Exhibit 10.08
STOCK EXCHANGE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (the "Agreement"), dated the 17th day of
April, 1997, is between EASTCO GLOVE TECHNOLOGIES, INC., a Minnesota corporation
with offices located at 000 Xxxx 00xx Xxxxxx, Xxxxxxxxxx Xxxxxxx, Xxx Xxxx 00000
(the "Purchaser"), EASTCO INDUSTRIAL SAFETY CORP., a New York corporation with
offices located at 000 Xxxx 00xx Xxxxxx, Xxxxxxxxxx Xxxxxxx, Xxx Xxxx 00000
("Eastco"), XXXXXX XXXXXX, residing at 0000 Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxx
00000, and XXXXXXX XXXXXX, residing at 00000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxx 00000 (each hereinafter, jointly and severally referred to as the
"Seller").
WHEREAS, Protective Knitting, Inc. ("PKI") is engaged in the business of
knitting and distributing of cut resistant gloves; and
WHEREAS, the authorized capital stock of PKI consists of 2,000 shares of
common stock; and
WHEREAS, the Seller is the owner of all of the issued and outstanding
shares of capital stock of PKI (the "PKI Stock"); and
WHEREAS, the Seller desires to transfer to the Purchaser and the Purchaser
desires to acquire from the Seller, as of the Closing Date (as hereinafter
defined) all of the PKI Stock; and
WHEREAS, Eastco will issue 100,000 shares of its Common Stock par value
$.12 (the "Eastco Stock") in exchange for the PKI Stock; and
WHEREAS, the parties desire to set forth the terms and conditions of this
transaction.
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises
contained herein, hereby agree as follows:
ARTICLE 1
EXCHANGE OF STOCK
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1.01 On the Closing Date, subject to and upon the terms and conditions
contained herein, the Seller shall sell, transfer, convey, assign and deliver
to the Purchaser, and Purchaser will acquire from Seller, all right, title and
interest in and to, good and marketable title, free and clear of any lien,
security interest, pledge, charge or encumbrance all of the PKI Stock in
exchange for the Eastco Stock.
ARTICLE 2
CLOSING
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2.01 CLOSING DATE AND PLACE. The closing of the transactions contemplated
hereunder (the "Closing") shall take place on or before April 17, 1997 (the
"Closing Date") at the offices of Hessian, XxXxxx & Xxxxxxxxx at 4700 IDS
Center, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx at 10:30 a.m. local time
(unless such other place is mutually agreed upon).
ARTICLE 3
SELLER'S REPRESENTATIONS AND WARRANTIES
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Seller hereby represents and warrants to Purchaser and Eastco as follows,
which representations and warranties are true as of the date hereof, shall be
true as of the Closing and which shall survive the Closing:
3.01 ORGANIZATION AND AUTHORITY. PKI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Minnesota
with full corporate power and authority to own, lease and operate its properties
and to carry on its businesses as currently conducted. PKI is duly qualified
and in good standing in each other jurisdiction in which qualification is
required for it to own or lease the properties or to conduct the businesses it
owns, leases or conducts therein, consisting of the jurisdictions listed in
Section 3.01 of the Disclosure Schedule (The Disclosure Schedule is annexed
hereto and is made part of this Agreement).
3.02 AFFILIATED ENTITIES. Except as set forth in Section 3.02 of the
Disclosure Schedule, PKI does not own, directly or indirectly, any capital stock
or other securities of any corporation, limited liability company, partnership,
foreign company or other entity (herein an "Entity"), or has any direct or
indirect equity or ownership interest in any Entity. Each Entity listed in
Section 3.02 of the Disclosure Schedule is the type of entity indicated in such
Section, organized in its jurisdiction of organization, as specified in such
Section. Section 3.02 of the Disclosure Schedule specifies the percentage of
all the shares or other interests in each Entity owned by PKI. PKI has no duty
or obligation to purchase any additional shares or other interests therein, or
to make any contributions to capital or other payments thereto, except as
specified in Section 3.02 of the Disclosure Schedule.
