elapsed since the Closing Date) immediately prior to the making of each such loan after giving pro forma effect to such loans, and immediately after giving effect to such loans Undrawn Availability will be, $10,000,000 or greater;”
(y) Section 7.7(a) of the Credit Agreement is hereby amended by deleting the word “and” at the end of subclause (vi) thereof, changing the “.” at the end of subclause (vii) thereof to “;” and adding the following as subclauses (viii) and (ix) thereof:
“(viii) on or prior to December 22, 2011, the Loan Parties and their Subsidiaries may declare and pay dividends or make other distributions, directly or indirectly, to the holders of the Equity Interests of the Parent Holdcos in an aggregate amount not to exceed $600,000 (exclusive of withholding taxes paid by the Loan Parties in the amount of $31,579 with respect thereto) so long as immediately prior and after giving effect to such dividends and distributions (A) Undrawn Availability is $8,000,000 or greater and (B) no Default or Event of Default exists or would arise; and
(ix) U.S. Borrowers may declare and pay dividends or make distributions to U.S. Parent Holdco in the amounts set forth in the funds flow statement provided to Co-Collateral Agents on or about November 10, 2011 to the extent used to pay, the consideration payable with respect to the Eyelematic Acquisition and costs and expenses incurred in connection therewith as set forth on such funds flow statement.”
(z) Section 7.8(j) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
“(j) the CMI Hong Kong Guaranty,”
(aa) The last sentence of Section 7.10 of the Credit Agreement is hereby amended to read as follows:
“Notwithstanding the foregoing: (a) Xxxxx Cosmetics is permitted to purchase or acquire equipment from TPI Mexicana S.A. de C.V. pursuant to the TPI Equipment Acquisition and (b) Xxxxx Metal is permitted to lease the Acquired Leased Real Property pursuant to the terms of the New Lease.”
(bb) That portion of the Section 7.11 of the Credit Agreement preceding clause (a) thereof is hereby amended to read as follows:
“Other than the Acquired Owned Real Property, acquire any fee interest in Real Property after the date hereof with a Current Value (as defined below) in excess of $500,000 (each an “After Acquired Property”), without”
(cc) Clause (E) of Section7.12(a)(i) is hereby amended to read as follows:
“(E) other than with respect to the Acquired Owned Real Property, to the extent such Subsidiary owns real property that is not subject to a purchase money Lien the terms of which prohibit Agent from receiving a Lien thereon, one or more Mortgages creating on the real property of such Subsidiary a perfected, first priority (to the extent provided in the Intercreditor Agreement) Lien on such real property, a title insurance policy covering such real property, a current ALTA survey thereof and a surveyor’s certificate, each in form and substance satisfactory to the Agent in its Permitted Discretion, together with such other agreements, instruments and documents as the Agent may require in its Permitted Discretion whether comparable to the documents required under Section 7.11 or otherwise,”
(dd) Clause (a) of Section 7.15 of the Credit Agreement is hereby amended and restated to read as follows:
“(a) its Governing Documents, the Consulting Agreement, License Agreements, the Acquisition Agreement, the Permitted Joint Venture Documents, the Eyelematic Acquisition Documents or the CMI Hong Kong Guaranty (i) in a manner that is material and adverse to the Lenders and/or Agent, as determined in the Permitted Discretion of Agent (it being understood and agreed that any amendment or modification of the Consulting Agreement which increases the amounts payable thereunder by any Loan
Party are material and adverse to the Lenders) and (ii) without providing notice thereof to Agent in the succeeding monthly reporting package delivered to Agent pursuant to Section 9.2, and a copy of such amendment, to the extent such amendment is material to the interests of Agent and the Lenders and”
(ee) Section 9.7 of the Credit Agreement is hereby amended by adding the following to the end thereof:
“Notwithstanding the foregoing, it is understood and agreed that, despite the requirements of GAAP, the annual audited financial statements may be provided in a manner which presents the investments of the Twist North America Group in joint ventures on a basis which indicates the original historical cost value in their combined and consolidated financial statements and not in a manner which reflects any equity in earnings (or losses) or distributions/returns of capital with respect thereto.”
3. Amendment Fee. In consideration of the agreements set forth herein, the U.S. Borrowers hereby agree to pay to Agent, for the ratable benefit of the Lenders, an amendment fee in the amount of $50,000 (the “Amendment Fee”), which fee is non-refundable when paid and is fully-earned as of and due and payable on the date of this Amendment.
4. Effectiveness of this Amendment. Agent, or the Co-Collateral Agents, as applicable, must have received the following items, in form and content acceptable to the Co-Collateral Agents, before this Amendment is effective.
(a) Amendment. This Amendment fully-executed by all parties hereto and thereto.
(b) Joinder to Fee Letter. A duly executed joinder to the Fee Letter, duly executed by each Borrower and otherwise in form and substance satisfactory to Agent.
(c) Notes. Duly executed amended and restated U.S. Revolving Credit Notes and the applicable Term Notes, duly executed by each of the U.S. Borrowers and otherwise in form and substance satisfactory to Agent.
(d) Pledge Agreement. A duly executed joinder by Xxxxx Metal Holding to the Guarantor Security Agreement and an updated Exhibit “A” to the Guarantor Security Agreement reflecting the inclusion of the Equity Interests of each New Loan Party.
(e) Joinder to Guaranty. A duly executed joinder by Xxxxx Metal Holding and Xxxxx Real Estate to the Guaranty.
(f) Fees. The Amendment Fee, which shall be paid as a charge to U.S. Borrower’s Account.
(g) Questionnaire; Organizational Chart. Agent shall have received a Questionnaire with respect to the New Loan Parties, completed on a post-closing basis with respect to the Eyelematic Acquisition, along with an updated organizational chart of the Parent Holdcos and their Subsidiaries.
(h) Filings, Registrations and Recordings. Each document (including any Uniform Commercial Code financing statements) required by the Credit Agreement, any related agreement or under law, or reasonably requested by the Agent to be filed, registered or recorded in order to create, in favor of Agent, a perfected security interest in or lien upon the Collateral of each New Loan Party shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and Agent shall have received (i) an acknowledgment copy, or other evidence reasonably satisfactory to it, of each such filing, registration or recordation and satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto as Agent has requested in its Permitted Discretion to be delivered on or before the date hereof, and (ii) evidence satisfactory to Agent that no Liens other than Permitted Encumbrances exist with respect to the Collateral of each New Loan Party.
(i) Company Proceedings of New Loan Parties. Agent shall have received a copy of the resolutions in form and substance reasonably satisfactory to Agent, of the Board of Directors of each New Loan Party authorizing (i) the execution, delivery and performance of this Amendment and the Other Documents to which it is a party and any certificate or other documents to be delivered by it pursuant hereto (collectively, and with respect to each such Loan Party, the “Documents”) and (ii) the granting by such New Loan Party of the security interests in and liens upon the Collateral in each case certified by the Secretary or an Assistant Secretary of such New Loan Party as of the date hereof; and, such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate.
(j) Incumbency Certificates of New Loan Parties and U.S. Parent Holdco. Agent shall have received a certificate of the Secretary or an Assistant Secretary of (i) each New Loan Party, dated the date hereof, as to the incumbency and signature of the officers of such New Loan Party executing the Documents, together with evidence of the incumbency of such Secretary or Assistant Secretary and (ii) U.S. Parent Holdco, dated the date hereof, as to the incumbency and signature of the officers of U.S. Parent Holdco, together with evidence of the incumbency of such Secretary or Assistant Secretary.
(k) Governing Documents. Agent shall have received copies of the Governing Documents of each New Loan Party, and all amendments thereto, certified (where applicable) by the Secretary of State or other appropriate official of its jurisdiction of organization, in each case, certified as accurate and complete by the Secretary of such New Loan Party.
(l) Good Standing Certificates. Agent shall have received (i) good standing certificates for each New Loan Party dated as of a date prior to the date hereof acceptable to Agent’s counsel, issued by the Secretary of State or other appropriate official of such New Loan Party’s jurisdiction of organization and (ii) either evidence of the submission of an application for qualification to do business or a certificate of qualification to do business in each jurisdiction where the conduct of such New Loan Party’s business activities or the ownership of its properties necessitates qualification.
(m) Legal Opinion. Agent shall have received the executed legal opinion of each of Xxxxxxxx & Xxxxx LLP and Xxxxxxx Xxxxxx & Xxxxxxxxx, in form and substance
reasonably satisfactory to Agent, which shall cover such matters incident to the transactions contemplated by the Documents as Agent may reasonably require and Borrowers hereby authorize and direct such counsel to deliver such opinions to Agent and Lenders.
(n) Eyelematic Acquisition. The Co-Collateral Agents shall have received evidence, in form and substance reasonably satisfactory to them that the Eyelematic Acquisition Agreement has been consummated in accordance with the terms of the Eyelematic Acquisition Documents and all Applicable Laws and upon receipt of Consents required with respect thereto.
(o) Proceeds from Intercompany Debt Repayment. Evidence of the receipt by U.S. Parent Holdco of cash payments in respect of the Indebtedness owing to U.S. Parent Holdco described in Section 7.4(n) of the Credit Agreement, in an amount no less than $1,500,000 and application thereof to the consideration payable in respect of the Eyelematic Acquisition.
(p) Additional Permitted Sponsor Subordinated Debt and Amendment to Subordination Agreement. A true, correct and complete copy of the documentation evidencing the additional Permitted Sponsor Acquisition Subordinated Debt to be incurred by Xxxxx Solutions as of the date hereof (the “New ASE Loan Agreement”), together with a duly executed amendment to the Sponsor Subordination Agreement among Xxxxx Solutions Europe, Agent and Xxxxx Solutions, in form and substance satisfactory to the Co-Collateral Agents.
(q) Borrowing Base Certificate. The Co-Collateral Agents shall have received an updated Borrowing Base Certificate dated as of the date hereof and giving pro forma effect to the Eyelematic Acquisition.
(r) Undrawn Availability. After giving effect to the Eyelematic Acquisition and all Advances to be made on the date hereof, Borrowers shall have Undrawn Availability of at least $8,000,000.
(s) Payment Instructions; Funds Flow Written instructions from the U.S. Borrowing Agent to Agent directing the application of proceeds of the Advances requested or contemplated to be made as of the date hereof, together with a statement of the flow of funds for all amounts to be paid in connection with this Amendment and the Eyelematic Acquisition.
(t) Lien Waiver Agreement. A Lien Waiver Agreement, duly executed by the landlord with respect to the Acquired Leased Real Property.
(u) Representations and Warranties. The representations and warranties set forth herein must be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof).
5. Representations and Warranties. Each of the Parent Holdcos and Borrowers represents and warrants as follows:
(a) Authority. Such Person has full power, authority and legal right to enter into this Amendment and to perform all its respective Obligations hereunder and under the Other Documents (as amended or modified hereby). This Amendment has been duly executed and
delivered by such Person, and this Amendment constitutes the legal, valid and binding obligation of such Person enforceable in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally. The execution, delivery and performance of this Amendment (a) are within such Person’s corporate, limited liability company or limited partnership powers (as applicable), have been duly authorized by all necessary company or partnership (as applicable) action, are not in contravention of law or the terms of such Person’s operating agreement, bylaws, partnership agreement, certificate of formation, articles of incorporation or other applicable documents relating to such Person’s formation or to the conduct of such Person’s business or of any material agreement or undertaking to which such Person is a party or by which such Person is bound, (b) will not, in any material respect, conflict with or violate any law or regulation, or any judgment, order or decree of any Governmental Body, (c) will not require the Consent of any Governmental Body or any other Person, except those Consents which have been duly obtained, made or compiled prior to the date hereof and which are in full force and effect or except those which the failure to have obtained would not have, or could not reasonably be expected to have a Material Adverse Effect and (d) will not conflict with, nor result in any breach in any of the provisions of or constitute a default under or result in the creation of any Lien except Permitted Encumbrances upon any asset of any Loan party under the provisions of any material agreement, charter document, operating agreement or other instrument to which any Loan Party is a party or by which it or its property is a party or by which it may be bound.
(b) Representations and Warranties. Each of the representations and warranties made by a Loan Party in or pursuant to the Credit Agreement, the Other Documents and any related agreements to which it is a party, and each of the representations and warranties contained in any certificate, document or financial or other statement furnished at any time under or in connection with the Credit Agreement, the Other Documents or any related agreement are true and correct in all material respects on and as of the date hereof as though made on and as of the date hereof, other than representations and warranties relating to a specific earlier date, and in such case such representations and warranties are true and correct in all material respects as of such earlier date.
(c) No Default. After giving effect to this Amendment, no event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) Certain Documents. Attached hereto, in each case, in full force and effect as of the date hereof, as: (i) Exhibit A is a true, correct and complete copy of all of the Eyelematic Acquisition Documents in effect on the date hereof, (ii) Exhibit B is a true, correct and complete copy of the New ASE Loan Agreement and (iii) Exhibit C is a true, correct and complete copy of the Consulting Agreement.
6. Choice of Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York applied to contracts to be performed wholly within the State of New York.
7. Counterparts; Facsimile Signatures. This Amendment may be executed in any number of and by different parties hereto on separate counterparts, all of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile or other similar form of electronic transmission shall be deemed to be an original signature hereto.
8. Reference to and Effect on the Other Documents.
(a) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Other Documents to “the Credit Agreement”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified and amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all Other Documents, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations of the Loan Parties to Agent and the Lenders.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent and/or the Lenders under any of the Other Documents, nor constitute a waiver of any provision of any of the Other Documents.
(d) To the extent that any terms and conditions in any of the Other Documents shall contradict or be in conflict with any terms or conditions of the Credit Agreement, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit Agreement as modified or amended hereby.
9. Ratification. Each of the Parent Holdcos and Borrowers hereby restates, ratifies and reaffirms each and every term and condition set forth in the Credit Agreement, as amended hereby, and the Other Documents effective as of the date hereof.
10. Integration. This Amendment, together with the Other Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.
11. Severability. If any part of this Amendment is contrary to, prohibited by, or deemed invalid under Applicable Laws, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given effect so far as possible.
12. Submission of Amendment. The submission of this Amendment to the parties or their agents or attorneys for review or signature does not constitute a commitment by Agent, the Co-Collateral Agents or the Lenders to modify or waive any of their respective rights and remedies under the Other Documents, and this Amendment shall have no binding force or effect until all of the conditions to the effectiveness of this Amendment have been satisfied as set forth herein.
13. Guarantors’ Acknowledgment. With respect to the amendments to the Credit Agreement effected by this Amendment, each of the Loan Parties signatory hereto that is (or
concurrently herewith, is becoming) a Guarantor, hereby acknowledges and agrees to this Amendment and confirms and agrees that its Guaranty is and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that, upon the effectiveness of, and on and after the date of this Amendment, each reference in such Guaranty to the Credit Agreement, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended or modified by this Amendment. Although Agent and the Lenders have informed the Guarantors of the matters set forth in this Amendment, and the Guarantors are hereby acknowledging the same, each Guarantor understands and agrees that neither Agent nor any Lender has any duty under the Credit Agreement, any Guaranty or any other agreement with any Guarantor to so notify any Guarantor or to seek such an acknowledgement, and nothing contained herein is intended to or shall create such a duty as to any transaction hereafter.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.
|
|
TWIST BEAUTY PACKAGING HOLDING CORP., | |
|
|
a Delaware corporation | |
|
|
| |
|
|
By: |
/s/ Fabrice Beaussant |
|
|
Name: Fabrice Beaussant | |
|
|
Title: Treasurer | |
|
|
| |
|
|
XXXXX AMERICAS, INC., | |
|
|
a Delaware corporation | |
|
|
| |
|
|
By: |
/s/ Fabrice Beaussant |
|
|
Name: Fabrice Beaussant | |
|
|
Title: Treasurer | |
|
|
| |
|
|
XXXXX COSMETICS AMERICA, INC., | |
|
|
a Delaware corporation | |
|
|
| |
|
|
By: |
/s/ Xxxxxx Xxxxxxxxxx |
|
|
Name: Xxxxxx Xxxxxxxxxx | |
|
|
Title: Secretary | |
|
|
| |
|
|
XXXXX BEAUTY SOLUTIONS USA, LLC, | |
|
|
a New York limited liability company | |
|
|
| |
|
|
By: |
/s/ Xxxxxx Xxxxxxxxxx |
|
|
Name:Xxxxxx Xxxxxxxxxx | |
|
|
Title: Secretary | |
Signature Page to Third Amendment to Revolving Credit, Term Loan and Security Agreement
|
|
ALBEAMEXICANA.LP, | |
|
|
a Texas limited partnership | |
|
|
By: Xxxxx Plastic Packaging Texas, Inc. | |
|
|
Its: General Partner | |
|
|
| |
|
|
By: |
/s/ Fabrice Beaussant |
|
|
Name: Fabrice Beaussant | |
|
|
Title: Treasurer | |
|
|
| |
|
|
BEAUTY PACKAGING CANADA HOLDINGS, INC., | |
|
|
an Ontario corporation | |
|
|
| |
|
|
By: |
/s/ Xxx Xxxxxx |
|
|
Name: Xxx Xxxxxx | |
|
|
Title: Director | |
|
|
| |
|
|
XXXXX CANADA INC., | |
|
|
an Ontario corporation | |
|
|
| |
|
|
By: |
/s/ Xxx Xxxxxx |
|
|
Name: Xxx Xxxxxx | |
|
|
Title: Director | |
|
|
| |
|
|
CEBAL MEXICANA LLC, | |
|
|
a Delaware limited liability company | |
|
|
| |
|
|
By: |
/s/ Fabrice Beaussant |
|
|
Name: Fabrice Beaussant | |
|
|
Title: Finance Director | |
Signature Page to Third Amendment to Revolving Credit, Term Loan and Security Agreement
|
|
XXXXX PLASTIC PACKAGING TEXAS, INC., | |
|
|
a Delaware corporation | |
|
|
| |
|
|
By: |
/s/ Fabrice Beaussant |
|
|
Name: Fabrice Beaussant | |
|
|
Title: Treasurer | |
|
|
| |
|
|
XXXXX METAL AMERICAS, INC., | |
|
|
a Delaware corporation | |
|
|
| |
|
|
By: |
/s/ Fabrice Beaussant |
|
|
Name: Fabrice Beaussant | |
|
|
Title: Treasurer | |
|
|
| |
|
|
XXXXX METAL HOLDING CORP., | |
|
|
a Delaware corporation | |
|
|
| |
|
|
By: |
/s/ Fabrice Beaussant |
|
|
Name: Fabrice Beaussant | |
|
|
Title: Treasurer | |
|
|
| |
|
|
XXXXX METAL REAL ESTATE, INC., | |
|
|
a Delaware limited liability company | |
|
|
| |
|
|
By: |
/s/ Fabrice Beaussant |
|
|
Name: Fabrice Beaussant | |
|
|
Title: Treasurer | |
Signature Page to Third Amendment to Revolving Credit, Term Loan and Security Agreement
|
|
PNC BANK, NATIONAL ASSOCIATION, | |
|
|
as a Co-Collateral Agent, Agent and a Lender | |
|
|
| |
|
|
By: |
/s/ Xxxxx Xxxxxxxxx |
|
|
Name: Xxxxx Xxxxxxxxx | |
|
|
Title: SeniorVice President | |
Signature Page to Third Amendment to Revolving Credit, Term Loan and Security Agreement
|
|
GENERAL ELECTRIC CAPITAL CORPORATION, | |
|
|
as a Co-Collateral Agent and a Lender | |
|
|
| |
|
|
By: |
/s/ Xxxxxx Xxxxx |
|
|
Name: Xxxxxx Xxxxx | |
|
|
Title: Duly Authorized Signatory | |
Signature Page to Third Amendment to Revolving Credit, Term Loan and Security Agreement
|
|
PNC BANK CANADA BRANCH, | |
|
|
as a Lender | |
|
|
| |
|
|
By: |
/s/ Xxxx Xxxxx |
|
|
Name: Xxxx Xxxxx | |
|
|
Title: Assistant Vice President | |
Signature Page to Third Amendment to Revolving Credit, Term Loan and Security Agreement
EXHIBIT A
Eyelematic Acquisition Documents
See attached.
EXECUTION VERSION
CONTRIBUTION AND ASSET PURCHASE AGREEMENT
by and among
EYELEMATIC MANUFACTURING COMPANY, INCORPORATED,
ECHO MANUFACTURING COMPANY,
SEEMAR REAL ESTATE, LLC,
XXXXX METAL AMERICAS, INC,
XXXXX METAL REAL ESTATE, INC.
and
XXXXX METAL HOLDING CORP.
Dated as of November , 2011
TABLE OF CONTENTS
|
|
|
Page |
|
|
|
|
|
ARTICLE I CERTAIN DEFINITIONS |
1 | |
|
1.1 |
Certain Definitions |
1 |
|
1.2 |
Additional Definitions |
6 |
|
|
|
|
|
ARTICLE II CONTRIBUTION AND PURCHASE OF ASSETS |
7 | |
|
2.1 |
Basic Transaction |
7 |
|
2.2 |
Contributed Assets |
8 |
|
2.3 |
Contributed Liabilities |
11 |
|
2.4 |
Liabilities Not Contributed Nor Assumed |
12 |
|
2.5 |
Purchased Real Property |
14 |
|
2.6 |
Seemar Leased Property |
14 |
|
2.7 |
Purchase Price |
14 |
|
2.8 |
Closing Transactions |
16 |
|
2.9 |
Allocation of the Purchased Real Property Purchase Price |
18 |
|
2.10 |
Nonassignable Contracts |
18 |
|
2.11 |
Tax Characterization |
18 |
|
|
|
|
|
ARTICLE III CONDITIONS TO CLOSING |
19 | |
|
3.1 |
Conditions to Buyers’ Obligation |
19 |
|
3.2 |
Conditions to Sellers’ Obligations |
21 |
|
|
|
|
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLERS |
22 | |
|
4.1 |
Organization and Corporate Power |
22 |
|
4.2 |
Authorization; No Breach |
22 |
|
4.3 |
Subsidiaries |
22 |
|
4.4 |
Financial Statements |
22 |
|
4.5 |
Absence of Undisclosed Liabilities |
23 |
|
4.6 |
Accounts Receivable |
23 |
|
4.7 |
Inventory |
24 |
|
4.8 |
Accounts Payable |
24 |
|
4.9 |
No Material Adverse Change |
24 |
|
4.10 |
Absence of Certain Developments |
24 |
|
4.11 |
Real Property |
26 |
|
4.12 |
Assets |
27 |
|
4.13 |
Tax Matters |
27 |
|
4.14 |
Contracts and Commitments |
28 |
|
4.15 |
Proprietary Rights |
30 |
|
4.16 |
Litigation |
32 |
|
4.17 |
Brokerage |
32 |
|
4.18 |
Employees |
33 |
|
4.19 |
Product Warranties |
33 |
|
4.20 |
Employee Benefit Plans |
33 |
|
4.21 |
Insurance |
35 |
|
4.22 |
Compliance with Laws; Permits; Certain Operations |
35 |
|
4.23 |
Environmental Matters |
35 |
|
4.24 |
Names and Locations |
36 |
|
4.25 |
Customers and Suppliers |
36 |
|
4.26 |
Promotions Programs |
36 |
|
4.27 |
Bank Accounts |
36 |
|
4.28 |
Disclosures |
36 |
|
|
|
|
|
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYERS |
37 | |
|
5.1 |
Corporate Organization and Power |
37 |
|
5.2 |
Authorization |
37 |
|
5.3 |
Governmental Authorities and Consents |
37 |
|
5.4 |
Brokerage |
37 |
|
5.5 |
Litigation |
37 |
|
5.6 |
Financial Wherewithal |
37 |
|
|
|
|
|
ARTICLE VI ADDITIONAL AGREEMENTS |
38 | |
|
6.1 |
Survival of Representations and Warranties |
38 |
|
6.2 |
General Indemnification |
38 |
|
6.3 |
Environmental Matters and Connecticut Transfer Act |
39 |
|
6.4 |
Employee Related Matters |
42 |
|
6.5 |
Expenses |
43 |
|
6.6 |
Further Transfers; Transition Assistance |
43 |
|
6.7 |
Confidentiality |
44 |
|
6.8 |
Sales and Transfer Taxes |
44 |
|
6.9 |
Covenant Not to Compete, Solicit or Hire |
44 |
|
6.10 |
Use of Name |
46 |
|
6.11 |
Collections |
46 |
|
6.12 |
Property Expense Apportionment |
46 |
|
6.13 |
Access to Insurance Policies |
47 |
|
|
|
|
|
ARTICLE VII MISCELLANEOUS |
47 | |
|
7.1 |
Amendment and Waiver |
47 |
|
7.2 |
Notices |
47 |
|
7.3 |
Assignment |
49 |
|
7.4 |
Severability |
49 |
|
7.5 |
Interpretation |
49 |
|
7.6 |
Entire Agreement |
50 |
|
7.7 |
Electronic Delivery; Counterparts |
50 |
|
7.8 |
Governing Law; Jurisdiction |
50 |
|
7.9 |
WAIVER OF TRIAL BY JURY |
51 |
|
7.10 |
No Strict Construction |
51 |
|
7.11 |
Specific Performance |
51 |
|
7.12 |
No Third-Party Beneficiaries |
51 |
|
7.13 |
Bulk Transfer Laws |
51 |
|
7.14 |
Schedules |
51 |
|
7.15 |
Checks Outstanding; Collections; Reasonable Access to Bank Accounts |
52 |
|
Schedules |
|
|
|
|
|
|
|
Schedule 2.1(e) |
|
Purchased Real Property |
|
Schedule 2.1(g) |
|
Leased Real Property |
|
Schedule 2.2(vi) |
|
Contributed Contracts |
|
Schedule 2.2(xv) |
|
Permits |
|
Schedule 2.2(b)(xi) |
|
Excluded Assets |
|
Schedule 2.4(b)(xvii) |
|
Excluded Liabilities |
|
Schedule 2.8 |
|
Purchase Price Allocation |
|
Schedule 4.2 |
|
Authorization |
|
Schedule 4.4 |
|
Financial Statements |
|
Schedule 4.5 |
|
Undisclosed Liabilities |
|
Schedule 4.6 |
|
Accounts Receivable |
|
Schedule 4.7 |
|
Inventory |
|
Schedule 4.8 |
|
Accounts Payable |
|
Schedule 4.10 |
|
Certain Developments |
|
Schedule 4.11(a) |
|
Owned Real Property |
|
Schedule 4.11(a)(ii) |
|
Encumbered Real Property |
|
Schedule 4.11(b) |
|
Leased Real Property |
|
Schedule 4.12(a) |
|
Permitted Liens |
|
Schedule 4.12(d) |
|
Capital Expenditures |
|
Schedule 4.13 |
|
Tax |
|
Schedule 4.14 |
|
Contracts |
|
Schedule 4.15 |
|
Proprietary Rights |
|
Schedule 4.16 |
|
Litigation |
|
Schedule 4.18(b) |
|
Employees |
|
Schedule 4.18(c) |
|
Terminated Employees |
|
Schedule 4.19 |
|
Product Warranties |
|
Schedule 4.20 |
|
Employee Benefit Plans |
|
Schedule 4.21 |
|
Insurance |
|
Schedule 4.22 |
|
Compliance with Laws |
|
Schedule 4.22(b) |
|
Compliance with Permits |
|
Schedule 4.23 |
|
Environmental |
|
Schedule 4.24 |
|
Names and Locations |
|
Schedule 4.25 |
|
Customers and Suppliers |
|
Schedule 4.26 |
|
Promotion Programs |
|
Schedule 4.27 |
|
Bank Accounts |
|
|
|
|
|
Exhibits |
|
|
|
|
|
|
|
Exhibit A |
|
Connecticut Transfer Act Task List |
|
Exhibit B |
|
New Lease Agreement |
|
Exhibit C |
|
000 Xxxxxxxxxx Xxxx ECAF |
CONTRIBUTION AND ASSET PURCHASE AGREEMENT
THIS CONTRIBUTION AND ASSET PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of November , 2011, by and among (i) Eyelematic Manufacturing Company, Incorporated, a Connecticut corporation (“Eyelematic”), Echo Manufacturing Company, a Connecticut corporation (“Echo”), and Seemar Real Estate, LLC, a Connecticut limited liability company (“Seemar” and, together with Eyelematic and Echo, collectively referred to herein as “Sellers”); (ii) Xxxxx Metal Americas, Inc., a Delaware corporation (“Non-Real Estate Buyer”), Xxxxx Metal Real Estate, Inc., a Delaware corporation (“Real Estate Buyer” and, together with Non-Real Estate Buyer, “Buyers”), and Xxxxx Metal Holding Corp., a Delaware corporation (“Parent”); and (iii) solely for purposes of Sections 6.7 (Confidentiality) and 6.9 (non-Compete), Xxxxx X. Xxxxxxx, Xx. (“Seebach”), Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xx., Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx III and Xxxx Xxxxxxx Xxxxxxxx (collectively, the “Stockholders”). Sellers and Buyers are sometimes individually referred to in this Agreement as a “Party” and collectively as the “Parties.”
WHEREAS, subject to the terms and conditions set forth herein, (i) Parent shall contribute $5,250,000 in cash into Non-Real Estate Buyer in exchange for all of the issued and outstanding shares of voting common stock of Non-Real Estate Buyer, (ii) Sellers shall contribute all of the Contributed Assets and the Contributed Liabilities (as each term is defined below) into Non-Real Estate Buyer in exchange for $5,250,000 and for all of the issued and outstanding shares of non-voting preferred stock of the Non-Real Estate Buyer, and (iii) the Parties intend that the foregoing transactions be treated as a contribution of assets to the Non-Real Estate Buyer pursuant to Code Section 351.
WHEREAS, (i) Real Estate Buyer desires to purchase from Seemar and Eyelematic and Seemar and Eyelematic desire to sell to Real Estate Buyer, all of the Purchased Real Property (as defined below) for an aggregate purchase price of $4,750,000, and (ii) Real Estate Buyer desires to lease from Seemar and Seemar desires to lease to Real Estate Buyer, the Seemar Leased Property (as defined below) for an aggregate rent of $200,000.
WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, mutual covenants, agreements and understandings contained herein and intending to be legally bound, the Parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement, the following terms have the meanings set forth below:
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person. For purposes of this definition, “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and such “control” will be presumed if any Person owns 10% or more of the voting capital stock or other ownership interests, directly or indirectly, of any other Person.
“Business” means Sellers’ business of the design, manufacture, procurement, marketing, distribution and sale of (i) beauty and fragrance packaging and (ii) various parts for other industries (e.g., battery casings and small metal parts for the automotive industry) through metal fabrication and plastic injection molding.
“Business Employees” means all of Sellers’ employees employed in the Business as of the Closing Date, including all active employees and any other employees, including employees inactive as of the Closing Date for any reason (including as a result of layoff, leave of absence, disability, illness or injury).
“Buyers Parties” means Buyers and their respective Affiliates and their respective members, shareholders, officers, directors, managers, employees, agents, representatives, successors and assigns.
“Cash” means the amount of all cash, cash equivalents and marketable securities held by Sellers (net of overdrafts, outstanding checks, wires in transit and trapped or restricted cash (e.g., cash on deposit with vendors, landlords, etc.).
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601, et seq.).
“Code” means the Internal Revenue Code of 1986, as amended, and any reference to any particular Code section shall be interpreted to include any revision of or successor to that section regardless of how numbered or classified.
“Confidential Information” means all information of a confidential or proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that relates to the business, products, services and/or research and/or development of Sellers and/or their respective suppliers, distributors, customers, independent contractors and/or other business relations. Confidential Information includes, but is not limited to, the following: (i) internal business information (including historical and projected financial information and budgets and information relating to strategic and staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures and accounting and business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, and information about, suppliers, distributors, customers, independent contractors or other business relations and their confidential information; (iii) trade secrets, know-how, compilations of data and analyses, techniques, systems, formulae, recipes, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions, innovations, improvements, developments, methods, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable); and (v) other Proprietary Rights.
“Connecticut Transfer Act” means Sections 22a-134 through 22a-134e of the Connecticut General Statutes and associated regulations.
“Connecticut Transfer Act Task List” means Exhibit A attached hereto.
“DEEP” means the State of Connecticut Department of Energy and Environmental Protection, including all predecessor and successor agencies thereto.
“DEEP Consent Order” shall mean the Consent Order issued by DEEP in the case of State of Connecticut v. Eyelematic Manufacturing Company, Incorporated (Order No. 20110003DEP) with respect to the facility located at 0 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx.
“Environmental Reports” shall mean the Phase I and II Environmental Site Assessment and Limited Environmental Compliance Review reports for the facilities located at 0 Xxxxxx Xxxx, Xxxxxxxxx, Connecticut, 000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxxx, and 00 Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx, each prepared by ENVIRON International Corporation, dated October 2011.
“Environmental and Safety Requirements” means all federal, state, local and foreign statutes (including, without limitation, CERCLA and the Connecticut Transfer Act), regulations, ordinances, codes and other provisions having the force and effect of law, all judicial and administrative orders and determinations, all contractual obligations and all common law concerning public health and safety, worker health and safety, and pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control or cleanup of, or exposure to, any hazardous materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise or radiation, as previously, now or hereafter in effect.
“Escrow Agent” means Xxxxx Fargo Bank, National Association, or its successors.
“Escrow Agreement” means an escrow agreement by and among the Escrow Agent, Buyers and Sellers, in form and substance to be reasonably agreed upon by the Parties thereto.
“Escrow Amount” means $3,500,000.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any entity that, together with Seller, is treated as a single employer under Section 414 of the Code.
“Facilities” means all properties and facilities owned, operated or used in connection with the Business, including without limitation the properties located at (i) 0 Xxxxxx Xxxx, Xxxxxxxxx XX, (xx) 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx XX, and (iii) 00 Xxxx Xxxx, Xxxxxxxxx XX.
“GAAP” means Unites Stated generally accepted accounting principles, as in effect from time to time.
“Indebtedness” means (i) any indebtedness for borrowed money or in respect of loans or advances; (ii) any indebtedness evidenced by any note, bond, debenture or other debt security; (iii) any liabilities or obligations for the deferred purchase price of property or services with respect to which any Seller is liable, contingently or otherwise, as obligor or otherwise (other than account payables which are not more than thirty (30) days past due and which are recorded on the Closing Statement and included in the calculation of Net Working Capital); (iv) any commitment by which any Seller assures a creditor against loss (including contingent reimbursement obligations with respect to letters of credit); (v) any indebtedness guaranteed in any manner by any Seller (including guarantees in the form of an agreement to repurchase or reimburse); (vi) any liabilities or obligations under capitalized leases with respect to which any Seller is liable, contingently or otherwise, as obligor, guarantor or otherwise, or with respect to which obligations such Seller assures a creditor against loss; (vii) any indebtedness or liabilities secured by a Lien (other than Permitted Liens arising by operation of law) on Sellers’ assets; (viii) any amounts owed by any Seller to any Person under any noncompetition or consulting arrangements; (ix) any amounts owed to Affiliates of Sellers (including intercompany trade and accounts payable); (x) all “cut” but uncashed checks issued by any Seller that are outstanding as of the Closing Date; (xi) all obligations under conditional sale or other title retention agreements relating to property or assets purchased by Sellers; (xii) all obligations (determined on the basis of actual, not notional, obligations) with respect to interest rate protection agreements, interest rate swap agreements, foreign currency exchange agreements, or other interest or exchange rate hedging agreements or arrangements; (xiii) any liabilities or obligations pursuant to any factoring arrangement; (xiv) any accrued and unpaid interest on any indebtedness; (xv) all agreed markdowns, chargebacks or other negotiated settlements with customers; and (xvi) any accrued, declared, or deemed dividends on any common or preferred stock. For the avoidance of doubt, and in no way limiting the scope of Section 2.4 hereof, the Parties acknowledge and agree that all Indebtedness of Sellers that is not a Contributed Liability shall be an Excluded Liability.
“Knowledge” and terms of similar import mean with respect to Sellers, the actual knowledge of Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx and Xxxxx Xxxxx, after making reasonable inquiry and all facts of which such Persons in the reasonably prudent exercise of their duties should be aware.
“Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interests in real property held by Sellers, including any renewal amendment or other modification thereto.
“Lien” or “Liens” means any lien (statutory or otherwise), hypothecation, encumbrance, claim, liability, security interest, interest, mortgage, pledge, restriction, charge, instrument, license, preference, priority, security agreement, easement, covenant, encroachment,
option, right of recovery, Tax (including foreign, federal, state and local Tax), order of any governmental authority, of any kind or nature (including (i) any conditional sale or other title retention agreement and any lease having substantially the same effect as any of the foregoing, (ii) any assignment or deposit arrangement in the nature of a security device, (iii) any claim based on any theory that any of the Buyers is a successor, transferee or continuation of Sellers or the Business, and (iv) any leasehold interest, license or other right, in favor of a third party or any Seller, to use any portion of the Contributed Assets or the Purchased Real Property), whether secured or unsecured, xxxxxx or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, contingent or non-contingent, material or non-material, known or unknown.
“Loss” means any loss, liability, demand, claim, action, cause of action, cost, damage, diminution in value, deficiency, Tax, penalty, fine or expense, whether or not arising out of third party claims (including interest, penalties, reasonable attorneys’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing and the enforcement of any rights hereunder).
“Lower End Target Net Working Capital” means $6,550,000.
“Net Working Capital” means (i) all current assets of Eyelematic and Echo included in the Contributed Assets (but excluding Cash and any deferred tax assets) minus (ii) all current liabilities of Eyelematic and Echo included in the Contributed Liabilities (but excluding any amounts included in Indebtedness and any deferred tax liabilities). Net Working Capital shall be prepared using the Accounting Principles set forth on the Net Working Capital Schedule, which sets forth an illustration of Net Working Capital.
“Ordinary Course of Business” means the ordinary course of business, consistent with past practice, including with regard to nature, frequency and magnitude.
“Owned Real Property” means all land, together with all buildings, structures, improvements and fixtures located therein or thereon, including all electrical, mechanical, plumbing and other building systems, fire protection, security and surveillance systems, telecommunications, computer, wiring and cable installations, utility installations, water distribution systems, and landscaping, together with all easements, rights of way, licenses, privileges, certificates of occupancy, permits and other rights and interests appurtenant thereto (including air, oil, gas, mineral and water rights), owned by Sellers.
“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or governmental entity (whether federal, state, county, city or otherwise and including any instrumentality, division, agency or department thereof).
“Real Property” means the Owned Real Property and the Leased Real Property.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability company, association or other business entity, either (A) a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof, or (B) such Person is a general partner, managing member or managing director of such partnership, limited liability company, association or other entity.
“Target Net Working Capital” means $6,800,000, calculated in a manner consistent with the Accounting Principles set forth on the Net Working Capital Schedule.
“Tax” or “Taxes” means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, property (including general and special real estate taxes and assessments, special service area charges, tax increment financing, charges, payments in lieu of taxes and similar charges and assessments), windfall profits, environmental (including tax under Code Section 59A), customs duties, capital stock, franchise, profits, withholding, foreign or domestic withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax, governmental fee, governmental assessment or governmental charge of any kind whatsoever, whether computed on a separate or consolidated, unitary or combined basis or in any other manner including any interest, penalties or additions to Tax or additional amounts with respect to the foregoing whether disputed or not.
“Tax Returns” means returns, declarations, reports, claims for refund, information returns or other documents (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of Taxes of any party or the administration of any laws, regulations or administrative requirements relating to any Taxes.
“Treasury Regulations” means the United States Treasury Regulations promulgated under the Code, and any reference to any particular Treasury Regulation section shall be interpreted to include any final or temporary revision of or successor to that section regardless of how numbered or classified.
“Upper End Target Net Working Capital” means $7,050,000.
1.2 Additional Definitions. Each of the following terms has the meaning ascribed to such term in the Article or Section set forth opposite such term:
|
Term |
|
Article/Section |
|
|
|
|
|
Accounting Principles |
|
2.7(c)(i) |
|
Adjustment Date |
|
6.10 |
|
Agreement |
|
Preamble |
|
Business |
|
Recitals |
|
Buyers |
|
Preamble |
|
Term |
|
Article/Section |
|
Cash Portion |
|
2.7(a) |
|
Closing |
|
2.8(a) |
|
Closing Date |
|
2.8(a) |
|
Closing Statement |
|
2.7(c)(i) |
|
Contributed Assets |
|
2.2 |
|
Contributed Liabilities |
|
2.3 |
|
Purchased Real Property |
|
2.1(e) |
|
Critical Representations |
|
6.1(a) |
|
Equitable Manner |
|
6.12 |
|
Estimated Cash Portion |
|
2.7(b) |
|
Excluded Assets |
|
2.2(xix) |
|
Excluded Liabilities |
|
2.4 |
|
Latest Balance Sheet |
|
4.4 |
|
Leased Real Property |
|
4.11(a) |
|
Leases |
|
4.11(a) |
|
Notice of Disagreement |
|
2.7(c)(i) |
|
Party/Parties |
|
Preamble |
|
Permitted Liens |
|
4.12(a) |
|
Purchase Price |
|
2.7(a) |
|
Restricted Persons |
|
6.9(d) |
|
Restrictive Covenants |
|
6.9(d) |
|
Seemar Leased Property |
|
2.1(g) |
|
Seller |
|
Preamble |
|
Seller Employee Benefit Plan |
|
4.20(a) |
|
Surveys |
|
3.1(k) |
|
Third-Party Approvals |
|
3.1(e) |
|
Title Company |
|
3.1(j) |
|
Title Policies |
|
3.1(j) |
|
Transferred Employees |
|
6.4(a) |
|
Valuation Firm |
|
2.7(c)(i) |
ARTICLE II
CONTRIBUTION AND PURCHASE OF ASSETS
2.1 Basic Transaction. In the terms and subject to the conditions and adjustments set forth in this Agreement, Parent, Buyers and Sellers shall, on the Closing Date, take the following actions:
(a) in exchange for 100% of all of the issued and outstanding shares of common stock, $0.001 par value per share, of Non-Real Estate Buyer, Parent shall contribute to Non-Real Estate Buyer $5,250,000 in cash (subject to the adjustments set forth in Section 2.7(a));
(b) in exchange for (i) $2,625,000 in cash (subject to the adjustments set forth in Section 2.7(a)) plus (ii) 50% of the issued and outstanding shares of non-voting preferred stock of Non-Real Estate Buyer, Eyelematic shall contribute, sell, convey, assign, transfer and
deliver to Non-Real Estate Buyer all the Contributed Assets and the Contributed Liabilities (as such terms are defined below) with respect to Eyelematic;
(c) in exchange for (i) $2,625,000 in cash (subject to the adjustments set forth in Section 2.7(a)) plus (ii) 50% of the issued and outstanding shares of non-voting preferred stock of Non-Real Estate Buyer, Echo shall contribute, sell, convey, assign, transfer and deliver to Non-Real Estate Buyer all the Contributed Assets and the Contributed Liabilities with respect to Echo;
(d) in exchange for 100% of all of the issued and outstanding shares of common stock, $0.001 par value per share, of Real Estate Buyer, Parent shall contribute to Real Estate Buyer $4,950,000 in cash;
(e) Real Estate Buyer shall purchase from Eyelematic, and Eyelematic shall sell, convey, assign, transfer and deliver to Real Estate Buyer free and clear of all Liens (other than Permitted Liens), for $2,250,000 in cash, all Owned Real Property of Eyelematic as more fully described on Schedule 2.1(e) (the “Eyelematic Purchased Real Property”);
(f) Real Estate Buyer shall purchase from Seemar, and Seemar shall sell, convey, assign, transfer and deliver to Real Estate Buyer free and clear of all Liens (other than Permitted Liens), for $2,500,000 in cash in the aggregate, the Owned Real Property of Seemar described on Schedule 2.1(e) (the “Seemar Purchased Real Property,” and together with the Eyelematic Purchased Real Property, the “Purchased Real Property”); and
(g) Real Estate Buyer shall lease from Seemar, and Seemar shall lease to Real Estate Buyer, the Owned Real Property of Seemar described on Schedule 2.1(g) (the “Seemar Leased Property”) for an aggregate rent of $200,000.
2.2 Contributed Assets. On the terms and subject to the conditions set forth in this Agreement, including Section 2.1, Eyelematic and Echo shall contribute, sell, convey, assign, transfer and deliver to Non-Real Estate Buyer on the Closing Date, all assets, properties, rights, titles and interests of every kind and nature owned, licensed or leased by them (including indirect and other forms of beneficial ownership) as of the Closing Date (except for the Excluded Assets and the Purchased Real Property), whether tangible or intangible, real or personal and wherever located and by whomever possessed (collectively, the “Contributed Assets”), free and clear of all Liens (other than Permitted Liens), including, but not limited to, the following:
(i) all Cash of Sellers;
(ii) all notes and accounts receivable whether current or non current;
(iii) all promotional allowances and vendor rebates and similar items;
(iv) all finished goods inventories, raw materials, packaging materials, work in process, consigned goods and finished goods (including warehoused inventories and inventories covered by purchase orders), wherever located, including consignment inventory and inventory on order for or in transit to or from Sellers (collectively, the “Inventory”);
(v) all of the following Proprietary Rights (as defined below), which are owned by, issued to, licensed or used by Sellers, along with all of Sellers’ interest in income, royalties, damages and payments accrued, due or payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to xxx and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the world): (i) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice) and any reissue, continuation, continuation-in-part, division, extension or reexamination thereof; (ii) trademarks, trade names, service marks and trade dress, together with all goodwill associated therewith, and all translations, adaptations, derivations and combinations of the foregoing (and all logos related to the foregoing); (iii) copyrights and copyrightable or copyrighted works; (iv) Internet domain names; (v) all registrations, applications and renewals for any of the foregoing; (vi) trade secrets and other Confidential Information, including ideas, know-how, related processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data and manuals, and customer and supplier lists and information; computer software (including data and related documentation); and (vii) all other intellectual property, intangible properties and rights of Sellers; in each case including the items set forth on Schedule 4.15 (collectively, the “Proprietary Rights”);
(vi) all agreements, contracts, or other binding arrangements of Sellers identified on Schedule 2.2(vi) (collectively, the “Contributed Contracts”);
(vii) all leasehold improvements and all machinery, equipment (including all vehicles, testing equipment and office equipment), fixtures, trade fixtures, computers and related software, and furniture located in any building, office or other space leased, owned or occupied by Sellers or in any warehouse or other storage facility where any of Sellers’ properties and assets may be located, including, without limitation, the Owned Real Property and the Leased Real Property;
(viii) all office supplies, production supplies and other supplies, spare parts, other miscellaneous supplies and other tangible property of any kind located in any building, office or other space leased, owned or occupied by Sellers or in any warehouse or other storage facility where any of Sellers’ properties and assets may be located, including, without limitation, the Owned Real Property and the Leased Real Property;
(ix) all prepayments and prepaid expenses, employee advances and cash and security deposits;
(x) all claims, refunds, credits, causes of action, choices in action, rights of recovery and rights of set-off of any kind;
(xi) the right to receive and retain mail, payments of receivables and other communications;
(xii) the right to xxxx and receive payment for products shipped or delivered and/or services performed but unbilled or unpaid as of the Closing;
(xiii) all lists, records and other information pertaining to accounts and referral sources; all lists, records and other information pertaining to suppliers and customers; and all drawings, reports, studies, plans, books, ledgers, files and business and accounting records of every kind (including all financial, business, sales and marketing plans and information); in each case whether evidenced in writing, electronic data, computer software or otherwise;
(xiv) all advertising, marketing and promotional materials, all archival materials and all other printed or written materials;
(xv) all permits, licenses, certifications, authorizations, approvals and similar rights from all permitting, licensing, accrediting and certifying agencies (including all of the foregoing listed or described on Schedule 2.2(xv), and the rights to all data and records held by such agencies;
(xvi) all goodwill as a going concern and all other intangible property;
(xvii) all rights and interests of Sellers under the Seller Employee Benefit Plans and related trust agreements described and identified on Schedule 4.20 which do not have an asterisk (*) (the “Contributed Plans”);
(xviii) all proceeds under insurance policies and rights of recovery relating to the Contributed Assets, the Purchased Real Property or the Contributed Liabilities; and
(xix) all other properties, assets and rights owned by Sellers as of the Closing Date, or in which Sellers have an interest, and which are not otherwise Excluded Assets.
(b) Excluded Assets. Notwithstanding the foregoing, the following properties, assets and rights (the “Excluded Assets”) are expressly excluded from the contributions by Sellers to Non-Real Estate Buyer as contemplated in Section 2.1, and, as such, are not included in the Contributed Assets:
(i) all stock and other ownership interests in Sellers;
(ii) Sellers’ corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books and blank stock certificates and other documents relating solely to the organization, maintenance and existence of Sellers as corporations (provided that Buyers shall be entitled to receive a copy of all such documentation);
(iii) the Contributed Assets Purchase Price, the Purchased Real Property Purchase Price and all other rights of Sellers under or pursuant to this Agreement and the Schedules attached hereto and any other agreements entered into by Sellers pursuant to this Agreement;
(iv) all rights and interests of Sellers under Sellers’ Employee Benefit Plans and related trust agreements described and identified with an asterisk (*) on Schedule 4.20 or any other employee benefit plan, program, policy or arrangement not listed on Schedule 4.20 which is presently or formerly maintained or contributed to by Sellers or their ERISA Affiliates, or with respect to which Sellers or any such ERISA Affiliate have any liability (the “Excluded Plans”);
(v) 2011 Mercedes Benz, VIN Number 0XXXX0XX0XX000000, currently being used by Seebach, which vehicle shall be transferred to Seebach prior to the Closing;
(vi) all of Sellers’ insurance policies;
(vii) any employment or other agreement between any Seller and Xxxxx Xxxxx, including, without limitation, the Employment Agreement, dated as of January 6, 2010, by and between Eyelematic and Xxxxx Xxxxx;
(viii) the Purchased Real Property;
(ix) the Seemar Leased Property;
(x) except as set forth in Section 7.15, all rights and interests in and to bank accounts; and
(xi) all other assets and properties of Sellers specifically listed or described on Schedule 2.2(b)(xi).
2.3 Contributed Liabilities. Subject to the conditions set forth in this Agreement, including Section 2.1, as of the Closing, to the extent such liabilities relate to the Business, Eyelematic and Echo shall contribute to Non-Real Estate Buyer, and Non-Real Estate Buyer shall assume, only the following debts, liabilities and obligations of Eyelematic and Echo (collectively, the “Contributed Liabilities”):
(i) except as otherwise provided in Section 2.4 below, all of Eyelematic and Echo’s accounts payable (but only to the extent such items are not more than sixty (60) days past due and are recorded and reasonably identified on a category-by-category basis on the Closing Statement and are included in the calculation of the Net Working Capital); and
(ii) Eyelematic and Echo’s obligations under the Contributed Contracts first arising on the Closing Date but only to the extent such Contributed Contracts are assigned to Non-Real Estate Buyer or Non-Real Estate Buyer otherwise receives the rights and benefits of such Contributed Contracts pursuant to Section 2.10 below, and specifically excluding any liability or obligation relating to or arising out of such Contributed Contracts as a result of (A) any breach of such Contributed Contracts occurring on or prior to the Closing Date, (B) any violation of law, breach of warranty, tort or infringement occurring on or prior to the Closing Date; or (C) any charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand.
2.4 Liabilities Not Contributed Nor Assumed. Notwithstanding anything to the contrary in this Agreement, Buyers shall not assume or in any way become liable for any of Sellers’ debts, liabilities or obligations of any nature whatsoever (other than, with respect to the Non-Real Estate Buyer, the Contributed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business, the Contributed Assets or the Purchased Real Property and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xix) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Sellers’ liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Sellers in connection with the transactions contemplated by this Agreement;
(ii) any of Sellers’ liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyers pursuant to Section 6.8 hereof;
(iii) any liability or obligation of Sellers for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyers pursuant to Section 6.8 hereof;
(iv) any liability or obligation under or with respect to any Excluded Plans;
(v) any liabilities, obligations and commitments relating to compensation of the Transferred Employees arising as a result of the transactions contemplated by this Agreement, including any severance compensation and bonus payments;
(vi) any liability or obligation with respect to any products or services that were manufactured, marketed or sold or any development, modification or use of any Proprietary Rights prior to the Closing, including product liability, infringement or misappropriation claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vii) any of Sellers’ liabilities or obligations under or with respect to any collective bargaining agreement;
(viii) any of Sellers’ liabilities or obligations for vacation pay, sick pay, holiday pay, salary, bonuses or other payments or liabilities of any kind to any Business Employees or current or former employee of Sellers, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non exempt status of any Business Employee;
(ix) any liability or obligation relating to workers’ compensation claims, general product liability claims and automobile liability claims which were filed or
presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims, events and/or injuries first arising on or before the Closing Date;
(x) any of Sellers’ liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Sellers of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental and Safety Requirements;
(xi) any of Sellers’ liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Sellers’ conduct of the Business or any other conduct of Sellers, Sellers’ officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(xii) any of Sellers’ liabilities or obligations for Indebtedness;
(xiii) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xiv) any payment of fees, penalties, costs or other expenses of any nature whatsoever required for the assignment of any Contributed Contract (including any software licenses) pursuant to this Agreement;
(xv) any of Sellers’ liabilities or obligations for which Buyers may become liable as a result of or in connection with the failure by Buyers or Sellers to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger,” “continuity of enterprise” or “successor-in-interest” theories of liability;
(xvi) any liabilities with respect to any employment or other agreement between any Seller and Xxxxx Xxxxx, including, without limitation, the Employment Agreement, dated as of January 6, 2010, by and between Eyelematic and Xxxxx Xxxxx;
(xvii) the liabilities specifically identified and described on Schedule 2.4(xvii); and
(xviii) all liabilities and obligations under Environmental and Safety Requirements associated with the Business, the Facilities, or environmental conditions (known or unknown) in each case to the extent the facts, events or conditions underlying such liabilities or obligations are occurring or in existence on or prior to the Closing, which shall include without limitation all liabilities and obligations relating to or arising under (A) the Connecticut Transfer Act with respect to the Facilities, including without limitation those obligations set forth in Section 6.3 hereto, (B) the matters identified in the Environmental Reports, (C) the DEEP Consent Order, and (D) the removal of the degreaser from the Facility at 0 Xxxxxx Xxxx, Xxxxxxxxx CT (the “Excluded Environmental Liabilities”).
(xix) any other liabilities or obligations of Sellers not expressly assumed by Non-Real Estate Buyer pursuant to Section 2.3 above.
For purposes of this Section 2.4, “Sellers” shall be deemed to include all Affiliates of Sellers and any predecessors to Sellers and any Person with respect to which Sellers are a successor-in-interest (including by operation of law, merger, liquidation, consolidation, assignment, assumption or otherwise). Sellers hereby acknowledge that they are retaining the Excluded Liabilities, and Sellers shall pay, discharge and perform and indemnify Buyers against all such liabilities and obligations promptly when due.
2.5 Purchased Real Property. Real Estate Buyer shall purchase from Eyelematic and Seemar, and Eyelematic and Seemar shall sell, convey, assign, transfer and deliver to Real Estate Buyer free and clear of all Liens (other than Permitted Liens), all of the Purchased Real Property, for an aggregate purchase price of $4,950,000, as more fully described in Section 2.1(e) and Section 2.1(f) above.
2.6 Seemar Leased Property. Real Estate Buyer shall lease from Seemar, and Seemar shall lease to Real Estate Buyer, the Seemar Leased Property for an aggregate $200,000 rent (the “Pre-Paid Rent Amount”).
2.7 Purchase Price.
(a) Purchase Price. The aggregate purchase price (the “Contributed Assets Purchase Price”) for the Contributed Assets shall be (i) $5,250,000 in cash plus (ii) 100% of the issued and outstanding shares of non-voting preferred stock of Non-Real Estate Buyer plus (iii) the amount (if any) by which the Closing Net Working Capital as shown on the Closing Statement is greater than the Upper End Target Net Working Capital minus (iv) the amount (if any) by which the Closing Net Working Capital as shown on the Closing Statement is less than the Lower End Target Net Working Capital (the amount in subsections (i), (ii), (iii) and (iv) above, the “Cash Portion”). The aggregate purchase price (the “Purchased Real Property Purchase Price”) for the Purchased Real Property shall be $4,950,000 in cash.
(b) Estimated Cash Portion. At the Closing, the Non-Real Estate Buyer shall pay to Eyelematic and Echo in the manner described in Section 2.1 above and 2.8 below an amount (the “Estimated Cash Portion”) equal to the Cash Portion as estimated in good faith by the Non-Real Estate Buyer, and the Real Estate Buyer shall pay to Eyelematic and Seemar in the manner described in Sections 2.1 above and 2.8 below an amount equal to the Purchased Real Property Purchase Price and the Pre-Paid Rent Amount.
(c) Purchase Price Adjustment.
(i) Within one-hundred-twenty (120) days following the Closing Date, the Non-Real Estate Buyer shall deliver to Sellers a statement (in its final and binding form, the “Closing Statement”) setting forth the Net Working Capital as of 11:59 p.m. Central Time, on the date immediately preceding the Closing Date (the “Closing Net Working Capital”) and the Cash Portion calculated therefrom. The Closing Statement shall be prepared (A) using the same quarterly and year-end accounting closing practices as those used for Sellers’ consolidated quarterly and year-end accounting closings presented by Sellers to the Non-Real Estate Buyer from the period between January 1, 2010 and June 30, 2011 and (B) consistent with the accounting principles, methods, policies, practices, procedures, estimation methods, treatments
and categorizations (collectively, the “Accounting Principles”) set forth on the Net Working Capital Schedule. Sellers shall give the Non-Real Estate Buyer reasonable access to Sellers’ books and records and shall cooperate with the Non-Real Estate Buyer in connection with the preparation of the Closing Statement. Following Sellers’ receipt of the Closing Statement, and until the Closing Net Working Capital and the resulting Cash Portion are finally determined pursuant to this Section 2.7(c), Sellers and their representatives and agents shall be permitted to review the Non-Real Estate Buyer’s books and records related to the Non-Real Estate Buyer’s preparation of the Closing Statement and determination of the Closing Net Working Capital. The Closing Statement shall become final and binding upon the parties thirty (30) days following Sellers’ receipt thereof, unless Sellers give written notice of their disagreement (a “Notice of Disagreement”) to the Non-Real Estate Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature and dollar amount of any disagreement so asserted. If a timely Notice of Disagreement is received by the Non-Real Estate Buyer, then the Closing Statement (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earliest of (x) the date the parties hereto resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (y) the date all matters in dispute are finally resolved in writing by the Accounting Firm. During the thirty (30) days following delivery of a Notice of Disagreement, the Non-Real Estate Buyer and Sellers shall seek in good faith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. During such period, the Non-Real Estate Buyer shall be permitted to review Sellers’ working papers relating to the Notice of Disagreement. At the end of such thirty (30)-day period, the Non-Real Estate Buyer and Sellers shall submit to Xxxxxxxx Xxxxx, Inc. or, if Xxxxxxxx Xxxxx, Inc. is not available, then to Mesirow Financial Holdings, Inc. or, if Mesirow Financial Holdings, Inc. is not available, then to a nationally recognized valuation or consulting firm as is acceptable to Sellers and the Non-Real Estate Buyer (the “Valuation Firm”), for review and resolution of all matters (but only such matters) that remain in dispute, and the Valuation Firm shall make a final determination of the Closing Net Working Capital and the resulting Cash Portion in accordance with the guidelines and procedures set forth in this Agreement. The Non-Real Estate Buyer and Sellers will cooperate with the Valuation Firm during the term of its engagement. The Valuation Firm’s determination of the Closing Net Working Capital and the resulting Cash Portion shall be based solely on written presentations submitted by the Non-Real Estate Buyer and Sellers which are in accordance with the guidelines and procedures (including the definition of the Net Working Capital) set forth in this Agreement (i.e., not on the basis of an independent review) and in the Net Working Capital Schedule. The Valuation Firm shall consider only the disputed matters that were included in the Notice of Disagreement and the Valuation Firm may not assign a value to any item in dispute greater than the greatest value assigned by the Non-Real Estate Buyer, on the one hand, or Sellers, on the other hand, or less than the smallest value for such item assigned by the Non-Real Estate Buyer, on the one hand, or Sellers, on the other hand. The Closing Statement shall become final and binding on the Parties on the date the Valuation Firm delivers its final resolution in writing to the Parties (which the Valuation Firm shall be instructed to deliver not more than forty-five (45) days following submission of such disputed matters). The fees and expenses of the Valuation Firm shall be allocated based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party in the written presentation to the Valuation Firm. For example, if the Non-Real Estate Buyer submits a Notice of Disagreement for $1,000, and if Sellers contest only $500 of
the amount claimed by the Non-Real Estate Buyer, and if the Valuation Firm ultimately resolves the dispute by awarding Non-Real Estate Buyer $300 of the $500 contested, then the costs and expenses of the Valuation Firm will be allocated 60% (i.e., 300/500) to Sellers and 40% (i.e., 200/500) to the Non-Real Estate Buyer.
(ii) If the Estimated Cash Portion is greater than the Cash Portion, Eyelematic and Echo shall, and if the Cash Portion is greater than the Estimated Cash Portion, the Non-Real Estate Buyer shall, within three (3) business days after the Closing Statement becomes final and binding on the Parties, make payment by wire transfer to the Non-Real Estate Buyer or Eyelematic and Echo, as the case may be, in immediately available funds of the amount of such difference, together with interest thereon at a rate per annum equal to the prime rate of interest announced from time to time in The Wall Street Journal, calculated on the basis of the actual number of days elapsed over 365, from the Closing Date to the date of payment. If Eyelematic and Echo are obligated to pay any amount pursuant to this Section 2.7(c)(ii), then the Non-Real Estate Buyer can collect the total amount owed pursuant to this Section 2.7(c)(ii) severally from either Eyelematic and Echo. Eyelematic and Echo covenant to maintain a reasonable amount of funds in their retained bank accounts to satisfy any amounts owed under this Section 2.7(c)(ii).
2.8 Closing Transactions.
(a) Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Xxxxxxxx & Xxxxx LLP, 000 Xxxxx XxXxxxx, Xxxxxxx, Xxxxxxxx, at 10:00 a.m., local time, on the date hereof, or at such other place as is mutually agreeable to the Parties (the date on which the Closing takes place is referred to herein as the “Closing Date”) and the Closing shall be deemed effective as of the opening of business on the Closing Date.
(b) Deliveries. Subject to the conditions set forth in this Agreement, at the Closing:
(i) The Non-Real Estate Buyer shall deliver to Eyelematic and Echo the Estimated Cash Portion (less the Escrow Amount) by wire transfer of immediately available funds to an account designated by Eyelematic and Echo to the Non-Real Estate Buyer not less than two (2) business days prior to the Closing Date. The Real Estate Buyer shall deliver to Eyelematic and Seemar the Purchased Real Property Purchase Price and the Pre-Paid Rent Amount (less the Escrow Amount) by wire transfer of immediately available funds to an account designated by Eyelematic and Seemar to the Real Estate Buyer not less than two (2) business days prior to the Closing Date.
(ii) Buyers shall deliver the Escrow Amount to the Escrow Agent for deposit into an interest bearing escrow account established pursuant to the terms of the Escrow Agreement. The Escrow Amount shall be available only to satisfy any amounts owing to any Buyers Party pursuant to Section 6.2(a).
(iii) Sellers shall contribute all of the Contributed Assets to Non-Real Estate Buyer, shall convey the Purchased Real Property to Real Estate Buyer and shall deliver to
Buyers such appropriately executed instruments of sale, transfer, assignment, conveyance and delivery, warranty deeds, warranty assignments and assumptions of leases, bills of sale, assignments and assumptions, intellectual property assignments or other intellectual property conveyance documents, certificates of title, vehicle titles, transfer tax declarations and all other instruments of conveyance which are necessary or desirable to effect transfer to Buyers of good and marketable title to the Contributed Assets or the Purchased Real Property, as applicable, (free and clear of all Liens, other than Permitted Liens), including original executed documents acceptable for recordation in the United States Patent and Trademark Office, the United States Copyright Office, any state, county or municipal office and any other similar domestic or foreign office, department or agency (it being understood that all of the foregoing shall be satisfactory in form and substance to Buyers and its counsel);
(iv) Non-Real Estate Buyer shall assume the Contributed Liabilities by delivery of an appropriate instrument to Sellers;
(v) Seemar and Real Estate Buyer shall have entered into that certain lease agreement in form and substance of Exhibit B attached hereto with respect to the Seemar Leased Property (the “New Lease”);
(vi) Sellers shall deliver to Buyers (A) a certificate signed by an officer of Sellers, dated the date of the Closing, stating that the conditions specified in subsections (a), (b), (c), (e) and (f) of Section 3.1 below have been satisfied as of the Closing; (B) copies of all Third-Party Approvals and governmental and regulatory consents and approvals obtained by Sellers; (C) all books, records and other materials related to or used in the Business; (D) certified copies of resolutions of Sellers’ board of directors authorizing and approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; (E) evidence of the termination of any inter-company leases of real estate, if any, all financing statements and the release of all Liens filed or outstanding against the Contributed Assets and Purchased Real Property; (F) payoff letters with respect to all Indebtedness of the Business outstanding immediately prior to the Closing (in each case on terms and conditions satisfactory to Buyers); (G) a non-foreign Person affidavit dated as of the Closing Date, in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code, stating that Sellers are not a “foreign person” as defined in Code Section 1445; and (H) such other documents or instruments as are required to be delivered at the Closing pursuant to the terms hereof or that Buyers reasonably requests prior to the Closing Date to effect the transactions contemplated hereby;
(vii) Sellers shall deliver to Buyers, or shall cause their insurance brokers to deliver to Buyers, a statement, dated as of the Closing Date, proving that (i) each of Sellers’ insurance policies listed on Schedule 4.21 are in full force and effect as of the Closing Date and that none of such insurance policies have been amended, modified, revoked or rescinded since the date of issuance of such policies, and (ii) Sellers have paid on or prior to the Closing Date all premiums and any other payments due as of the Closing Date under such Sellers’ insurance policies listed on Schedule 4.21.
(viii) Buyers shall deliver to Sellers (A) a certificate signed by an officer of Buyers, dated the date of the Closing, stating that the conditions specified in subsections (a),
(b) and (c) of Section 3.2 below have been satisfied, (B) certified copies of resolutions of Buyers’ board of directors authorizing and approving the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and (C) such other documents or instruments as are required to be delivered at the Closing pursuant to the terms hereof or that Sellers reasonably request prior to the Closing Date to effect the transactions contemplated hereby; and
(ix) Sellers and Buyers shall make such other deliveries as are required by Article III hereof.
2.9 Allocation of the Purchased Real Property Purchase Price. The Purchased Real Property Purchase Price shall be allocated among the Purchased Real Property as determined by the Real Estate Buyer and Sellers in accordance with Schedule 2.8. Buyers and Sellers shall file any Tax Returns and any other governmental filings on a basis consistent with such allocation of fair market value.
2.10 Nonassignable Contracts. Notwithstanding anything to the contrary herein, to the extent that the contribution or assignment hereunder by Sellers to Non-Real Estate Buyer of any Contributed Contract is not permitted or is not permitted without the consent of any other party to such Contributed Contract, this Agreement shall not be deemed to constitute a contribution or assignment of any such Contributed Contract if such consent is not given or if such contribution or assignment otherwise would constitute a breach of, or cause a loss of contractual benefits under, any such Contributed Contract, and Non-Real Estate Buyer shall assume no obligations or liabilities under any such Contributed Contract. Sellers shall advise Non-Real Estate Buyer in writing at least two (2) business days prior to the Closing with respect to any Contributed Contract which Sellers know or has substantial reason to believe will or may not be subject to contribution or assignment to Non-Real Estate Buyer hereunder at the Closing. Without in any way limiting Sellers’ obligation to obtain all consents and waivers necessary for the sale, transfer, contribution, assignment and delivery of the Contributed Contracts, the Contributed Assets and the Purchased Real Property to Buyers (as applicable) hereunder, if any such consent is not obtained or if such contribution or assignment is not permitted irrespective of consent and if the Closing shall occur, Sellers shall cooperate with Buyers following the Closing Date in any reasonable arrangement designed to provide Buyers with the full rights and benefits (subject to the obligations) under any such Contributed Contract as of the Closing Date, including enforcement for the benefit of Buyers of any and all rights of Sellers against any other party arising out of any breach or cancellation of any such Contributed Contract by such other party and, if requested by Buyers, acting as an agent on behalf of Buyers or as Buyers shall otherwise reasonably require (including subcontracting).
2.11 Tax Characterization. The Parties hereto intend that the transactions contemplated by Sections 2.1(a), 2.1(b) and 2.1(c) of this Agreement shall qualify as an exchange of property for stock under Section 351(a) of the Code (and any corresponding provision of applicable state or local tax law). The Parties hereto shall prepare and file all tax returns in a manner consistent with such treatment, including, without limitation, filing the statements required by Treasury Regulations § 1.351-3 with such tax return. The Non-Real Estate Buyer, Eyelematic and Echo shall each make an election under Section 362(e)(2)(C) of the Code (and any corresponding provision of state or local income Tax law to the extent
applicable) with respect to Eyelematic and Echo’s transfers of the Contributed Assets, and Eyelematic and Echo shall file the election statements contemplated by Proposed Treasury Regulation 1.362-4(c)(5)(ii).
ARTICLE III
CONDITIONS TO CLOSING
3.1 Conditions to Buyers’ Obligation. The obligation of Buyers to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions as of the Closing:
(a) The representations and warranties made by Sellers in this Agreement and in any certificate delivered by Sellers pursuant hereto shall be true and correct as of the date hereof and the Closing Date;
(b) Sellers shall have performed and complied with the obligations and covenants required by this Agreement to be performed or complied with by Sellers on or prior to the Closing Date;
(c) Sellers shall have obtained releases of all Liens of whatever nature relating to the Contributed Assets and the Purchased Real Property (other than the Permitted Liens);
(d) Sellers shall have obtained payoff letters with respect to all Indebtedness of the Business outstanding immediately prior to the Closing (in each case on terms and conditions satisfactory to Buyers);
(e) Sellers shall have received or obtained all third party consents and approvals, and shall have paid any fees or other payments associated with obtaining such consents or approvals, that are necessary for the consummation of the transactions contemplated hereby or that are required in order to prevent a breach of or default under, a termination or modification of, or acceleration of the terms of, any Contributed Contract (collectively, the “Third-Party Approvals”), in each case on terms reasonably satisfactory to Buyers;
(f) Buyers and Sellers shall have received or obtained all governmental and regulatory consents and approvals that are necessary for the consummation of the transactions contemplated hereby and Buyers’ operation of the Business following the Closing, in each case on terms satisfactory to Buyers;
(g) Since December 31, 2010, there shall have been no material adverse change or development in the financial condition, operating results, assets, operations, employee relations or customer or supplier relations of Sellers or the Business;
(h) No suit, action or other proceeding, or injunction, order, decree or judgment relating thereto, shall be threatened or pending before any court or governmental or regulatory official, body or authority in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with the transactions contemplated hereby, or that could
have a material adverse effect on the business, financial condition, operating results or assets of Sellers or the Business or adversely affect the right of Buyers or their respective Affiliates to own, operate or control all or any portion of the Contributed Assets, the Purchased Real Property or the Business, and no investigation that could result in any such suit, action or proceeding shall be pending or threatened;
(i) Sellers shall have delivered to Buyers non-foreign Person affidavits as of the Closing Date, and in form and substance required under the Treasury Regulations issued pursuant to Section 1445 of the Code stating that each Seller is not a “foreign person” as defined in Code Section 1445;
(j) Real Estate Buyer shall have received a 2006 ALTA Owner’s Policy of Title Insurance with respect to all of the Purchased Real Property, issued by a title insurer reasonably satisfactory to Real Estate Buyer (the “Title Company”) in such amount as Real Estate Buyer reasonably determines, insuring good and marketable indefeasible fee simple title to such Purchased Real Property, vested in Real Estate Buyer as of the Closing Date, subject only to the Permitted Liens. Said title insurance policy or policies shall insure title to the Purchased Real Property and all recorded easements benefiting such Purchased Real Property, and shall include endorsements as reasonably required by Real Estate Buyer (the “Title Policies”). In connection with the foregoing, Sellers shall deliver title affidavits and such other indemnities, documents or instruments as may be required by the Title Company to insure title and to issue the Title Policies required above;
(k) Real Estate Buyer shall have obtained 2011 ALTA Surveys (the “Surveys”) with respect to the Purchased Real Property. Each Survey shall be certified to Real Estate Buyer, the Title Company and Real Estate Buyer’s lenders, if any, prepared by a licensed surveyor and confirmed to current ALTA Minimum Detail Requirements for Land Title Surveys, in form and substance reasonably satisfactory to Real Estate Buyer and disclosing no encroachment, encumbrance or other survey defect that could adversely affect the use, occupancy, operation or value of the Purchased Real Property;
(l) Any lease by and between any of Sellers or another Affiliate of Sellers, each as amended from time to time, shall have been terminated;
(m) Buyers, Sellers and the Escrow Agent shall have entered into the Escrow Agreement;
(n) Seemar and Real Estate Buyer shall have entered into the New Lease;
(o) The Non-Real Estate Buyer, Eyelematic and Echo shall have executed joint elections pursuant to Section 362(e)(2)(C) of the Code with respect to the transactions contemplated by Sections 2.1(a), 2.1(b) and 2.1(c) of this Agreement;
(p) Sellers shall have delivered to Buyers and to DEEP the Form III filings and other appropriate documentation for Connecticut Transfer Act purposes with respect to (i) the transfer of the Business operation at 0 Xxxxxx Xxxx, Xxxxxxxxx CT and (ii) the transfer of the Real Property at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx XX, which documents shall state that the Sellers shall be the “certifying party” for purposes of the Connecticut Transfer Act; and
(q) Sellers shall have completed and filed with DEEP permit transfer forms with respect to permits issued under Environmental and Safety Requirements for the Facilities.
All proceedings to be taken by Sellers in connection with the consummation of the transactions contemplated hereby and all certificates, instruments and other documents required to effect the transactions contemplated hereby reasonably requested by Buyers shall be reasonably satisfactory in form and substance to Buyers. Any conditions specified in this Section 3.1 may be waived only in writing by Buyers and specifying in reasonable detail the provision being waived.
3.2 Conditions to Sellers’ Obligations. The obligation of Sellers to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions as of the Closing:
(a) The representations and warranties made by Buyers in this Agreement and in any certificate delivered by Buyers pursuant hereto shall be true and correct as of the date hereof and the Closing Date;
(b) Buyers shall have performed and complied with the obligations and covenants required by this Agreement to be performed or complied with by Buyers on or prior to the Closing Date;
(c) Buyers and Sellers shall have received or obtained all governmental and regulatory consents and approvals that are necessary for the consummation of the transactions contemplated hereby;
(d) No suit, action or other proceeding, or injunction, order, decree or judgment relating thereto, shall be threatened or pending before any court or governmental or regulatory official, body or authority in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with the transactions contemplated hereby, and no investigation that could result in any such suit, action or proceeding shall be pending or threatened; and
(e) Buyers, Sellers and the Escrow Agent shall have entered into the Escrow Agreement.
All proceedings to be taken by Buyers in connection with the consummation of the transactions contemplated hereby and all documents required to be delivered by Buyers to effect the transactions contemplated hereby reasonably requested by Sellers shall be reasonably satisfactory in form and substance to Sellers. Any condition specified in this Section 3.2 may be waived only in writing by Sellers and specifying in reasonable detail the provision being waived.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
As an inducement to Buyers to enter into this Agreement and consummate the transactions contemplated hereby, Sellers hereby represent and warrant to Buyers that:
4.1 Organization and Corporate Power. Each of Eyelematic and Echo is a corporation duly organized, validly existing and in good standing under the laws of the State of Connecticut, and Seemar is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Connecticut. Each Seller has all requisite power and authority and all authorizations, licenses and permits necessary to own and operate the Business and to conduct the Business as now conducted and as presently proposed to be conducted.
4.2 Authorization; No Breach. The execution, delivery and performance of this Agreement and the other agreements contemplated hereby to be executed and delivered by each Seller and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite corporate action on the part of such Seller, and no other corporate proceedings on the part of each Seller are necessary to authorize the execution, delivery or performance of this Agreement or the other agreements contemplated hereby. This Agreement and the other agreements contemplated hereby to be executed and delivered by each Seller constitute valid and binding obligations of such Seller, enforceable in accordance with their respective terms. Except as set forth on Schedule 4.2, the execution, delivery and performance of this Agreement and the other agreements contemplated hereby to be executed and delivered by each Seller and the consummation of the transactions contemplated hereby and thereby does not and shall not (i) conflict with or result in any breach of any of the provisions of, (ii) constitute a default under, (iii) result in a violation of, (iv) give any third party the right to terminate or to accelerate any obligation under, (v) result in the creation of any Lien or encumbrance of any kind upon any of the Contributed Assets or the Purchased Real Property, or (vi) require any authorization, consent, approval, exemption or other action by or notice to or filing with any court or other governmental or regulatory body or authority, under the provisions of each Seller’s certificate of incorporation or bylaws, as the case may be, or any indenture, mortgage, loan agreements to which each Seller is bound or affected, any Contributed Contract, any license, permit, certificate, accreditation or other authorization of each Seller, or any law, statute, rule or regulation to which each Seller is subject. Without limiting the generality of the foregoing, except for Buyer pursuant hereto, there are no agreements, options, commitments or rights with, of or to any Person to purchase or otherwise acquire any of the Contributed Assets, the Purchased Real Property or any interests therein, except those entered into in the Ordinary Course of Business for the sale of Inventory.
4.3 Subsidiaries. Sellers do not have any Subsidiaries. Sellers do not own or hold the right to acquire any shares of stock or any other security or interest in any other Person or have any obligation to make any investment in any Person.
4.4 Financial Statements. Attached hereto as Schedule 4.4 are the following financial statements:
(a) the unaudited balance sheet of each Seller as of June 30, 2011 (the “Latest Balance Sheet”), and the related statements of income and cash flows (or the equivalent) for the six-month period then ended; and
(b) the reviewed balance sheet of each Seller as of December 31, 2010, and the related statements of income and cash flows (or the equivalent) for the fiscal years then ended (the “Reviewed Financial Statements,” and together with the Latest Balance Sheet, the “Financial Statements”).
Each of the foregoing Financial Statements (including in all cases the notes thereto) is accurate and complete in all material respects, is consistent with the books and records of Sellers (which, in turn, are accurate and complete in all material respects), presents fairly in all material respects the financial condition of Sellers and the Business as of the respective dates thereof and the operating results of Sellers and the Business for the periods covered thereby and has been prepared in accordance with GAAP, consistently applied, subject to the absence of (i) footnote disclosures, (ii) changes resulting from normal year-end adjustments for recurring accruals (none of which would, alone or in the aggregate, be materially adverse to the financial condition, operating results, assets or operations of Sellers or the Business taken as a whole), and (iii) adjustments for impairment of intangible and fixed assets.
4.5 Absence of Undisclosed Liabilities. Except as set forth on Schedule 4.5, Sellers have and will have no Indebtedness or material obligations or liabilities (whether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due and regardless of when or by whom asserted) at or as of the Closing Date or arising out of transactions entered into at or prior to the Closing Date, or any action or inaction at or prior to the Closing Date, or to the Knowledge of Sellers, any state of facts existing at or prior to the Closing Date, including Taxes with respect to or based upon periods, transactions or events occurring on or before the Closing Date, except (i) obligations under contracts or commitments described on Schedule 4.14 or under contracts and commitments entered into in the Ordinary Course of Business which, because of the dollar thresholds set forth in Section 4.14 below, are not required pursuant to Section 4.14 below to be described on Schedule 4.14 (but not liabilities for breaches of any such contracts or commitments occurring on or prior to the Closing Date), (ii) liabilities reflected on the liability side of the Latest Balance Sheet, (iii) liabilities and obligations which have arisen after the date of the Latest Balance Sheet in the Ordinary Course of Business (none of which is a liability for breach of contract, breach of warranty, tort, infringement, claim or lawsuit) and (iv) other liabilities and obligations to the extent expressly disclosed in this Agreement or the Schedules attached hereto.
4.6 Accounts Receivable. Except as set forth on Schedule 4.6, all accounts and notes receivable reflected on the Latest Balance Sheet and all accounts and notes receivable to be reflected on the Closing Statement (net of allowances for doubtful accounts as reflected thereon and as determined in accordance with GAAP consistently applied) are or shall be valid receivables arising in the Ordinary Course of Business and are or shall be current and collectible within no more than sixty (60) days at the aggregate recorded amount therefor as shown on the Latest Balance Sheet and on the Closing Statement, as the case may be (net of allowances for doubtful accounts as reflected thereon and as determined in accordance with GAAP consistently applied). Except as set forth on Schedule 4.6, no Person has any Liens on such receivables or
any part thereof, and no agreement for deduction, free goods, discount or other deferred price or quantity adjustment has been made with respect to any such receivables.
4.7 Inventory. Except as set forth on Schedule 4.7, all of the Inventory reflected on the Latest Balance Sheet or to be reflected on the Closing Statement consists of a quantity and quality usable and salable in the Ordinary Course of Business consistent with past practice, is not obsolete, defective, damaged or slow-moving, and is merchantable and fit for its intended use and is being actively marketed in normal commercial channels and in normal commercial quantities, subject only to the reserves for Inventory write-downs for unmarketable, obsolete, defective or damaged Inventory reflected in the Latest Balance Sheet, both as determined in accordance with GAAP consistently applied.
4.8 Accounts Payable. Schedule 4.8 sets forth a list of all accounts payable of Sellers together with the name of each payee, the date each such payment is due, and the nature of the transaction in which it was incurred if other than a trade payable incurred in the Ordinary Course of Business.
4.9 No Material Adverse Change. Since December 31, 2010, there has been no material adverse change or development in the business, condition (financial or otherwise), operating results, employee relations, customer relations, supplier relations, assets or operations of Sellers, the Business, the Contributed Assets or the Real Property. Since December 31, 2010, Sellers have operated themselves and conducted the Business, the Contributed Assets and the Real Property only in the Ordinary Course of Business (including the cutting of checks).
4.10 Absence of Certain Developments. Except as set forth on Schedule 4.10, since December 31, 2010, Sellers have not with respect to themselves or the Business, the Contributed Assets, the Purchased Real Property, or the Contributed Liabilities:
(a) paid trade or account payables other than in the Ordinary Course of Business or, delayed or postponed the payment of any trade or accounts payable or commissions or insurance premiums or any other liability or obligation or agreed or negotiated with any party to extend the payment date of any trade or accounts payable or commission or insurance premiums or any other liability or obligation or accelerated the collection of (or discounted) any accounts or notes receivable (whether billed or unbilled) or any deferred revenue or taken any actions or omitted to take any actions with the intent or the purpose of satisfying the Net Working Capital target as of the Closing:
(b) delayed cutting any checks;
(c) paid any obligation or liability (other than in the Ordinary Course of Business);
(d) sold, leased, assigned or transferred any of its tangible assets (including the Contributed Assets and the Purchased Real Property), except in the Ordinary Course of Business, or canceled without fair consideration any debts or claims owing to or held by it;
(e) sold, assigned, licensed, sublicensed, transferred or encumbered any Proprietary Rights or other intangible assets, disclosed any proprietary Confidential Information
to any Person (other than Buyers and Buyers’ representatives, agents, attorneys and accountants), or abandoned or permitted to lapse any of the Proprietary Rights;
(f) made or granted any bonus or any wage or salary increase to any employee or group of employees (except as required by pre-existing contracts or, in the case of non-officer employees, consistent with past practice), or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;
(g) incurred any Indebtedness or incurred or become subject to any material liability, except current liabilities incurred in the Ordinary Course of Business and liabilities under contracts entered into in the Ordinary Course of Business;
(h) suffered any extraordinary Losses or waived any rights of material value, whether or not in the Ordinary Course of Business;
(i) suffered any damage, destruction or casualty loss to its tangible assets (including the Contributed Assets and the Purchased Real Property) in excess of $20,000 per occurrence or $50,000 in the aggregate, whether or not covered by insurance;
(j) made any capital expenditures or commitments therefore that aggregate in excess of $20,000 per expenditure or $50,000 in the aggregate;
(k) made any dividends or distributions to Stockholders;
(l) made any change in any Accounting Principles, other than those required by generally accepted accounting principles which have been disclosed in writing to Buyers;
(m) engaged in any promotional sale, discount, price reduction or other activity that has or would reasonably be expected to have the effect of accelerating to pre-Closing periods sales that otherwise would be expected to occur in post-Closing periods
(n) instituted or permitted any material change in the conduct of the Business, or any change in its method of purchase, sale, lease, management, marketing, promotion or operation;
(o) entered into, amended or terminated any material contract or any government license or permit or taken any other action or entered into any other transaction other than in the Ordinary Course of Business;
(p) entered into any other material transaction, whether or not in the Ordinary Course of Business, or materially changed any business practice; or
(q) authorized, approved, agreed or committed to do any of the foregoing.