3.03 CAPITALIZATION. The authorized capital stock of PKI consists of 2,000
shares of Common Stock, of which 1,000 shares are issued and outstanding as of
the date hereof, and are owned as set forth in Section 3.03 of the Disclosure
Schedule, free and clear of any lien, security interest, pledge, charge or
encumbrance.
(a) there are no outstanding options, warrants, rights, contracts or
scrip to purchase any PKI Stock;
(b) there are no instruments, evidences of indebtedness, debt or
equity securities or contracts convertible into or exchangeable
for any PKI Stock;
(c) PKI does not have any commitment of any kind to issue, grant,
sell or otherwise create any options, warrants, rights,
contracts, scrip, instruments, evidences of indebtedness, debt
or equity securities or contracts; and
(d) PKI has not granted, created or entered into any agreement to
grant or create any phantom stock or deferred compensation,
profit participation or other interests or rights that have
features similar to equity interests.
Each issued and outstanding share of PKI Stock has been duly authorized and
validly issued and is fully paid and non-assessable; all of such PKI Stock was
issued in compliance with all applicable laws; and no share of PKI Stock was
issued in violation of, or is subject to, any preemptive or similar rights. No
changes in the amount of outstanding PKI Stock is contemplated.
3.04 AUTHORITY. Seller has full power and authority to enter into this
Agreement and any other document executed and delivered by them in accordance
with the terms of this Agreement and to carry out all of their duties and
obligations hereunder and thereunder.
3.05 NO CONFLICTS. Except as disclosed in Section 3.05 of the Disclosure
Schedule, neither the execution and delivery of this Agreement or any other
document in accordance with this Agreement, nor the consummation of the
transactions provided for herein and therein, nor compliance with any of the
provisions hereof or thereof, will (a) violate, conflict with, or result in a
breach of any provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result
in the termination of, or accelerate the performance required by, or result in
a right of termination or acceleration, the loss of a material benefit or the
creation of any lien, claim, security interest, charge or encumbrance upon any
of the properties or assets of the Seller or PKI under any of the terms,
conditions or provisions of PKI's certificate of incorporation or by-laws, any
note, bond, mortgage, indenture, deed of trust or other financing document, or
any license, permit, lease or other agreement, instrument or obligation to which
the Seller or PKI is a party, or by which any of them is bound or any of their
properties or assets may be subject, or (b) violate any judgment, ruling, order,
writ, injunction or decree in effect as of the date hereof or any statute, rule
or regulation applicable to the Seller or PKI or any of their assets.
3.06 FINANCIAL STATEMENTS. The unaudited financial statements and
unaudited interim financial statements of PKI delivered to Purchaser, as
described in Section 3.06 of the Disclosure Schedule, have been prepared in
accordance with generally acceptable accounting principles ("GAAP") applied on
a consistent basis during the periods involved and fairly present the
consolidated financial position of PKI as at the dates thereof and the
consolidated results of its operations, changes in shareholders' equity and
consolidated cash flows for the periods set forth therein and, in the case of
unaudited interim financial statements, reflect all adjustments necessary to a
fair statement of results for the interim periods presented, subject to normal,
recurring year-end audit adjustments, none of which is material or is reasonably
expected to be material in the case of the unaudited interim financial
statements for all periods subsequent to December 31, 1996. All financial
statements referred to in this Subsection 3.06 are collectively called the
"Financial Statements." As used herein, "Material Adverse Effect" means a
material adverse effect on the business, condition (financial or otherwise),
results of operations, or prospects of PKI, taken as a whole.
3.07 LIABILITIES. Except as disclosed in Section 3.07 of the Disclosure
Schedule, PKI does not have any liabilities or obligations due or to become due,
whether absolute, accrued, contingent or otherwise, and there are no claims or
causes of action (including those relating to employee benefit plans, as defined
in Section 3(3) of ERISA, presently maintained or formerly maintained by PKI),
that have been or are likely to be asserted against PKI, except for normal and
recurring current liabilities incurred in the ordinary and usual course of
business of PKI consistent with past practices (the "Ordinary Course") and
except for such other liabilities and obligations as are not, in the aggregate,
likely to have a Material Adverse Effect. Section 3.07 of the Disclosure
Schedule sets forth a schedule of all of the liabilities of PKI as of the date
hereof. No past or present or future creditor of the Seller or PR Industries
Inc. shall have any claim against PKI.