4.11 Real Property.
(a) Schedule 4.11(a) sets forth a true and complete list of all the Owned Real Property, including the current record owner, full street address and legal description of each parcel comprising such Owned Real Property. With respect to each parcel of Owned Real Property:
(i) Sellers have good, marketable and insurable indefeasible fee simple title, free and clear of all Liens, except for Permitted Liens;
(ii) except as set forth on Schedule 4.11(a)(ii), Sellers have not pledged, mortgaged, encumbered, leased, subleased, licensed or otherwise granted to any Person the right to use or occupy the Owned Real Property or any portion thereof;
(iii) there are no outstanding options, rights of first offer or rights of first refusal or other agreements granting to any person or entity any right to purchase or lease the Owned Real Property (other than the right of Buyers pursuant to this Agreement) or any portion thereof or interest therein;
(iv) Sellers have not received any written notice of any pending or threatened condemnation proceedings in the nature of eminent domain in connection with any parcel of the Owned Real Property;
(v) there are no agreements, orders, licenses, permits, conditions or other directives issued by a governmental authority which relate to the future use or require any change in the present use or operations of the Owned Real Property;
(vi) to the Knowledge of Sellers, the current use and occupancy of the Owned Real Property and the operation of the Business as currently conducted thereon do not violate any applicable zoning law, easement, covenant, condition, restriction or similar provision in any instrument of record or other unrecorded agreement affecting the Owned Real Property;
(vii) all utilities currently servicing the Owned Real Property are properly installed, connected and operating, with all outstanding charges paid in full, and are sufficient for the operation of the Business as currently conducted; and
(viii) each parcel of land which constitutes the Owned Real Property is separate and distinct from any other tax lot allocated to any other parcel of land.
(b) Schedule 4.11(b) sets forth the names of the lessor, lessee, the address of any parcel of real property leased or used by Sellers as lessor or lessee. Sellers have delivered to Buyers a true and complete copy of each lease, sublease, amendment, extension, renewal, guaranty, license, concession or other agreement (collectively, the “Leases”) with respect to each such Leased Real Property, and in the case of any oral Lease, a written summary of the material terms of such Lease. Sellers do not lease any parcel of real estate other than the Leased Real Property.
(i) Sellers have not assigned, transferred, sublet, or granted any person the right to use or occupy such Leased Real Property or granted any other security interest in such Lease or any interest therein.
(ii) Sellers shall terminate each of the Leases at Closing and shall enter into the New Lease pursuant to Sections 2.8(b)(v) and 3.1(n).
(c) The Owned Real Property and the Leased Real Property constitute all parcels of real estate used in connection with the Business.
(d) There are no defects in the buildings, improvements and structures or fixtures located in, on or at the Real Property which would materially impair the conduct of the Business by Buyers immediately following the Closing. The mechanical, electrical, plumbing, HVAC and other systems servicing the Real Property are in good working order and repair, ordinary wear and tear excepted, and there are no defects in such systems which would reasonably be expected to impair the conduct of the Business by the Buyers immediately following the Closing.
4.12 Assets.
(a) Sellers own good and valid title to all of the Contributed Assets and the Owned Real Property, free and clear of all Liens and other restrictions of whatever nature, except for (i) Liens described on Schedule 4.12(a), (ii) Liens for current property taxes not yet due and payable, and (iii) other imperfections of title, restrictions or encumbrances, if any, which imperfections, restrictions or encumbrances do not, individually or in the aggregate, materially impair the value or the continued use and operation of the Contributed Assets and/or the Owned Real Property to which they relate and do not affect the insurability or merchantability of the title to the Contributed Assets and/or the Owned Real Property to which they relate (items (ii) and (iii) above are collectively referred to herein as the “Permitted Liens”).
(b) The Contributed Assets and the Owned Real Property include all of the assets, whether tangible or intangible or real or personal, that are necessary for the conduct of the Business as currently conducted by Sellers and as currently contemplated to be conducted by Sellers. Other than the Owned Real Property marked with an asterisk on Schedule 4.11(a), Seemar does not own any assets, whether tangible or intangible, real or personal.
(c) The buildings, improvements, fixtures, machinery, equipment and other tangible assets (whether owned or leased) included in the Contributed Assets and the Purchased Real Property are, except for ordinary wear and tear, in good condition and repair and are usable in the Ordinary Course of Business, and all such assets have been installed and maintained in accordance with all applicable laws, regulations and ordinances.
(d) Schedule 4.12(d) sets forth in reasonable detail (i) Sellers’ capital expenditure budget (in both dollar amounts and classifications of expenditures) for the fiscal years ending December 31, 2011, 2012 and 2013, and (ii) the actual capital expenditures made by Sellers (in both dollar amounts and classifications of expenditures) during the fiscal year ending December 31, 2011.
4.13 Tax Matters. Except as set forth on Schedule 4.13: (a) Sellers have timely filed all federal, state, local and foreign income, information and other Tax Returns which are required to be filed; (b) all such returns are true, complete and accurate in all material respects and such filings accurately reflect the Tax liabilities of Sellers; (c) all Taxes, assessments and other
governmental charges imposed upon Sellers (whether or not shown on any Tax Return), or upon any of the assets, income or franchises of Sellers, have been timely paid or, if not yet payable, will be timely paid; (d) Sellers are not currently the beneficiary of any extension of time within which to file any Tax Return or their activities, properties or employees; (e) Sellers have not waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency; (f) Sellers have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party or its activities, properties or employees, and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed; (g) Sellers have not made any material payments, are not obligated to make any material payments, and are not a party to any agreement that under certain circumstances could obligate it to make any material payments, in each case that would not be deductible under Code Section 280G; (h) Sellers are not a party to any Tax allocation or sharing agreement; (i) Sellers (y) have not been a member of an “Affiliated Group” (as defined in Section 1504 of the Code) filing a consolidated federal income tax return and (z) do not have any liability for the Taxes of any Person (other than Sellers) under Reg. § 1.1502-6 (or similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise; (j) there are no material disputes and no actual or proposed Tax deficiencies, assessments or adjustments, (k) no claim has ever been made by an authority in a jurisdiction where Sellers do not file Tax Returns that Sellers are or may be subject to taxation by that jurisdiction; and (l) there are no Liens on any of the assets of Sellers that arose in connection with any failure (or alleged failure) to pay any Tax. Each contract, arrangement, or plan of Sellers or any of their Subsidiaries that are a “nonqualified deferred compensation plan” (as defined for purposes of Code Section 409A(d)(1)) is in documentary and operational compliance with Code Section 409A and the applicable guidance issued thereunder in all material respects. Sellers do not have any indemnity obligation for any Taxes imposed under Section 4999 or 409A of the Code. Schedule 4.13 contains a list of states, territories and jurisdictions (whether foreign or domestic) in which Sellers are required to file Tax Returns.
4.14 Contracts and Commitments.
(a) Except as set forth on Schedule 4.14, Sellers are not a party to any oral or written:
(i) contract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option or similar plan or practice, whether formal or informal, or any severance agreement or arrangement;
(ii) management agreement, contract for the employment of any officer, partner, individual employee or other person on a full-time, part-time or consulting basis or providing for the payment of any cash or other compensation or benefits upon the sale of the Business or prohibiting competition or the disclosure of trade secrets or Confidential Information;
(iii) agreement or indenture relating to Indebtedness or placing a Lien on any of Sellers’ assets or letter of credit arrangements;
(iv) agreements with respect to the lending or investing of funds;
(v) license or royalty agreements;
(vi) nondisclosure or confidentiality agreements;
(vii) lease or agreement under which Sellers are lessees of or hold or operate (A) any real property owned by any other party or (B) personal property owned by any other party for which the annual rental exceeds $15,000;
(viii) lease or agreement under which Sellers are lessors of or permit any third party to hold or operate any property, real or personal, owned or controlled by Sellers;
(ix) broker, distributor, vendor, customer or maintenance agreements;
(x) other contract or group of related contracts with the same party continuing over a period of more than six (6) months from the date or dates thereof, not terminable by Sellers upon thirty (30) days’ or less notice without penalty or involving more than $15,000;
(xi) contract which prohibits Sellers from freely engaging in business anywhere in the world;
(xii) contract relating to the marketing, sale, advertising or promotion of Sellers’ products;
(xiii) franchise or agency agreements;
(xiv) contract with any officer, director, employee, shareholder, or Affiliate of Sellers or any individual related by marriage or adoption to any such individual or any entity in which any such Person owns any beneficial interest;
(xv) warranty agreement with respect to products sold or indemnity agreement with any supplier to Sellers under which Sellers are obligated to indemnify such supplier against product warranty or infringement or similar claims;
(xvi) agreements relating to ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(xvii) contracts, agreements or arrangements providing for commissions or other payments to or by any Person based on or determined by reference to sales, purchases or profits;
(xviii) power of attorney executed by or on behalf of Sellers;
(xix) licenses (including all inbound and outbound licenses), other than licenses for off-the-shelf software solely for the internal use of Sellers for an aggregate purchase
price of less than $5,000 to which Sellers are a party and any other agreements affecting Sellers’ ability to use or disclose any Proprietary Rights; or
(xx) other agreement material to Sellers, whether or not entered into in the Ordinary Course of Business.
(b) Except as specifically disclosed on Schedule 4.14, (i) Sellers and the other party thereto have performed all obligations required to be performed by such Person under the contracts or commitments required to be listed on Schedule 4.14 and there is no breach of or default under such contract or commitment or any event which, upon giving of notice or lapse of time or both, would constitute a breach or default (other than technical breach or default that do not result in economic consequences to the contracting parties), (ii) to the Knowledge of Sellers, there is no anticipated breach by any party to any contract or commitment required to be listed on Schedule 4.14, (iii) Sellers have not assigned, delegated or otherwise transferred to any Person any of its rights, title or interest under any contract or commitment required to be listed on Schedule 4.14, and (iv) each contract and commitment required to be listed on Schedule 4.14 is legal, valid, binding, enforceable and in full force and effect, and will continue as such following the consummation of the transactions contemplated hereby (subject to bankruptcy, moratorium and similar laws and subject to the application of specific performance and other equitable principles).
(c) Buyers have heretofore been supplied with a true and correct copy of all written contracts (and a true and correct written description of all oral contracts) which are referred to on Schedule 4.14, together with all amendments, exhibits, attachments, waivers or other changes thereto.
4.15 Proprietary Rights.
(a) The Proprietary Rights comprise all intellectual property necessary or desirable for the conduct of the Business as currently conducted by Sellers and as currently proposed to be conducted by Sellers. Sellers own and possess exclusively all right, title and interest in and to or have the valid and enforceable right to use all Proprietary Rights. Schedule 4.15 sets forth a complete and correct list of: (i) all patented or registered Proprietary Rights and pending patent applications or other applications for registration of Proprietary Rights owned or used by Sellers; (ii) all trade names used by Sellers; (iii) all licenses or similar agreements or arrangements to which Sellers are a party, either as licensees or licensors, for the Proprietary Rights (other than licenses for off-the-shelf software solely for internal use by Sellers for an aggregate purchase price of less than $5,000); and (iv) all material unregistered trademarks that are either owned by Sellers or used by Sellers or any Affiliate in the conduct of the Business; and (v) all computer software that is either owned by Sellers or used by Sellers or any Affiliate in the conduct of the Business; with respect to each item listed on Schedule 4.15, identifying the owner and title of the agreement pursuant to which the Proprietary Right is used). Except as set forth in Schedule 4.15:
(i) Sellers own and possess exclusively all right, title and interest in, to and under the Proprietary Rights listed on Schedule 4.15 as owned by Sellers, free and clear of all Liens (other than Permitted Liens). All of the Proprietary Rights are valid and enforceable in
all material respects, and none of the Proprietary Rights have been misused, and no claim by any third party contesting the validity, enforceability, use or ownership of any of the Proprietary Rights has been made, is currently outstanding or, to the Knowledge of Sellers, is threatened, and there are no grounds for the same;
(ii) To the extent that any Proprietary Rights have been developed or created by any Person other than Sellers, Sellers have a written agreement with such Person with respect thereto and Sellers have obtained ownership of, and are the exclusive owners of, all such Proprietary Rights by operation of law or by valid assignment of any such rights;
(iii) Except with respect to customer contracts entered into in the Ordinary Course of Business, Sellers have not transferred ownership of or granted any license of or other right to use or authorized the retention of any rights to use any Proprietary Rights to any other Person;
(iv) No Proprietary Rights are subject to any order, action or proceeding or “march in” rights that restrict, or that are reasonably expected to restrict in any manner, the use, transfer or licensing of any Proprietary Rights or that may affect the validity, use or enforceability of such Proprietary Rights;
(v) The loss or expiration of any Proprietary Right is not and would not be materially adverse to Sellers or the Business, and no such loss or expiration is pending or, to the Knowledge of Sellers, threatened or reasonably foreseeable;
(vi) Sellers have not received any notices of, nor are Sellers aware of any facts which indicate a likelihood of, any infringement or misappropriation by, or conflict with, any third party with respect to the Proprietary Rights, including any demand or request that Sellers license rights from a third party;
(vii) Schedule 4.15 lists all actions that must be taken by Sellers within ninety (90) days from the date hereof, including the payment of any registration, maintenance, renewal fees, annuity fees and taxes or the filing of any documents, applications or certificates for the purposes of maintaining, perfecting or preserving or renewing any Proprietary Rights. In each case in which Sellers have acquired ownership of any Proprietary Rights from any Person, Sellers have obtained a valid and enforceable assignment sufficient to irrevocably transfer all rights in such Proprietary Rights (including the right to seek past and future damages with respect to such Proprietary Rights) to Non-Real Estate Buyer and, to the maximum extent provided for by and required to protect Sellers’ ownership rights in and to such Proprietary Rights in accordance with applicable laws, Sellers have recorded each such assignment of such Proprietary Rights with the relevant governmental or regulatory authority, including but not limited to the United States Patent and Trademark Office;
(viii) Neither the Proprietary Rights nor Sellers have infringed, misappropriated or otherwise come into conflict with any rights of any third parties and Sellers are not aware of any infringement, misappropriation or conflict which will occur as a result of the continued operation of the Business as currently conducted or as currently proposed to be
conducted. To the Knowledge of Sellers, no third party has infringed, misappropriated or otherwise come in conflict with any Proprietary Rights; and
(b) Immediately subsequent to the Closing, all Proprietary Rights to be assigned by Sellers to Non-Real Estate Buyer pursuant to the terms and conditions of this Agreement are or shall be properly assigned or licensed to Non-Real Estate Buyer on terms and conditions identical to those under which Sellers owned or used the Proprietary Rights immediately prior to the Closing. The transactions contemplated by this Agreement shall have no material adverse effect on any of the Proprietary Rights. Sellers have taken all necessary and desirable action to protect the Proprietary Rights and shall continue to maintain such rights prior to and as of the Closing so as to not adversely affect the validity or enforcement of such Proprietary Rights. To the Knowledge of Sellers, the owners of any Proprietary Rights or similar proprietary rights licensed to Sellers have taken all reasonably necessary actions to maintain and protect the proprietary rights which are subject to such licenses. Sellers have secured valid written assignments from all consultants and employees who contributed to the creation or development of the Proprietary Rights. None of such agreements or assignments contains exceptions pursuant to which any founder, employee or consultant claims an interest in any of the Proprietary Rights. In the event that the consultant is concurrently employed by Sellers and a third party, Sellers have taken additional steps to ensure that any Proprietary Rights developed by such a consultant do not belong to the third party or conflict with the third party’s employment agreement, such steps include ensuring that all research and development work performed by such a consultant are performed only on Sellers’ facilities and only using Sellers’ resources.
(c) Except as set forth on Schedule 4.15, Sellers (i) have not disclosed any of their trade secrets or confidential information to any third party other than pursuant to a written, and to Sellers’ Knowledge, valid and binding confidentiality agreement and (ii) have entered into written confidentiality agreements and written proprietary rights agreements with all of its employees and independent contractors acknowledging Sellers’ sole ownership of all inventions, discoveries, works of authorship and other Proprietary Rights created or developed by its employees and independent contractors within the scope of their employment or hire.
4.16 Litigation. Except as set forth on Schedule 4.16, there are no (and, during the five (5) years preceding the date hereof, there have not been any) actions, suits, proceedings, orders or investigations pending or, to the Knowledge of Sellers, threatened against or affecting Sellers or the Business at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, and, to the Knowledge of Sellers, there is no reasonable basis for any of the foregoing. Sellers are fully insured with respect to each of the matters set forth on Schedule 4.16 (except to the extent of any applicable insurance deductibles). Sellers are not subject to or bound by any outstanding orders, judgments or decrees of any court or governmental entity. Neither Sellers nor any of their Affiliates have received any opinion or memorandum or advice from legal counsel to the effect that Sellers are exposed, from a legal standpoint, to any material liabilities affecting the Business, the Contributed Assets or the Purchased Real Property.
4.17 Brokerage. There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of Seller.
4.18 Employees.
(a) To the Knowledge of Sellers, no key employee and no group of employees of Sellers have any plans to terminate or modify his or her status as an employee of the Business, including upon consummation of the transactions contemplated hereby. Except as set forth on Schedule 4.16, there are no claims, actions, proceedings or investigations pending or, to the Knowledge of Sellers, threatened against Sellers with respect to or by any employee or former employee of Sellers and, to the Knowledge of Sellers, there are no claims, actions, proceedings or investigations pending or threatened against any employees or former employee of Sellers. Sellers have not experienced any strikes, grievances, claims of unfair labor practices or other collective bargaining disputes. Sellers have not engaged in any unfair labor practices. To the Knowledge of Sellers, there are no organizational efforts presently made or threatened by or on behalf of any labor union with respect to the Business Employees.
(b) Sellers have set forth on Schedule 4.18(b) a true, complete and accurate list of each Business Employee and with respect to each such Business Employee as of the date hereof, his or her date(s) of hire by Sellers, position and title (if any), current rate of compensation (including bonuses, commissions and incentive compensation, if any), whether such employee is hourly or salaried, whether such employee is exempt or non-exempt, the number of such employee’s accrued sick days and vacation days, whether such employee is absent from active employment and, if so, the date such employee became inactive, the reason for such inactive status and, if applicable, the anticipated date of return to active employment.
(c) With respect to this transaction, any notice required under any law has been given, and all bargaining obligations with any employee representative have been, or prior to the Closing will be, satisfied. Schedule 4.18(c) sets forth, by date and location, the names of all persons whose employment was terminated by Sellers during the ninety (90)-day period prior to the Closing Date.
4.19 Product Warranties. Sellers have made no express or implied warranties or guarantees to any third party with respect to the products marketed and/or sold or services rendered by it, other than those standard terms and conditions described on Schedule 4.19. Each product manufactured, sold or delivered and each service rendered by Sellers has been in conformity in all material respects with all applicable contractual commitments and all express and implied warranties, and Sellers have no material liability or obligation for replacement or repair thereof or other damages in connection therewith, subject only to the reserve for product and service warranty claims set forth on the Latest Balance Sheet and to be set forth on the Closing Statement.
4.20 Employee Benefit Plans.
(a) Schedule 4.20 lists or describes each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA maintained or contributed to by (or required to be maintained or contributed to by) Sellers maintain on behalf of any Business Employee or former employee of Sellers, and each other material plan, arrangement, policy or understanding (whether written or oral) relating to retirement, compensation, deferred compensation, bonus, severance, fringe benefits or any other employee benefits maintained or contributed to by (or
required to be maintained or contributed to by) Sellers for the benefit of Business Employee or any former employee of Sellers or to which Sellers have any liability or potential liability. Each item listed or required to be listed on Schedule 4.20 is referred to herein as a “Sellers Employee Benefit Plan.” Sellers are not a participating or contributing employer in any “multiemployer plan” (as defined in Section 3(37) of ERISA) nor have Sellers incurred any withdrawal liability with respect to any multiemployer plan or any liability in connection with the termination or reorganization of any multiemployer plan.
(b) Neither Sellers nor any ERISA Affiliates sponsor, contribute to or have any liability with respect to (i) a “defined benefit plan” as defined in Section 3(35) of ERISA or any other plan subject to the funding requirements of Section 412 of the Code or Section 302 of Title IV of ERISA that could reasonably be expected to result in any liability with respect to Buyers, (ii) a “multiemployer plan” as defined in Section 3(37) or 4001(a)(3) of ERISA, or (iii) an employee benefit plan, program or arrangement that provides for post-employment medical, life insurance or other welfare-type benefits (other than health continuation coverage required by COBRA).
(c) Each Seller Employee Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has received a determination letter to that effect from the Internal Revenue Service (“IRS”), and, to the Knowledge of Sellers, nothing has occurred since the date of such letter that cannot be cured within the remedial amendment period provided by Section 401(b) of the Code which would prevent any such Seller Employee Benefit Plan from remaining so qualified. Except as set forth and described in reasonable detail on Schedule 4.20 or could not reasonably be expected to result in any liability to Buyers, each Seller Employee Benefit Plan and any related trust, insurance contract or fund has been maintained and funded in all material respects in accordance with its respective terms and the terms of any applicable collective bargaining agreements and in compliance with all applicable laws and regulations, including ERISA and the Code. No Seller Employee Benefit Plan has any material unfunded liability not accurately reflected on the Latest Balance Sheet.
(d) Except as set forth and described in reasonable detail on Schedule 4.20, no Seller Employee Benefit Plans obligates Sellers to pay any separation, severance, termination or similar benefit solely as a result of any transaction contemplated by this Agreement or solely as a result of a change in control or ownership within the meaning of Section 280G of the Code.
(e) Except as set forth on Schedule 4.20, (i) none of the Contributed Assets nor the Purchased Real Property is subject to any Lien under ERISA or the Code; (ii) Sellers have not incurred any liability under Title IV of ERISA (other than for contributions not yet due) or to the Pension Benefit Guaranty Corporation (other than for payment of premiums not yet due) with respect to any Seller Employee Benefit Plan; and (iii) there are no pending or threatened actions, suits, investigations or claims with respect to any Seller Employee Benefit Plan (other than routine claims for benefits) which could result in any liability to Buyers (whether direct or indirect), and no facts which could give rise to (or be expected to give rise to) any such actions, suits, investigations or claims to the Knowledge of Sellers.
(f) With respect to each Seller Employee Benefit Plan listed on Schedule 4.20, Sellers have furnished to Buyers true and complete copies of (i) the plan documents,
summary plan descriptions and summaries of material modifications and other material employee communications, (ii) the most recent determination letter received from the IRS, (iii) the Form 5500 Annual Report (including all schedules and other attachments for the most recent three years), (iv) all related trust agreements, insurance contracts or other funding agreements which implement such plans and (v) all contracts relating to each such plan, including service provider agreements, insurance contracts, investment management agreements and recordkeeping agreements.
4.21 Insurance. Sellers have in place policies of insurance in amounts and scope of coverage as set forth in Schedule 4.21. As of the date hereof, each such policy is in full force and effect, all premiums are currently paid in accordance with the terms of such policy or accrued and no such policies have been amended, modified, revoked or rescinded since the date of issuance of such policies. Sellers have not received any notice that any policy will be cancelled or will not be renewed nor have Sellers received any written notice that cancellation or non-renewal is threatened nor any written notice that any material modification of the terms of policy of insurance will be or is threatened to be required as a condition of renewal. The insurance coverage of Sellers is customary for well-insured businesses of similar size engaged in similar lines of business.
4.22 Compliance with Laws; Permits; Certain Operations. Except as set forth on Schedule 4.22:
(a) Sellers have complied and are in material compliance with all applicable laws, ordinances, codes, rules, requirements and regulations of foreign, federal, state and local governments and all agencies thereof relating to it and the operation of the Business and the maintenance and operation of its properties and assets, and no written notices have been received by and no claims have been filed against Sellers alleging a violation of any such laws, ordinances, codes, rules, requirements or regulations;
(b) Sellers hold all permits, authorizations, licenses, certificates, accreditations or other authorizations of foreign, federal, state and local governmental agencies required for the conduct of the Business and the ownership, operation, occupancy and use of its Owned Real Property or Leased Real Property, and Schedule 4.22(b) sets forth a list of all of such permits, licenses, certificates, accreditations and other authorizations. Sellers are in all material respects in compliance with all terms and conditions of any such required permits, licenses, accreditations and authorizations and all such permits, licenses and authorizations may be relied upon by Buyers for lawful operation of the Business on and after the Closing without transfer, reissuance or other governmental action;
4.23 Environmental Matters. Sellers have complied and are in compliance in all material respects with all Environmental and Safety Requirements; Sellers have not received any written notice, report or other information regarding any violation of, or liability under Environmental and Safety Requirements. Except as set forth on Schedule 4.23, neither Sellers nor any of its predecessors or Affiliates have treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, released, or exposed any Person to, any substance, or owned or operated the Business or any property or facility (and no such property or facility is contaminated by any such substance) in a manner that has given or would give rise to
any liabilities or investigative, corrective or remedial obligations pursuant to CERCLA or any other Environmental and Safety Requirements. Sellers have furnished to Buyers all environmental audits, reports and other material environmental documents relating to the past or current operations or facilities of Sellers and its predecessors and Affiliates which are in their possession or under their reasonable control. None of the transactions to be consummated pursuant to this Agreement shall give rise to any requirements pursuant to the Connecticut Transfer Act, other than as set forth in Section 6.3 hereto.
4.24 Names and Locations. Except as set forth on Schedule 4.24, (i) during the five (5)-year period prior to the execution and delivery of this Agreement, Sellers have not used any name or names under which they have invoiced account debtors, maintained records concerning their assets or otherwise conducted business, other than the exact name under which it has executed this Agreement, and (ii) all of the Contributed Assets and the Purchased Real Property are located at the Owned Real Property or the Leased Real Property.
4.25 Customers and Suppliers. Schedule 4.25 attached hereto accurately sets forth a list of Sellers’ top twenty (20) customers and suppliers by volume of sales and purchases, respectively, for the fiscal year ended December 31, 2010 and the six-month period ended December 31, 2011. Except as set forth on Schedule 4.25, Sellers have not received any written indication, or to Sellers’ Knowledge, oral indication, from any material supplier of the Business to the effect that, and to Sellers’ Knowledge, there is no reason to believe that, such supplier will stop, or materially decrease the rate of supplying materials, products or services to Sellers with respect to the Business or that such supplier will materially limit or change its relationship with Sellers. Except as set forth on Schedule 4.25, Sellers have not received any written indication from any material customer of the Business to the effect that, and Sellers have no reason to believe that such customer will stop, or materially decrease the rate of, buying products or services from the Business or that such customer will materially limit or change its relationship with Sellers.
4.26 Promotions Programs. Except as described on Schedule 4.26, Sellers have not initiated any promotion or discount, rebate or similar programs during Sellers’ fiscal year ending December 31, 2010, and no such programs are currently in effect.
4.27 Bank Accounts. Schedule 4.27 lists all of Sellers’ bank accounts, safety deposit boxes and lock boxes (designating each authorized signatory with respect thereto).
4.28 Disclosures. Neither this Agreement, nor any of the Schedules attached hereto or to be delivered in connection herewith (including the certificate to be delivered by Sellers pursuant to Section 2.8(b) above) contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained herein or therein, in light of the circumstances in which they were made, not misleading. There is no event, circumstance or other fact which Sellers have not disclosed to Buyers in writing and of which any of its officers, directors or executive employees is aware and which has had or would reasonably be expected to have a material adverse effect upon the financial condition, operating results, assets, customer or supplier relations, employee relations or business prospects of Sellers taken as a whole.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYERS
As an inducement to Sellers to enter into this Agreement, Buyers hereby represent and warrant to Sellers as follows:
5.1 Corporate Organization and Power. Each Buyer is a corporation duly formed and validly existing under the laws of the State of Delaware, with full corporate power and authority to enter into this Agreement and to perform its obligations hereunder.
5.2 Authorization. The execution, delivery and performance of this Agreement and the other agreements contemplated hereby to be executed and delivered by each Buyer and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite corporate action on the part of such Buyer, and no other corporate proceedings on the part of such Buyer are necessary to authorize the execution, delivery or performance of this Agreement or the other agreements contemplated hereby. This Agreement and the other agreements contemplated hereby to be executed and delivered by each Buyer constitute a valid and binding obligation of such Buyer, enforceable against such Buyer in accordance with their respective terms.
5.3 Governmental Authorities and Consents. No Buyer is required to submit any notice, report or other filing with any governmental authority in connection with the execution or delivery by it of this Agreement or the consummation of the transactions contemplated hereby and no consent, approval or authorization of any governmental or regulatory authority is required to be obtained by any Buyer in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
5.4 Brokerage. Except for arrangements for which Buyers shall be solely responsible, there are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of Buyers.
5.5 Litigation. There are no actions, suits, proceedings, orders or investigations pending or, to Buyers’ knowledge, threatened against or affecting Buyers at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which would adversely affect Buyers’ performance under this Agreement or the consummation of the transactions contemplated hereby.
5.6 Financial Wherewithal. Non-Real Estate Buyer represents that it has the financial wherewithal to pay all of the Contributed Liabilities and will do so when such liabilities become due and payable.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Survival of Representations and Warranties. The representations and warranties in this Agreement and the Schedules attached hereto or in any writing delivered by any party to any of the other parties in connection with this Agreement shall survive the Closing as follows:
(a) the representations and warranties in Section 4.1 (Organization and Power), Section 4.2 (Authorization; No Breach), Section 4.12(a) (Assets), Section 4.13 (Tax Matters), Section 4.17 (Brokerage), Section 5.1 (Organization and Power), Section 5.2 (Authorization) and, Section 5.4 (Brokerage) shall not terminate;
(b) the representations and warranties in Section 4.23 (Environmental Matters) shall terminate seven (7) years from and after the Closing Date; and
(c) all other representations and warranties in this Agreement and the Schedules attached hereto or in any writing delivered by any Party to any other Party in connection with this Agreement shall terminate as of the Closing;
provided that any representation or warranty in respect of which indemnity may be sought under Section 6.2, and the indemnity with respect thereto, shall survive the time at which it would otherwise terminate pursuant to this Section 6.1 if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have been given to the Party against whom such indemnity may be sought prior to such time.
6.2 General Indemnification.
(a) Indemnification for the Benefit of Buyers. Sellers shall indemnify the Buyers Parties and save and hold each of them harmless against and pay on behalf of or reimburse such Buyers Parties as and when incurred for any Losses which any such Buyers Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of (i) any breach of any representation or warranty of Sellers under this Agreement or any of the Schedules attached hereto, or in any of the certificates or other instruments or documents furnished to Buyers by Sellers pursuant to this Agreement, (ii) any non-fulfillment or breach of any covenant or agreement by Sellers under this Agreement or any of the Schedules attached hereto, (iii) any liability or obligation of Sellers which is an Excluded Liability, (iv) any liability or obligation of Sellers pursuant to Section 6.3, (iv) any liability or obligation of Sellers pursuant to the last sentence of Section 6.4(a) or the second sentence of Section 6.4(b), or (v) any liability or obligation of Sellers pursuant to Section 7.13.
(b) Indemnification for the Benefit of Sellers. Buyers shall indemnify Sellers and hold them harmless against any Losses which Sellers may suffer, sustain or become subject to, as the result of, in connection with, relating or incidental to or by virtue of (i) any breach of any representation or warranty of Buyers under this Agreement or any of the Schedules attached hereto, or in any of the certificates or other instruments or documents furnished to Sellers by Buyers pursuant to this Agreement, (ii) any non-fulfillment or breach of any covenant or
agreement by Buyers under this Agreement or any of the Schedules attached hereto, or (iii) any liability or obligation of Buyers pursuant to the first sentence of Section 6.4(a).
(c) Manner of Payment. Any indemnification of the Buyers Parties or Sellers pursuant to this Section 6.2 shall be effected by wire transfer of immediately available funds from Sellers or Buyers, as the case may be, to an account designated by Buyers or Sellers, as the case may be, within ten (10) days after the determination thereof. Any such indemnification payments shall include interest at the at a rate per annum equal to the prime rate of interest announced from time to time in The Wall Street Journal calculated on the basis of the actual number of days elapsed over 360, from the date any such Loss is suffered or sustained to the date of payment. Buyers Parties shall have the right and option (but not the obligation) to recoup all or any portion of any Losses they may suffer (in lieu of seeking any indemnification to which they may be entitled under this Section 6.2) by notifying Sellers that Buyers are reducing any amount otherwise payable by Buyers or any of their respective Affiliates to Sellers following the Closing (whether pursuant to this Agreement, the Escrow Agreement or otherwise) by the amount of any such Losses or the portion thereof specified by Buyers. Any amounts owing from Sellers pursuant to this Section 6.2 shall first be made to the extent possible from funds in the Escrow Account and thereafter shall be made directly by Sellers in accordance with the terms of this Section 6.2. All indemnification payments under this Section 6.2 shall be deemed adjustments to the Purchase Price set forth in Section 2.7 above.
(d) Nature of Sellers’ Obligations. Sellers’ liability with respect to indemnification obligations under this Agreement shall be joint and several, and each Seller shall (without duplication) be responsible for the entirety of any Losses that any Buyers Party may suffer.
6.3 Environmental Matters and Connecticut Transfer Act.
(a) Prior to the Closing, Sellers shall have completed and delivered to Buyers and to DEEP the Form III filings and other appropriate documentation for Connecticut Transfer Act purposes with respect to (i) the transfer of the Business operation at 0 Xxxxxx Xxxx, Xxxxxxxxx CT and (ii) the transfer of the Real Property at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx XX, which documents state that the Sellers shall be the “certifying party” for purposes of the Connecticut Transfer Act.
(b) Prior to the Closing, Sellers shall have filed with DEEP the Environmental Condition Assessment Form (“ECAF”) attached hereto as Exhibit C for the Facility located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx XX.
(c) Within ten (10) days after the Closing, Sellers’ Environmental Consultant (as defined below) shall file with DEEP an ECAF for the Facility located at 0 Xxxxxx Xxxx, Xxxxxxxxx CT, after providing Buyers a draft of the same for review and comment (which comments Sellers shall consider in good faith and incorporate as reasonably appropriate); provided that such ECAF shall include as an exhibit a complete copy of the ENVIRON Phase I/II Site Assessment Report for the site and which shall reference all Areas of Concern (“AOCs”) identified in such report.
(d) Following the Closing, Sellers hereby covenant and agree to comply with all requirements of the Connecticut Transfer Act applicable to the transactions to be consummated under this Agreement and complete all investigatory, remedial and other response actions required under the Connecticut Transfer Act and other Environmental and Safety Requirements with respect the Facilities, which actions shall include, without limitation, the remediation of the Facilities located at (i) 0 Xxxxxx Xxxx, Xxxxxxxxx CT and (ii) 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx XX in accordance with the Connecticut Transfer Act Task List (“Remedial Work”). Sellers agree to retain a reputable environmental consultant (“Environmental Consultant”) to conduct the Remedial Work and provide the name of the selected consultant to Buyers for their information; provided that the Environmental Consultant shall be a licensed environmental professional (“LEP”) certified by, and in good standing with, the DEEP State Board of Examiners of Environmental Professionals; and provided further that Sellers agree to retain an LEP at ENVIRON International Corporation approved by Buyers as the Environmental Consultant to perform the Remedial Work at the Facility located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx XX. Sellers shall perform the Remedial Work in a prompt and expeditious manner in accordance with all applicable Environmental and Safety Requirements and within the timeframes and deadlines set forth in the Connecticut Transfer Act. Upon completion, Sellers shall provide Buyers copies of “No Audit” letters from DEEP and other documentation that all Remedial Work required by the Connecticut Transfer Act has been completed. Sellers shall keep Buyers reasonably apprised of the status of Remedial Work, shall provide Buyers copies of all reports, data, action plans, and correspondence with DEEP and other parties in connection with the Remedial Work. Buyers shall have the right to participate in meetings with DEEP and the Environmental Consultant. With respect to the Remedial Work at the Facility located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx XX, Sellers shall provide Buyers the opportunity to review and approve (such approval not to be unreasonably withheld) all remedial action plans and other material documentation related to the Remedial Work prior to filing with DEEP. With respect to the Remedial Work at the Facility located at 0 Xxxxxx Xxxx, Xxxxxxxxx CT, Sellers shall provide Buyers the opportunity to review and comment on all remedial action plans and other material documentation related to the Remedial Work prior to filing with DEEP, and Sellers shall consider in good faith and incorporate all reasonable comments of Buyers at Sellers’ sole but reasonable discretion; provided, however, that Buyers shall have the right to approve or withhold approval for any proposed Remedial Work that is expected to have an adverse impact on Buyers’ use and operations at the facility (for example, remedial activities that would require Buyers to materially change their operations, prevent Buyers from using portions of the site that are currently being used, or that would increase the cost of Buyers’ operations). In the event that Sellers fail to perform their obligations hereunder, Buyers shall have the right, but not the obligation, upon thirty (30) days prior written notice, to assume control over the conduct of the Remedial Work or any aspect thereof, in whole or in part, and any Losses incurred by Buyers as a result thereof shall be subject to indemnification by Sellers pursuant to the terms of this Agreement. Buyers shall, upon reasonable advance written notice, provide Sellers and the Environmental Consultant reasonable access to the Facilities to the extent necessary for the Remedial Work to be conducted hereunder. In addition, Buyers shall cooperate with Sellers in all other respects necessary to permit Sellers and their Environmental Consultant to perform the necessary remediation tasks; provided that to the extent such cooperation requires Buyers to incur in any costs, fees, or other out of pocket expenses, such costs, fees and expenses shall be subject to indemnification by Sellers hereunder. In the event that Buyers do not cooperate and
inhibit the remedial action thereby causing damages, losses or penalties to Sellers, such damages, losses and penalties shall be subject to indemnification by Buyers. Buyers agree that the remedial action plans for the Facilities may include land use restrictions or other institutional controls that are approved by DEEP and that will not substantially interfere with Buyers’ ongoing operations at the Facilities.
(e) Sellers shall complete a proposed remedial action plan (“Proposed RAP”) for the Facility located at 0 Xxxxxx Xxxx, Xxxxxxxxx CT and submit such Proposed RAP, together with all associated sampling data and other related documentation, to Buyers for review and comment. Buyers and Sellers shall cooperate in good faith in connection with such review and Sellers shall incorporate all reasonable comments of Buyers into the Proposed RAP. Upon completion of any revisions to the Proposed RAP that Sellers deem appropriate in Sellers’ sole but reasonable discretion and the preparation of a final version of such plan (the “Final RAP”), Sellers shall submit such Final RAP to DEEP for approval, and shall as necessary incorporate any comments by DEEP into such Final RAP. Upon Sellers’ receipt of a final approval from DEEP (the “Approved RAP”), Sellers shall provide a complete copy of the Approved RAP and all associated data and documentation to Buyers and to Buyers’ designated contact person at ENVIRON International Corporation (“ENVIRON”). ENVIRON shall review the Approved RAP and develop an updated estimate of the cost to complete all work required at the Facility located at 0 Xxxxxx Xxxx, Xxxxxxxxx CT under the Connecticut Transfer Act, which estimate shall be based on ENVIRON’s best professional judgment of the total costs at a 90th percentile level of probability (“Remedial Cost Estimate”). Buyers and Sellers shall cooperate in good faith with each other in connection such review and estimation. Buyers and Sellers may each, at their discretion, submit comments to ENVIRON for consideration but agree that ENVIRON’s final Remedial Cost Estimate shall be binding upon the Parties.
(f) Sellers agree that, within sixty (60) days following the Closing, Sellers shall arrange for the removal of the degreaser from the Facility located at 0 Xxxxxx Xxxx, Xxxxxxxxx XX.
(g) Without limitation to the Sellers’ obligations in Section 6.2(a), Sellers shall indemnify the Buyers Parties and save and hold each of them harmless against and pay on behalf of or reimburse such Buyers Parties as and when incurred for any Losses, penalties, liabilities, and obligations which any such Buyers Party may suffer, sustain or become subject to (including, without limitation, any reasonable attorneys’ fees and expenses incurred by the Buyers Parties in connection with their review and approval of materials provided, or to be provided, by Sellers pursuant to this Section 6.3 or the Escrow Agreement) as a result of, in connection with, relating or incidental to or by virtue of any Excluded Environmental Liabilities, including without limitation any breach of Sellers’ obligations under this Section 6.3.
(h) Sellers shall have the right to be reimbursed from the Escrow Funds for reasonable fees and out-of-pocket expenses incurred by Sellers’ Environmental Consultant in connection with the Remedial Work (each, a “Remedial Work Reimbursement Claim”). Prior to submitting any Remedial Work Reimbursement Claim to the Escrow Agent, Sellers shall first deliver to Buyers detailed invoices received by Sellers related to such Remedial Work Reimbursement Claim (each an “Environmental Remedial Work Invoice”) together with any other material or documentation done or prepared with respect to such Environmental Remedial
Work Invoice. Buyers and its representatives (including, without limitation, Buyers’ attorneys and environmental consultants) shall have fifteen (15) days following receipt of an Environmental Remedial Work Invoice (the “Review Period”) to review and discuss in good faith with Sellers any concerns Buyers may have with respect to such Environmental Remedial Work Invoice. Sellers and Sellers’ Environmental Consultant shall cooperate in good faith with Buyers and Buyers’ attorneys and environmental consultants in connection with such review.