3.08 ASSETS. Section 3.08 of the Disclosure Schedule sets forth a
complete schedule of all of the Assets including inventories, receivables,
intellectual property rights owned by PKI at the time of the Closing. All
inventories are in good saleable condition and machinery and equipment are in
good operating condition, free of all defects. All accounts receivable are
collectable. There are no liens or encumbrances against any of the assets and
no one has any right or claim against same. Except as set forth in Section 3.08
of the Disclosure Schedule, PKI has good and marketable title to or a valid,
binding and enforceable leasehold interest in all of its respective properties
and assets, real, personal and mixed, tangible and intangible free and clear of
all mortgages, liens, claims, pledges, charges, encumbrances or title defects.
[If any asset of PKI is not located at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxx (the
"Facility") that is indicated in Section 3.08 of the Disclosure Schedule.]
3.09 NAMES. Section 3.09 sets forth all names that PKI has been known
by or done business under for the past five (5) years.
3.10 TAX RETURNS AND AUDITS. Except as Disclosed in Section 3.10 of the
Disclosure Schedule:
(a) PKI has timely filed or timely requested an extension to file
all returns, information returns, declarations, reports,
estimates and statements relating to any Taxes (collectively,
"Returns") required to be filed in respect of any Taxes (as
defined below);
(b) all Taxes required to be paid by PKI have been paid in full and
no taxes are due and payable for any period subsequent to that
period for which Taxes have been paid;
(c) there are no outstanding audits, examinations, deficiencies or
refund litigation with respect to any Taxes of PKI; and
As used herein, "Taxes" shall mean and include all taxes, charges, fees, levies
and other assessments, including all net income, gross income, gross receipts,
sales, use, ad valorem, transfer, property, franchise, profits, license,
withholding, payroll, employment, unemployment compensation premiums, excise,
severance, stamp, occupation and other taxes, customs, duties, fees, assessments
and charges of any kind, together with any interest and any penalties, additions
to tax or additional amounts, imposed by any taxing authority (domestic or
foreign) on PKI.
3.11 CONDUCT OF BUSINESS. Except to the extent disclosed in Section 3.11
of the Disclosure Schedule, since December 31, 1996, PKI has conducted its
business in (and only in) the Ordinary Course and PKI has not experienced any
change which individually or in the aggregate has had or is reasonably likely
to have a Material Adverse Effect.
3.12 LITIGATION AND PROCEEDINGS. Except as set forth in Section 3.12 of
the Disclosure Schedule, (a) no claim, action, suit, arbitration, proceeding or
governmental investigation or inquiry is pending or is threatened against or
affecting PKI or its respective assets, and (b) no claim, action, suit,
arbitration proceeding or governmental investigation or inquiry has had or is
reasonably likely to have a Material Adverse Effect. PKI is not a party to or
is it bound by any order, judgment, decree, injunction or ruling of any court
or any governmental or administrative department, commission, agency or
instrumentality, any arbitrator or any other Person that has had or is
reasonably likely to have a Material Adverse Effect. PKI and PR Industries, Inc.
("PRI") are in compliance with the agreement dated July 18, 1996 among Xxxxxxxx
Industries, Inc. and PKI and PRI, and have violated none of its terms.
3.13 COMPLIANCE WITH LAWS. Except as Disclosed in Section 3.13 of the
Disclosure Schedule, PKI has previously conducted and is currently conducting
its business in compliance with all applicable laws, rules, regulations and
requirements of each jurisdiction in which any such business is carried on,
except for failures to comply which individually or in the aggregate have not
had and are not reasonably likely to have a Material Adverse Effect. No changes
would be required in the processes, properties, practices or procedures of PKI
in order to comply with such laws, rules, regulations and requirements, and PKI
has not received any notice or communication of any non-compliance with such
laws, rules, regulations and requirements that has not been cured.