(i) In the event that, prior to the completion of the Approved RAP, Buyers begin construction of additional buildings on the premises located at 0 Xxxxxx Xxxx, Xxxxxxxxx CT or 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx XX, and such construction or the use of the newly constructed areas is the direct cause of environmental contamination necessitating remediation, the cost of such remediation shall be borne exclusively by Buyers.
6.4 Employee Related Matters.
(a) Transferred Employees. As of the Closing Date, Non-Real Estate Buyer agrees to offer employment to only those Business Employees as Non-Real Estate Buyer shall determine in its sole discretion and such offers of employment shall contain terms and conditions of employment that Non-Real Estate Buyer shall determine in its sole discretion; provided, however, that Non-Real Estate Buyer shall make such offers in sufficient number and at sufficient terms and conditions of employment so as not to trigger any liability under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar or related state or local law (collectively, the “WARN Act”). On the Closing Date, Sellers shall take all steps necessary to terminate the employment of each Business Employees who is offered employment by Non-Real Estate Buyer as set forth in the immediately preceding sentence. The Business Employees who accept Non-Real Estate Buyer’s offer of employment and who commence active employment with Non-Real Estate Buyer shall be referred to herein as “Transferred Employees.” Nothing in this Agreement shall confer upon any Transferred Employee any right with respect to continued employment with Non-Real Estate Buyer, nor shall anything herein limit or interfere with Non-Real Estate Buyer’s right to terminate the employment of any Transferred Employee at any time (subject to applicable law), with or without cause or notice, or restrict Non-Real Estate Buyer in the exercise of independent business judgment in modifying any terms or conditions of employment of the Transferred Employees on and after the Closing Date. Prior to the Closing Date, Sellers shall take all actions necessary to vest each Business Employee in their benefits under Sellers Employee Benefit Plans and shall make all employee and employer contributions to Sellers Employee Benefit Plans in which Business Employees currently participate, for all periods of employee service prior to the Closing Date for all Business Employees. Effective as of the Closing Date, Non-Real Estate Buyer shall assume sponsorship of the Contributed Plans. Eligible Transferred Employees shall continue to participate in the Contributed Plans in accordance with the terms and conditions of the plans. Nothing in this Agreement shall limit Non-Real Estate Buyer’s ability to modify or terminate or merge the Contributed Plans at any time. Sellers shall indemnify and hold Non-Real Estate Buyer harmless from Sellers’ liabilities, obligations or Losses incurred or relating to any Contributed Plans for any actions or omissions occurring on or before the Closing Date or any Sellers Employee Benefit Plans (other than an Contributed Plan) for any actions or omissions occurring on, prior to or following the Closing Date.
(b) WARN Act. Provided that the Sellers provide Non-Real Estate Buyer with the information required to be set forth in Schedule 4.18(c), Non-Real Estate Buyer will indemnify and hold harmless Sellers from any Losses arising under the WARN Act due, in whole or in part, to Non-Real Estate Buyer’s actions or omissions occurring after the Closing Date. Sellers shall indemnify and hold harmless Non-Real Estate Buyer from any Losses arising under the WARN Act due to (i) Seller’s actions or omissions occurring prior to or on the Closing Date or (ii) any inaccuracy in the information set forth in Schedule 4.18(c).
(c) Other Matters. Except as specifically assumed by Non-Real Estate Buyer in Section 6.4, for the avoidance of doubt, Sellers shall be responsible for all liabilities, obligations and commitments relating to the compensation of the Business Employees arising as a result of the transactions contemplated by this Agreement, including any severance compensation and bonus payments or any other liability under any Sellers Employee Benefit Plans.
(d) Mutual Cooperation. Sellers shall provide promptly to Non-Real Estate Buyer, at Non-Real Estate Buyer’s request, any information or copies of personnel records (including addresses, dates of birth, date of hire and dependent information) relating to the Transferred Employees or relating to the service of Transferred Employees with Sellers (and predecessors of Sellers, as applicable) prior to the Closing Date. Sellers and Non-Real Estate Buyer shall each cooperate with the other and shall provide to the other such documentation, information and assistance as is reasonably necessary to effect the provisions of this Section 6.4.
(e) No Third Party Beneficiaries. Nothing in this Section 6.4 or any other provision of this Agreement shall be construed to modify, amend, or establish any benefit plan, program or arrangement or in any way affect the ability of the Parties hereto or any other Person to modify, amend or terminate any of its benefit plans, programs or arrangements. This Section 6.4 is not intended to, and shall not be construed to, confer upon any Person other than the Parties to this Agreement any rights or remedies hereunder.
6.5 Expenses. Except as otherwise expressly provided in Section 6.8 below, each Party hereto shall pay all of its own costs and expenses (including attorneys’, accountants’ and investment bankers’ fees and other out-of-pocket expenses) in connection with the negotiation and execution of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby (it being understood by Sellers, that if the Closing occurs, Buyers shall pay all of the costs and expenses of its Affiliates incurred in connection with the transactions contemplated hereby). Without limiting the foregoing, each Party shall pay its own expenses incurred in connection with its efforts to satisfy the conditions to the other Party’s obligation to consummate the transactions contemplated hereby.
6.6 Further Transfers; Transition Assistance. Sellers shall execute and deliver such further instruments of conveyance and transfer and take such additional action as Buyers may reasonably request to effect, consummate, confirm or evidence the contribution and transfer, to Buyers of the Contributed Assets and the Purchased Real Property, as applicable, the assumption by Non-Real Estate Buyer of the Contributed Liabilities and the conduct by Buyers of the Business (including with respect to obtaining and maintaining all licenses, permits, authorizations, accreditations and consents necessary or desirable in connection therewith), and
Sellers shall execute such documents as may be necessary to assist Buyers in preserving or perfecting its rights in the Contributed Assets and the Purchased Real Property, as applicable, and its ability to conduct the Business. Following the Closing, Sellers and Buyers agree to cooperate with each other and to provide each other with all information and documentation reasonably necessary to permit the preparation and filing of all federal, state, local and other Tax Returns with respect to the Business; provided that each Party shall reimburse the other Party for such other Party’s reasonable out-of-pocket expenses in connection therewith. Sellers agree that subsequent to the Closing it shall refer all customer inquiries with respect to the Business to Buyers.
6.7 Confidentiality. After the Closing, unless otherwise required by law or as necessary to implement or enforce this Agreement, Sellers and their officers and directors and the Stockholders shall maintain as confidential and shall not use or disclose (except as required by law or as authorized in writing by Buyers) any Confidential Information. Sellers and their officers and directors and the Stockholders further agree to take all appropriate steps (and to cause each of their respective Affiliates to take all appropriate steps) to safeguard such Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft. In the event Sellers or their officers or directors or the Stockholders are required by law to disclose any Confidential Information, Sellers and their officers and directors and the Stockholders shall promptly notify Buyers in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and shall cooperate with Buyers to preserve the confidentiality of such information consistent with applicable law. All Affiliates of Sellers and their officers and directors and the Stockholders have agreed to the obligations set forth in this Section 6.7. Sellers shall take all necessary actions to cause their Affiliates and their officers and directors to, and the Stockholders shall take all necessary actions to cause the Stockholders’ Affiliates to, comply with the terms of this Section 6.7. Sellers shall be liable for any breach by any Person of this Section 6.7.
6.8 Sales and Transfer Taxes. All sales, use, excise, value-added, goods and services, transfer, recording, documentary, registration, conveyancing and similar taxes that may be imposed on the sale and transfer of the Contributed Assets and the Purchased Real Property (including any stamp, duty or other tax chargeable in respect of any instrument transferring property and any recording fees or expenses payable in connection with the sale and transfer of the Proprietary Rights), together with any and all penalties, interest and additions to tax with respect thereto, shall be paid fifty-percent (50%) by Sellers and the remaining fifty-percent (50%) by Buyers. Buyers and Sellers shall cooperate in timely making all filings, returns, reports and forms as may be required to comply with the provisions of applicable law in connection with the payment of any such taxes described in the immediately preceding sentence. Buyers and Sellers shall cooperate in providing each other with appropriate resale exemption certification and other similar tax and fee documentation.
6.9 Covenant Not to Compete, Solicit or Hire.
(a) The Stockholders hereby acknowledge that the Stockholders are familiar with the Business’ trade secrets and with other Confidential Information. The Stockholders acknowledge and agree that Buyers and their respective Affiliates would be irreparably damaged if the Stockholders were to provide services or to otherwise participate in the business of any
Person competing with the Business in a similar business and that any such competition by the Stockholders would result in a significant loss of goodwill by Buyers in respect of the Business. The Stockholders further acknowledge and agree that the covenants and agreements set forth in this Section 6.9 are a material inducement to Buyers to enter into this Agreement and to perform its obligations hereunder, and that Buyers and their respective Affiliates would not obtain the benefit of the bargain set forth in this Agreement as specifically negotiated by the Parties if the Stockholders breached the provisions of this Section 6.9. Therefore, in further consideration of the amounts to be paid hereunder for the Contributed Assets and the Purchased Real Property and the goodwill of the Business sold in connection therewith, the Stockholders agree that for a period of five (5) years following the Closing Date, the Stockholders shall not, and shall not permit any of the Stockholders’ Affiliates to, directly or indirectly, either for itself, himself or herself or through any other Person, (i) engage or participate in any enterprise or business competing with the Business or (ii) permit the names “Eyelematic” or “Echo” (collectively, the “Eyelematic Names”) (or any translations, adaptations, initialisms, derivations and combinations of such names) to be used by, or licensed to, any enterprise or business competing with the Business. For purposes of this Agreement, the term “participate” includes any direct or indirect interest in any enterprise, whether as a stockholder, member, partner, joint venturer, franchisor, franchisee, executive, consultant or otherwise (other than by ownership of less than two percent (2%) of the stock of a publicly held corporation) or rendering any direct or indirect service or assistance to any Person. The Stockholders agree that this covenant is reasonably designed to protect Buyers’ substantial investment and is reasonable with respect to its duration, geographical area and scope.
(b) For so long as the Stockholders have continuing obligations under Section 6.9(a) above, the Stockholders shall not (and the Stockholders shall cause the Stockholders’ Affiliates not to) directly, or indirectly through another Person, (i) induce or attempt to induce any employee of the Business to leave the employ of Buyers or any of their respective Subsidiaries or Affiliates, or in any way interfere with the relationship between Buyers or any of their respective Subsidiaries or Affiliates and any such employee, (ii) hire any person who was an employee of Buyers or any of their respective Subsidiaries or Affiliates at any time during the six (6) month period immediately prior to the date on which such hiring would take place (it being conclusively presumed by the Parties so as to avoid disputes under this Section 6.9 that any such hiring within such six (6) month period is in violation of clause (i) above), or (iii) call on, solicit or service any customer, supplier, licensee, licensor or other business relation of the Business in order to induce or attempt to induce such Person to cease doing or decrease their business with Buyers or any of their respective Subsidiaries or Affiliates, or in any way interfere with the relationship between any such customer, supplier, licensee, licensor or business relation and Buyers or any of their respective Subsidiaries or Affiliates (including making any negative statements or communications about Buyers or any of their respective Subsidiaries or Affiliates or the Business).
(c) If, at the time of enforcement of any of the provisions of this Section 6.9, a court determines that the restrictions stated herein are unreasonable under the circumstances then existing, then the Parties and the Stockholders agree that the maximum period, scope or geographical area reasonable under the circumstances shall be substituted for the stated period, scope or area. The Parties and the Stockholders further agree that such court shall be allowed to
revise the restrictions contained herein to cover the maximum period, scope or geographical area permitted by law.
(d) If the Stockholders or any of the Stockholders’ Affiliates (the “Restricted Persons”) breach, or threaten to breach, any of the provisions of this Section 6.9 (the “Restrictive Covenants”), Buyers shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyers at law or in equity:
(i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to Buyers and that money damages would not provide an adequate remedy to Buyers; and
(ii) the right and remedy to require the Restricted Persons to account for and pay over to Buyers any profits, monies, accruals, increments or other benefits derived or received by the Restricted Persons as the result of any transactions constituting a breach of the Restrictive Covenants.
6.10 Use of Name. Following the Closing, Sellers shall retain and continue to use their corporate names (including the Eyelematic Names) for the sole purpose of complying with and satisfying Sellers’ obligations under this Agreement; provided that Sellers shall not use Sellers’ names (including the Eyelematic Names) or the names of any of Sellers’ Affiliates for the operation and marketing of any business, as a designation of source or origin or in any other commercial manner, and shall not permit the use of the Eyelematic Names by, or license of the Eyelematic Names to, any enterprise or business competing with the Business. Upon completion of all Sellers’ obligations under this Agreement, Sellers shall and shall cause their Affiliates to promptly change their names and the name of any Affiliate of Sellers to a name bearing no resemblance to the Eyelematic Names.
6.11 Collections. After the Closing, Sellers shall promptly (but in no event later than ten (10) days after receipt thereof) deliver to Buyers any cash, checks or other property that it receives in connection with or relating to the operation of the Business following the Closing. After the Closing, Buyers agree to promptly (but in no event later than ten (10) business days after receipt thereof) deliver to Sellers any cash, checks or other property that it receives which does not relate to the Business.
6.12 Property Expense Apportionment. The following items relating to the Contributed Assets and the Purchased Real Property shall be apportioned at the Closing in an Equitable Manner as of the close of business on the day immediately preceding the Closing Date (the “Adjustment Date”) so that the income and expense items with respect to the period up to and including the Adjustment Date, without regard to when the same are payable, shall be for Sellers’ account and the income and expense items with respect to the period after the Adjustment Date shall be for Buyers’ account:
(a) personal property taxes, if any, on the basis of the fiscal year for which assessed. If the Closing Date shall occur before the tax rate or assessment is fixed for any fiscal year, the apportionment of such Taxes at the Closing shall be based upon a reasonable estimate mutually agreed upon by Buyers and Sellers; provided that Buyers and Sellers shall recalculate and reprorate said taxes and make the necessary cash adjustments promptly upon the issuance, and on the basis, of the actual tax bills received for any such fiscal year; and
(b) utilities and other apportionments and adjustments as are customarily apportioned upon the transfer of property similar to the Leased Real Property.
For purposes of this section, the term “Equitable Manner” shall mean that Sellers shall be allocated such items based on a fraction, the numerator of which is the number of days in the applicable taxable or fiscal period prior to the Closing Date and the denominator of which is the total number of days in such taxable period, and Buyers shall be allocated the remainder.
6.13 Access to Insurance Policies. After the Closing, Buyers shall have the right to access Sellers’ insurance policies in connection with any claims or actions related to Excluded Liabilities or Excluded Assets which name any Buyer as a defendant or co defendant with Sellers. At or prior to Closing, Sellers shall take all actions reasonably necessary to name each Buyer as an additional insured under Sellers’ insurance policies and shall pay all premiums associated with all such insurance policies.
ARTICLE VII
MISCELLANEOUS
7.1 Amendment and Waiver. This Agreement may be amended, and any provision of this Agreement may be waived; provided that any such amendment or waiver shall be binding upon a Party only if set forth in a writing executed by such Party and referring specifically to the provision alleged to have been amended or waived. No course of dealing between or among the Parties shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Party under or by reason of this Agreement and a waiver of any provision by any Party on one occasion shall not be deemed to be a waiver of the same or any other breach on a future occasion.
7.2 Notices. All notices, requests, demands and other communications permitted or required to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed conclusively to have been given (i) when personally delivered, (ii) when sent by facsimile (with hard copy to follow) during a business day (or on the next business day if sent after the close of normal business hours or on any non-business day), (iii) when sent by electronic mail (with hard copy to follow) during a business day (or on the next business day if sent after the close of normal business hours or on any non-business day), (iv) one (1) business day after being sent by reputable overnight express courier (charges prepaid), or (v) three (3) business days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing, notices, requests, demands and communications to the Parties shall be sent to the addresses indicated below:
Notices to Sellers:
Xxxxx X. Xxxxxxx, Xx.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Xx.
Email: xxxxxxxx@xx.xxx
with a mandatory copy to:
(which shall not constitute notice to Seller)
Xxxxxxx, Xxxxxx & Xxxxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telecopy No. 203-596-7975
Notices to Buyers:
Xxxxx Metal Americas, Inc. or Xxxxx Metal Real Estate, Inc.
c/o Sun Capital Partners, Inc.
0 Xxxx Xx, 0xx Xx
Xxxxxx, X0X 0XX
Xxxxxx Xxxxxxx
Attn: Xxxxxxx Xxxx
Telecopy No. x00 (0) 000 000 0000
And
Xxxxx Metal Americas, Inc. or Xxxxx Metal Real Estate, Inc.
c/o Sun Capital Partners, Inc.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx and C. Xxxxx Xxxxx
Telecopy No. (000) 000-0000
with a mandatory copy to:
(which shall not constitute notice to Buyer):
Xxxxx
XXX des Barbanniers, “Le Signac”
0 xxxxxx xx Xxxxxxx Xx Xxxxxx
00000 Xxxxxxxxxxxxx, Xxxxxx
Attn: Xxxxxxx-Xxxxxxx Roucayrol
Telephone No. + 33 (1) 81—93—19—67
Email: xxxxxxx-xxxxxxx.xxxxxxxxx@xxxxx-xxxxx.xxx
with a mandatory copy to:
(which shall not constitute notice to Buyers):
Xxxxxxxx & Xxxxx LLP
000 Xxxxx XxXxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, P.C. and Xxxxxx X. Xxxx
Telecopy No. (000) 000-0000
7.3 Assignment.
(a) This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns, except that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by Sellers without the prior written consent of Buyers.
(b) In addition, Buyers may assign in whole or in part their respective rights and obligations pursuant to this Agreement (including the right to accept the contribution of the Contributed Assets and the right to purchase the Purchased Real Property and the obligation to assume the Contributed Liabilities) and all other agreements, documents and instruments executed and/or delivered in connection herewith to one or more of its Affiliates, and Buyers may, in their sole discretion, direct Sellers to convey the Contributed Assets and the Purchased Real Property, in whole or in part, to one or more of their Affiliates. Buyers may assign this Agreement, all other agreements, documents and instruments executed and/or delivered in connection herewith, and its rights and obligations hereunder and thereunder in connection with a merger or consolidation involving Buyers or in connection with a sale of stock (or other ownership interests) or assets of Buyers or other disposition of all or any portion of the Business. Buyers may assign any or all of its rights pursuant to this Agreement, including theirs rights to indemnification, and all other agreements, documents and instruments executed and/or delivered in connection herewith, to any of its lender(s) as collateral security.
7.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or the application of any such provision to any person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable law in any respect by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible.
7.5 Interpretation. The headings and captions used in this Agreement and the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term used in any Schedule attached hereto and not otherwise defined therein shall have the meaning set forth in this
Agreement. Each defined term used in this Agreement shall have a comparable meaning when used in its plural or singular form. The use of the word “including” herein shall mean “including without limitation.” The word “or” is used in the inclusive sense of “and/or”. The Parties hereto intend that each representation, warranty and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such Party has not breached shall not detract from or mitigate the fact that such Party is in breach of the first representation, warranty or covenant.
7.6 Entire Agreement. This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, whether written or oral, relating to such subject matter in any way.
7.7 Electronic Delivery; Counterparts. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party hereto, each other Party hereto or thereto shall re-execute the original form of this Agreement and deliver such form to all other Parties. No Party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
7.8 Governing Law; Jurisdiction. THE LAW OF THE STATE OF DELAWARE SHALL GOVERN ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEABILITY OF THIS AGREEMENT AND THE SCHEDULES ATTACHED HERETO, AND THE PERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS AGREEMENT, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE. THE PARTIES HERETO HEREBY AGREE AND CONSENT TO BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND IN THE ABSENCE OF SUCH FEDERAL JURISDICTION, THE PARTIES CONSENT TO BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE STATE COURTS LOCATED IN WILMINGTON, DELAWARE, AND HEREBY WAIVE THE RIGHT TO ASSERT THE LACK OF PERSONAL OR SUBJECT MATTER JURISDICTION OR IMPROPER VENUE IN CONNECTION WITH ANY SUCH SUIT, ACTION OR OTHER PROCEEDING. FOR THE AVOIDANCE OF DOUBT, SELLERS AND BUYERS HEREBY AGREE THAT ANY DISPUTE RELATED TO AN EXCLUDED ENVIRONMENTAL LIABILITY SHALL BE
RESOLVED PURSUANT TO THE ARBITRATION PROCEDURES SET FORTH IN THE ESCROW AGREEMENT.
7.9 WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY LITIGATION, ACTION, PROCEEDING, CROSS-CLAIM, OR COUNTERCLAIM IN ANY COURT (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH (I) THIS AGREEMENT OR THE VALIDITY, PERFORMANCE, INTERPRETATION, COLLECTION OR ENFORCEMENT HEREOF OR (II) THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, AUTHORIZATION, EXECUTION, DELIVERY, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
7.10 No Strict Construction. Notwithstanding the fact that this Agreement has been drafted and prepared by one of the Parties, Buyers and Sellers confirm that they and their respective counsel have reviewed, negotiated and adopted this Agreement as the joint agreement and understanding of the Parties, and the language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any Person.
7.11 Specific Performance. Each of the Parties acknowledges and agrees that the other Party would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each of the Parties agrees that the other Party shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having jurisdiction over the Parties and the matter (subject to the provisions set forth in Section 7.8 above), in addition to any other remedy to which they may be entitled, at law or in equity.
7.12 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their permitted assigns and nothing herein expressed or implied (including Sections 6.2 and 6.4), shall give or be construed to give any Person, other than the Parties hereto and such permitted assigns, any legal or equitable rights hereunder.
7.13 Bulk Transfer Laws. Buyers hereby waive compliance by Sellers with the provisions of any so-called bulk transfer laws of any jurisdiction in connection with the sale of the Contributed Assets and the Purchased Real Property. Sellers agree to indemnify Buyers against all liability, damage or expense which Buyers may suffer due to the failure to so comply or to provide notice required by any such law.
7.14 Schedules. Nothing in any Schedule attached hereto (the “Schedules”) shall be adequate to disclose an exception to a representation or warranty made in this Agreement unless such Schedule identifies the exception with reasonable particularity and describes the relevant facts in reasonable detail. Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be adequate to disclose an exception to a representation or warranty made in this Agreement, unless the representation or warranty has to
do with the existence of the document or other item itself. No exceptions to any representations or warranties disclosed on one Schedule shall constitute an exception (i) to a representation or warranty unless such representation or warranty calls for exceptions set forth on the Schedules, or (ii) to any other representations or warranties made in this Agreement unless such exception is disclosed as provided herein on each such other applicable Schedule or the applicability of such disclosure is readily apparent as an exception to such other representation or warranty. All Schedules attached hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.
7.15 Checks Outstanding; Collections; Reasonable Access to Bank Accounts. After the Closing, Sellers shall (i) cause all “cut” but uncashed checks written by Sellers prior to the Closing to clear its bank accounts and (ii) promptly deliver to Non-Real Estate Buyer any cash, checks or other property that any Seller receives in connection with, or relating to the operation of, the Business, the Contributed Assets or the Purchased Real Property. Sellers shall maintain collectively a minimum balance under Sellers’ bank accounts set forth in Schedule 4.27 of (x) $600,000 from the Closing Date to April 1, 2012, and (z) $250,000 from April 1, 2012 to October 15, 2012. Additionally, after the Closing Date and for a period of twelve (12) months thereafter, Sellers shall provide to Buyers reasonable access to any financial related information with respect to such bank accounts, including, without limitation, balance amounts on such accounts.
7.16 Publicity. Except as required by law or as necessary to implement this Agreement, none of the Parties shall issue or approve a news release or other public announcement concerning this Agreement or the transactions contemplated herein without the prior approval of the other Parties as to the contents of such announcement and its release, which approval shall not be unreasonably withheld.
* * * * *
IN WITNESS WHEREOF, the Parties hereto have caused this Contribution and Asset Purchase Agreement to be duly executed as of the date and year first written above.
|
|
XXXXX METAL AMERICAS, INC. | |
|
|
| |
|
|
By: |
|
|
|
Name: |
|
|
|
Its: |
|
|
|
| |
|
|
XXXXX METAL REAL ESTATE, INC. | |
|
|
| |
|
|
By: |
|
|
|
Name: |
|
|
|
Its: |
|
|
|
| |
|
|
XXXXX METAL HOLDING CORP. | |
|
|
| |
|
|
By: |
|
|
|
Name: |
|
|
|
Its: |
|
Signature Page to Contribution and Asset Purchase Agreement
|
|
EYELEMATIC MANUFACTURING COMPANY, INCORPORATED | |
|
|
| |
|
|
| |
|
|
By: |
|
|
|
Name: |
Xxxxx X. Xxxxxxx, Xx. |
|
|
Its: |
President |
|
|
| |
|
|
| |
|
|
ECHO MANUFACTURING COMPANY | |
|
|
| |
|
|
| |
|
|
By: |
|
|
|
Name: |
Xxxxx X. Xxxxxxx, Xx. |
|
|
Its: |
President |
|
|
| |
|
|
| |
|
|
SEEMAR REAL ESTATE, LLC | |
|
|
| |
|
|
| |
|
|
By: |
|
|
|
Name: |
Xxxxx X. Xxxxxxx, Xx. |
|
|
Its: |
Manager |
Signature Page to Contribution and Asset Purchase Agreement
|
|
For purposes of Sections 6.7 and 6.9 only: |
|
|
|
|
|
|
|
|
XXXXX X. XXXXXXX, XX. |
|
|
|
|
|
|
|
|
XXXXXX XXXXXXXX |
|
|
|
|
|
|
|
|
XXXXXX XXXXXXX |
|
|
|
|
|
|
|
|
XXXXXXX X. XXXXXXXX |
|
|
|
|
|
|
|
|
XXXXXXX X. XXXXXX |
|
|
|
|
|
|
|
|
XXXXX X. XXXXXXX III |
|
|
|
|
|
|
|
|
XXXX XXXXXXX XXXXXXXX |
|
|
|
|
|
|
|
|
XXXXXXX X. XXXXXXXX, XX. |
Signature Page to Contribution and Asset Purchase Agreement
DISCLOSURE SCHEDULES TO THE
CONTRIBUTION AND ASSET PURCHASE AGREEMENT
by and among
EYELEMATIC MANUFACTURING COMPANY, INC.,
ECHO MANUFACTURING COMPANY,
SEEMAR REAL ESTATE, LLC,
XXXXX METAL AMERICAS, INC.,
XXXXX METAL REAL ESTATE, INC.
and
XXXXX METAL HOLDING CORP.
Schedule 2.1(e)
Purchased Real Property
1. 00 Xxxx Xxxx, Xxxxxxxxx—Eyelematic
a. Building—57,000 square feet; land—10.3 acres; map/block/lot— 91/92/3A
2. 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx—Seemar
a. Building—145,600 square feet; land—3.31 acres; map/block/lot— 468/488/11
b. Land—3.50 acres; map/block/lot—490/488/1
Schedule 2.1(g)
Leased Real Property
1. 0 Xxxxxx Xxxx, Xxxxxxxxx—Seemar
a. Building—130,000 square feet; land—19 acres; map/block/lot— 82/89/8A
Schedule 2.2(vi)
Contributed Contracts
1. Forklift Toyota Model 8BRV18:
a. Lessee: Echo Manufacturing Company
x. Xxxxxx: Summit Toyota Lift
c. Term: 60 months
d. Commencement Date: June 7, 2010
2. Telephone System:
a. Lessee: Eyelematic Manufacturing Company, Inc.
x. Xxxxxx: Horizon Keystone Financial
c. Term: 36 months
d. Commencement Date: February 3, 2010
e. This lease was sold and assigned by Horizon to Susquehanna Commercial Finance
3. Audi A4 (Vin # XXXXX00X00X000000):
a. Lessee: Eyelematic Manufacturing Company, Inc.
x. Xxxxxx: Xxxxxxx Motors Inc.
c. Term: 36 months
d. Commencement Date: February, 2009
4. Audi A6 Four Door Sedan (Vin #XXXXXXXX0XX000000):
a. Lessee: Eyelematic Manufacturing Company, Inc.
x. Xxxxxx: Xxxxxxx Motors Inc.
c. Term: 42 months
d. Commencement Date: October 7, 2010
5. Mercedes GLK (Vin # XXXXX0XX0XX000000):
a. Lessee: Eyelematic Manufacturing Company, Inc.
x. Xxxxxx: Mercedes Benz of Danbury, LLC
c. Term: 39 months
d. Commencement Date: October 15, 2009
6. FRTL M2 106 MD Aluminum Van:
a. Lessee: Eyelematic Manufacturing Company, Inc.
x. Xxxxxx: Xxxxx Truck Rental Inc.
c. Term: 78 months
d. Commencement Date: October 6, 2008
7. Wonderware North — Software Support Contract (Customer Support Agreement):
a. Term: June 30, 2011 to June 30, 2012
b. Company: Echo Manufacturing Company
8. United Aluminum and Eyelematic Agreement:
a. Agreement, dated as of August 24, 2011, relating to the purchase of aluminum coils from September 1, 2011 to November 30, 2011
9. Forklift Toyota Model 8 FBCU28:
a. Lessee: Echo Manufacturing Company
x. Xxxxxx: Summit Toyota Lift
c. Term: 60 months
d. Commencement Date: August 21, 2010
10. Forklift Toyota Model 7BRU18:
a. Lessee: Echo Manufacturing Company
x. Xxxxxx: Summit Toyota Lift
c. Term: 60 months
d. Commencement Date: June 7, 2010
11. The items listed in Schedule 4.15 are hereby incorporated by reference.
Schedule 2.2(a)(xv)
Permits
1. Title v. Operating Permit:
a. Company: Eyelematic Manufacturing Company, Inc.
b. Address: One Seemar Road
c. Permit #: 200-0034-TV
2. General Permit f/Discharge of Storm Water Associated w/Industrial Activity:
a. Company: Eyelematic Manufacturing Company, Inc.
b. Application No.: 20110366
c. Received by DEP: May 17, 2011
d. Final Decision Made
e. Effective: October 1, 2011
3. No Exposure Certification for the Discharge of Storm Water Associated with Industrial Activity Effective October 1, 2011:
a. Company: Echo Manufacturing Company
b. Application No.: 201103596
c. Received by DEP: May 17, 2011
d. Final Decision Made
e. Effective: October 1, 2011
4. General Permit for Miscellaneous Discharge of Sewar Compatible Water
a. Company: Echo Manufacturing Company
b. Effective: 2010
5. NPDES Permit (Pretreatment Permit)
a. Company: Echo Manufacturing Company
b. This permit was applied for in 2008 and is now in the public notice phase. Echo received a letter from DEP authorizing it to operate.
Schedule 2.2(b)(xi)
Excluded Assets
1. Xxxxx Xxxxxxx’x Mercedes Benz sedan, VIN # 0XXXX0XX0XX000000.
2. Employment Agreement with Xxxxx Xxxxx:
a. Position: Eyelematic Molding Plant Manager
b. Term: Five years
c. Commencement Date: January 6, 2010
d. Salary: $180,000.00
e. Bonus: Possible (4(b))
3. Items marked with an * on Schedule 4.20 are hereby incorporated by reference.
Schedule 2.4(b)(xvii)
Excluded Liabilities
Any liabilities or obligations arising out of, or in connection with, any of the following are included, without limitation, in the Excluded Liabilities.
1. Loan and Security Agreement, dated as of September 29, 2010, by and among Eyelematic, Echo and Xxxxxxx Bank National Association.
2. Commercial Revolving Credit Note, dated as of September 29, 2010, by and among Eyelematic, Echo and Xxxxxxx Bank National Association.
3. Promissory Note, dated as of September 1, 2010, by and between Eyelematic and Xxxxx Xxxxxxx.
4. Promissory Note, dated as of February 6, 2006, by and among Seemar, Xxxxx Xxxxxxx and Xxxxxx Xxxxxxx, in the original principal amount of $2,200,000, which will be paid off immediately prior to Closing.
5. Promissory Note, dated as of September 1, 2010, by and between Echo and Xxxxx Xxxxxxx, in the original principal amount of $1,153,077, which will be paid off immediately prior to Closing.
6. Promissory Note, dated as of October 30, 2008, by and between Echo and Xxxxx Xxxxxxx, in the original principal amount of $900,000, which will be paid off immediately prior to Closing.
7. Promissory Note, dated as of September 1, 2010, by and between Eyelematic and Xxxxx Xxxxxxx, in the original principal amount of $931,922.75, which will be paid off immediately prior to Closing.
8. Promissory Note, dated as of September 1, 2010, by and between Eyelematic and Xxxxx Xxxxxxx, in the original principal amount of $400,000.
9. Xxxx Xxxxxxxx v. Eyelematic Manufacturing, Inc. and Echo Manufacturing Company, Docket No. CV-10-6004669-S pending in the Judicial District of Waterbury
10. Mercedes Xxxxxxxx x. Eyelematic Manufacturing, Inc., Docket No. CV-10-6004729-S pending in the Judicial District of Waterbury
11. Xxxxx Xxxxxxxxx v. Eyelematic Manufacturing, Inc., Docket No. CV-09-6001099-S pending in the Judicial District of Litchfield
12. Uniroyal Chemical Co. v. Laurel Park, et. al., Docket No. 3:87-CV-00067-PCD in the USDC for the District of Connecticut (New Haven)
13. USA, et. al. x. Xxxxxx, et. al., Docket No. 3:87-CV-00074-PCD in the USDC for the District of Connecticut (New Haven)
14. Xxxxxxx v. Eyelematic Manufacturing Co., Inc., Docket No. 3:04-CV-00238-MRK in the USDC for the District of Connecticut (New Haven)
15. USA, et. al. v. AMF, et. al., Docket No. 3:91-CV-00249-PCD in the USDC for the District of Connecticut (New Haven)
16. State of Connecticut, et. al. v. XX Xxxxxx Die & Mach, et. al., Docket No. 3:94-CV-01668-TFGD in the USDC for the District of Connecticut (New Haven)
17. USA, et. al. v. AMF, et. al.,, Docket No. 3:94-CV-01667-TFGD in the USDC for the District of Connecticut (New Haven)
18. Xx Xxxxxxxx, et. al. x. Xxxxxx, et. al., Docket No. 3:87-CV-00052-PCD in the USDC for the District of Connecticut (New Haven)
19. All liabilities related to the CTDEP Consent Order with respect to violations at the 0 Xxxxxx Xxxx, Xxxxxxxxx facility.
20. Xxxxx Xxxxxx—October 2008 and April 2011
21. U.S. Bank National Association v. Xxxxxxxx Xxxxx et al, Docket No. CV095012533 in the Superior Court for the Judicial District of Waterbury
22. Xxxxxx v. Eyelematic Manufacturing Company Inc., Docket No. SC-338450, in the small claims session of the Superior Court.
23. Mortgage Deed by Seemar to Xxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxxxx, dated February 6, 2006 and recorded February 8, 2006 in volume 1454, page 127 in the Office of the Town Clerk of Watertown, Connecticut.
24. Mortgage Deed by Seemar to Xxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxxxx, dated February 6, 2006 and recorded February 16, 2006 in volume 5673, page 133 in the Office of the Town Clerk of Waterbury, Connecticut.
25. UCC Fixture Filing, recorded June 23, 1994 in volume 3112, page 41 in the Office of the Town Clerk of Waterbury, Connecticut; as affected by that UCC Fixture Filing Assignment, recorded March 1, 1999 in volume 3769, page 316 in the Office of the Town Clerk of Waterbury, Connecticut; as affected by that UCC Fixture Filing Continuation, recorded March 1, 1999 in volume 3769, page 317 in the Office of the Town Clerk of Waterbury, Connecticut; as affected by that UCC Fixture Filing Continuation, recorded January 16, 2004 in volume 4877, page 91
in the Office of the Town Clerk of Waterbury, Connecticut; as affected by that UCC Fixture Filing Continuation, recorded March 26, 2009 in volume 6505, page 110 in the Office of the Town Clerk of Waterbury, Connecticut.
26. Negative Pledge Agreement dated September 29, 2010 and recorded October 7, 2010 in volume 6728, page 44 in the Office of the Town Clerk of Waterbury, Connecticut.
27. Negative Pledge Agreement dated September 29, 2010 and recorded October 7, 2010 in volume 1721, page 311 in the Office of the Town Clerk of Watertown, Connecticut.
28. Negative Pledge Agreement dated September 29, 2010 and recorded October 7, 2010 in volume 1721, page 318 in the Office of the Town Clerk of Watertown, Connecticut.
29. UCC Financing Statement No. 0000000000, filed June 3, 1994 in the centralized records, naming Eyelematic, as debtor, and Shawmut Bank, as secured party; as affected by UCC Financing Statement Assignment No. 0001908719, filed March 1, 1999 in the centralized records; as affected by UCC Financing Statement Continuation No. 0001908721, filed March 1, 1999 in the centralized records; as amended by UCC Financing Statement Amendment 0002242819, filed December 22, 2003 in the centralized records; as amended by UCC Financing Statement Amendment No. 0002674938, filed January 15, 2009 in the centralized records.
30. UCC Financing Statement No. 0000000000, filed October 5, 2010 in the centralized records, naming Eyelematic, as debtor, and Xxxxxxx Bank, N.A., as secured party.
31. UCC Financing Statement No. 0002776928, filed October 5, 2010 in the centralized records, naming Seemar, as debtor, and Xxxxxxx Bank, N.A., as secured party.
32. UCC Financing Statement No. 0001062748, filed June 23, 1994 in the centralized records, naming Echo, as debtor, and Shawmut Bank Connecticut, NA, as secured party; as affected by UCC Financing Statement Assignment No. 0001908715, filed March 1, 1999 in the centralized records; as affected by UCC Financing Statement Continuation No. 0001908716, filed March 1, 1999 in the centralized records; as amended by UCC Financing Statement Amendment 0002244402, filed January 5, 2004 in the centralized records; as amended by UCC Financing Statement Amendment No. 0002678012, filed February 4, 2009 in the centralized records.
33. UCC Financing Statement No. 0002776927, filed October 5, 2010 in the centralized records, naming Echo, as debtor, and Xxxxxxx Bank, N.A., as secured party.
34. UCC Financing Statement No. 0002607658, filed December 10, 2007 in the centralized records, naming Eyelematic, as debtor, and Dell Financial Services L.P., as secured party.
35. All litigation matters and claims set forth on Schedule 4.16 are incorporated herein by reference.
Schedule 2.8
Purchase Price Allocation
1. 000 Xxxxxxxxxx Xxxx—real estate owned by Seemar—being purchased by Real Estate Buyer for $2,500,000.
2. 00 Xxxx Xxxx—real estate owned by Eyelematic—being purchased by Real Estate Buyer for $2,250,000.
3. Eyelematic net assets—tangible/intangible personal property owned by Eyelematic—being purchased by Non-Real Estate Buyer for $2,625,000.
4. Echo net assets—tangible/intangible personal property owned by Echo— being purchased by Non-Real Estate Buyer for $2,625,000.
5. Prepaid use and occupancy payment—pursuant to Lease between Non-Real Estate Buyer and Seemar Real Estate, LLC—$200,000.
Schedule 4.2
Authorization
1. Financing Agreement for Equipment Acquisition, dated as of February 3, 2010, by and between Eyelematic and Horizon Keystone Financial, as assigned to Susquehanna Commercial Finance, Inc.
2. Agreement, dated as of August 24, 2011, by and between United Aluminum and Eyelematic, relating to the purchase of aluminum coils from September 1, 2011 to November 30, 2011.
3. General Permit for Miscellaneous Discharge of Sewar Compatible Water, issued to Echo Manufacturing Company, effective 2010.
Schedule 4.4
Financial Statements
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING STATEMENT OF INCOME
FOR THE THREE MONTHS ENDED JUNE 30, 2011
|
|
|
Eyelematic |
|
Echo Mfg. |
|
Seemar |
|
Combining |
|
|
| |||||
|
|
|
Mfg., Inc. |
|
Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
NET SALES |
|
$ |
6,354,202 |
|
$ |
3,082,315 |
|
$ |
— |
|
$ |
(3,082,315 |
) |
$ |
6,354,202 |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
COST OF SALES |
|
5,767,032 |
|
3,403,594 |
|
— |
|
(3,082,315 |
) |
6,088,311 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
GROSS PROFIT |
|
587,170 |
|
(321,279 |
) |
— |
|
— |
|
265,891 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES |
|
477,847 |
|
83,063 |
|
27,128 |
|
— |
|
588,038 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
OPERATING INCOME (LOSS) |
|
109,323 |
|
(404,342 |
) |
(27,128 |
) |
— |
|
(322,147 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
OTHER INCOME (EXPENSE) |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Interest Expense |
|
(16,367 |
) |
(20,806 |
) |
(20,908 |
) |
— |
|
(58,081 |
) | |||||
|
Investment Income |
|
2 |
|
1 |
|
4 |
|
— |
|
7 |
| |||||
|
Other Income |
|
800 |
|
25 |
|
— |
|
— |
|
825 |
| |||||
|
Total Other (Expense) |
|
(15,565 |
) |
(20,780 |
) |
(20,904 |
) |
— |
|
(57,249 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
INCOME (LOSS) BEFORE PROVISION FOR INCOME TAXES |
|
93,758 |
|
(425,122 |
) |
(48,032 |
) |
— |
|
(379,396 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
PROVISION FOR INCOME TAXES |
|
28,127 |
|
— |
|
— |
|
— |
|
28,127 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
NET INCOME (LOSS) |
|
$ |
65,631 |
|
$ |
(425,122 |
) |
$ |
(48,032 |
) |
$ |
— |
|
$ |
(407,523 |
) |
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING STATEMENT OF INCOME
FOR THE THREE MONTHS ENDED JUNE 30, 2011
|
|
|
Eyelematic |
|
Echo Mfg. |
|
Seemar |
|
Combining |
|
|
| |||||
|
|
|
Mfg., Inc. |
|
Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
NET SALES |
|
$ |
13,559,823 |
|
$ |
6,324,560 |
|
$ |
161,909 |
|
$ |
(6,486,469 |
) |
$ |
13,559,823 |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
COST OF SALES |
|
12,382,251 |
|
6,545,159 |
|
— |
|
(6,466,043 |
) |
12,461,367 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
GROSS PROFIT |
|
1,177,572 |
|
(220,599 |
) |
161,909 |
|
(20,426 |
) |
1,098,456 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES |
|
960,393 |
|
297,829 |
|
53,606 |
|
(20,426 |
) |
1,291,402 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
OPERATING INCOME (LOSS) |
|
217,179 |
|
(518,428 |
) |
108,303 |
|
— |
|
(192,946 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
OTHER INCOME (EXPENSE) |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Interest Expense |
|
(29,792 |
) |
(41,225 |
) |
(41,754 |
) |
— |
|
(112,771 |
) | |||||
|
Investment Income |
|
6 |
|
2 |
|
8 |
|
— |
|
16 |
| |||||
|
Other Income |
|
4,793 |
|
59 |
|
— |
|
— |
|
4,852 |
| |||||
|
Total Other (Expense) |
|
(24,993 |
) |
(41,164 |
) |
(41,746 |
) |
— |
|
(107,903 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
INCOME (LOSS) BEFORE PROVISION FOR INCOME TAXES |
|
192,186 |
|
(559,592 |
) |
(66,557 |
) |
— |
|
(300,849 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
PROVISION FOR INCOME TAXES |
|
57,656 |
|
— |
|
— |
|
— |
|
57,656 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
NET INCOME (LOSS) |
|
$ |
134,530 |
|
$ |
(559,592 |
) |
$ |
(66,557 |
) |
$ |
— |
|
$ |
(358,505 |
) |
See attached.
Schedule 4.4
EYELEMATIC MANUFACTURING COMPANY, INC.
AND RELATED COMPANIES
COMBINED FINANCIAL STATEMENTS AND
SUPPLEMENTARY INFORMATION
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
EYELEMATIC MANUFACTURING COMPANY, INC.
AND RELATED COMPANIES
COMBINED FINANCIAL STATEMENTS AND SUPPLEMENTARY INFORMATION
TABLE OF CONTENTS
|
|
Page | |
|
|
| |
|
Independent Accountant’s Review Report |
1 | |
|
|
| |
|
Exhibit A |
Combined Balance Sheets |
2-3 |
|
|
| |
|
Exhibit B |
Combined Statements of Income (Loss) |
4 |
|
|
| |
|
Exhibit C |
Combined Statements of Changes in Equity |
5 |
|
|
| |
|
Exhibit D |
Combined Statements of Cash Flows |
6 |
|
|
| |
|
Notes to the Combined Financial Statements |
7-18 | |
|
|
| |
|
Supplementary Information |
19 | |
|
|
| |
|
Schedule I |
Combining Balance Sheets |
20-23 |
|
|
| |
|
Schedule II |
Combining Statements of Income (Loss) |
24-25 |
|
|
| |
|
Schedule III |
Combining Statements of Changes in Equity |
26 |
|
|
| |
|
Schedule IV |
Combining Statements of Cash Flows |
27-28 |
|
|
|
Certified |
|
|
Xxxxxx |
Public |
|
|
|
Accountants |
|
|
|
L.L.C. |
|
|
Zimyeski |
|
|
|
|
One |
|
|
|
Exchange Place |
|
|
Xxxxxxxx |
Sixth Floor |
|
|
|
Waterbury |
|
|
|
Connecticut |
|
INDEPENDENT ACCOUNTANT’S REVIEW REPORT |
00000-0000 | |
|
|
|
Telephone |
|
|
|
203·753·2200 |
|
|
|
Facsimile |
|
To the Board of Directors |
203·756·1608 | |
|
Eyelematic Manufacturing Company, Inc. and Related Companies |
xxx.xxxxxx.xxx | |
|
Watertown, Connecticut |
| |
We have reviewed the accompanying combined balance sheets of Eyelematic Manufacturing Company, inc. and Related Companies as of December 31, 2010 and 2009, as restated, and the related combined statements of income (loss), changes in equity, and cash flows for the years then ended. A review includes primarily applying analytical procedures to management’s financial data and making inquiries of Company management. A review is substantially less in scope than an audit, the objective of which is the expression of an opinion regarding the combined financial statements as a whole. Accordingly, we do not express such an opinion.
Management is responsible for the preparation and fair presentation of the combined financial statements in accordance with accounting principles generally accepted in the Unites States of America and for designing, implementing, and maintaining internal control relevant to the preparation and fair presentation of the combined financial statements.
Our responsibility is to conduct the review in accordance with Statements on Standards for Accounting and Review Services issued by the American Institute of Certified Public Accountants. Those standards require us to perform procedures to obtain limited assurance that there are no material modifications that should be made to the combined financial statements. We believe that the results of our procedures provide a reasonable basis for our report.
Based on our reviews, we are not aware of any material modifications that should be made to the accompanying combined financial statements in order for them to be in conformity with generally accepted accounting principles.
Our reviews were made for the purpose of expressing a conclusion that there are no material modifications that should be made to the combined financial statements in order for them to be in conformity with accounting principles generally accepted in the United States of America. The information included in the accompanying Schedules I, II, III, and IV is presented only for purposes of additional analysis’ and has been subjected to the inquiry and analytical procedures applied in the review of the basic combined financial statements, and we are not aware of any material modifications that should be made thereto,
/s/ XXXXXX ZIMYESKI XXXXXXXX
XXXXXX ZIMYESKI XXXXXXXX
Certified Public Accountants, LLC
Waterbury, Connecticut
February 8, 2011
EXHIBIT A
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINED BALANCE SHEETS
DECEMBER 31, 2010 AND 2009
|
|
|
|
|
2009 |
| ||
|
|
|
2010 |
|
RESTATED |
| ||
|
ASSETS |
|
|
|
|
| ||
|
|
|
|
|
|
| ||
|
CURRENT ASSETS |
|
|
|
|
| ||
|
Cash and Cash Equivalents |
|
$ |
879,566 |
|
$ |
1,454,508 |
|
|
Accounts Receivable, net |
|
3,114,626 |
|
4,055,869 |
| ||
|
Inventories, net |
|
6,771,603 |
|
6,875,681 |
| ||
|
Deferred Tax Assets |
|
418,148 |
|
90,000 |
| ||
|
Prepaid Expenses |
|
231,709 |
|
173,271 |
| ||
|
Total Current Assets |
|
11,415,652 |
|
12,649,329 |
| ||
|
|
|
|
|
|
| ||
|
PROPERTY, PLANT AND EQUIPMENT, net |
|
11,500,257 |
|
11,243,370 |
| ||
|
|
|
|
|
|
| ||
|
OTHER ASSETS |
|
|
|
|
| ||
|
Deferred Tax Assets |
|
231,852 |
|
885,539 |
| ||
|
Other Assets |
|
85,030 |
|
129,041 |
| ||
|
Loan Origination Costs, Net |
|
41,142 |
|
— |
| ||
|
Total Other Assets |
|
358,024 |
|
1,014,580 |
| ||
|
|
|
|
|
|
| ||
|
TOTAL ASSETS |
|
$ |
23,273,933 |
|
$ |
24,907,279 |
|
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINED BALANCE SHEETS
DECEMBER 31, 2010 AND 2009
|
|
|
|
|
2009 |
| ||
|
|
|
2010 |
|
RESTATED |
| ||
|
|
|
|
|
|
| ||
|
LIABILITIES AND EQUITY |
|
|
|
|
| ||
|
CURRENT LIABILITIES |
|
|
|
|
| ||
|
Bank Lines of Credit |
|
$ |
— |
|
$ |
3,207,761 |
|
|
Advances Payable |
|
10,000 |
|
10,000 |
| ||
|
Capital Lease Obligations |
|
32,079 |
|
13,250 |
| ||
|
Accounts Payable |
|
2,555,375 |
|
3,356,535 |
| ||
|
Accrued Taxes and Expenses |
|
103,888 |
|
230,735 |
| ||
|
Related Party Mortgage Payable |
|
120,000 |
|
120,000 |
| ||
|
Total Current Liabilities |
|
2,821,342 |
|
6,938,281 |
| ||
|
|
|
|
|
|
| ||
|
LONG-TERM LIABILIITES |
|
|
|
|
| ||
|
Advances Payable, Less Current Portion |
|
1,249,384 |
|
1,249,384 |
| ||
|
Capital Lease Obligations, Less Current Portion |
|
75,457 |
|
13,290 |
| ||
|
Related Party Line of Credit |
|
2,431,599 |
|
1,910,684 |
| ||
|
Related Party Mortgage Payable, Less Current Portion |
|
1,500,000 |
|
1,645,000 |
| ||
|
Total Long-Term Liabilities |
|
5,256,440 |
|
4,818,358 |
| ||
|
|
|
|
|
|
| ||
|
Total Liabilities |
|
8,077,782 |
|
11,756,639 |
| ||
|
|
|
|
|
|
| ||
|
EQUITY |
|
|
|
|
| ||
|
Common Stock |
|
78,810 |
|
78,810 |
| ||
|
Additional Paid-In Capital |
|
200,190 |
|
200,190 |
| ||
|
Members’ Equity |
|
154,966 |
|
(70,161 |
) | ||
|
Retained Earnings |
|
16,571,761 |
|
14,751,377 |
| ||
|
|
|
17,005,727 |
|
14,960,216 |
| ||
|
Less: Treasury Stock |
|
(1,809,576 |
) |
(1,809,576 |
) | ||
|
Total Equity |
|
15,196,151 |
|
13,150,640 |
| ||
|
|
|
|
|
|
| ||
|
TOTAL LIABILITIES AND EQUITY |
|
$ |
23,273,933 |
|
$ |
24,907,279 |
|
See accompanying notes and accountant’s review report
EXHIBIT B
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINED STATEMENTS OF INCOME (LOSS)
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
|
|
|
|
|
2009 |
| ||
|
|
|
2010 |
|
RESTATED |
| ||
|
|
|
|
|
|
| ||
|
NET SALES |
|
$ |
40,463,323 |
|
$ |
40,260,633 |
|
|
|
|
|
|
|
| ||
|
COST OF SALES |
|
35,392,530 |
|
38,348,705 |
| ||
|
|
|
|
|
|
| ||
|
GROSS PROFIT |
|
5,070,793 |
|
1,911,928 |
| ||
|
|
|
|
|
|
| ||
|
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES |
|
2,357,170 |
|
3,840,181 |
| ||
|
|
|
|
|
|
| ||
|
OPERATING INCOME (LOSS) |
|
2,713,623 |
|
(1,928,253 |
) | ||
|
|
|
|
|
|
| ||
|
OTHER INCOME (EXPENSE) |
|
|
|
|
| ||
|
Interest Expense |
|
(322,621 |
) |
(261,637 |
) | ||
|
Investment Income (Loss) |
|
261 |
|
(243,383 |
) | ||
|
Other Income |
|
4,922 |
|
28,979 |
| ||
|
Total Other (Expense) |
|
(317,438 |
) |
(476,041 |
) | ||
|
|
|
|
|
|
| ||
|
INCOME (LOSS) BEFORE PROVISION FOR (RECOVERY OF) INCOME TAXES |
|
2,396,185 |
|
(2,404,294 |
) | ||
|
|
|
|
|
|
| ||
|
PROVISION FOR (RECOVERY OF) INCOME TAXES |
|
350,674 |
|
(624,594 |
) | ||
|
|
|
|
|
|
| ||
|
NET INCOME (LOSS) |
|
$ |
2,045,511 |
|
$ |
(1,779,700 |
) |
See accompanying notes and accountant’s review report
EXHIBIT C
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINED STATEMENTS OF CHANGES IN EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
|
|
|
|
|
|
|
|
|
|
|
Accumulated |
|
|
|
|
| |||||||
|
|
|
|
|
Additional |
|
|
|
Retained |
|
Other |
|
|
|
Total |
| |||||||
|
|
|
Common |
|
Paid-in |
|
Members’ |
|
Earnings - |
|
Comprehensive |
|
Treasury |
|
Equity - |
| |||||||
|
|
|
Stock |
|
Capital |
|
Equity |
|
Restated |
|
Income (Loss) |
|
Stock |
|
Restated |
| |||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||||
|
Total Equity December 31, 2008-Restated |
|
$ |
78,810 |
|
$ |
200,190 |
|
$ |
52,734 |
|
$ |
17,048,182 |
|
$ |
(325,445 |
) |
$ |
(1,809,576 |
) |
$ |
15,244,895 |
|
|
Distributions and Dividends |
|
— |
|
— |
|
(640,000 |
) |
— |
|
— |
|
— |
|
(640,000 |
) | |||||||
|
Realized Losses Recognized During the Year on Available for Sale Investments (Net of Tax) |
|
— |
|
— |
|
— |
|
— |
|
325,445 |
|
— |
|
325,445 |
| |||||||
|
Net Income (Loss) - Restated |
|
— |
|
— |
|
517,105 |
|
(2,296,805 |
) |
— |
|
— |
|
(1,779,700 |
) | |||||||
|
Total Equity December 31, 2009-Restated |
|
78,810 |
|
200,190 |
|
(70,161 |
) |
14,751,377 |
|
— |
|
(1,809,576 |
) |
13,150,640 |
| |||||||
|
Net Income |
|
— |
|
— |
|
225,127 |
|
1,820,384 |
|
— |
|
— |
|
2,045,511 |
| |||||||
|
Total Equity December 31, 2010 |
|
$ |
78,810 |
|
$ |
200,190 |
|
$ |
154,966 |
|
$ |
16,571,761 |
|
$ |
— |
|
$ |
(1,809,576 |
) |
$ |
15,196,151 |
|
See accompanying notes and accountant’s review report
EXHIBIT D
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
|
|
|
|
|
2009 |
| ||
|
|
|
2010 |
|
RESTATED |
| ||
|
CASH FLOWS FROM OPERATING ACTIVITIES |
|
|
|
|
| ||
|
Net Income (Loss) |
|
$ |
2,045,511 |
|
$ |
(1,779,700 |
) |
|
Adjustments to Reconcile Net Income (Loss) to |
|
|
|
|
| ||
|
Net Cash Provided by Operating Activities: |
|
|
|
|
| ||
|
Depreciation and Amortization |
|
1,602,733 |
|
1,862,453 |
| ||
|
Deferred Tax Provision |
|
325,539 |
|
(669,479 |
) | ||
|
Realized Losses on Investments |
|
— |
|
250,084 |
| ||
|
Change in Inventory Reserve |
|
1,310 |
|
(167,658 |
) | ||
|
Changes in Assets and Liabilities: |
|
|
|
|
| ||
|
Decrease in Accounts Receivable, net |
|
941,243 |
|
2,151,286 |
| ||
|
(Increase) Decrease in Inventories, net |
|
102,768 |
|
(427,573 |
) | ||
|
(Increase) in Prepaid Expenses |
|
(58,438 |
) |
(84,872 |
) | ||
|
(Increase) Decrease in Other Assets |
|
44,011 |
|
(8,476 |
) | ||
|
Increase (Decrease) in Accounts Payable |
|
(801,160 |
) |
1,098,779 |
| ||
|
(Decrease) in Accrued Taxes and Expenses |
|
(126,847 |
) |
(215,110 |
) | ||
|
Net Cash Provided by Operating Activities |
|
4,076,670 |
|
2,009,734 |
| ||
|
|
|
|
|
|
| ||
|
CASH FLOWS FROM INVESTING ACTIVITIES |
|
|
|
|
| ||
|
Purchase of Property, Plant and Equipment |
|
(1,450,174 |
) |
(3,221,639 |
) | ||
|
Proceeds from Sale of Property, Plant and Equipment |
|
— |
|
363,070 |
| ||
|
(Increase) Decrease in Deposits on Equipment |
|
(299,581 |
) |
1,198,629 |
| ||
|
(Increase) in Loan Originaiton Costs |
|
(43,307 |
) |
— |
| ||
|
Net Cash (Used by) Investing Activities |
|
(1,793,062 |
) |
(1,659,940 |
) | ||
|
|
|
|
|
|
| ||
|
CASH FLOWS FROM FINANCING ACTIVITIES |
|
|
|
|
| ||
|
(Repayment of) Proceeds from Bank Lines of Credit, net |
|
(3,207,761 |
) |
1,407,851 |
| ||
|
(Repayment of) Capital Lease Obligations |
|
(26,704 |
) |
(14,167 |
) | ||
|
Proceeds from Related Party Line of Credit, net |
|
520,915 |
|
98,808 |
| ||
|
(Repayment of) Related Party Mortgage Payable |
|
(145,000 |
) |
(95,000 |
) | ||
|
Distributions and Dividends |
|
— |
|
(640,000 |
) | ||
|
Net Cash Provided (Used) by Financing Activities |
|
(2,858,550 |
) |
757,492 |
| ||
|
|
|
|
|
|
| ||
|
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS |
|
(574,942 |
) |
1,107,286 |
| ||
|
|
|
|
|
|
| ||
|
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR |
|
1,454,508 |
|
347,222 |
| ||
|
|
|
|
|
|
| ||
|
CASH AND CASH EQUIVALENTS, END OF YEAR |
|
$ |
879,566 |
|
$ |
1,454,508 |
|
See accompanying notes and accountant’s review report
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
1. ORGANIZATION AND NATURE OF OPERATIONS
The combined financial statements include the accounts of Eyelematic Manufacturing Company, Inc. (Eyelematic), Echo Manufacturing Company, Inc. (Echo), Workforce One, Inc. (Workforce), and Seemar Real Estate, LLC (Seemar), collectively (the Companies).
Eyelematic is a Connecticut Corporation engaged in the design and manufacture of cosmetic packaging products and industrial metal packaging products. The Company engages in business with customers worldwide.
Echo is a Connecticut S Corporation engaged in the manufacture of plastic molded parts, anodized metal parts and the assembly of components. Transactions with Eyelematic account for 100% of Echo’s revenue.
Workforce is a Connecticut S Corporation engaged in providing temporary labor services to customers located in the State of Connecticut. On January 31, 2008, Workforce discontinued operations.
Seemar is a Connecticut limited liability company of which officers of Eyelematic and Echo are members. Seemar is engaged in leasing real estate to the above related entities through operating leases. Transactions with Eyelematic and Echo account for 100% of Seemar’s revenue.
The Companies are under common ownership and controlled by members of two families. The Companies operate production facilities in Waterbury and Watertown, Connecticut. All material intercompany transactions between the Companies have been eliminated in the combination.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
This summary of significant accounting policies is presented to assist in understanding the Companies combined financial statements. The combined financial statements and notes are representations of the Companies management, who is responsible for their integrity and objectivity. These accounting policies are in accordance with generally accepted accounting principles and have been consistently applied in the presentation of the financial statements.
a. Accounting Method
The combined financial statements have been prepared on the accrual basis of accounting, whereby income is recognized when it becomes available and measurable, and expenses are recognized when the liability is incurred, if measurable.
b. Cash and Cash Equivalents
The Companies consider temporary investments with maturities of three months or less, when purchased, to be cash equivalents. Cash equivalents are carried at cost, which approximates market.
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
b. Cash and Cash Equivalents (continued)
At December 31, 2010 and 2009, restricted cash, which is invested in interest-bearing accounts, was held at Xxxxx Xxxxxx as part of Eyelematic’s agreement with the Connecticut Housing Program (See Note 11) and included in other assets on the accompanying balance sheets. Total restricted cash at December 31, 2010 and 2009 was $78,538 and $75,537, respectively.
c. Accounts Receivable
Accounts receivable are uncollateralized customer obligations due under normal trade terms. The carrying amount of accounts receivable is reduced by a valuation allowance which reflects management’s best estimate of the amounts that will not be collected. Management individually reviews all the accounts receivable balances that exceed 90 days from invoice date and, based on an assessment of current creditworthiness, estimates the portion, if any, of the balance that will not be collected. The allowance for doubtful accounts at December 31, 2010 and 2009 was $30,000.
d. Inventories
Inventories are stated at the lower of cost or market, as determined by the first-in, first-out method.
e. Property, Plant and Equipment
Property, plant and equipment, including equipment under capital leases, are stated at cost. Expenditures for additions, renewals and betterments are capitalized and expenditures for maintenance and repairs are charged to expense as incurred. When items of property or equipment are sold or retired the cost and accumulated depreciation or amortization is removed from the accounts and any gain or loss is included in the results of operations. Depreciation and amortization is calculated over the estimated useful lives of the assets using either the straight-line method or the 200% double declining balance method.
Depreciation expense, including amortization of building improvements and capital leases, totaled $1,600,568 and $1,862,453 for the years ended December 31, 2010 and 2009, respectively.
f. Intangible Assets
Intangible assets are loan origination costs that were capitalized during October 2010 and are being amortized using the straight-line method over their estimated life of 5 years. Amortization expense was $2,165 for the year ended December 31, 2010.
g. Income Taxes
Eyelematic uses the liability method of accounting for deferred federal and state income taxes, whereby deferred tax assets and liabilities are recognized based on differences between the financial statement carrying amounts and tax bases of assets and liabilities using presently enacted tax rates. The significant types of temporary differences that give rise to deferred taxes are depreciation of property, plant and equipment, unrealized gains or losses on investments and the allowance for doubtful accounts.
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)
g. Income Taxes (continued)
Echo and Workforce have elected to be treated for federal and state tax purposes as S Corporations under provisions of the Internal Revenue Code, whereby each shareholder’s proportionate share of each Company’s income and losses are reported directly on their individual tax returns. Accordingly, no provision for federal or state income taxes has been recorded in the combined financial statements for these entities.
Seemar is a limited liability company which is treated as a partnership for federal and state income tax purposes and, as such, is not subject to income tax. Income and losses from the partnership are reported on each member’s individual tax return. Accordingly, no provision for federal or state income taxes has been recorded in the combined financial statements for this entity.
The Companies adopted the provisions of Financial Accounting Standards Board Accounting Standards Codification (FASB ASC) 740. The Companies recognized no additions or reductions in their unrecognized income tax benefits as a result of this adoption. The Companies did not incur any interest or penalties on income taxes during the years ended December 31, 2010 and 2009.
The Companies file income tax returns in the U.S. federal jurisdiction and Connecticut state jurisdiction. With few exceptions, the Companies are no longer subject to U.S. federal and state income tax examinations by tax authorities for years before 2007. The Companies account for any incurred interest and penalties on income taxes as an operating expense.
h. Use of Estimates
The preparation of combined financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect certain reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the combined financial statements and the reported amounts of revenues and expenses during the reporting period. Accordingly, actual results could differ from those estimates.
i. Shipping and Handling Costs
Shipping and handling costs are expensed as incurred. Shipping and handling costs included in costs of sales for the years ended December 31, 2010 and 2009 were $224,604 and $214,128, respectively.
j. Fair Value of Financial Instruments
The carrying value of cash, accounts receivable, inventory, accounts payable and accrued liabilities approximated their fair values due to the short maturity of these instruments. The Companies note obligations are nonmarketable.
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2009 AND 2008
3. DATE OF MANAGEMENT’S REVIEW
Subsequent events have been evaluated through April 11, 2011, which is the date the financial statements were available for issuance.
4. INVENTORIES
Inventories consist of the following at December 31:
|
|
|
|
|
2009 |
| ||
|
|
|
2010 |
|
Restated |
| ||
|
|
|
|
|
|
| ||
|
Raw Materials |
|
$ |
1,730,927 |
|
$ |
1,744,445 |
|
|
Work-in Process |
|
921,239 |
|
1,018,514 |
| ||
|
Finished Goods |
|
4,728,735 |
|
4,720,710 |
| ||
|
|
|
7,380,901 |
|
7,483,669 |
| ||
|
Less: Reserve for Obsolescence |
|
(609,298 |
) |
(607,988 |
) | ||
|
Total |
|
$ |
6,771,603 |
|
$ |
6,875,681 |
|
5. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of the following at of December 31:
|
|
|
2010 |
|
2009 |
| ||
|
|
|
|
|
|
| ||
|
Land |
|
$ |
370,393 |
|
$ |
370,393 |
|
|
Buildings and Improvements |
|
10,068,160 |
|
9,991,809 |
| ||
|
Furniture and Fixtures |
|
962,643 |
|
977,760 |
| ||
|
Automobiles |
|
97,673 |
|
10,388 |
| ||
|
Machinery and Equipment |
|
43,023,680 |
|
42,758,544 |
| ||
|
|
|
54,522,549 |
|
54,108,894 |
| ||
|
Accumulated Depreciation and Amortization |
|
(43,495,253 |
) |
(43,038,904 |
) | ||
|
Deposits on Equipment |
|
472,961 |
|
173,380 |
| ||
|
Total |
|
$ |
11,500,257 |
|
$ |
11,243,370 |
|
$1,144,219 of fully depreciated assets were disposed of during the year ended December 31, 2010.
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
6. LOAN ORIGNIATION COSTS
Loan origination costs at December 31, 2010 consisted of $43,307 less $2,165 of accumulated amortization.
Future amortization expense of loan origination costs as of December 31, 2010 is as follows:
|
2011 |
|
$ |
8,662 |
|
|
2012 |
|
8,661 |
| |
|
2013 |
|
8,662 |
| |
|
2014 |
|
8,661 |
| |
|
2015 |
|
6,496 |
| |
|
Total |
|
$ |
41,142 |
|
7. LINES OF CREDIT
Eyelematic had a line of credit with a bank providing maximum availability of $3,500,000 through June 2010 when this line was closed. Echo had a line of credit with a bank providing maximum availability of $4,500,000 through June 2010 when this line was closed. Workforce One had a line of credit providing a maximum availability of $300,000 through June 1, 2009 when this line was closed. Interest for Eyelematic and Echo was calculated at the Bank’s prime rate plus 0.25%. Interest for Workforce was calculated at the lower of LIBOR plus 2% or the Bank’s prime rate. Eyelematic and Echo’s lines of credit were collateralized by accounts receivable, inventory and equipment of each respective Company. Workforce’s line of credit was unsecured.
Echo had outstanding advances of $1,075,839 at December 31, 2009. Eyelematic had outstanding advances of $2,131,922 at December 31, 2009. Eyelematic, Echo and Workforce One were required to meet certain covenants as defined in each credit agreement. On September 23, 2009, the Bank notified the Company that they were in default for violation of the change in management covenant.
In October 2010, Eyelematic, Echo and Seemar collectively opened a line of credit with a new bank providing maximum availability of $8,000,000. Interest is payable monthly and calculated at one month LIBOR plus 2.25%. The line matures on June 30, 2012 and is secured by the assets of the Companies. At December 31, 2010 there were no outstanding advances. The Companies are required to meet certain covenants as defined in the loan agreement. At December 31, 2010 the Companies were in compliance with the covenant requirements.
Echo has a $2,000,000 line of credit with its president and shareholder that matures in October 2013. Interest on this line of credit is calculated at the prime rate published by the Wall Street Journal plus 2%. At December 31, 2010 and 2009 the outstanding balance, including accrued interest, was $1,471,160 and $1,910,684, respectively.
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
7. LINES OF CREDIT (continued)
There is an unsecured demand note for Eyeiematic in the amount of $931,923 borrowed from its president and shareholder in 2010. There is no maturity date and interest is calculated at the prime rate published by the Wall Street Journal plus 2%. At December 31, 2010 the outstanding balance, including accrued interest, was $960,439. The shareholder has agreed not to demand payment in 2011.
8. OPERATING LEASE OBLIGATIONS
Eyelematic and Echo lease certain vehicles under operating leases. These leases require various monthly payments and expire at various times between 2011 and 2015. Lease expense totaled $72,942 and $102,398 for the years ended December 31, 2010 and 2009, respectively.
Future minimum payments under these operating lease obligations are as follows:
|
2011 |
|
$ |
32,149 |
|
|
2012 |
|
25,720 |
| |
|
2013 |
|
19,924 |
| |
|
2014 |
|
14,326 |
| |
|
2015 |
|
3,359 |
| |
|
|
|
$ |
95,278 |
|
9. CAPITAL LEASE OBLIGATIONS
Eyelematic and Echo have entered into capital lease agreements for equipment. These leases require monthly principal and interest payments, at interest rates ranging from 5.7% to 10.4%. The leases expire at various times between 2012 and 2015.
|
Future minimum lease payments |
|
$ |
130,704 |
|
|
Less: Approximate amount representing interest |
|
(23,168 |
) | |
|
Present value of minimum lease payments |
|
107,536 |
| |
|
Less: Current portion |
|
(32,079 |
) | |
|
Noncurrent portion |
|
$ |
75,457 |
|
The following is an analysis of leased assets included in property, plant and equipment at December 31:
|
|
|
2010 |
|
2009 |
| ||
|
|
|
|
|
|
| ||
|
Machinery and Equipment |
|
$ |
187,255 |
|
$ |
115,900 |
|
|
Furniture and Fixtures |
|
36,345 |
|
— |
| ||
|
Less: Accumulated Amortization |
|
(99,863 |
) |
(86,061 |
) | ||
|
Leased Assets, Net |
|
$ |
123,737 |
|
$ |
29,839 |
|
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
9. CAPITAL LEASE OBLIGATIONS (continued)
The future minimum lease payments are as follows:
|
2011 |
|
$ |
32,079 |
|
|
2012 |
|
32,669 |
| |
|
2013 |
|
15,654 |
| |
|
2014 |
|
15,488 |
| |
|
2015 |
|
11,646 |
| |
|
|
|
$ |
107,536 |
|
10. EMPLOYEE BENEFIT PLAN
Eyelematic and Echo sponsor a savings plan pursuant to Section 401(k) of the Internal Revenue Code. Employees of these companies over the age of 21 with one year of service qualify to make salary deferrals under the plan. The plan allows eligible employees to contribute from 1% to 100% of their compensation on a pretax basis.
Participants’ contributions, up to 10% of compensation, were matched by Eyelematic and Echo through March 31, 2009 at the following rates:
|
|
|
Matching |
|
|
Salary Deferral Percentage |
|
Percentage |
|
|
|
|
|
|
|
Less than or Equal to 2% |
|
100 |
% |
|
Greater than 2% and Less than or Equal to 6% |
|
50 |
% |
|
Greater than 6% and Less than or Equal to 10% |
|
25 |
% |
|
Greater than 10% |
|
0 |
% |
Total matching contributions made by Eyelematic and Echo for the year ended December 31, 2009 were $89,030.
Eyelematic and Echo may also contribute additional discretionary contributions as determined by the Board of Directors. There were no such contributions for the years ended December 31, 2010 and 2009.
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
11. LOANS TO EMPLOYEES
Eyelematic is a participant in the Connecticut Employer Assisted Housing Tax Credit Program (the Program). Eyelematic has made company funds available to employees through low interest loans for the purchase or rental of their primary residence. The total amounts approved by the State of Connecticut under the Program are $250,000. Employees sign promissory notes for all obligations under the Program and repay the balance through payroll withdrawals. For participating in the Program, Eyelematic receives tax credits from the State of Connecticut. At December 31, 2010 and 2009, there was $5,242 and $23,232, respectively, due from employees under this program which is included in other assets on the accompanying balance sheets.
12. RELATED PARTY TRANSACTIONS
Eyelematic and Echo lease their operating facilities in both Watertown and Waterbury from Seemar on a month-to-month basis. Rental income and expenses of $438,384 and $618,042 for the years ended December 31, 2010 and 2009, respectively, have been eliminated in these combined financial statements. At December 31, 2010 and 2009 there was $79,706 and $-0-, respectively, due to Seemar from Echo. At December 31, 2010 and 2009, there were no balances due to Seemar from Eyelematic.
Echo sells all of its production to Eyelematic. Total sales between the two companies were $18,337,977 and $21,982,361 for the years ended December 31, 2010 and 2009, respectively. At December 31, 2010 and 2009, Eyelematic had a payable to Echo for $339,097 and $2,339,185, respectively.
In February 2006, Seemar borrowed $2,200,000 from the members of Seemar. Principal on this mortgage is to be paid in the amount of $10,000 per month plus interest computed at the prime rate published by the Wall Street Journal plus 2%. There will be a balloon payment for the remaining outstanding balance in February 2016. The mortgage is secured by real estate in Watertown and Waterbury, Connecticut, and a security interest on all equipment, furniture and fixtures.
Maturities of long-term debt as of December 31, 2010 are:
|
2011 |
|
$ |
120,000 |
|
|
2012 |
|
120,000 |
| |
|
2013 |
|
120,000 |
| |
|
2014 |
|
120,000 |
| |
|
2015 |
|
120,000 |
| |
|
2016 |
|
1,020,000 |
| |
|
Total |
|
$ |
1,620,000 |
|
Eyelematic and Echo have amounts payable to related parties under lines of credit. See Note 7 for further details.
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
13. COMMON STOCK
A summary of common stock as of December 31, 2010 and 2009 is as follows:
|
|
|
Eyelematic |
|
Eyelematic |
|
|
|
|
|
|
|
|
| ||||||
|
|
|
Class A- |
|
Class B- |
|
Total |
|
|
|
|
|
|
| ||||||
|
|
|
Voting |
|
Non-Voting |
|
Eyelematic |
|
Echo |
|
Workforce |
|
Combined |
| ||||||
|
Total Value |
|
$ |
7,680 |
|
$ |
69,130 |
|
$ |
76,810 |
|
$ |
1,000 |
|
$ |
1,000 |
|
$ |
78,810 |
|
|
Stated Value Per Share |
|
$ |
10 |
|
$ |
10 |
|
N/A |
|
$ |
10 |
|
$ |
10 |
|
N/A |
| ||
|
Authorized Shares |
|
1,000 |
|
9,000 |
|
10,000 |
|
100 |
|
100 |
|
10,200 |
| ||||||
|
Shares Issued |
|
768 |
|
6,913 |
|
7,681 |
|
100 |
|
100 |
|
7,881 |
| ||||||
|
Shares Outstanding |
|
768 |
|
6,008 |
|
6,776 |
|
100 |
|
100 |
|
6,976 |
| ||||||
In December 2004, Eyelematic purchased 905 Class B non-voting shares as treasury stock for approximately $2,000 per share.
14. INCOME TAXES
The Company accounts for income taxes in accordance with FASB ASC 740 whereby deferred taxes are provided on temporary differences arising from assets and liabilities whose bases are different for financial reporting and income tax purposes. Deferred taxes relate to differences in calculating depreciation on property and equipment, inventory and accounts receivable reserves, tax loss and state tax credit carryforwards.
Deferred income tax balances consist of the following at December 31:
|
|
|
2010 |
| |||||||
|
|
|
Current |
|
Non-Current |
|
Total |
| |||
|
Utilization of Loss Carryforwards |
|
$ |
318,148 |
|
$ |
231,852 |
|
$ |
550,000 |
|
|
Other |
|
100,000 |
|
— |
|
100,000 |
| |||
|
|
|
$ |
418,148 |
|
$ |
231,852 |
|
$ |
650,000 |
|
|
|
|
2009 |
| |||||||
|
|
|
Current |
|
Non-Current |
|
Total |
| |||
|
Utilization of Loss Carryforwards |
|
$ |
110,795 |
|
$ |
975,329 |
|
$ |
1,086,124 |
|
|
Other |
|
(20,795 |
) |
(89,790 |
) |
(110,585 |
) | |||
|
|
|
$ |
90,000 |
|
$ |
885,539 |
|
$ |
975,539 |
|
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
14. INCOME TAXES (continued)
Income tax provision (recovery) consists of the following for the years ended December 31:
|
|
|
2010 |
| |||||||
|
|
|
Current |
|
Non -Current |
|
Total |
| |||
|
|
|
|
|
|
|
|
| |||
|
Income Tax Expense: |
|
|
|
|
|
|
| |||
|
Federal |
|
$ |
25,499 |
|
$ |
— |
|
$ |
25,499 |
|
|
State |
|
12,216 |
|
— |
|
12,216 |
| |||
|
|
|
37,715 |
|
— |
|
37,715 |
| |||
|
Change in Deferred Tax Asset: |
|
|
|
|
|
|
| |||
|
Utilization of Loss Carryforwards |
|
244,767 |
|
— |
|
244,767 |
| |||
|
Other |
|
68,192 |
|
— |
|
68,192 |
| |||
|
|
|
312,959 |
|
— |
|
312,959 |
| |||
|
Total Income Tax Provision (Recovery) |
|
$ |
350,674 |
|
$ |
— |
|
$ |
350,674 |
|
|
|
|
2009 |
| |||||||
|
|
|
Current |
|
Non-Current |
|
Total |
| |||
|
Income Tax Expense: |
|
|
|
|
|
|
| |||
|
Federal |
|
$ |
— |
|
$ |
— |
|
$ |
— |
|
|
State |
|
34,000 |
|
— |
|
34,000 |
| |||
|
|
|
34,000 |
|
— |
|
34,000 |
| |||
|
Change in Deferred Tax Asset: |
|
|
|
|
|
|
| |||
|
Utilizaton of Loss Carryforwards |
|
— |
|
— |
|
— |
| |||
|
Other |
|
(10,300 |
) |
(648,294 |
) |
(658,594 |
) | |||
|
|
|
(10,300 |
) |
(648,294 |
) |
(658,594 |
) | |||
|
Total Income Tax Provision (Recovery) |
|
$ |
23,700 |
|
$ |
(648,294 |
) |
$ |
(624,594 |
) |
In the years ended December 31, 2010 and 2009, Eyelematic received income tax benefits from various tax credits in the amounts of $26,722 and $10,200, respectively, which reduce Eyelematic’s state income tax liability. Eyelematic has a state net operating loss carry forward of $950,059 which expires December 31, 2019.
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
14. INCOME TAXES (continued)
Eyelematic also has state income tax credits, which can be used to offset future state income, as follows:
|
|
|
State Income Tax Credits |
| |||||||
|
|
|
|
|
Electronic |
|
|
| |||
|
|
|
Fixed |
|
Data |
|
|
| |||
|
|
|
Capital |
|
Processing |
|
|
| |||
|
|
|
Investment Credit |
|
Equipment |
|
|
| |||
|
|
|
(FCIC) |
|
(EDP) |
|
Total |
| |||
|
Expires in Year Ended December 31: |
|
|
|
|
|
|
| |||
|
2011 |
|
$ |
1,993 |
|
$ |
1,050 |
|
$ |
3,043 |
|
|
2012 |
|
58,605 |
|
3,285 |
|
61,890 |
| |||
|
2013 |
|
16,313 |
|
1,280 |
|
17,593 |
| |||
|
2014 |
|
4,592 |
|
652 |
|
5,244 |
| |||
|
2015 |
|
3,611 |
|
479 |
|
4,090 |
| |||
|
|
|
$ |
85,114 |
|
$ |
6,746 |
|
$ |
91,860 |
|
Eyelematic has a federal net operating loss carryforward of $1,449,292 which expires December 31, 2029. Eyelematic also had a federal contribution carryforward of $21,445, which does not expire.
The effective rate on the income before taxes was less than the federal statutory tax rate. In 2010, the taxpaying entity in the combined statements had income which was reduced by differences in depreciation and uniform capitalization of inventory and net operating losses carried forward.
15. FINANCIAL INSTRUMENTS
The Companies’ operations involve managing market risks related to changes in interest and dividend rates. The Companies do not currently hold or issue financial instruments for trading purposes.
Based on the borrowing rates currently available to the Companies for bank loans with similar terms and average maturities, the fair value of the long-term debt approximates the carrying value recorded on the combined balance sheet at December 31, 2010 and 2009.See Note 12 for description of collateral on long term debt.
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
NOTES TO THE COMBINED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
16. CONCENTRATIONS OF CREDIT RISK
The companies maintain cash balances in commercial banks and brokerage money market accounts where at times the balances may exceed the FDIC insurance coverage levels. As of December 31, 2010, the Companies cash balances that were uninsured by the FDIC were $534,643.
Two customers accounted for 53% of net sales for the year ended December 31, 2010. Accounts receivable from these customers aggregated $1,561,661 at December 31, 2010.
Two customers accounted for 62% of net sales for the year ended December 31, 2009. Accounts receivable from these customers aggregated $2,248,985 at December 31, 2009.
17. SUPPLEMENTAL DISCLOSURES OF STATEMENT OF CASH FLOWS
Pursuant to the FASB ASC 230 supplemental disclosures are required for cash disbursed for income taxes and interest, as well as noncash transactions. During the years ended December 31, 2010 and 2009, $10,716 and $-0- was disbursed for income taxes, respectively and $305,693 and $184,526 was disbursed for interest, respectively.
Noncash financing transactions during the year ended December 31, 2010 include $107,700 of equipment purchased under capital leases. There were no noncash transactions during the year ended December 31, 2009.
18. PRIOR PERIOD ADJUSTMENT
During the year ended December 31, 2010, Echo and Eyelematic undertook an extensive evaluation of their inventory as part of a systems upgrade. During this process, it came to their attention that certain inventory items were costed incorrectly and obsolete inventory was understated. This resulted in a decrease of $1,494,395 to December 31, 2009 beginning retained earnings, a decrease of $88,113 to net (loss) for the year ended December 31, 2009, and a decrease of $1,582,508 to December 31, 2009 ending inventory.
19. SUBSEQUENT EVENT
On February 8, 2011 Workforce One’s corporate dissolution was approved by the State of Connecticut.
SCHEDULE I
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING BALANCE SHEET
DECEMBER 31, 2010
ASSETS
|
|
|
Eyelematic |
|
Echo Mfg. |
|
Workforce |
|
Seemar |
|
Combining |
|
|
| ||||||
|
|
|
Mfg., Inc. |
|
Inc. |
|
One, Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| ||||||
|
CURRENT ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Cash and Cash Equivalents |
|
$ |
554,094 |
|
$ |
179,306 |
|
$ |
13,720 |
|
$ |
132,446 |
|
$ |
— |
|
$ |
879,566 |
|
|
Accounts Receivable, net |
|
3,114,626 |
|
339,097 |
|
— |
|
79,706 |
|
(418,803 |
) |
3,114,626 |
| ||||||
|
Inventories, net |
|
6,008,194 |
|
763,409 |
|
— |
|
— |
|
— |
|
6,771,603 |
| ||||||
|
Deferred Tax Assets |
|
418,148 |
|
— |
|
— |
|
— |
|
— |
|
418,148 |
| ||||||
|
Prepaid Expenses |
|
113,170 |
|
118,539 |
|
— |
|
— |
|
— |
|
231,709 |
| ||||||
|
Total Current Assets |
|
10,208,232 |
|
1,400,351 |
|
13,720 |
|
212,152 |
|
(418,803 |
) |
11,415,652 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
PROPERTY, PLANT AND EQUIPMENT, net |
|
2,504,858 |
|
7,432,585 |
|
— |
|
1,562,814 |
|
— |
|
11,500,257 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
OTHER ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Deferred Tax Assets |
|
231,852 |
|
— |
|
— |
|
— |
|
— |
|
231,852 |
| ||||||
|
Other Assets |
|
85,030 |
|
— |
|
— |
|
— |
|
— |
|
85,030 |
| ||||||
|
Loan Origination Costs, Net |
|
41,142 |
|
— |
|
— |
|
— |
|
— |
|
41,142 |
| ||||||
|
Total Other Assets |
|
358,024 |
|
— |
|
— |
|
— |
|
— |
|
358,024 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
TOTAL ASSETS |
|
$ |
13,071,114 |
|
$ |
8,832,936 |
|
$ |
13,720 |
|
$ |
1,774,966 |
|
$ |
(418,803 |
) |
$ |
23,273,933 |
|
(continued)
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING BALANCE SHEET
DECEMBER 31, 2010
LIABILITIES AND EQUITY
|
|
|
Eyelematic |
|
Echo Mfg. |
|
Workforce |
|
Seemar |
|
Combining |
|
|
| ||||||
|
|
|
Mfg., Inc. |
|
Inc. |
|
One, Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| ||||||
|
CURRENT LIABILITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Advances Payable |
|
$ |
— |
|
$ |
10,000 |
|
$ |
— |
|
$ |
— |
|
$ |
— |
|
$ |
10,000 |
|
|
Capital Lease Obligations |
|
11,969 |
|
20,110 |
|
— |
|
— |
|
— |
|
32,079 |
| ||||||
|
Accounts Payable |
|
1,760,618 |
|
1,213,560 |
|
— |
|
— |
|
(418,803 |
) |
2,555,375 |
| ||||||
|
Accrued Taxes and Expenses |
|
33,038 |
|
69,350 |
|
1,500 |
|
— |
|
— |
|
103,888 |
| ||||||
|
Related Party Mortgage Payable |
|
— |
|
— |
|
— |
|
120,000 |
|
— |
|
120,000 |
| ||||||
|
Total Current Liabilities |
|
1,805,625 |
|
1,313,020 |
|
1,500 |
|
120,000 |
|
(418,803 |
) |
2,821,342 |
| ||||||
|
LONG-TERM LIABILITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Advances Payable, Less Current Portion |
|
— |
|
1,249,384 |
|
— |
|
— |
|
— |
|
1,249,384 |
| ||||||
|
Capital Lease Obligations, Less Current Portion |
|
14,439 |
|
61,018 |
|
— |
|
— |
|
— |
|
75,457 |
| ||||||
|
Related Party Line of Credit |
|
960,439 |
|
1,471,160 |
|
— |
|
— |
|
— |
|
2,431,599 |
| ||||||
|
Related Party Mortgage Payable, Less Current Portion |
|
— |
|
— |
|
— |
|
1,500,000 |
|
— |
|
1,500,000 |
| ||||||
|
Total Long-Term Liabilities |
|
974,878 |
|
2,781,562 |
|
— |
|
1,500,000 |
|
— |
|
5,256,440 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
TOTAL LIABILITIES |
|
2,780,503 |
|
4,094,582 |
|
1,500 |
|
1,620,000 |
|
(418,803 |
) |
8,077,782 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
EQUITY |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Common Stock |
|
76,810 |
|
1,000 |
|
1,000 |
|
— |
|
— |
|
78,810 |
| ||||||
|
Additional Paid-in Capital |
|
1,190 |
|
199,000 |
|
— |
|
— |
|
— |
|
200,190 |
| ||||||
|
Members’ Equity |
|
— |
|
— |
|
— |
|
154,966 |
|
— |
|
154,966 |
| ||||||
|
Retained Earnings |
|
12,022,187 |
|
4,538,354 |
|
11,220 |
|
— |
|
— |
|
16,571,761 |
| ||||||
|
|
|
12,100,187 |
|
4,738,354 |
|
12,220 |
|
154,966 |
|
— |
|
17,005,727 |
| ||||||
|
Less: Treasury Stock |
|
(1,809,576 |
) |
— |
|
— |
|
— |
|
— |
|
(1,809,576 |
) | ||||||
|
Total Equity |
|
10,290,611 |
|
4,738,354 |
|
12,220 |
|
154,966 |
|
— |
|
15,196,151 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
TOTAL LIABILITIES AND EQUITY |
|
$ |
13,071,114 |
|
$ |
8,832,936 |
|
$ |
13,720 |
|
$ |
1,774,966 |
|
$ |
(418,803 |
) |
$ |
23,273,933 |
|
(continued)
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING BALANCE SHEET
DECEMBER 31, 2009
ASSETS
|
|
|
Eyelematic |
|
Echo Mfg. |
|
|
|
|
|
|
|
|
| ||||||
|
|
|
Mfg., Inc. - |
|
Inc. - |
|
Workforce |
|
Seemar |
|
Combining |
|
Combined - |
| ||||||
|
|
|
Restated |
|
Restated |
|
One, Inc. |
|
R.E., LLC |
|
Entries |
|
Restated |
| ||||||
|
CURRENT ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Cash and Cash Equivalents |
|
$ |
1,021,264 |
|
$ |
392,412 |
|
$ |
13,720 |
|
$ |
27,112 |
|
$ |
— |
|
$ |
1,454,508 |
|
|
Accounts Receivable, net |
|
4,055,619 |
|
2,339,185 |
|
250 |
|
— |
|
(2,339,185 |
) |
4,055,869 |
| ||||||
|
Inventories, net |
|
6,165,929 |
|
709,752 |
|
— |
|
— |
|
— |
|
6,875,681 |
| ||||||
|
Deferred Tax Assets |
|
90,000 |
|
— |
|
— |
|
— |
|
— |
|
90,000 |
| ||||||
|
Prepaid Expenses |
|
86,450 |
|
86,821 |
|
— |
|
— |
|
— |
|
173,271 |
| ||||||
|
Total Current Assets |
|
11,419,262 |
|
3,528,170 |
|
13,970 |
|
27,112 |
|
(2,339,185 |
) |
12,649,329 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
PROPERTY, PLANT AND EQUIPMENT, net |
|
2,607,285 |
|
6,968,358 |
|
— |
|
1,667,727 |
|
— |
|
11,243,370 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
OTHER ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Deferred Tax Assets |
|
885,539 |
|
— |
|
— |
|
— |
|
— |
|
885,539 |
| ||||||
|
Other Assets |
|
98,769 |
|
30,272 |
|
— |
|
— |
|
— |
|
129,041 |
| ||||||
|
Total Other Assets |
|
984,308 |
|
30,272 |
|
— |
|
— |
|
— |
|
1,014,580 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
TOTAL ASSETS |
|
$ |
15,010,855 |
|
$ |
10,526,800 |
|
$ |
13,970 |
|
$ |
1,694,839 |
|
$ |
(2,339,185 |
) |
$ |
24,907,279 |
|
(continued)
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING BALANCE SHEET
DECEMBER 31, 2009
LIABILITIES AND EQUITY
|
|
|
Eyelematic |
|
Echo Mfg. |
|
|
|
|
|
|
|
|
| ||||||
|
|
|
Mfg., Inc. - |
|
Inc. - |
|
Workforce |
|
Seemar |
|
Combining |
|
Combined - |
| ||||||
|
|
|
Restated |
|
Restated |
|
One, Inc. |
|
R.E., LLC |
|
Entries |
|
Restated |
| ||||||
|
CURRENT LIABILITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Bank Lines of Credit |
|
$ |
2,131,922 |
|
$ |
1,075,839 |
|
$ |
— |
|
$ |
— |
|
$ |
— |
|
$ |
3,207,761 |
|
|
Advances Payable |
|
— |
|
10,000 |
|
— |
|
— |
|
— |
|
10,000 |
| ||||||
|
Capital Lease Obligations |
|
6,224 |
|
7,026 |
|
— |
|
— |
|
— |
|
13,250 |
| ||||||
|
Accounts Payable |
|
4,539,007 |
|
1,156,713 |
|
— |
|
— |
|
(2,339,185 |
) |
3,356,535 |
| ||||||
|
Accrued Taxes and Expenses |
|
107,150 |
|
122,085 |
|
1,500 |
|
— |
|
— |
|
230,735 |
| ||||||
|
Related Party Mortgage Payable |
|
— |
|
— |
|
— |
|
120,000 |
|
— |
|
120,000 |
| ||||||
|
Total Current Liabilities |
|
6,784,303 |
|
2,371,663 |
|
1,500 |
|
120,000 |
|
(2,339,185 |
) |
6,938,281 |
| ||||||
|
LONG-TERM LIABILITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Advances Payable, Less Current Portion |
|
— |
|
1,249,384 |
|
— |
|
— |
|
— |
|
1,249,384 |
| ||||||
|
Capital Lease Obligations, Less Current Portion |
|
— |
|
13,290 |
|
— |
|
— |
|
— |
|
13,290 |
| ||||||
|
Related Party Line of Credit |
|
— |
|
1,910,684 |
|
— |
|
— |
|
— |
|
1,910,684 |
| ||||||
|
Related Party Mortgage Payable, Less Current Portion |
|
— |
|
— |
|
— |
|
1,645,000 |
|
— |
|
1,645,000 |
| ||||||
|
Total Long-Term Liabilities |
|
— |
|
3,173,358 |
|
— |
|
1,645,000 |
|
— |
|
4,818,358 |
| ||||||
|
TOTAL LIABILITIES |
|
6,784,303 |
|
5,545,021 |
|
1,500 |
|
1,765,000 |
|
(2,339,185 |
) |
11,756,639 |
| ||||||
|
EQUITY |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Common Stock |
|
76,810 |
|
1,000 |
|
1,000 |
|
— |
|
— |
|
78,810 |
| ||||||
|
Additional Paid-in Capital |
|
1,190 |
|
199,000 |
|
— |
|
— |
|
— |
|
200,190 |
| ||||||
|
Members’ Equity |
|
— |
|
— |
|
— |
|
(70,161 |
) |
— |
|
(70,161 |
) | ||||||
|
Retained Earnings |
|
9,958,128 |
|
4,781,779 |
|
11,470 |
|
— |
|
— |
|
14,751,377 |
| ||||||
|
|
|
10,036.128 |
|
4,981,779 |
|
12,470 |
|
(70,161 |
) |
— |
|
14,960,216 |
| ||||||
|
Less: Treasury Stock |
|
(1,809,576 |
) |
— |
|
— |
|
— |
|
— |
|
(1,809,576 |
) | ||||||
|
Total Equity |
|
8,226,552 |
|
4,981,779 |
|
12,470 |
|
(70,161 |
) |
— |
|
13,150,640 |
| ||||||
|
TOTAL LIABILITIES AND EQUITY |
|
$ |
15,010,855 |
|
$ |
10,526,800 |
|
$ |
13,970 |
|
$ |
1,694,839 |
|
$ |
(2,339,185 |
) |
$ |
24,907,279 |
|
See accountant’s review report
SCHEDULE II
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING STATEMENT OF INCOME (LOSS)
FOR THE YEAR ENDED DECEMBER 31, 2010
|
|
|
Eyelematic |
|
Echo Mfg. |
|
Workforce |
|
Seemar |
|
Combining |
|
|
| ||||||
|
|
|
Mfg., Inc. |
|
Inc. |
|
One, Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| ||||||
|
NET SALES |
|
$ |
40,463,323 |
|
$ |
18,337,977 |
|
$ |
— |
|
$ |
438,384 |
|
$ |
(18,776,361 |
) |
$ |
40,463,323 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
COST OF SALES |
|
36,180,191 |
|
17,944,862 |
|
— |
|
— |
|
(18,732,523 |
) |
35,392,530 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
GROSS PROFIT |
|
4,283,132 |
|
393,115 |
|
— |
|
438,384 |
|
(43,838 |
) |
5,070,793 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES |
|
1,783,324 |
|
511,376 |
|
250 |
|
106,058 |
|
(43,838 |
) |
2,357,170 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
OPERATING INCOME (LOSS) |
|
2,499,808 |
|
(118,261 |
) |
(250 |
) |
332,326 |
|
— |
|
2,713,623 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
OTHER INCOME (EXPENSE) |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Interest Expense |
|
(89,981 |
) |
(125,431 |
) |
— |
|
(107,209 |
) |
— |
|
(322,621 |
) | ||||||
|
Investment Income |
|
227 |
|
24 |
|
— |
|
10 |
|
— |
|
261 |
| ||||||
|
Other Income |
|
4,679 |
|
243 |
|
— |
|
— |
|
— |
|
4,922 |
| ||||||
|
Total Other (Expense) |
|
(85,075 |
) |
(125,164 |
) |
— |
|
(107,199 |
) |
— |
|
(317,438 |
) | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
INCOME (LOSS) BEFORE PROVISION FOR INCOME TAXES |
|
2,414,733 |
|
(243,425 |
) |
(250 |
) |
225,127 |
|
— |
|
2,396,185 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
PROVISION FOR INCOME TAXES |
|
350,674 |
|
— |
|
— |
|
— |
|
— |
|
350,674 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
NET INCOME (LOSS) |
|
$ |
2,064,059 |
|
$ |
(243,425 |
) |
$ |
(250 |
) |
$ |
225,127 |
|
$ |
— |
|
$ |
2,045,511 |
|
(continued)
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING STATEMENT OF INCOME (LOSS)
FOR THE YEAR ENDED DECEMBER 31, 2009
|
|
|
Eyelematic |
|
|
|
|
|
|
|
|
|
|
| ||||||
|
|
|
Mfg., Inc. - |
|
Echo Mfg. |
|
Workforce |
|
Seemar |
|
Combining |
|
Combined - |
| ||||||
|
|
|
Restated |
|
Inc. |
|
One, Inc. |
|
R.E., LLC |
|
Entries |
|
Restated |
| ||||||
|
NET SALES |
|
$ |
40,178,700 |
|
$ |
21,982,361 |
|
$ |
— |
|
$ |
699,975 |
|
$ |
(22,600,403 |
) |
$ |
40,260,633 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
COST OF SALES |
|
40,123,114 |
|
20,730,337 |
|
— |
|
— |
|
(22,504,746 |
) |
38,348,705 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
GROSS PROFIT |
|
55,586 |
|
1,252,024 |
|
— |
|
699,975 |
|
(95,657 |
) |
1,911,928 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES |
|
3,139,869 |
|
689,148 |
|
525 |
|
106,296 |
|
(95,657 |
) |
3,840,181 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
OPERATING INCOME (LOSS) |
|
(3,084,283 |
) |
562,876 |
|
(525 |
) |
593,679 |
|
— |
|
(1,928,253 |
) | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
OTHER INCOME (EXPENSE) |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Interest Expense |
|
(57,080 |
) |
(127,975 |
) |
— |
|
(76,582 |
) |
— |
|
(261,637 |
) | ||||||
|
Investment Income (Loss) |
|
(58,725 |
) |
(184,666 |
) |
— |
|
8 |
|
— |
|
(243,383 |
) | ||||||
|
Other Income |
|
23,915 |
|
1,366 |
|
3,698 |
|
— |
|
— |
|
28,979 |
| ||||||
|
Total Other Income (Expense) |
|
(91,890 |
) |
(311,275 |
) |
3,698 |
|
(76,574 |
) |
— |
|
(476,041 |
) | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
INCOME (LOSS) BEFORE (RECOVERY OF) INCOME TAXES |
|
(3,176,173 |
) |
251,601 |
|
3,173 |
|
517,105 |
|
— |
|
(2,404,294 |
) | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
(RECOVERY OF) INCOME TAXES |
|
(624,594 |
) |
— |
|
— |
|
— |
|
— |
|
(624,594 |
) | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
NET INCOME (LOSS) |
|
$ |
(2,551,579 |
) |
$ |
251,601 |
|
$ |
3,173 |
|
$ |
517,105 |
|
$ |
— |
|
$ |
(1,779,700 |
) |
See accountant’s review report
SCHEDULE III
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING STATEMENTS OF CHANGES IN EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2010 AND 2009
|
|
|
|
|
Eyelematic |
|
Echo |
|
|
|
Eyelematic |
|
Echo |
|
|
|
Eyelematic |
|
Echo |
|
|
|
Total |
| |||||||||||
|
|
|
Common |
|
Additional |
|
Additional |
|
Seemar |
|
Retained |
|
Retained |
|
Workforce |
|
Other |
|
Other |
|
Eyelematic |
|
Combined |
| |||||||||||
|
|
|
Stock- |
|
Paid-in |
|
Paid-in |
|
Members’ |
|
Earnings - |
|
Earnings - |
|
Retained |
|
Comprehensive |
|
Comprehensive |
|
Treasury |
|
Equity - |
| |||||||||||
|
|
|
See Note 13 |
|
Capital |
|
Capital |
|
Equity |
|
Restated |
|
Restated |
|
Earnings |
|
Income (Loss) |
|
Income (Loss) |
|
Stock |
|
Restated |
| |||||||||||
|
Total Equity December 31, 2008 |
|
$ |
78,810 |
|
$ |
1,190 |
|
$ |
199,000 |
|
$ |
52,734 |
|
$ |
12,509,707 |
|
$ |
4,530,178 |
|
$ |
8,297 |
|
$ |
(117,127 |
) |
$ |
(208,318 |
) |
$ |
(1,809,576 |
) |
$ |
15,244,895 |
|
|
Distributions and Dividends |
|
— |
|
— |
|
— |
|
(640,000 |
) |
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
(640,000 |
) | |||||||||||
|
Realized Losses Recognized During the Year on Available for Sale Investments (Net of Tax) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
117,127 |
|
208,318 |
|
— |
|
325,445 |
| |||||||||||
|
Net Income (Loss) |
|
— |
|
— |
|
— |
|
517,105 |
|
(2,551,579 |
) |
251,601 |
|
3,173 |
|
— |
|
— |
|
— |
|
(1,779,700 |
) | |||||||||||
|
Total Equity December 31, 2009 |
|
78,810 |
|
1,190 |
|
199,000 |
|
(70,161 |
) |
9,958,128 |
|
4,781,779 |
|
11,470 |
|
— |
|
— |
|
(1,809,576 |
) |
13,150,640 |
| |||||||||||
|
Net Income (Loss) |
|
— |
|
— |
|
— |
|
225,127 |
|
2,064,059 |
|
(243,425 |
) |
(250 |
) |
— |
|
— |
|
— |
|
2,045,511 |
| |||||||||||
|
Total Equity December 31, 2010 |
|
$ |
78,810 |
|
$ |
1,190 |
|
$ |
199,000 |
|
$ |
154,966 |
|
$ |
12,022,187 |
|
$ |
4,538,354 |
|
$ |
11,220 |
|
$ |
— |
|
$ |
— |
|
$ |
(1,809,576 |
) |
$ |
15,196,151 |
|
See accountant’s review report
SCHEDULE IV
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 2010
|
|
|
Eyelematic |
|
Echo |
|
Workforce |
|
Seemar |
|
Combining |
|
|
| ||||||
|
|
|
Mfg., Inc. |
|
Mfg., Inc. |
|
One, Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| ||||||
|
CASH FLOWS FROM OPERATING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Net Income (Loss) |
|
$ |
2,064,059 |
|
$ |
(243,425 |
) |
$ |
(250 |
) |
$ |
225,127 |
|
$ |
— |
|
$ |
2,045,511 |
|
|
Adjustments to Reconcile Net Income (Loss) to Net Cash Provided by Operating Activities: |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Depreciation and Amortization |
|
425,480 |
|
1,072,340 |
|
— |
|
104,913 |
|
— |
|
1,602,733 |
| ||||||
|
Deferred Tax Provision |
|
325,539 |
|
— |
|
— |
|
— |
|
— |
|
325,539 |
| ||||||
|
Change in Inventory Reserve |
|
1,310 |
|
— |
|
— |
|
— |
|
— |
|
1,310 |
| ||||||
|
Changes in Assets and Liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
(Increase) Decrease in Accounts Receivable, net |
|
940,993 |
|
2,000,088 |
|
250 |
|
(79,706 |
) |
(1,920,382 |
) |
941,243 |
| ||||||
|
(Increase) Decrease in Inventories, net |
|
156,425 |
|
(53,657 |
) |
— |
|
— |
|
— |
|
102,768 |
| ||||||
|
(Increase) in Prepaid Expenses |
|
(26,720 |
) |
(31,718 |
) |
— |
|
— |
|
— |
|
(58,438 |
) | ||||||
|
Decrease in Other Assets |
|
13,739 |
|
30,272 |
|
— |
|
— |
|
— |
|
44,011 |
| ||||||
|
Increase (Decrease) in Accounts Payable |
|
(2,778,389 |
) |
56,847 |
|
— |
|
— |
|
1,920,382 |
|
(801,160 |
) | ||||||
|
(Decrease) in Accrued Taxes and Expenses |
|
(74,112 |
) |
(52,735 |
) |
— |
|
— |
|
— |
|
(126,847 |
) | ||||||
|
Net Cash Provided by Operating Activities |
|
1,048,324 |
|
2,778,012 |
|
— |
|
250,334 |
|
— |
|
4,076,670 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
CASH FLOWS FROM INVESTING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Purchase of Property, Plant and Equipment |
|
(210,720 |
) |
(1,239,454 |
) |
— |
|
— |
|
— |
|
(1,450,174 |
) | ||||||
|
(Increase) in Deposits on Equipment |
|
(73,823 |
) |
(225,758 |
) |
— |
|
— |
|
— |
|
(299,581 |
) | ||||||
|
(Increase) in Loan Origination Costs |
|
(43,307 |
) |
— |
|
— |
|
— |
|
— |
|
(43,307 |
) | ||||||
|
Net Cash (Used) by Investing Activities |
|
(327,850 |
) |
(1,465,212 |
) |
— |
|
— |
|
— |
|
(1,793,062 |
) | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
CASH FLOWS FROM FINANCING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
(Repayment of) Bank Lines of Credit, net |
|
(2,131,922 |
) |
(1,075,839 |
) |
— |
|
— |
|
— |
|
(3,207,761 |
) | ||||||
|
(Repayment of) Capital Lease Obligations |
|
(16,161 |
) |
(10,543 |
) |
— |
|
— |
|
— |
|
(26,704 |
) | ||||||
|
Proceeds from (Repayment of) Related Party Line of Credit |
|
960,439 |
|
(439,524 |
) |
— |
|
— |
|
— |
|
520,915 |
| ||||||
|
(Repayment of) Related Party Mortgage Payable |
|
— |
|
— |
|
— |
|
(145,000 |
) |
— |
|
(145,000 |
) | ||||||
|
Net Cash (Used) by Financing Activities |
|
(1,187,644 |
) |
(1,525,906 |
) |
— |
|
(145,000 |
) |
— |
|
(2,858,550 |
) | ||||||
|
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS |
|
(467,170 |
) |
(213,106 |
) |
— |
|
105,334 |
|
— |
|
(574,942 |
) | ||||||
|
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR |
|
1,021,264 |
|
392,412 |
|
13,720 |
|
27,112 |
|
— |
|
1,454,508 |
| ||||||
|
CASH AND CASH EQUIVALENTS, END OF YEAR |
|
$ |
554,094 |
|
$ |
179,306 |
|
$ |
13,720 |
|
$ |
132,446 |
|
$ |
— |
|
$ |
879,566 |
|
(continued)
(continued)
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 2009
|
|
|
Eyelematic |
|
|
|
|
|
|
|
|
|
|
| ||||||
|
|
|
Mfg., Inc. - |
|
Echo |
|
Workforce |
|
Seemar |
|
Combining |
|
Combined - |
| ||||||
|
|
|
Restated |
|
Mfg., Inc. |
|
One, Inc. |
|
R.E., LLC |
|
Entries |
|
Restated |
| ||||||
|
CASH FLOWS FROM OPERATING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Net Income (Loss) |
|
$ |
(2,551,579 |
) |
$ |
251,601 |
|
$ |
3,173 |
|
$ |
517,105 |
|
$ |
— |
|
$ |
(1,779,700 |
) |
|
Adjustments to Reconcile Net Income (Loss) to Net Cash Provided (Used) by Operating Activities: |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Depreciation and Amortization |
|
619,419 |
|
1,138,121 |
|
— |
|
104,913 |
|
— |
|
1,862,453 |
| ||||||
|
Deferred Tax Provision |
|
(669,479 |
) |
— |
|
— |
|
— |
|
— |
|
(669,479 |
) | ||||||
|
Realized Losses on Investments |
|
59,702 |
|
190,382 |
|
— |
|
— |
|
— |
|
250,084 |
| ||||||
|
Change in Inventory Reserve |
|
(167,658 |
) |
— |
|
— |
|
— |
|
— |
|
(167,658 |
) | ||||||
|
Changes in Assets and Liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
(Increase) Decrease in Accounts Receivable, net |
|
2,166,756 |
|
407,505 |
|
(250 |
) |
42,350 |
|
(465,075 |
) |
2,151,286 |
| ||||||
|
(Increase) Decrease in Inventories, net |
|
(457,992 |
) |
30,419 |
|
— |
|
— |
|
— |
|
(427,573 |
) | ||||||
|
(Increase) in Prepaid Expenses |
|
(27,354 |
) |
(57,518 |
) |
— |
|
— |
|
— |
|
(84,872 |
) | ||||||
|
(Increase) Decrease in Other Assets |
|
21,796 |
|
(30,272 |
) |
— |
|
— |
|
— |
|
(8,476 |
) | ||||||
|
Increase in Accounts Payable |
|
614,061 |
|
19,643 |
|
— |
|
— |
|
465,075 |
|
1,098,779 |
| ||||||
|
(Decrease) in Accrued Taxes and Expenses |
|
(76,086 |
) |
(139,024 |
) |
— |
|
— |
|
— |
|
(215,110 |
) | ||||||
|
Net Cash Provided (Used) by Operating Activities |
|
(468,414 |
) |
1,810,857 |
|
2,923 |
|
664,368 |
|
— |
|
2,009,734 |
| ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
CASH FLOWS FROM INVESTING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Purchase of Property, Plant and Equipment |
|
(87,738 |
) |
(3,133,901 |
) |
— |
|
— |
|
— |
|
(3,221,639 |
) | ||||||
|
Decrease in Deposits on Equipment |
|
— |
|
363,070 |
|
— |
|
— |
|
— |
|
363,070 |
| ||||||
|
Proceeds from Sale of Investments |
|
653,048 |
|
545,581 |
|
— |
|
— |
|
— |
|
1,198,629 |
| ||||||
|
Net Cash Provided (Used) by Investing Activities |
|
565,310 |
|
(2,225,250 |
) |
— |
|
— |
|
— |
|
(1,659,940 |
) | ||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
CASH FLOWS FROM FINANCING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||||
|
Proceeds from Bank Lines of Credit, net |
|
931,922 |
|
475,929 |
|
— |
|
— |
|
— |
|
1,407,851 |
| ||||||
|
Repayment of Capital Lease Obligations |
|
(7,554 |
) |
(6,613 |
) |
— |
|
— |
|
— |
|
(14,167 |
) | ||||||
|
Proceeds from Related Party Line of Credit |
|
— |
|
98,808 |
|
— |
|
— |
|
— |
|
98,808 |
| ||||||
|
Repayment of Related Party Mortgage Payable |
|
— |
|
— |
|
— |
|
(95,000 |
) |
— |
|
(95,000 |
) | ||||||
|
Distributions and Dividends |
|
— |
|
— |
|
— |
|
(640,000 |
) |
— |
|
(640,000 |
) | ||||||
|
Net Cash Provided (Used) by Financing Activities |
|
924,368 |
|
568,124 |
|
— |
|
(735,000 |
) |
— |
|
757,492 |
| ||||||
|
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS |
|
1,021,264 |
|
153,731 |
|
2,923 |
|
(70,632 |
) |
— |
|
1,107,286 |
| ||||||
|
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR |
|
— |
|
238,681 |
|
10,797 |
|
97,744 |
|
— |
|
347,222 |
| ||||||
|
CASH AND CASH EQUIVALENTS, END OF YEAR |
|
$ |
1,021,264 |
|
$ |
392,412 |
|
$ |
13,720 |
|
$ |
27,112 |
|
$ |
— |
|
$ |
1,454,508 |
|
See accountant’s review report
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING BALANCE SHEET
JUNE 30, 2011
ASSETS
|
|
|
Eyelematic |
|
Echo Mfg. |
|
Seemar |
|
Combining |
|
|
| |||||
|
|
|
Mfg., Inc. |
|
Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| |||||
|
CURRENT ASSETS |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Cash and Cash Equivalents |
|
$ |
1,242,165 |
|
$ |
503,819 |
|
$ |
151,606 |
|
$ |
— |
|
$ |
1,897,590 |
|
|
Accounts Receivable, net |
|
3,172,744 |
|
456,645 |
|
119,559 |
|
(732,904 |
) |
3,016,044 |
| |||||
|
Inventories, net |
|
5,275,884 |
|
722,850 |
|
— |
|
— |
|
5,998,734 |
| |||||
|
Deferred Tax Assets |
|
414,066 |
|
— |
|
— |
|
— |
|
414,066 |
| |||||
|
Prepaid Expenses |
|
51,198 |
|
34,084 |
|
— |
|
— |
|
85,282 |
| |||||
|
Total Current Assets |
|
10,156,057 |
|
1,717,398 |
|
271,165 |
|
(732,904 |
) |
11,411,716 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
PROPERTY, PLANT AND EQUIPMENT, net |
|
2,338,831 |
|
7,464,346 |
|
1,510,357 |
|
— |
|
11,313,534 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
OTHER ASSETS |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Deferred Tax Assets |
|
193,330 |
|
— |
|
— |
|
— |
|
193,330 |
| |||||
|
Loan Origination Costs, Net |
|
58,851 |
|
— |
|
— |
|
— |
|
58,851 |
| |||||
|
Other Assets |
|
85,036 |
|
— |
|
— |
|
— |
|
85,036 |
| |||||
|
Total Other Assets |
|
337,217 |
|
— |
|
— |
|
— |
|
337,217 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
TOTAL ASSETS |
|
$ |
12,832,105 |
|
$ |
9,181,744 |
|
$ |
1,781,522 |
|
$ |
(732,904 |
) |
$ |
23,062,467 |
|
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING BALANCE SHEET
JUNE 30, 2011
LIABILITIES AND EQUITY
|
|
|
Eyelematic |
|
Echo Mfg. |
|
Seemar |
|
Combining |
|
|
| |||||
|
|
|
Mfg., Inc. |
|
Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| |||||
|
CURRENT LIABILITIES |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Bank Lines of Credit |
|
$ |
— |
|
$ |
500,000 |
|
$ |
— |
|
$ |
— |
|
$ |
500,000 |
|
|
Advances Payable |
|
— |
|
10,000 |
|
— |
|
— |
|
10,000 |
| |||||
|
Capital Lease Obligations |
|
12,603 |
|
20,747 |
|
— |
|
— |
|
33,350 |
| |||||
|
Accounts Payable |
|
1,152,464 |
|
1,326,242 |
|
— |
|
(732,904 |
) |
1,745,802 |
| |||||
|
Accrued Taxes and Expenses |
|
218,675 |
|
336,247 |
|
— |
|
— |
|
554,922 |
| |||||
|
Related Party Mortgage Payable |
|
— |
|
— |
|
120,000 |
|
— |
|
120,000 |
| |||||
|
Total Current Liabilities |
|
1,383,742 |
|
2,193,236 |
|
120,000 |
|
(732,904 |
) |
2,964,074 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
LONG-TERM LIABILITIES |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Advances Payable, Less Current Portion |
|
— |
|
1,249,384 |
|
— |
|
— |
|
1,249,384 |
| |||||
|
Capital Lease Obligations, Less Current Portion |
|
7,975 |
|
50,483 |
|
— |
|
— |
|
58,458 |
| |||||
|
Related Party Line of Credit |
|
985,718 |
|
1,509,878 |
|
— |
|
— |
|
2,495,596 |
| |||||
|
Related Party Mortgage Payable, Less Current Portion |
|
— |
|
— |
|
1,440,000 |
|
— |
|
1,440,000 |
| |||||
|
Total Long-Term Liabilities |
|
993,693 |
|
2,809,745 |
|
1,440,000 |
|
— |
|
5,243,438 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
TOTAL LIABILITIES |
|
2,377,435 |
|
5,002,981 |
|
1,560,000 |
|
(732,904 |
) |
8,207,512 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
EQUITY |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Common Stock |
|
76,810 |
|
1,000 |
|
— |
|
— |
|
77,810 |
| |||||
|
Additional Paid-in Capital |
|
1,190 |
|
199,000 |
|
— |
|
— |
|
200,190 |
| |||||
|
Members’ Equity |
|
— |
|
— |
|
221,522 |
|
— |
|
221,522 |
| |||||
|
Retained Earnings |
|
12,186,246 |
|
3,978,763 |
|
— |
|
— |
|
16,165,009 |
| |||||
|
|
|
12,264,246 |
|
4,178,763 |
|
221,522 |
|
— |
|
16,664,531 |
| |||||
|
Less: Treasury Stock |
|
(1,809,576 |
) |
— |
|
— |
|
— |
|
(1,809,576 |
) | |||||
|
Total Equity |
|
10,454,670 |
|
4,178,763 |
|
221,522 |
|
— |
|
14,854,955 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
TOTAL LIABILITIES AND EQUITY |
|
$ |
12,832,105 |
|
$ |
9,181,744 |
|
$ |
1,781,522 |
|
$ |
(732,904 |
) |
$ |
23,062,467 |
|
SCHEDULE II
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING STATEMENT OF INCOME
FOR THE SIX MONTHS ENDED JUNE 30, 2011
|
|
|
Eyelematic |
|
Echo Mfg. |
|
Seemar |
|
Combining |
|
|
| |||||
|
|
|
Mfg., Inc. |
|
Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
NET SALES |
|
$ |
13,559,823 |
|
$ |
6,324,560 |
|
$ |
161,909 |
|
$ |
(6,486,469 |
) |
$ |
13,559,823 |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
COST OF SALES |
|
12,382,251 |
|
6,545,159 |
|
— |
|
(6,466,043 |
) |
12,461,367 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
GROSS PROFIT |
|
1,177,572 |
|
(220,599 |
) |
161,909 |
|
(20,426 |
) |
1,098,456 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES |
|
960,393 |
|
297,829 |
|
53,606 |
|
(20,426 |
) |
1,291,402 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
OPERATING INCOME (LOSS) |
|
217,179 |
|
(518,428 |
) |
108,303 |
|
— |
|
(192,946 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
OTHER INCOME (EXPENSE) |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Interest Expense |
|
(29,792 |
) |
(41,225 |
) |
(41,754 |
) |
— |
|
(112,771 |
) | |||||
|
Investment Income |
|
6 |
|
2 |
|
8 |
|
— |
|
16 |
| |||||
|
Other Income |
|
4,793 |
|
59 |
|
— |
|
— |
|
4,852 |
| |||||
|
Total Other (Expense) |
|
(24,993 |
) |
(41,164 |
) |
(41,746 |
) |
— |
|
(107,903 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
INCOME (LOSS) BEFORE PROVISION FOR INCOME TAXES |
|
192,186 |
|
(559,592 |
) |
66,557 |
|
— |
|
(300,849 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
PROVISION FOR INCOME TAXES |
|
57,656 |
|
— |
|
— |
|
— |
|
57,656 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
NET INCOME (LOSS) |
|
$ |
134,530 |
|
$ |
(559,592 |
) |
$ |
66,557 |
|
$ |
— |
|
$ |
(358,505 |
) |
SCHEDULE III
EYELEMATIC MANUFACTURING COMPANY, INC. AND RELATED COMPANIES
COMBINING STATEMENT OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 2011
|
|
|
Eyelematic |
|
Echo |
|
Seemar |
|
Combining |
|
|
| |||||
|
|
|
Mfg., Inc. |
|
Mfg., Inc. |
|
R.E., LLC |
|
Entries |
|
Combined |
| |||||
|
CASH FLOWS FROM OPERATING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Net Income (Loss) |
|
$ |
134,530 |
|
$ |
(559,592 |
) |
$ |
66,557 |
|
$ |
— |
|
$ |
(358,505 |
) |
|
Adjustments to Reconcile Net Income (Loss) to Net Cash Provided by Operating Activities: |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Depreciation and Amortization |
|
171,887 |
|
503,901 |
|
52,456 |
|
— |
|
728,244 |
| |||||
|
Reserve for Inventory Obsolescence |
|
57,525 |
|
(2,101 |
) |
— |
|
— |
|
55,424 |
| |||||
|
Deferred Tax Provision |
|
72,132 |
|
— |
|
— |
|
— |
|
72,132 |
| |||||
|
Changes in Assets and Liabilities: |
|
|
|
|
|
|
|
|
|
|
| |||||
|
(Increase) in Accounts Receivable, net |
|
(58,118 |
) |
(117,548 |
) |
(39,853 |
) |
314,101 |
|
98,582 |
| |||||
|
Decrease in Inventories, net |
|
674,785 |
|
42,660 |
|
— |
|
— |
|
717,445 |
| |||||
|
Decrease in Prepaid Expenses |
|
61,972 |
|
84,455 |
|
— |
|
— |
|
146,427 |
| |||||
|
(Increase) in Other Assets |
|
(6 |
) |
— |
|
— |
|
— |
|
(6 |
) | |||||
|
Increase (Decrease) in Accounts Payable |
|
(608,154 |
) |
112,683 |
|
— |
|
(314,101 |
) |
(809,572 |
) | |||||
|
Increase in Accrued Taxes and Expenses |
|
185,639 |
|
266,897 |
|
— |
|
— |
|
452,536 |
| |||||
|
Net Cash Provided by Operating Activities |
|
692,192 |
|
331,355 |
|
79,160 |
|
— |
|
1,102,707 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
CASH FLOWS FROM INVESTING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Purchase of Property, Plant and Equipment |
|
(1,530 |
) |
(435,249 |
) |
— |
|
— |
|
(436,779 |
) | |||||
|
(Increase) in Loan Origination Costs |
|
(22,040 |
) |
— |
|
— |
|
— |
|
(22,040 |
) | |||||
|
(Increase) in Deposits on Equipment |
|
— |
|
(100,413 |
) |
— |
|
— |
|
(100,413 |
) | |||||
|
Net Cash (Used) by Investing Activities |
|
(23,570 |
) |
(535,662 |
) |
— |
|
— |
|
(559,232 |
) | |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
CASH FLOWS FROM FINANCING ACTIVITIES |
|
|
|
|
|
|
|
|
|
|
| |||||
|
Proceeds from Bank Lines of Credit, net |
|
— |
|
500,000 |
|
— |
|
— |
|
500,000 |
| |||||
|
Repayment of Capital Lease Obligations |
|
(5,830 |
) |
(9,898 |
) |
— |
|
— |
|
(15,728 |
) | |||||
|
Proceeds from Related Party Line of Credit |
|
25,279 |
|
38,718 |
|
— |
|
— |
|
63,997 |
| |||||
|
Repayment of Related Party Mortgage Payable |
|
— |
|
— |
|
(60,000 |
) |
— |
|
(60,000 |
) | |||||
|
Net Cash Provided (Used) by Financing Activities |
|
19,449 |
|
528,820 |
|
(60,000 |
) |
— |
|
488,269 |
| |||||
|
|
|
|
|
|
|
|
|
|
|
|
| |||||
|
NET INCREASE IN CASH AND CASH EQUIVALENTS |
|
688,071 |
|
324,513 |
|
19,160 |
|
|
|
1,031,744 |
| |||||
|
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR |
|
554,094 |
|
179,306 |
|
132,446 |
|
— |
|
865,846 |
| |||||
|
CASH AND CASH EQUIVALENTS, END OF YEAR |
|
$ |
1,242,165 |
|
$ |
503,819 |
|
$ |
151,606 |
|
$ |
— |
|
$ |
1,897,590 |
|
Schedule 4.5
Undisclosed Liabilities
None.
Schedule 4.6
Accounts Receivable
None.
Schedule 4.7
Inventory
OBSOLETE INVENTORY CALCULATION Q2 2011
Q2 June 2011
|
Eyelematic |
|
Qty on |
|
|
|
|
|
|
|
|
|
|
|
|
| ||||
|
Part # |
|
Hand |
|
Unit |
|
Price |
|
2011 Q2 Ext |
|
|
|
|
|
|
| ||||
|
I00142 |
|
28800 |
|
PM |
|
$ |
29.91 |
|
$ |
861.41 |
|
$ |
861.41 |
|
FG |
|
|
| |
|
I00149 |
|
800 |
|
PM |
|
$ |
33.45 |
|
$ |
26.76 |
|
$ |
26.76 |
|
FG |
|
|
| |
|
I00158 |
|
11550 |
|
PM |
|
$ |
40.05 |
|
$ |
462.58 |
|
$ |
462.58 |
|
FG |
|
|
| |
|
I00161 |
|
5100 |
|
PM |
|
$ |
33.13 |
|
$ |
168.96 |
|
$ |
168.96 |
|
FG |
|
|
| |
|
I00181 |
|
45408 |
|
PM |
|
$ |
23.07 |
|
$ |
1,047.56 |
|
$ |
1,047.56 |
|
FG |
|
|
| |
|
I20200NAT |
|
154000 |
|
PM |
|
$ |
7.29 |
|
$ |
1,122.66 |
|
$ |
1,122.66 |
|
FG |
|
|
| |
|
I83300 |
|
5000 |
|
PM |
|
$ |
36.73 |
|
$ |
183.65 |
|
$ |
183.65 |
|
FG |
|
|
| |
|
I89300BLACK |
|
10200 |
|
PM |
|
$ |
38.05 |
|
$ |
388.11 |
|
$ |
388.11 |
|
FG |
|
|
| |
|
JAR100SAN |
|
7455 |
|
PM |
|
$ |
82.83 |
|
$ |
617.50 |
|
$ |
617.50 |
|
FG |
|
$ |
4,879.19 |
|
|
3H011 |
|
825 |
|
LB |
|
$ |
2.26 |
|
$ |
1,864.50 |
|
$ |
1,864.50 |
|
RM |
|
|
| |
|
3H086 |
|
1435 |
|
LB |
|
$ |
2.91 |
|
$ |
4,175.85 |
|
$ |
4,175.85 |
|
RM |
|
|
| |
|
44279-3035 |
|
50 |
|
LB |
|
$ |
6.27 |
|
$ |
313.50 |
|
$ |
313.50 |
|
RM |
|
|
| |
|
CLPPE103 WHITE |
|
120 |
|
LB |
|
$ |
4.04 |
|
$ |
484.80 |
|
$ |
484.80 |
|
RM |
|
|
| |
|
CPET6705 CONC |
|
1610 |
|
LB |
|
$ |
2.89 |
|
$ |
4,652.90 |
|
$ |
4,652.90 |
|
XX |
|
|
| |
|
XXX0000 YELLOW |
|
60 |
|
LB |
|
$ |
6.53 |
|
$ |
391.80 |
|
$ |
391.80 |
|
RM |
|
|
| |
|
XXX0000 XXXX XX |
|
000 |
|
XX |
|
$ |
5.88 |
|
$ |
882.00 |
|
$ |
882.00 |
|
RM |
|
|
| |
|
CPP2173 MET TAN |
|
90 |
|
LB |
|
$ |
7.72 |
|
$ |
694.80 |
|
$ |
694.80 |
|
RM |
|
|
| |
|
CPP2641 MET GRN |
|
700 |
|
LB |
|
$ |
6.62 |
|
$ |
4,634.00 |
|
$ |
4,634.00 |
|
RM |
|
|
| |
|
CPP3341 AMBER |
|
65 |
|
LB |
|
$ |
10.47 |
|
$ |
680.55 |
|
$ |
680.55 |
|
RM |
|
|
| |
|
CPPP112 BLACK |
|
1010 |
|
LB |
|
$ |
4.34 |
|
$ |
4,383.40 |
|
$ |
4,383.40 |
|
XX |
|
|
| |
|
XXX-0000-X |
|
100 |
|
LB |
|
$ |
4.89 |
|
$ |
489.00 |
|
$ |
489.00 |
|
RM |
|
|
| |
|
LINER-028 |
|
480 |
|
PC |
|
$ |
13.62 |
|
$ |
65.38 |
|
$ |
65.38 |
|
RM |
|
|
| |
|
LINER-030 |
|
6630 |
|
PC |
|
$ |
31.95 |
|
$ |
2,118.28 |
|
$ |
2,118.28 |
|
RM |
|
|
| |
|
LINER-035 |
|
8800 |
|
PC |
|
$ |
16.51 |
|
$ |
1,452.88 |
|
$ |
1,452.88 |
|
RM |
|
|
| |
|
LINER-036 |
|
1830 |
|
PC |
|
$ |
8.47 |
|
$ |
155.00 |
|
$ |
155.00 |
|
RM |
|
|
| |
|
LINER-037 |
|
1120 |
|
PC |
|
$ |
19.16 |
|
$ |
214.59 |
|
$ |
214.59 |
|
RM |
|
|
| |
|
LINER-038 |
|
6460 |
|
PC |
|
$ |
17.01 |
|
$ |
1,098.85 |
|
$ |
1,098.85 |
|
RM |
|
|
| |
|
LINER-043 |
|
18480 |
|
PC |
|
$ |
3.58 |
|
$ |
661.58 |
|
$ |
661.58 |
|
RM |
|
|
| |
|
LINER-044 |
|
5625 |
|
PC |
|
$ |
18.93 |
|
$ |
1,064.81 |
|
$ |
1,064.81 |
|
RM |
|
|
| |
|
LINER-053 |
|
990 |
|
PC |
|
$ |
22.90 |
|
$ |
226.71 |
|
$ |
226.71 |
|
RM |
|
|
| |
|
LINER-058 |
|
8550 |
|
PC |
|
$ |
69.64 |
|
$ |
5,954.22 |
|
$ |
5,954.22 |
|
RM |
|
|
| |
|
LINER-062 |
|
420 |
|
PC |
|
$ |
8.44 |
|
$ |
35.45 |
|
$ |
35.45 |
|
RM |
|
|
| |
|
LINER-063 |
|
9000 |
|
PC |
|
$ |
82.05 |
|
$ |
7,384.50 |
|
$ |
7,384.50 |
|
RM |
|
|
| |
|
LINER-064 |
|
2375 |
|
PC |
|
$ |
29.73 |
|
$ |
706.09 |
|
$ |
706.09 |
|
RM |
|
|
| |
|
LINER-065 |
|
5760 |
|
PC |
|
$ |
93.95 |
|
$ |
5,411.52 |
|
$ |
5,411.52 |
|
XX |
|
|
| |
|
XX00000000 XXX |
|
000 |
|
XX |
|
$ |
3.56 |
|
$ |
729.80 |
|
$ |
729.80 |
|
RM |
|
$ |
50,926.76 |
|
|
|
|
|
|
|
|
|
|
|
|
$ |
55,805.95 |
|
|
|
$ |
55,805.95 |
| ||
|
|
|
|
|
|
|
|
|
scrap value 20% |
|
$ |
11,161.19 |
|
|
|
|
| |||
|
|
|
|
|
|
|
|
|
final obsolescence reserve |
|
$ |
44,644.76 |
|
|
|
|
| |||
OBSOLETE INVENTORY Q2 2011
Q2 2011
|
Eyelematic |
|
|
|
|
| |
|
Part # |
|
|
|
|
| |
|
00-000-00000 |
|
$ |
2,286.18 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,285.72 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,426.23 |
|
FG |
|
|
00-000-00000 |
|
$ |
68.45 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,218.85 |
|
FG |
|
|
00-000-00000 |
|
$ |
108.23 |
|
FG |
|
|
00-000-00000 |
|
$ |
5,687.72 |
|
FG |
|
|
30-292-003C |
|
$ |
3,304.48 |
|
FG |
|
|
30-292-003W |
|
$ |
4,082.70 |
|
FG |
|
|
00-000-00000 |
|
$ |
227.14 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,324.83 |
|
FG |
|
|
30-494-001MS |
|
$ |
1,207.80 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,726.46 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,380.31 |
|
FG |
|
|
30-640-103S |
|
$ |
290.78 |
|
FG |
|
|
00-000-00000 |
|
$ |
85.68 |
|
FG |
|
|
00-000-000 |
|
$ |
4,401.60 |
|
FG |
|
|
00-000-000 |
|
$ |
2,499.77 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,625.32 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,826.76 |
|
FG |
|
|
00-000-000 |
|
$ |
2,581.94 |
|
FG |
|
|
00-000-00000 |
|
$ |
243.92 |
|
FG |
|
|
00-000-000 |
|
$ |
5,022.00 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,955.10 |
|
FG |
|
|
00-000-00000 |
|
$ |
31.01 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,349.95 |
|
FG |
|
|
00-000-000 |
|
$ |
1,532.64 |
|
FG |
|
|
00-000-00000 |
|
$ |
488.84 |
|
FG |
|
|
00-000-00000 |
|
$ |
510.45 |
|
FG |
|
|
00-000-000 |
|
$ |
2,586.43 |
|
FG |
|
|
00-000-000 |
|
$ |
2,360.49 |
|
FG |
|
|
00-000-00000 |
|
$ |
3,857.74 |
|
FG |
|
|
00-000-00000 |
|
$ |
615.32 |
|
FG |
|
|
00-000-00000 |
|
$ |
131.56 |
|
FG |
|
|
00-000-00000 |
|
$ |
157.83 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,207.63 |
|
FG |
|
|
00-000-00000 |
|
$ |
338.78 |
|
FG |
|
|
00-000-000 |
|
$ |
4,371.57 |
|
FG |
|
|
00-000-00000 |
|
$ |
509.88 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,687.37 |
|
FG |
|
|
00-000-00000 |
|
$ |
340.68 |
|
FG |
|
|
00-000-00000 |
|
$ |
556.80 |
|
FG |
|
|
00-000-00000 |
|
$ |
551.25 |
|
FG |
|
|
00-000-00000 |
|
$ |
796.09 |
|
FG |
|
|
00-000-00000 |
|
$ |
550.30 |
|
FG |
|
|
00-000-000 |
|
$ |
1,436.53 |
|
FG |
|
|
00-000-000 |
|
$ |
7,920.00 |
|
FG |
|
|
00-000-000 |
|
$ |
685.39 |
|
FG |
|
|
00-000-000 |
|
$ |
4,956.68 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,305.60 |
|
FG |
|
|
00-000-00000 |
|
$ |
552.84 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,056.67 |
|
FG |
|
|
00-000-00000 |
|
$ |
468.19 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,129.06 |
|
FG |
|
|
00-000-00000 |
|
$ |
900.67 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,917.91 |
|
FG |
|
|
00-000-00000 |
|
$ |
771.65 |
|
FG |
|
|
00-000-00000 |
|
$ |
552.84 |
|
FG |
|
|
31-225-10373 |
|
$ |
455.80 |
|
FG |
|
|
00-000-00000 |
|
$ |
3,336.96 |
|
FG |
|
|
00-000-00000 |
|
$ |
258.07 |
|
FG |
|
|
00-000-00000 |
|
$ |
5,491.50 |
|
FG |
|
|
00-000-00000 |
|
$ |
241.82 |
|
FG |
|
|
00-000-00000 |
|
$ |
3,447.05 |
|
FG |
|
|
00-000-00000 |
|
$ |
584.80 |
|
FG |
|
|
00-000-00000 |
|
$ |
126.71 |
|
FG |
|
|
31-245-00373 |
|
$ |
3,600.00 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,666.42 |
|
FG |
|
|
00-000-00000 |
|
$ |
422.71 |
|
FG |
|
|
00-000-00000 |
|
$ |
967.05 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,910.60 |
|
FG |
|
|
00-000-00000 |
|
$ |
6,240.00 |
|
FG |
|
|
00-000-00000 |
|
$ |
8,205.27 |
|
FG |
|
|
00-000-00000 |
|
$ |
3,738.85 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,681.74 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,222.58 |
|
FG |
|
|
00-000-00000 |
|
$ |
5,212.09 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,146.72 |
|
FG |
|
|
00-000-00000 |
|
$ |
150.17 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,422.59 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,094.30 |
|
FG |
|
|
00-000-00000 |
|
$ |
886.27 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,621.58 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,105.92 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,584.14 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,205.74 |
|
FG |
|
|
00-000-00000 |
|
$ |
3,112.93 |
|
FG |
|
|
00-000-00000 |
|
$ |
593.72 |
|
FG |
|
|
00-000-000 |
|
$ |
1,257.60 |
|
FG |
|
|
00-000-000 |
|
$ |
3,017.12 |
|
FG |
|
|
00-000-000 |
|
$ |
2,675.65 |
|
FG |
|
|
00-000-000 |
|
$ |
2,861.24 |
|
FG |
|
|
00-000-000 |
|
$ |
779.99 |
|
FG |
|
|
00-000-000 |
|
$ |
6,104.09 |
|
FG |
|
|
33-398-003M |
|
$ |
501.90 |
|
FG |
|
|
33-434-103SL |
|
$ |
809.60 |
|
FG |
|
|
00-000-000 |
|
$ |
3,243.75 |
|
FG |
|
|
33-497-103GO |
|
$ |
1,519.20 |
|
FG |
|
|
33-504-103GO |
|
$ |
2,190.85 |
|
FG |
|
|
33-506-003M |
|
$ |
1,648.36 |
|
FG |
|
|
00-000-000 |
|
$ |
779.36 |
|
FG |
|
|
33-902-003RK |
|
$ |
4,325.40 |
|
FG |
|
|
00-000-000 |
|
$ |
2,056.32 |
|
FG |
|
|
00-000-000 |
|
$ |
1,046.60 |
|
FG |
|
|
33-995-003A |
|
$ |
7,553.94 |
|
FG |
|
|
00-000-000 |
|
$ |
397.95 |
|
FG |
|
|
00-000-000 |
|
$ |
1,328.79 |
|
FG |
|
|
00-000-000 |
|
$ |
3,591.89 |
|
FG |
|
|
00-000-000 |
|
$ |
288.94 |
|
FG |
|
|
00-000-000 |
|
$ |
1,243.23 |
|
FG |
|
|
00-000-000 |
|
$ |
1,372.50 |
|
FG |
|
|
00-000-000 |
|
$ |
359.97 |
|
FG |
|
|
00-000-000 |
|
$ |
4,590.97 |
|
FG |
|
|
00-000-000 |
|
$ |
1,239.50 |
|
FG |
|
|
00-000-000 |
|
$ |
2,524.50 |
|
FG |
|
|
00-000-000 |
|
$ |
1,980.72 |
|
FG |
|
|
00-000-00000 |
|
$ |
232.14 |
|
FG |
|
|
00-000-00000 |
|
$ |
172.75 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,540.02 |
|
FG |
|
|
00-000-00000 |
|
$ |
626.60 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,399.76 |
|
FG |
|
|
00-000-00000 |
|
$ |
620.83 |
|
FG |
|
|
00-000-00000 |
|
$ |
52.70 |
|
FG |
|
|
00-000-00000 |
|
$ |
568.20 |
|
FG |
|
|
00-000-00000 |
|
$ |
185.88 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,854.91 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,084.30 |
|
FG |
|
|
00-000-00000 |
|
$ |
30.89 |
|
FG |
|
|
00-000-00000 |
|
$ |
118.36 |
|
FG |
|
|
00-000-00000 |
|
$ |
42,883.78 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,231.20 |
|
FG |
|
|
00-000-00000 |
|
$ |
891.00 |
|
FG |
|
|
00-000-00000 |
|
$ |
619.16 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,047.38 |
|
FG |
|
|
00-000-00000 |
|
$ |
31.75 |
|
FG |
|
|
00-000-000 |
|
$ |
750.34 |
|
FG |
|
|
00-000-00000 |
|
$ |
3,833.33 |
|
FG |
|
|
00-000-00000 |
|
$ |
896.59 |
|
FG |
|
|
00-000-00000 |
|
$ |
878.55 |
|
FG |
|
|
00-000-00000 |
|
$ |
5,935.68 |
|
FG |
|
|
00-000-00000 |
|
$ |
13,514.44 |
|
FG |
|
|
00-000-00000 |
|
$ |
125.58 |
|
FG |
|
|
00-000-00000 |
|
$ |
200.93 |
|
FG |
|
|
00-000-00000 |
|
$ |
166.08 |
|
FG |
|
|
00-000-00000 |
|
$ |
3,857.69 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,510.34 |
|
FG |
|
|
00-000-00000 |
|
$ |
274.16 |
|
FG |
|
|
00-000-000 |
|
$ |
746.27 |
|
FG |
|
|
00-000-000 |
|
$ |
927.81 |
|
FG |
|
|
40-109-103GL |
|
$ |
1,804.08 |
|
FG |
|
|
00-000-000 |
|
$ |
760.15 |
|
FG |
|
|
44-031-103S |
|
$ |
617.80 |
|
FG |
|
|
00-000-000 |
|
$ |
3,130.40 |
|
FG |
|
|
00-000-000 |
|
$ |
1,001.85 |
|
FG |
|
|
00-000-000 |
|
$ |
4,453.68 |
|
FG |
|
|
00-000-0000 |
|
$ |
470.40 |
|
FG |
|
|
62-072-103EV |
|
$ |
560.58 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,216.57 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,369.78 |
|
FG |
|
|
00-000-00000 |
|
$ |
346.16 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,601.61 |
|
FG |
|
|
00-000-00000 |
|
$ |
7,309.85 |
|
FG |
|
|
00-000-00000 |
|
$ |
125.90 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,227.18 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,025.47 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,130.35 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,359.50 |
|
FG |
|
|
00-000-00000 |
|
$ |
854.40 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,393.11 |
|
FG |
|
|
00-000-00000 |
|
$ |
676.40 |
|
FG |
|
|
00-000-00000 |
|
$ |
4,365.77 |
|
FG |
|
|
00-000-00000 |
|
$ |
647.00 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,275.12 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,520.00 |
|
FG |
|
|
00-000-00000 |
|
$ |
2,187.36 |
|
FG |
|
|
00-000-00000 |
|
$ |
1,587.60 |
|
FG |
|
|
| |
|
00-000-00000 |
|
$ |
2,993.22 |
|
FG |
|
|
| |
|
00-000-00000 |
|
$ |
444.60 |
|
FG |
|
|
| |
|
00-000-00000 |
|
$ |
770.09 |
|
FG |
|
|
| |
|
00-000-00000 |
|
$ |
723.84 |
|
FG |
|
|
| |
|
00-000-00000 |
|
$ |
3,420.42 |
|
FG |
|
|
| |
|
00-000-00000 |
|
$ |
53.96 |
|
FG |
|
|
| |
|
00-000-00000 |
|
$ |
5,035.80 |
|
FG |
|
|
| |
|
65-XXX-940 |
|
$ |
127.20 |
|
FG |
|
$ |
404,475.23 |
|
|
007X1.675 6040 |
|
$ |
2,537.70 |
|
RM |
|
|
| |
|
008X1.570 7030 |
|
$ |
3,701.85 |
|
RM |
|
|
| |
|
015X1.960 5657 |
|
$ |
728.64 |
|
RM |
|
|
| |
|
016X1.390 5657 |
|
$ |
687.61 |
|
RM |
|
|
| |
|
016X2.500 5052 |
|
$ |
725.74 |
|
RM |
|
|
| |
|
016X2.530 3005 |
|
$ |
127.68 |
|
RM |
|
|
| |
|
016X2.920 3005 |
|
$ |
1,864.00 |
|
RM |
|
|
| |
|
016X3.820 3005 |
|
$ |
9,636.32 |
|
RM |
|
|
| |
|
016X3.920 9030 |
|
$ |
491.40 |
|
RM |
|
|
| |
|
016X6.170 9020 |
|
$ |
4,422.04 |
|
RM |
|
|
| |
|
018X3.596 9020 |
|
$ |
1,371.45 |
|
RM |
|
|
| |
|
018X4.615 5657 |
|
$ |
472.58 |
|
RM |
|
|
| |
|
019X4.330 H275 |
|
$ |
4,056.37 |
|
RM |
|
|
| |
|
020X2.690 3005 |
|
$ |
519.59 |
|
RM |
|
|
| |
|
020X2.970 H235 |
|
$ |
1,728.00 |
|
RM |
|
|
| |
|
020X3.040 5657 |
|
$ |
565.76 |
|
RM |
|
|
| |
|
020X4.320 5657 |
|
$ |
1,111.52 |
|
RM |
|
|
| |
|
021X4.050 3005 |
|
$ |
524.05 |
|
RM |
|
|
| |
|
021X4.050 5657 |
|
$ |
1,132.31 |
|
RM |
|
|
| |
|
022X4.320 5657 |
|
$ |
2,814.96 |
|
RM |
|
|
| |
|
022X8.280 5657 |
|
$ |
762.12 |
|
RM |
|
|
| |
|
023X3.720 5657 |
|
$ |
511.98 |
|
RM |
|
|
| |
|
025X3.960 9020 |
|
$ |
247.20 |
|
RM |
|
|
| |
|
00-000-00000 |
|
$ |
627.08 |
|
RM |
|
|
| |
|
00-000-000 |
|
$ |
3,319.20 |
|
RM |
|
|
| |
|
00-000-00000 |
|
$ |
2,122.20 |
|
RM |
|
|
| |
|
00-000-00000 |
|
$ |
1,918.09 |
|
RM |
|
|
| |
|
30-365-00342 |
|
$ |
2,665.66 |
|
RM |
|
|
| |
|
00-000-00000 |
|
$ |
1,958.20 |
|
RM |
|
|
| |
|
00-000-00000 |
|
$ |
15,569.76 |
|
RM |
|
|
| |
|
00-000-00000 |
|
$ |
271.23 |
|
RM |
|
|
| |
|
00-000-000 |
|
$ |
1,114.48 |
|
RM |
|
|
| |
|
00-000-00000 |
|
$ |
834.42 |
|
RM |
|
|
| |
|
00-000-00000 |
|
$ |
1,576.44 |
|
RM |
|
|
| |
|
30-894-00446 |
|
$ |
2,361.12 |
|
RM |
|
|
00-000-000 |
|
$ |
1,480.32 |
|
RM |
|
|
00-000-00000 |
|
$ |
3,014.76 |
|
RM |
|
|
00-000-000 |
|
$ |
403.20 |
|
RM |
|
|
00-000-00000 |
|
$ |
1,729.36 |
|
RM |
|
|
00-000-00000 |
|
$ |
1,701.64 |
|
RM |
|
|
00-000-00000 |
|
$ |
2,782.62 |
|
RM |
|
|
00-000-00000 |
|
$ |
1,642.82 |
|
RM |
|
|
00-000-00000 |
|
$ |
6,248.33 |
|
RM |
|
|
32-082-101M |
|
$ |
1,717.60 |
|
RM |
|
|
33-039-103S |
|
$ |
2,472.38 |
|
RM |
|
|
33-105-103RG |
|
$ |
3,088.62 |
|
RM |
|
|
00-000-000 |
|
$ |
911.83 |
|
RM |
|
|
00-000-000 |
|
$ |
1,898.10 |
|
RM |
|
|
00-000-000 |
|
$ |
1,383.75 |
|
RM |
|
|
00-000-000 |
|
$ |
3,025.62 |
|
RM |
|
|
00-000-000 |
|
$ |
2,511.60 |
|
RM |
|
|
33-457-003C0 |
|
$ |
537.84 |
|
RM |
|
|
33-457-003R7 |
|
$ |
2,887.38 |
|
RM |
|
|
00-000-00000 |
|
$ |
1,700.00 |
|
RM |
|
|
00-000-000 |
|
$ |
1,143.00 |
|
RM |
|
|
00-000-000 |
|
$ |
1,028.70 |
|
RM |
|
|
00-000-000 |
|
$ |
579.62 |
|
RM |
|
|
33-497-103GO |
|
$ |
1,291.14 |
|
RM |
|
|
00-000-000 |
|
$ |
1,704.88 |
|
RM |
|
|
00-000-000 |
|
$ |
1,129.95 |
|
RM |
|
|
00-000-000 |
|
$ |
2,016.30 |
|
RM |
|
|
00-000-000 |
|
$ |
550.08 |
|
RM |
|
|
00-000-000 |
|
$ |
1,466.40 |
|
RM |
|
|
00-000-000 |
|
$ |
1,296.23 |
|
RM |
|
|
00-000-000 |
|
$ |
1,514.66 |
|
RM |
|
|
00-000-000 |
|
$ |
572.28 |
|
RM |
|
|
00-000-000 |
|
$ |
624.00 |
|
RM |
|
|
00-000-000 |
|
$ |
1,051.47 |
|
RM |
|
|
00-000-000 |
|
$ |
3,003.97 |
|
RM |
|
|
00-000-000 |
|
$ |
2,377.05 |
|
RM |
|
|
00-000-000 |
|
$ |
3,434.00 |
|
RM |
|
|
00-000-000 |
|
$ |
797.41 |
|
RM |
|
|
00-000-000 |
|
$ |
460.27 |
|
RM |
|
|
00-000-000 |
|
$ |
999.68 |
|
RM |
|
|
00-000-000 |
|
$ |
467.86 |
|
RM |
|
|
00-000-000 |
|
$ |
2,516.46 |
|
RM |
|
|
00-000-00000 |
|
$ |
1,100.95 |
|
RM |
|
|
00-000-00000 |
|
$ |
1,516.59 |
|
RM |
|
|
00-000-00000 |
|
$ |
3,666.98 |
|
RM |
|
|
00-000-00000 |
|
$ |
846.01 |
|
RM |
|
|
00-000-00000 |
|
$ |
5,742.22 |
|
RM |
|
|
00-000-00000 |
|
$ |
1,862.96 |
|
RM |
|
|
00-000-00000 |
|
$ |
3,527.27 |
|
RM |
|
|
00-000-000 |
|
$ |
922.50 |
|
RM |
|
|
00-000-000 |
|
$ |
230.55 |
|
RM |
|
|
00-000-000 |
|
$ |
353.60 |
|
RM |
|
|
00-000-000 |
|
$ |
1,287.33 |
|
RM |
|
|
00-000-000 |
|
$ |
1,327.20 |
|
RM |
|
|
00-000-000 |
|
$ |
269.36 |
|
RM |
|
|
00-000-000 |
|
$ |
491.66 |
|
RM |
|
|
38-275-002P |
|
$ |
256.20 |
|
RM |
|
|
00-000-000 |
|
$ |
336.00 |
|
RM |
|
|
00-000-000 |
|
$ |
477.00 |
|
RM |
|
|
00-000-000 |
|
$ |
249.60 |
|
RM |
|
|
00-000-000 |
|
$ |
107.00 |
|
RM |
|
|
00-000-000 |
|
$ |
237.98 |
|
RM |
|
|
00-000-000 |
|
$ |
1,890.41 |
|
RM |
|
|
00-000-000 |
|
$ |
636.65 |
|
RM |
|
|
00-000-000 |
|
$ |
978.01 |
|
RM |
|
|
00-000-000 |
|
$ |
377.40 |
|
RM |
|
|
00-000-000 |
|
$ |
993.45 |
|
RM |
|
|
00-000-000 |
|
$ |
1,212.20 |
|
RM |
|
|
00-000-000 |
|
$ |
717.60 |
|
RM |
|
|
00-000-000 |
|
$ |
1,752.00 |
|
RM |
|
|
00-000-000 |
|
$ |
2,301.15 |
|
RM |
|
|
00-000-000 |
|
$ |
719.40 |
|
RM |
|
|
00-000-000 |
|
$ |
414.80 |
|
RM |
|
|
00-000-000 |
|
$ |
1,758.40 |
|
RM |
|
|
00-000-000 |
|
$ |
94.08 |
|
RM |
|
|
00-000-000 |
|
$ |
937.50 |
|
RM |
|
|
00-000-000 |
|
$ |
1,829.37 |
|
RM |
|
|
00-000-000 |
|
$ |
651.00 |
|
RM |
|
|
00-000-000 |
|
$ |
4,668.97 |
|
RM |
|
|
00-000-000 |
|
$ |
922.50 |
|
RM |
|
|
00-000-000 |
|
$ |
1,437.50 |
|
RM |
|
|
00-000-000 |
|
$ |
3,191.24 |
|
RM |
|
|
00-000-000 |
|
$ |
1,766.25 |
|
RM |
|
|
00-000-000 |
|
$ |
2,046.60 |
|
RM |
|
|
00-000-000 |
|
$ |
1,300.99 |
|
RM |
|
|
00-000-000 |
|
$ |
3,294.72 |
|
RM |
|
|
00-000-000 |
|
$ |
2,105.20 |
|
RM |
|
|
00-000-000 |
|
$ |
1,372.70 |
|
RM |
|
|
00-000-000 |
|
$ |
2,406.56 |
|
RM |
|
|
00-000-000 |
|
$ |
2,697.70 |
|
RM |
|
|
53-098-401M |
|
$ |
858.40 |
|
RM |
|
|
00-000-000 |
|
$ |
2,108.70 |
|
RM |
|
|
00-000-00000 |
|
$ |
8,224.16 |
|
RM |
|
|
00-000-000 |
|
$ |
1,273.98 |
|
RM |
|
|
00-000-00000 |
|
$ |
3,139.07 |
|
XX |
|
|
XXXX 12 X 3/8SC |
|
$ |
264.02 |
|
XX |
|
|
XXXX 12X5 GRNYL |
|
$ |
1,029.00 |
|
XX |
|
|
XXXX 14X8X1 1/2 |
|
$ |
224.50 |
|
XX |
|
|
XXXX 14X8X2 1/2 |
|
$ |
714.80 |
|
XX |
|
|
XXXX 14X8X3 |
|
$ |
985.80 |
|
XX |
|
|
XXXX 2A ELK COL |
|
$ |
1,384.37 |
|
XX |
|
|
XXXX ELK FIRM2A |
|
$ |
319.06 |
|
RM |
|
|
BUFF13 X 5 USED |
|
$ |
550.00 |
|
RM |
|
|
BUTYL CARBITOL |
|
$ |
1,763.20 |
|
XX |
|
|
XXXXXX - #000 |
|
$ |
220.85 |
|
XX |
|
|
XXXXXX - #000 |
|
$ |
717.87 |
|
XX |
|
|
XXXXXX - #125RD2 |
|
$ |
405.03 |
|
XX |
|
|
XXXXXX-#125GR2 |
|
$ |
915.72 |
|
XX |
|
|
XXXXXX-#125PK2 |
|
$ |
1,624.82 |
|
RM |
|
|
DW-100-05-10-04 |
|
$ |
1,500.00 |
|
XX |
|
|
X00000 |
|
$ |
1,081.00 |
|
XX |
|
|
X00000XXX |
|
$ |
1,931.81 |
|
XX |
|
|
X00000XXX |
|
$ |
1,426.96 |
|
XX |
|
|
X00000 |
|
$ |
2,432.00 |
|
XX |
|
|
X00000 |
|
$ |
18,107.61 |
|
XX |
|
|
X00000 |
|
$ |
13,125.00 |
|
XX |
|
|
X00000 |
|
$ |
191.10 |
|
XX |
|
|
X00000 |
|
$ |
314.60 |
|
XX |
|
|
X00000 |
|
$ |
555.29 |
|
XX |
|
|
X00000 |
|
$ |
1,976.93 |
|
XX |
|
|
X00000 |
|
$ |
14.51 |
|
XX |
|
|
X00000 |
|
$ |
105.34 |
|
XX |
|
|
X00000 |
|
$ |
264.76 |
|
XX |
|
|
X00000XXX |
|
$ |
2,173.60 |
|
XX |
|
|
X00000 |
|
$ |
360.94 |
|
XX |
|
|
X00000 |
|
$ |
40.85 |
|
XX |
|
|
X00000 |
|
$ |
632.40 |
|
XX |
|
|
X00000 |
|
$ |
561.04 |
|
XX |
|
|
X00000 |
|
$ |
451.90 |
|
XX |
|
|
X00000 |
|
$ |
1,131.66 |
|
XX |
|
|
X00000XXX |
|
$ |
1,080.00 |
|
XX |
|
|
X00000 |
|
$ |
259.16 |
|
XX |
|
|
X00000 |
|
$ |
2,106.00 |
|
XX |
|
|
X00000 |
|
$ |
223.60 |
|
XX |
|
|
X00000 |
|
$ |
843.70 |
|
XX |
|
|
X00000 |
|
$ |
1,894.65 |
|
XX |
|
|
X00000XXX |
|
$ |
3.63 |
|
XX |
|
|
X00000 |
|
$ |
75.86 |
|
XX |
|
|
X00000 |
|
$ |
867.10 |
|
XX |
|
|
X00000 |
|
$ |
507.93 |
|
XX |
|
|
X00000 |
|
$ |
5,130.00 |
|
XX |
|
|
X00000 |
|
$ |
374.40 |
|
XX |
|
|
X00000XXXX |
|
$ |
4,066.40 |
|
XX |
|
|
X00000 |
|
$ |
1,224.00 |
|
XX |
|
|
X00000 |
|
$ |
1,345.66 |
|
XX |
|
|
X00000 BLACK |
|
$ |
650.00 |
|
XX |
|
|
X00000 |
|
$ |
684.00 |
|
XX |
|
|
X00000 |
|
$ |
3,384.96 |
|
XX |
|
|
X00000 |
|
$ |
162.02 |
|
XX |
|
|
X00000 |
|
$ |
370.07 |
|
XX |
|
|
X00000 |
|
$ |
860.17 |
|
XX |
|
|
X00000 |
|
$ |
574.26 |
|
XX |
|
|
X00000 |
|
$ |
1,637.30 |
|
XX |
|
|
X00000 |
|
$ |
125.00 |
|
XX |
|
|
X00000 |
|
$ |
887.47 |
|
XX |
|
|
X00000 |
|
$ |
266.00 |
|
XX |
|
|
X00000 |
|
$ |
1,916.15 |
|
XX |
|
|
X00000 |
|
$ |
1,255.31 |
|
XX |
|
|
X00000 |
|
$ |
2,281.60 |
|
XX |
|
|
X00000 |
|
$ |
545.88 |
|
XX |
|
|
X00000 |
|
$ |
1,453.14 |
|
XX |
|
|
X00000 |
|
$ |
1,562.40 |
|
XX |
|
|
X00000 |
|
$ |
81.90 |
|
XX |
|
|
X00000 |
|
$ |
1,554.00 |
|
RM |
|
|
L/P 339-E |
|
$ |
136.80 |
|
RM |
|
|
L/P 5433G90204 |
|
$ |
350.00 |
|
RM |
|
|
L/P 5433G90205 |
|
$ |
1,430.00 |
|
RM |
|
|
L/P 66070 UV AN |
|
$ |
1,010.00 |
|
RM |
|
|
L/P 83-81264 |
|
$ |
2,098.00 |
|
RM |
|
|
BL L/P 8483-1 |
|
$ |
1,353.00 |
|
RM |
|
|
| |
|
L/P 962-4010- 00 |
|
$ |
2,275.00 |
|
RM |
|
|
| |
|
L/P C66614 |
|
$ |
4,760.00 |
|
RM |
|
|
| |
|
L/P C66620 TC |
|
$ |
1,185.00 |
|
RM |
|
|
| |
|
L/P CHARCOAL |
|
$ |
1,160.00 |
|
RM |
|
|
| |
|
L/P D2091 THIN |
|
$ |
448.00 |
|
RM |
|
|
| |
|
L/P J-1295 |
|
$ |
529.20 |
|
RM |
|
|
| |
|
L/P LIGHT BLUE |
|
$ |
1,752.70 |
|
RM |
|
|
| |
|
LD-1493 14X14 |
|
$ |
82.14 |
|
XX |
|
|
| |
|
XXXXXX 133LPURB |
|
$ |
271.95 |
|
XX |
|
|
| |
|
XXXXXX 000000 |
|
$ |
490.46 |
|
XX |
|
|
| |
|
XXXXXX 000000 |
|
$ |
404.40 |
|
XX |
|
|
| |
|
XXXXXX 0000000 |
|
$ |
31.50 |
|
XX |
|
|
| |
|
XXXXXX 869LBASE |
|
$ |
271.06 |
|
XX |
|
|
| |
|
XXXXXX 869LCAP |
|
$ |
228.00 |
|
XX |
|
|
| |
|
XXXXXX AM1E |
|
$ |
145.00 |
|
XX |
|
|
| |
|
XXXXXX AM1I |
|
$ |
228.38 |
|
XX |
|
|
| |
|
XXXXXX COTYBASE |
|
$ |
1,642.20 |
|
XX |
|
|
| |
|
XXXXXX LIZ 93 |
|
$ |
937.18 |
|
XX |
|
|
| |
|
XX00 BUBBLE WRP |
|
$ |
3,176.10 |
|
RM |
|
|
| |
|
POLYBOARD 429 |
|
$ |
5,184.00 |
|
XX |
|
|
| |
|
X00000 |
|
$ |
1,290.48 |
|
XX |
|
|
| |
|
X00000 |
|
$ |
1,143.45 |
|
XX |
|
|
| |
|
X00000 |
|
$ |
5,726.60 |
|
RM |
|
$ |
370,622.21 |
|
|
|
|
$ |
775,097.44 |
|
|
|
$ |
775,097.44 |
|
|
Scrap Value 20% |
|
$ |
155,019.49 |
|
|
|
|
| |
|
Net obsolete reserve |
|
$ |
620,077.95 |
|
|
|
|
| |
Schedule 4.8
Accounts Payable
None.
Schedule 4.10
Certain Developments
None.
Schedule 4.11(a)
Owned Real Property
1. 0 Xxxxxx Xxxx, Xxxxxxxxx—Seemar
a. Building—130,000 square feet; land—19 acres; map/block/lot—82/89/8A
2. 00 Xxxx Xxxx, Xxxxxxxxx—Eyelematic
a. Building—57,000 square feet; land—10.3 acres; map/block/lot—91/92/3A
3. 000 Xxxxxxxxxx Xxxx, Xxxxxxxxx—Seemar
a. Building—145,600 square feet; land—3.31 acres; map/block/lot—468/488/11
b. Land—3.50 acres; map/block/lot—490/488/1
Schedule 4.11(a)(ii)
Encumbered Real Property
1. Lease, by and between Seemar as lessor, and Echo as lessee, dated as of January 1, 2010 (1 Seemar Road, Watertown, Connecticut).
2. Lease, by and between Seemar as lessor and Eyelematic as lessee, dated as of January 1, 2010 (1 Seemar Road, Watertown, Connecticut).
3. Lease, by and between Seemar, as lessor, and Echo, as lessee, dated as of November 24, 1993 (235 Interstate Lane, Waterbury, Connecticut).
Schedule 4.11(b)
Leased Real Property
1. Lease, by and between Seemar as lessor, and Echo as lessee, dated as of January 1, 2010.
2. Lease, by and between Seemar as lessor and Eyelematic as lessee, dated as of January 1, 2010.
3. Lease, by and between Seemar, as lessor, and Echo, as lessee, dated as of November 24, 1993.
4. Mortgage Deed by Seemar to Xxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxxxx, dated February 6, 2006 and recorded February 8, 2006 in volume 1454, page 127 in the Office of the Town Clerk of Watertown, Connecticut.
5. Mortgage Deed by Seemar to Xxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxxxx, dated February 6, 2006 and recorded February 16, 2006 in volume 5673, page 133 in the Office of the Town Clerk of Waterbury, Connecticut.
6. UCC Fixture Filing, recorded June 23, 1994 in volume 3112, page 41 in the Office of the Town Clerk of Waterbury, Connecticut; as affected by that UCC Fixture Filing Assignment, recorded March 1, 1999 in volume 3769, page 316 in the Office of the Town Clerk of Waterbury, Connecticut; as affected by that UCC Fixture Filing Continuation, recorded March 1, 1999 in volume 3769, page 317 in the Office of the Town Clerk of Waterbury, Connecticut; as affected by that UCC Fixture Filing Continuation, recorded January 16, 2004 in volume 4877, page 91 in the Office of the Town Clerk of Waterbury, Connecticut; as affected by that UCC Fixture Filing Continuation, recorded March 26, 2009 in volume 6505, page 110 in the Office of the Town Clerk of Waterbury, Connecticut.
Schedule 4.12(a)
Permitted Liens
1. UCC Financing Statement No. 0002780033, filed October 25, 2010 in the centralized records, naming Eyelematic as debtor and Toyota Motor Credit Corporation as secured party.
2. UCC Financing Statement No. 0002602376, filed November 7, 2007 in the centralized records, naming Echo as debtor and Toyota Motor Credit Corporation as secured party.
3. UCC Financing Statement No. 0002776563, filed October 4, 2010 in the centralized records, naming Echo as debtor and Toyota Motor Credit Corporation as secured party.
4. UCC Financing Statement No. 0002787977, filed December 9, 2010 in the centralized records, naming Echo as debtor and Toyota Motor Credit Corporation as secured party.
5. UCC Financing Statement No. 0002740956, filed March 12, 2010 in the centralized records, naming Eyelematic as debtor and Susquehanna Commercial Finance, Inc. as secured party.
Schedule 4.12(d)
Capital Expenditures
None.
Schedule 4.13
Tax
The following lists all states, territories and jurisdictions (whether foreign or domestic) in which Sellers are required to file Tax Returns.
1. Echo Manufacturing Company:
a. United States of America
b. Connecticut
2. Eyelematic Manufacturing Company, Inc.:
a. United States of America
b. Connecticut
Schedule 4.14
Contracts
(i) None.
(ii) Employment Agreement, by and between Eyelematic and Xxxxx Xxxxx, dated as of January 6, 2010.
(iii) None.
(iv) None.
(v) None.
(vi) None.
(vii) None.
(viii) None.
(ix) Agreement, by and between Eyelematic and United Aluminum Corporation, dated as of September 1, 2011.
(x) None.
(xi) None.
(xii) None.
(xiii) None.
(xiv) None.
(xv) None.
(xvi) None.
(xvii) None.
(xviii) None.
(xvix) None.
(xx) None.
Schedule 4.15
Proprietary Rights
(i) None.
(ii) None.
(iii)
1. Wonderware Software:
a. License No. 443463
b. Owner: Echo Manufacturing Company
c. Equipment Financing Agreement
2. Syspro Impact Software:
a. Owner: Eyelematic Manufacturing Company Inc.
3. Eyelematic Production System:
a. Owner: Eyelematic Manufacturing Company, Inc.
4. Optimum Solutions Software:
a. Owner: Optimum Solutions
(iv) None.
Schedule 4.16
Litigation
A. The worker’s compensation matters are pending in the Fifth Worker’s Compensation District in Waterbury against Echo. All liabilities related to the matters described below shall be Excluded Liabilities.
1) Xxxxx Xxxxxx—October 2008;
2) Mercedes Leonardo—August 2008;
3) Xxxxx Xxxxxx—April 2011; and
As indicated above, those individuals were employees of Echo at the time of their injury. At the time of injury, for reasons unknown at this time, Echo did not have a worker’s compensation policy in effect. There was, however, a policy in effect providing coverage to Eyelematic. The company has paid on each claim since their filings. At some point in 2011, the insurance company determined that each was an employee of Echo and, therefore, questioned whether each should be covered under Eyelematic’s policy. A hearing was held on this issue on September 8, 2011, at which time, Attorney Xxxxxx Xxxxxxx appeared on behalf of Echo. The matter was continued by agreement to permit the insurance company to evaluate its position and determine whether it would continue to provide coverage. A new hearing date has not yet been set.
4) Xxxxxx Xxxxxxxxx—February 11, 2011
B. The pending litigation matters are as follows. All liabilities related to the matters described below shall be Excluded Liabilities.
1) Mercedes Xxxxxxxx x. Eyelematic Manufacturing Inc., Docket No. CV 106004729, which case is pending in the judicial district of Waterbury. Insurance company has provided an attorney for defense. A copy of the complaint has been provided; and
2) U.S. Bank National Association v. Xxxxxxxx Xxxxx et al, Docket No. CV095012533, pending in the Superior Court for the Judicial District of Waterbury. In this matter, Echo is named as a defendant and has not yet entered an appearance. This is a foreclosure matter. They were named as a defendant because they must hold a security interest in the property being foreclosed.
C. Please note that the following cases have been settled. All liabilities related to the matters described below shall be Excluded Liabilities.
1) Xxxx Xxxxxxxxx v. Eyelematic Manufacturing Company Inc., Docket No. CV 096001099, which case was pending in the Superior Court for the Judicial District of Waterbury;
2) Xxxx Xxxxxxxx v. Eyelmatic Manufacturing Company and Echo Manufacturing Company, Docket No. CV106004669, which case was pending in the Superior Court for the Judicial District of Waterbury. This case settled on Thursday, September 14, 2011, following a mediation;
3) Xxxxxx v. Eyelematic Manufacturing Company Inc., Docket No. SC-338450, which case was pending in the small claims session of the Superior Court. That case went to judgment on December 21, 2010, and judgment was rendered in favor of Xxxxxx in the amount of $4,843.80, which judgment has been paid. The judgment was paid on January 21, 2011;
4) Xxxxx Xxxxxxx v. Eyelematic—Settled in 2010; and
5) Xxxxxxxxx Xxxxxx—Settled June 16, 2011
All settlement amounts set forth in Schedule 4.16 have been paid in full by Sellers.
Schedule 4.18(b)
Employees
See attached.
Schedule 4.18(b)
EYELEMATIC/ECHO ORG CHART
|
Org Chart as of 7-27-11 |
|
Xxxxx X. Xxxxxxx Xx |
|
|
|
CEO/Owner |
|
|
|
|
|
|
|
Xxxxx Xxxxxx |
|
|
|
Executive Vice President of Sales |
|
|
|
$160,000 per year |
|
|
|
Company Car |
|
|
|
2/13/1995 |
|
|
|
|
|
|
|
Xxx Xxxxxxx |
|
|
|
Customer Service Manager |
|
|
|
63,000 a year |
|
|
|
4/12/1993 |
|
|
|
|
|
|
|
Xxxx Xxxxx |
|
|
|
Customer Service Accounts Manager |
|
|
|
52,000 a year |
|
|
|
9/5/2000 |
|
|
|
|
|
|
|
EYELEMATIC/ECHO ORG CHART |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||
|
Org Chart as of 9-7-11 |
|
|
|
|
|
Xxxxx X. Xxxxxxx Xx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||
|
Note add 10% differental to 2nd & 3rd Shift |
|
|
|
|
|
CEO/Owner |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||
|
|
|
|
|
|
|
|
|
Xxxxxx X. Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||
|
|
|
|
|
|
|
|
|
Vice President of Operations |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||
|
|
|
|
|
|
|
|
|
$120,000 Per year/Company Car |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||
|
|
|
|
|
|
|
|
|
3/26/2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Operations |
|
21 |
|
39 |
|
73 |
|
37 |
|
7 |
|
3 |
|
10 Tool 6 Operators |
|
|
|
10 |
|
2 |
|
6 |
|
1 |
|
218 |
|
Sales |
|
QUALITY |
|
ENGINEERING/MOLDING |
|
ASSEMBLY/DECO/Paint |
|
ANODIZING |
|
SHIPPING |
|
MAINTENANCE |
|
EYELETS |
|
3 |
|
AUTOMATIONS |
|
HUMAN RESOURCES |
|
CNC DEPARTMENT |
|
PURCHASING |
|
3 |
|
Total |
|
Echo/Eyelematic |
|
Echo/Eyelematic |
|
Echo |
|
Echo |
|
Eyelematic |
|
Eyelematic |
|
Eyelematic |
|
ACCOUNTING |
|
Echo |
|
Eyelematic/Echo |
|
Eyelematic |
|
Eyelematic/Echo |
|
221 |
|
Employees |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Xxxxx Xxxxxxx Eyelematic/Echo |
|
Xxxx Xxxxx EYELEMATC/ECHO |
|
Xxxx Xxx |
|
Xxxxx Xxxxx |
|
Xxxxx Xxxxxx |
|
Xxx Xxxxxx |
|
Al Bellimere |
|
Xxxxxx Xxxxx |
|
Xxxxx Xxxx |
|
Xxxxxxx Xxxxx |
|
Xxx Xxxxxxx |
|
Xxxx Xxxxxxxx |
|
|
|
|
|
Director of Quality |
|
Director of Engineering/Molding |
|
Production Manager Assem/Deco |
|
Plant Manger of Anodizing |
|
Shipping Supervisor |
|
Mainatence Supervisor |
|
Eyelet Xxxxxxx |
|
Accouting/IT Manger |
|
Automations Manger |
|
HR Manger Echo/Eye |
|
CNC Supervisor |
|
Senior Buyer |
|
|
|
|
|
$130,000 per year |
|
$130,000 per year |
|
$80,412 per year |
|
$140,088 per year |
|
$22.35 per hour |
|
Echo/Eye Watertown |
|
$35.00 per hour |
|
$92,019.20 per year |
|
$90,000 a year |
|
$72,800 per year |
|
$35.00 per hour |
|
$70,096 per year |
|
|
|
|
|
2/9/2009 |
|
2/22/2010 |
|
1/4/1988 |
|
5/17/1993 |
|
8/8/1979 |
|
$32.00 per hour |
|
9/22/1986 |
|
8/11/2008 |
|
2/8/2010 |
|
1/17/1994 |
|
10/14/1985 |
|
4/18/1994 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/22/1993 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Echo & Eyelematic |
|
Xxxxx Xxxx EYELEMATIC/ECHO |
|
Xxxxx XxXxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Engineer |
|
Planner/Scheduler Assembly |
|
1st shift |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Xxxx Xxxxx Eyelematic |
|
$70,012.80 per year |
|
$ 58,760 per year |
|
Xxxx Xxxxxxxx |
|
Xxx Xxxxx |
|
Xxxx Xxxxxxxx |
|
Xxxxx Xxxxxxx |
|
Xxxxxxx Xxxxxxx |
|
1st shift |
|
Xxxxxxxx Xxxxx |
|
Xxxx Xxxx |
|
|
|
|
|
|
|
Eyelets Quality Manager |
|
4/27/1987 |
|
3/16/1987 |
|
Lead Anodizer/Supervisor |
|
Terminial Supervisor |
|
Echo/Eye Watertown |
|
Asst Xxxxxx/Lead |
|
Echo Accouting |
|
Xxxx Xxxxxxxxxx |
|
HR Eyelematic |
|
Asst CNC supervisor |
|
|
|
|
|
|
|
$50,000 per year |
|
Dotted line to Xxx & Nick |
|
|
|
$ 25.50 per hour |
|
$30.00 per hour |
|
$20.50 per hour |
|
$32.52 per hour |
|
$51,376 per year |
|
Toolmaker/Tech |
|
$53,040 per year |
|
$24.00 per hour |
|
|
|
|
|
|
|
8/7/1995 |
|
|
|
|
|
11/13/1995 |
|
8/7/1995 |
|
8/16/1989 |
|
11/19/1984 |
|
6/28/1993 |
|
$ 27.25 per hour |
|
10/12/1998 |
|
5/11/1990 |
|
|
|
|
|
|
|
Dotted line to Xxx & Xxxxx |
|
Xxxxx Xxxx Echo |
|
1st Shift Assembly |
|
Reports to Xxxxx |
|
|
|
|
|
|
|
|
|
12/22/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Planner/Scheduler Molding |
|
Xxxxx Xxxxxxx |
|
|
|
Xxxxxx Xxxxxxxxx |
|
Xxxxx Xxxxxxx |
|
Xxxxx Gugliotte |
|
Xxxxxx Xxxxxx |
|
|
|
|
|
Xxxx Xxxxxxxxxx |
|
|
|
|
|
|
|
Xxxxxx Xxxxx Echo |
|
$52,000 per year |
|
Assembly |
|
Xxxxx Xxxxxxxxx |
|
Steve’s back up |
|
Echo/Eye Watertown |
|
Line Head |
|
Eyelematic Accounting |
|
Young Xxxxxxxx |
|
|
|
Carbide |
|
|
|
|
|
|
|
Quality Inspector 1st shift |
|
1/24/2011 |
|
$8.25 per hour |
|
Lead HR/Anodizing Assemblers |
|
Shipping/Terminial |
|
$19.00 per hour |
|
$33.07 per hour |
|
$45,760 per year |
|
Technician |
|
|
|
$21.05 per hour |
|
|
|
|
|
|
|
Jars/Incoming Material |
|
|
|
1/23/2007 |
|
$ 17.00 Per Hour |
|
& Truck Driver |
|
11/29/2010 |
|
5/19/1975 |
|
10/13/2008 |
|
$ 16.50 per hour |
|
|
|
10/5/1992 |
|
|
|
|
|
|
|
Paint/Outside Processing |
|
|
|
|
|
8/7/1995 |
|
$20.00 per hour |
|
|
|
|
|
|
|
8/25/2003 |
|
|
|
|
|
|
|
|
|
|
|
14.00 per hour |
|
1st Shift/ECHO |
|
Xxxxxxx Xxxxxxx |
|
|
|
2/12/1996 |
|
|
|
Xxxxx Xxxxxx |
|
|
|
|
|
|
|
Xxxx Xxxxxxxxxx |
|
|
|
|
|
|
|
9/11/1995 reports to Xxxx |
|
Xxxx Xxxxx |
|
Assembly |
|
Xxxxxxx Xxxxxxx |
|
|
|
|
|
219 line Toolmaker |
|
|
|
Xxxxxxxxx Xxxxxxxxx |
|
|
|
CNC |
|
|
|
|
|
|
|
|
|
Process Tech Molding 1st shift |
|
8.25 per hour |
|
Anodizing Assemblers |
|
Xxxx Xxxxxxx |
|
|
|
$29.00 per hour |
|
|
|
Technician |
|
|
|
$30.30 per hour |
|
|
|
|
|
|
|
Xxxx Xxxxxxxx |
|
$180,000 per year/Company Car |
|
3-8-2011 rehire |
|
$ 12.00 per hour |
|
Shipping Admin |
|
|
|
7/7/1983 |
|
|
|
$ 30.00 per hour |
|
|
|
00/0/0000 |
|
|
|
|
|
|
|
Xxxxxxx XX 0xx shift |
|
1/25/2010 |
|
|
|
8/21/1995 |
|
$15.47 per hour |
|
|
|
|
|
|
|
3/3/2010 |
|
|
|
|
|
|
|
|
|
|
|
9.15 per hour |
|
|
|
Xxxxxx Xxxxxxxx |
|
|
|
6/11/1992 |
|
|
|
Art Xxxxx |
|
|
|
|
|
|
|
Xxxx MacKennedy |
|
|
|
|
|
|
|
7/31/2011 Rehire |
|
Xxxxx Xxxxxx |
|
Assembly |
|
Xxxxxx Xxxxxx |
|
|
|
|
|
Toolmaker |
|
|
|
Xxxxxx Xxxxxxxxx |
|
|
|
CNC |
|
|
|
|
|
|
|
|
|
Mold Toolmakers |
|
$ 8.25 per hour |
|
Anodizing Assemblers |
|
Xxxx Xxxxx |
|
|
|
$28.50 per hour |
|
|
|
Technician |
|
|
|
$25.50 per hour |
|
|
|
|
|
|
|
Xxxxxx Batisia ECHO |
|
$28.00 per hour |
|
7/16/2007 |
|
$ 10.00 per hour |
|
Eyelematic Receiving |
|
|
|
9/8/2009 |
|
|
|
$ 24.00 per hour |
|
|
|
1/7/2008 |
|
|
|
|
|
|
|
Quality Inspector Assembly 1st Shift |
|
2/22/2010 |
|
|
|
8/10/2006 |
|
$19.00 per hour |
|
|
|
|
|
|
|
3/13/1995 |
|
|
|
|
|
|
|
|
|
|
|
13.25 per hour |
|
|
|
Xxxxx Xxxxxxx |
|
|
|
8/8/1979 |
|
|
|
Xxxx Xxxx |
|
|
|
|
|
|
|
Xxxx Xxxxxxxxxx |
|
|
|
|
|
|
|
6/23/1997 |
|
Xxx Xxxxx |
|
Assembly |
|
Xxx Xxxxxxx |
|
|
|
|
|
Toolmaker |
|
|
|
Xxxxxxx Xxxxx |
|
|
|
CNC |
|
|
|
|
|
|
|
|
|
Eyelet/Molding Toolmaker |
|
$ 10.00 per hour |
|
Anodizing Assemblers |
|
Xxx Xxxxxx |
|
|
|
27.90 per hour |
|
|
|
Technician |
|
|
|
$26.00 per hour |
|
|
|
|
|
|
|
Xxxx Xxxxxx ECHO |
|
$26.75 per hour |
|
2/16/1999 |
|
$ 10.00 per hour |
|
Packing/Shipping/Forklift |
|
|
|
8/15/1994 |
|
|
|
$ 17.30 per hour |
|
|
|
6/20/2005 |
|
|
|
|
|
|
|
Quality Inspector Assembly 2nd Shift |
|
10/22/1990 |
|
|
|
12/4/2006 |
|
$14.50 per hour |
|
|
|
|
|
|
|
8/13/1993 |
|
|
|
|
|
|
|
|
|
|
|
12.00 per hour |
|
|
|
Xxxxxxxxx Xxxxxxxx |
|
|
|
3/17/2008 |
|
|
|
Xxxx Xxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/30/2004 |
|
Xxxxx Xxxxxxx |
|
Assembler |
|
Xxxxxxxxx Xxxxxxxxx |
|
|
|
|
|
Toolmaker |
|
|
|
Xxxxx Xxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
Mold Tech Toolroom |
|
$8.25 per hour |
|
Anodizing Assemblers |
|
Xxxx XxXxxx |
|
|
|
$26.50 per hour |
|
|
|
Technician |
|
|
|
|
|
|
|
|
|
|
|
Xxxxx Xxxxxxx ECHO |
|
$17.00 per hour |
|
6/7/2007 |
|
$ 10.00 per hour |
|
Packing/Shipping |
|
|
|
9/6/1994 |
|
|
|
$ 22.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
Quality Inspector DECO 1st Shift |
|
7/28/2009 |
|
|
|
6/10/2006 |
|
$13.50 per hour |
|
|
|
|
|
|
|
6/7/1999 |
|
|
|
|
|
|
|
|
|
|
|
17.00 per hour |
|
|
|
Xxxxxxxx Xxxxxxx |
|
|
|
3/25/1987 |
|
|
|
Xxxx Xxxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/6/2007 |
|
Xxxx Xxxx |
|
Assembler |
|
Xxxxxx Xxxxxxxx |
|
|
|
|
|
Toolmaker |
|
|
|
Xxxxxx Xxxxxx |
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding Lead Person/Maintenance |
|
$8.25 per hour |
|
Material Handler |
|
|
|
|
|
$26.00 per hour |
|
|
|
Part Time Technician |
|
|
|
|
|
|
|
|
|
|
|
Xxxx Xxxxxxxxx ECHO |
|
$25.50 per hour |
|
1/21/2008 |
|
$ 10.00 per hour |
|
|
|
|
|
1/6/1997 |
|
|
|
$ 49.05 per hour |
|
|
|
|
|
|
|
|
|
|
|
Quality Inspector Lead Deco 1st Shift |
|
2/1/1993 |
|
|
|
1/28/2008 |
|
|
|
|
|
|
|
|
|
9/8/2009 |
|
|
|
|
|
|
|
|
|
|
|
Lead Jars |
|
|
|
Xxxxxxxx Xxxxxxx DeSerrano |
|
|
|
|
|
|
|
Xxxx Xxxxxxx |
|
|
|
Dottied Line to Xxxx and Xxx |
|
|
|
|
|
|
|
|
|
|
|
17.00 per hour |
|
Xxxx Xxxxxxxx |
|
Assembler |
|
Xxxx Xxxxx |
|
|
|
|
|
Toolmaker |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4/8/2008 |
|
Molding Lead Person/Supervisor |
|
$ 10.50 per hour |
|
Anodizing Assemblers |
|
|
|
|
|
$22.50 per hour |
|
|
|
2ND Shift |
|
|
|
|
|
|
|
|
|
|
|
|
|
$24.00 per hour |
|
1/21/2008 |
|
$ 10.00 per hour |
|
|
|
|
|
3/2/1992 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Roberta Greatorex ECHO WTBY |
|
2/28/2008 |
|
|
|
1/16/2007 |
|
|
|
|
|
|
|
|
|
Edward Ingala |
|
|
|
|
|
|
|
|
|
|
|
Lead Quality |
|
|
|
Lydia Dones |
|
|
|
|
|
|
|
Pat Marshall |
|
|
|
Technician |
|
|
|
|
|
|
|
|
|
|
|
Inspector Anodizing 1st Shift |
|
Wascar Deraben |
|
Assembler |
|
Alexander Pellot |
|
|
|
|
|
Tool Maker |
|
|
|
$ 22.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
$16.50 per houer |
|
Molding Material Handler |
|
$ 11.00 per hour |
|
Machine Operator |
|
|
|
|
|
$24.00 per hour |
|
|
|
1/3/2011 |
|
|
|
|
|
|
|
|
|
|
|
6/24/1996 |
|
$11.00 per hour |
|
6/7/1999 |
|
$ 16.00 per hour |
|
|
|
|
|
1/6/1997 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dotted line to Adam & Kevin |
|
11/18/2005 |
|
|
|
4/16/2007 |
|
|
|
|
|
|
|
|
|
James Pelosi |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Manuel Feliz |
|
|
|
|
|
|
|
Jose Flores |
|
|
|
Technician |
|
|
|
|
|
|
|
|
|
|
|
Carmen Santiago ECHO WTBY |
|
Inocencia Hilario |
|
Maintence/Janitorial |
|
Luis Rodriguez |
|
|
|
|
|
Eyelet Operator/Machine Maint. |
|
|
|
$ 17.60 per hour |
|
|
|
|
|
|
|
|
|
|
|
Quality Inspector 2nd Shift |
|
Molding Packer |
|
$ 11.50 per hour |
|
Anodizing Tech |
|
|
|
|
|
$17.25 per hour |
|
|
|
10/30/2006 |
|
|
|
|
|
|
|
|
|
|
|
Anodizing |
|
$8.25 per hour |
|
8/6/2001 |
|
$ 22.00 per hour |
|
|
|
|
|
1/11/2005 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$9.46 per hour |
|
10/6/2010 |
|
|
|
4/28/1986 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7/9/2001 |
|
|
|
Ada Figueroa |
|
|
|
|
|
|
|
Jose Lacaustra |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Francis Javier |
|
Assembly |
|
Yahaira Rodriquez |
|
|
|
|
|
Eyelet Operator |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Oubone Phouthasack ECHO |
|
Molding Mixing Material Handler |
|
$ 8.50 per hour |
|
Anodizing Assemblers |
|
|
|
|
|
$16.90 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quality/Admin Support 1st Shift |
|
$9.75 per hour |
|
2/8/2005 |
|
$ 8.25 per hour |
|
|
|
|
|
12/5/1988 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding |
|
6/1/2009 |
|
|
|
2/4/2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52,000 per year |
|
|
|
Ana Forty |
|
|
|
|
|
|
|
Julio Rodriguez |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/31/2009 |
|
Juila Pindo |
|
Assembly |
|
Elba Urena |
|
|
|
|
|
Eyelet Operator |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding Packer |
|
$ 8.90 per hour |
|
Anodizing Assemblers |
|
|
|
|
|
$14.50 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kimberly Rideout ECHO |
|
$ 9.50 per hour |
|
12/4/2000 |
|
$ 10.00 per hour |
|
|
|
|
|
3/18/1998 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quality Inspector 1st Shift |
|
5/10/2006 |
|
|
|
1/13/2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding |
|
|
|
Fernando Gomez |
|
|
|
|
|
|
|
Elliot Estrada |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$43680 per year |
|
Damaire Planas |
|
Material Handler |
|
Carlos Cruz |
|
|
|
|
|
Eyelet Operator |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/30/2009 |
|
Molding Packer |
|
$ 15.50 per hour |
|
Material Handler |
|
|
|
|
|
$15.50 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 8.25 per hour |
|
4/3/2003 |
|
$ 9.50 per hour |
|
|
|
|
|
4/7/2003 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel Griffen Eyelematic |
|
1/18/2010 |
|
|
|
8/11/2011 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quality Inspector 1st Shift |
|
|
|
Sheryle Harris |
|
|
|
|
|
|
|
Jeff Warren |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eyelets |
|
Nancy Velez |
|
Assembly |
|
Maintenance |
|
|
|
|
|
Eyelet Operator |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$15.00 per hour |
|
Molding Packer |
|
$ 10.00 per hour |
|
Ray Delaney |
|
|
|
|
|
$12.50 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6/5/2006 |
|
$ 8.25 per hour |
|
6/27/1994 |
|
Maintanence Supervisor |
|
|
|
|
|
11/10/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/6/2010 |
|
|
|
$ 23.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pamela St. Pierre Eyelematic |
|
|
|
Brigida Infante |
|
7/25/1994 |
|
|
|
|
|
Jamie Oliveria |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quality Insector 1st Shift |
|
Elizabeth Vasquez |
|
Assembly |
|
Reports to Steve |
|
|
|
|
|
Eyelet Operator |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eyelets |
|
Molding Packer |
|
$ 8.65 per hour |
|
|
|
|
|
|
|
$17.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$13.50 per hour |
|
8.25 per hour |
|
3/9/1999 |
|
Roddy Bologh |
|
|
|
|
|
2/11/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/21/2006 |
|
6-29-2011 Rehire |
|
|
|
Maintanence/Electrician |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Patricia Jackman |
|
$ 22.50 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alicia Perez Echo |
|
Antonio Pena |
|
Assembly |
|
8/2/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding QC 1st shift |
|
Material Handler |
|
$ 9.50 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$11.00 per hour |
|
8.50 per hour |
|
6/23/1997 |
|
Jose Martinez |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2/11/2009 |
|
8/2/2011 |
|
|
|
Maintenance (Part Time) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Candida Leger |
|
$ 11.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Luis Ferreria Echo |
|
Natalie Diaz |
|
Assembly |
|
4/23/2004 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assembly Inspector 2nd shift |
|
Molding Packer |
|
$ 9.00 per hopur |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 13.30 per hour |
|
8.25 per hour |
|
4/12/2006 |
|
Technicial Support |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6/23/1997 |
|
8-1-2011 Rehire |
|
|
|
Michael Fazzalaro |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Angela Luis |
|
Anodizing Technician |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Madina Damaris Echo |
|
Ana Reyes |
|
Lead Assembly |
|
$ 22.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assembly QC 1st shift |
|
Molding Packer |
|
$ 15.00 per hour |
|
4/24/1995 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 15.25 per hour |
|
8.25 per hour |
|
9/1/1998 |
|
Reports to Steve |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6/17/1997 |
|
8/1/2011 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leida Medina |
|
Shipping |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Janelly Correa Echo |
|
Second Shift |
|
Assembly |
|
Selena Merrill |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
QC Deco 2nd shift |
|
|
|
$ 10.50 per hour |
|
Shipping Supervisor |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12.65 per hour |
|
Arturo Mateo |
|
5/4/1998 |
|
$ 17.50 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/5/2004 |
|
Molding Lead Person/QC/Supervisor |
|
|
|
4/14/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 18 per hour |
|
Alida Mendez |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Miguel Delgado Echo |
|
4/3/2006 |
|
Assembly |
|
Second Shift |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
QC Deco 2nd shift |
|
|
|
8.25 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 9.35 per hour |
|
Chanel Melenciano |
|
10/16/2007 |
|
Omar Ortiz |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9/20/2010 |
|
Material Handler |
|
|
|
2nd Shift Supervisor/Anodizer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 9.50 per hour |
|
Carmen Morales |
|
$ 22.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John Sinkevich Echo |
|
9/15/2008 |
|
Assembly |
|
6/23/1997 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding QC 2nd shift |
|
|
|
$ 10.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11.25 per hour |
|
Rafael Pena |
|
6/9/1999 |
|
Lule Aliaj |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5/23/2011 Rehire |
|
Material Handler |
|
|
|
Anodizing Assemblers |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 8.50 per hour |
|
Maria Morel |
|
$ 9.07 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5/14/2003 |
|
Assembly |
|
3/21/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 10.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Evelyn Torres |
|
9/12/2005 |
|
Yohanny Diaz |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding Packer |
|
|
|
Anodizing Assembelers |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 8.25 per hour |
|
Luisito Velez |
|
$ 9.07 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9/21/2010 |
|
Material Handler Liners |
|
8/23/2010 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 11.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rosa Contreras |
|
11/19/2007 |
|
Guillermo Gonzalez |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding Packer |
|
|
|
Material Handler |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8.25 per hour |
|
Creisa Ortiz |
|
$ 10.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7/26/2011 |
|
Assembly |
|
1/24/2004 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 9.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Guillermina Delarosa |
|
8/23/2007 |
|
Angel Lorenzo |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding Packer |
|
|
|
Material Handler |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8.25 per hour |
|
Julia Perez |
|
$ 10.45 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/1/2011 Rehire |
|
Assembly |
|
8/17/2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 8.25 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Antonia Lopez |
|
6/18/2007 |
|
Gloria Martinez |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding Packer |
|
|
|
Anodizing Assembler |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8.25 per hour |
|
Juila DeRivera |
|
$ 9.07 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/1/2011 Rehire |
|
Assembly |
|
1/12/2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 8.25 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Saschary Cordero |
|
5/8/2006 |
|
Mayra Ramos |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding Packer |
|
|
|
Anodizing Assemblers |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8.25 per hour |
|
Miledys Rivera |
|
$ 9.07 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/1/2011 Rehire |
|
Assembly |
|
11/26/2007 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 9.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Judith Soto |
|
4/3/2009 |
|
Roberto Lafontaine |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding Packer |
|
|
|
Material Handler |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8.25 per hour |
|
Jamie Robles |
|
12.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/1/2011 Rehire |
|
Assembly |
|
4-18-11 rehire |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 12.50 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Miriam Delgado |
|
3/27/2006 |
|
Anthony Colon |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Molding Packer |
|
|
|
Material Handler |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8.25 per hour |
|
Mario Velez |
|
9.50 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/1/2011 Rehire |
|
Material Handler |
|
2/20/2011 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 10.00 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benjamin Collazo |
|
9/18/2008 |
|
Ana Turriate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Material Handler |
|
|
|
Assembler |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 8.50 per hour |
|
Jose Perez |
|
8.25 per hour |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8/8/2011 |
|
Assembly |
|
3/15/2011 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ 12.25 per hour |
|
|
|
3RD Shift |
|
6/23/2008 |
|
Damiana Evangelista |
|
|
|
|
|
Assembler |
|
Garry Richardson |
|
Eli Ramirez |
|
8.25 per hour |
|
Molding Lead Person/Supervisor |
|
Assembly |
|
2-21-11 rehire |
|
$ 30.80 per hour |
|
$ 10.00 per hour |
|
|
|
6/1/2010 |
|
5/20/2008 |
|
Edita Nikocevic |
|
|
|
|
|
Assembler |
|
Yanira Rodriquez |
|
Wilmarie Santoes |
|
8.25 per hour |
|
Material Packer |
|
Assembly |
|
8/8/2011 |
|
$ 9.05 per hour |
|
$ 10.25 per hour |
|
|
|
8/11/2008 |
|
6/23/2008 |
|
Ester Soto |
|
|
|
|
|
Assembler |
|
Altagracia Parra |
|
Milagros Santiago |
|
8.25 per hour |
|
Molding Packer |
|
Assembly |
|
8/8/2011 |
|
$ 9.05 per hour |
|
$ 11.22 per hour |
|
|
|
3/23/2008 |
|
9/9/1991 |
|
Luis Mercado |
|
|
|
|
|
Material Handler |
|
Pablo Cortes |
|
Amada Ortiz |
|
9.50 per hour |
|
Material Handler |
|
Material Handler |
|
2/20/2011 |
|
9.20 per hour |
|
$ 9.50 per hour |
|
|
|
5/25/2010 |
|
1/31/2006 |
|
|
|
|
|
|
|
|
|
Manushage Bejleri |
|
Donald Labeck, Jr |
|
Luis Sierra |
|
Molding Packer |
|
Material Handler |
|
3rd Shift Supervisor/Anodizer |
|
9.05 per hour |
|
$ 8.50 per hour |
|
$ 17.00 per hour |
|
6-29-11 Rehire |
|
1/31/2006 |
|
8/30/2010 |
|
|
|
|
|
|
|
Justina Morles |
|
Ada Batisia Echo |
|
Alex Vega |
|
Molding Packer |
|
Quality Inspector Assembly 1st |
|
Material Handler |
|
9.05 per hour |
|
9.50 per hour |
|
$ 14.30 per hour |
|
6-13-11 Rehire |
|
6/1/2010 |
|
10/22/2008 |
|
|
|
|
|
|
|
Maria Diaz |
|
|
|
Franklin Rivera |
|
Molding Packer |
|
Shipping |
|
Material Handler |
|
9.05 per hour |
|
|
|
$9.50 per hour |
|
7-31-2011 Rehire |
|
Jason James |
|
8/8/2011 Rehire |
|
|
|
Shipping |
|
|
|
Gentilia Musto |
|
$ 18.80 per hour |
|
Jose Velazco |
|
Molding Packer |
|
11/18/2009 |
|
Material Handler |
|
9.05 per hour |
|
|
|
$9.50 per hour |
|
5-23-2011 Rehire |
|
Elba Collazo |
|
8/8/2011 Rehire |
|
|
|
Shipping/Admin |
|
|
|
Junior A. Santiago |
|
$ 17.00 per hour |
|
|
|
Material Handler |
|
6/23/1997 |
|
|
|
9.20 per hour |
|
|
|
|
|
8/7/2011 |
|
2nd Shift Assembly |
|
|
|
|
|
|
|
|
|
|
|
Gregorio Roso |
|
|
|
|
|
2nd Shift Supervisor |
|
|
|
|
|
$ 20.90 per hour |
|
|
|
|
|
6/24/1996 |
|
|
|
|
|
|
|
|
|
|
|
Lorenzo Herrera |
|
|
|
|
|
Material Handler |
|
|
|
|
|
8.50 per hour |
|
|
|
|
|
5-9-2011 rehire |
|
|
|
|
|
|
|
|
|
|
|
Jose Encarnacion |
|
|
|
|
|
Material Handlers |
|
|
|
|
|
$ 14.85 per hour |
|
|
|
|
|
5/11/2007 |
|
|
|
|
|
|
|
|
|
|
|
Altagracia Gaton |
|
|
|
|
|
Assembly |
|
|
|
|
|
$ 8.25 per hour |
|
|
|
|
|
3/17/2010 |
|
|
|
|
|
|
|
|
|
|
|
Aurea Gonzalez |
|
|
|
|
|
Assembly |
|
|
|
|
|
$ 11.27 per hour |
|
|
|
|
|
10/30/2002 |
|
|
|
|
|
|
|
|
|
|
|
Maria Guillen |
|
|
|
|
|
Assembly |
|
|
|
|
|
$ 8.25 per hour |
|
|
|
|
|
3/8/2007 |
|
|
|
|
|
|
|
|
|
|
|
Ercilia Hilario |
|
|
|
|
|
Assembly |
|
|
|
|
|
$ 8.25 per hour |
|
|
|
|
|
4/16/2007 |
|
|
|
|
|
|
|
|
|
|
|
Reyna Hilario |
|
|
|
|
|
Assembly |
|
|
|
|
$ 8.25 per hour |
|
|
|
11/19/2007 |
|
|
|
|
|
|
|
Clara Martinez |
|
|
|
Assembly |
|
|
|
$ 8.25 per hour |
|
|
|
9/2/2008 |
|
|
|
|
|
|
|
Milagros Martinez |
|
|
|
Assembly |
|
|
|
$ 11.27 per hour |
|
|
|
8/29/2005 |
|
|
|
|
|
|
|
Segunda Danieles |
|
|
|
Assembly |
|
|
|
$ 8.25 per hour |
|
|
|
9/12/2005 |
|
|
|
|
|
|
|
Luciana Ogando |
|
|
|
Assembly |
|
|
|
$ 9.90 per hour |
|
|
|
7/18/2006 |
|
|
|
|
|
|
|
Bienvenida Pozo |
|
|
|
Assembly |
|
|
|
$ 11.27 per hour |
|
|
|
8/24/1998 |
|
|
|
|
|
|
|
Aida Rivas |
|
|
|
Assembly |
|
|
|
$ 11.27 per hour |
|
|
|
11/30/2003 |
|
|
|
|
|
|
|
Yasmin Rodriguez |
|
|
|
Assembly |
|
|
|
$ 8.25 per hour |
|
|
|
10/5/2010 |
|
|
|
|
|
|
|
Dilia Silvestre |
|
|
|
Assembly |
|
|
|
$ 8.25 per hour |
|
|
|
3/17/2010 |
|
|
|
|
|
|
|
Pedro Pichardo |
|
|
|
Machine Operator/Was Buff Operator |
|
|
|
$ 14.00 per hour |
|
|
|
6/23/1997 |
|
|
|
|
|
|
|
Marie Santos |
|
|
|
Assembly |
|
|
|
$ 8.25 per hour |
|
|
|
4/26/2010 |
|
|
|
|
|
|
|
Edwin Carrasquillo |
|
|
|
Material Handler |
|
|
|
$ 8.50 per hour |
|
|
|
8/24/2011 |
|
|
|
|
|
|
|
Luis Fernandez |
|
|
|
Material Handler |
|
|
|
$ 8.50 per hour |
|
|
|
8/24/2011 |
|
|
|
|
|
|
|
Deco (Izimat) 1st Shift |
|
|
|
|
|
|
|
Pat Bridge |
|
|
|
Izimat Supervisor/Operator |
|
|
|
$ 28.00 per hour |
|
|
|
1/29/2007 |
|
|
|
|
|
|
|
Serena Garcia |
|
|
|
Assembly |
|
|
|
$ 11.00 Per hour |
|
|
|
6/12/1995 |
|
|
|
|
|
|
|
Keudy Martinez |
|
|
|
Material Handler |
|
|
|
$ 11.00 per hour |
|
|
|
2/18/2008 |
|
|
|
|
|
|
|
Marybel Meletiche |
|
|
|
Assembly |
|
|
|
$ 10.00 per hour |
|
|
|
3/24/2009 |
|
|
|
Nelcida Mella |
|
|
|
Lead Assembly |
|
|
|
$ 12.00 perhour |
|
|
|
1/13/2004 |
|
|
|
|
|
|
|
Nicole Polanco |
|
|
|
Assembly |
|
|
|
$ 15.00 per hour |
|
|
|
4/30/2009 |
|
|
|
|
|
|
|
Deco 2nd Shift |
|
|
|
|
|
|
|
Brian Lafferty |
|
|
|
Deco Lead Person/Operator |
|
|
|
$ 27.50 per hour |
|
|
|
10/2/2007 |
|
|
|
|
|
|
|
Angelis Melenciano |
|
|
|
Material Handler Deco |
|
|
|
$ 9.90 per hour |
|
|
|
11/18/2008 |
|
|
|
|
|
|
|
Lidia Alvarez |
|
|
|
Deco Assembly |
|
|
|
$ 9.90 per hour |
|
|
|
5/18/1998 |
|
|
|
|
|
|
|
Veronica Castro |
|
|
|
Deco Assembly |
|
|
|
$ 8.25 per hour |
|
|
|
11/19/2007 |
|
|
|
|
|
|
|
Luz Deleon |
|
|
|
Deco Assembly |
|
|
|
8.25 per hour |
|
|
|
1/19/2006 |
|
|
|
|
|
|
|
Luz Marien Lopez |
|
|
|
Deco Assembly |
|
|
|
$ 9.90 per hour |
|
|
|
6/16/2008 |
|
|
|
|
|
|
|
Turbo Spray 1st Shift |
|
|
|
|
|
|
|
Johnny Jones |
|
|
|
Turbo/Lacquer Paint Supervisor |
|
|
|
$ 26.00 per Hour |
|
|
|
10/15/1979 |
|
|
|
|
|
|
|
Rafael Garriga |
|
|
|
Turbo Technician |
|
|
|
$ 15.00 per hour |
|
|
|
10/3/2007 |
|
|
|
|
|
|
|
Turbo Spray 2nd Shift |
|
|
|
|
|
|
|
Telesfore Rojas |
|
|
|
Turbo Technician |
|
|
|
$ 24.75 per hour |
|
|
|
6/10/2008 |
|
|
|
PTO Balances |
|
|
|
Eyelematic Manufacturing Co, Inc |
|
|
|
|
Plan |
|
|
|
Hours |
|
|
|
Hours |
|
|
|
Carry |
|
Total |
|
|
|
Hours |
|
Hours |
|
Vac |
|
|
|
|
| |
|
Employee |
|
Code |
|
|
|
Accrued |
|
|
|
Earned |
|
|
|
Over |
|
PTO Hrs |
|
|
|
Taken |
|
Avail |
|
Amount |
|
HireDate |
|
Accrual Date |
| |
|
Department:ADMIN-Admin |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Bainer , Thomas |
|
|
|
(Excutive Pay) |
|
|
|
|
|
|
|
Number: |
|
|
|
|
|
416 |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
Floater |
|
|
|
|
|
0.00 |
|
24.00 |
|
|
|
0.00 |
|
24.00 |
|
|
|
0.00 |
|
24.00 |
|
$ |
1,384.80 |
|
3/23/2009 |
|
3/23/2009 |
|
|
|
|
Vacation |
|
|
|
|
|
0.00 |
|
160.00 |
|
|
|
80.00 |
|
240.00 |
|
|
|
40.00 |
|
200.00 |
|
$ |
11,540.00 |
|
3/23/2009 |
|
3/23/2009 |
|
|
|
|
|
|
Employee Totals: |
|
0.00 |
|
|
|
184.00 |
|
|
|
80.00 |
|
264.00 |
|
|
|
40.00 |
|
224.00 |
|
$ |
12,924.80 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Berg , Karen L |
|
|
|
|
|
|
|
|
|
|
|
Number: |
|
|
|
|
|
446 |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
Floater |
|
|
|
|
|
0.00 |
|
24.00 |
|
|
|
0.00 |
|
24.00 |
|
|
|
8.00 |
|
16.00 |
|
$ |
400.00 |
|
1/24/2011 |
|
1/24/2011 |
|
|
|
|
Vacation |
|
|
|
|
|
0.00 |
|
120.00 |
|
|
|
0.00 |
|
120.00 |
|
|
|
120.00 |
|
0.00 |
|
$ |
0.00 |
|
1/24/2011 |
|
1/24/2011 |
|
|
|
|
|
|
Employee Totals: |
|
0.00 |
|
|
|
144.00 |
|
|
|
0.00 |
|
144.00 |
|
|
|
128.00 |
|
16.00 |
|
$ |
400.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Carroll , Rosanne |
|
|
|
|
|
|
|
|
|
|
|
Number: |
|
|
|
|
|
1401 |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
Floater |
|
|
|
|
|
0.00 |
|
56.00 |
|
|
|
0.00 |
|
56.00 |
|
|
|
4.00 |
|
52.00 |
|
$ |
1,287.00 |
|
6/28/1993 |
|
6/28/1993 |
|
|
|
|
Vacation |
|
|
|
|
|
0.00 |
|
120.00 |
|
|
|
24.00 |
|
144.00 |
|
|
|
24.00 |
|
120.00 |
|
$ |
2,970.00 |
|
6/28/1993 |
|
6/28/1993 |
|
|
|
|
|
|
Employee Totals: |
|
0.00 |
|
|
|
176.00 |
|
|
|
24.00 |
|
200.00 |
|
|
|
28.00 |
|
172.00 |
|
$ |
4,257.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Otano , Adelina |
|
|
|
|
|
|
|
|
|
|
|
Number: |
|
|
|
|
|
8085 |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
Floater |
|
|
|
|
|
0.00 |
|
56.00 |
|
|
|
0.00 |
|
56.00 |
|
|
|
52.00 |
|
4.00 |
|
$ |
128.00 |
|
1/17/1994 |
|
1/17/1994 |
|
|
|
|
Vacation |
|
|
|
|
|
0.00 |
|
120.00 |
|
|
|
12.00 |
|
132.00 |
|
|
|
132.00 |
|
0.00 |
|
$ |
0.00 |
|
1/17/1994 |
|
1/17/1994 |
|
|
|
|
|
|
Employee Totals: |
|
0.00 |
|
|
|
176.00 |
|
|
|
12.00 |
|
188.00 |
|
|
|
184.00 |
|
4.00 |
|
$ |
128.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Philip , Peter W |
|
|
|
(Excutive Pay) |
|
|
|
|
|
|
|
Number: |
|
|
|
|
|
E1005 |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
Floater |
|
|
|
|
|
0.00 |
|
56.00 |
|
|
|
0.00 |
|
56.00 |
|
|
|
0.00 |
|
56.00 |
|
$ |
4,307.69 |
|
2/13/1995 |
|
2/13/1995 |
|
|
|
|
Vacation |
|
|
|
|
|
0.00 |
|
120.00 |
|
|
|
0.00 |
|
120.00 |
|
|
|
64.00 |
|
56.00 |
|
$ |
4,307.69 |
|
2/13/1995 |
|
2/13/1995 |
|
|
|
|
|
|
Employee Totals: |
|
0.00 |
|
|
|
176.00 |
|
|
|
0.00 |
|
176.00 |
|
|
|
64.00 |
|
112.00 |
|
$ |
8,615.39 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Sheeks , Kellie K |
|
|
|
|
|
|
|
|
|
|
|
Number: |
|
|
|
|
|
10070 |
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
Floater |
|
|
|
|
|
0.00 |
|
24.00 |
|
|
|
0.00 |
|
24.00 |
|
|||||||||||||