3.14 LICENSES AND PERMITS. Except as Disclosed in Section 3.14 of the
Disclosure Schedule, PKI has all governmental approvals, consents, licenses,
registrations and permits (collectively "Governmental Approvals") necessary to
carry on its businesses as they are currently conducted, except where the
failure to have any such Governmental Approval is not reasonably likely to have
a Material Adverse Effect; and no event has occurred which would allow
revocation or termination of, or would result in the impairment of its rights
with respect to, any such approval, consent, license, registration or permit,
except to the extent that such revocation, termination or impairment would not
have a Material Adverse Effect. Section 3.14 of the Disclosure Schedule sets
forth a listing of all Governmental Approvals held by PKI.
3.15 [Purposely Omitted]
3.16 LEASES. PKI is not a party to any lease of real or personal property
requiring it to pay more than $1,000 per year in rent.
3.17 CONTRACTS AND COMMITMENTS. Section 3.17 of the Disclosure Schedule
sets forth a complete and accurate summary of all written, and accurate and
complete summaries of all oral, contracts, agreements, commitments or
arrangements (collectively, "Contracts") to which PKI is a party or by which it
is bound.
Each Contract is in full force and effect and no event or condition has occurred
or exists, or is alleged by any of the other parties thereto to have occurred
or exist, which constitutes or with the lapse of time or giving of notice might
constitute a default or a basis for acceleration or termination under any
Contract, except for such defaults or bases for acceleration or termination as
in the aggregate are not reasonably likely to have a Material Adverse Effect.
3.18 BANK AND OTHER ACCOUNTS. All bank, brokerage, custodial, money
market and other accounts and safe deposit boxes of the PKI or which contain any
assets of PKI are listed in Section 3.18 of the Disclosure Schedule. Such
Section reflects:
(a) the name of each bank, brokerage firm or other institution in
which such account or box is maintained and the number of the
account or box;
(b) the balance therein as of a recent designated date or a brief
description of the contents thereof; and
(c) the name of each individual authorized to sign thereon or have
access thereto and the title or position of the individual.
3.19 EMPLOYEE RELATIONS. Seller has previously made available to Purchaser
correct and complete copies of all labor and collective bargaining agreements
to which PKI is a party or by which it is bound. A list of all such agreements
are set forth in Section 3.19 of the Disclosure Schedule. No unfair labor
practice charges or complaints are pending or, to the knowledge of seller,
threatened against PKI with the National Labor Relations Board or any similar
state agency. There have been no material work stoppages or other such
controversies during the last five years and, to the knowledge of the seller,
none are threatened.
3.20 EMPLOYEE BENEFIT PLANS. For purposes of this Section 3.20:
(a) "Arrangement" means any material written personnel policy
(including vacation time, holiday pay and bonus programs, moving
expense reimbursement programs and sick leave), salary reduction
agreement, change-in-control agreement, employment agreement,
stock option plan, consulting agreement or any other material
written benefit program, contract or agreement, (1) which
currently is being maintained or, to the extent there remains
outstanding obligations or liabilities with respect thereto, has
at any time been maintained, for employees of PKI or (2) to
which PKI currently makes or is required to make or, to the
extent there remains outstanding obligations or liabilities with
respect thereto, has at any time made or been required to make
contributions;
(b) "Plan" includes each employee benefit plan as defined in Section
3(3) of ERISA (other than a Multiemployer Plan) (1) which
currently is maintained for employees of PKI or (2) to which PKI
currently makes or is required to make contributions;
(c) "Qualified Plan" means any Plan which is an employee pension
benefit plan as defined in Section 3(2) of ERISA and which is
intended to meet the qualification requirements of Section
401(a) of the Code;
(d) "Title IV Plan" means any Qualified Plan that is a defined
benefit plan (as defined in Section 3(35) of ERISA) and is
subject to Title IV of ERISA; and
(e) "Multiemployer Plan" means any employee benefit plan that is a
"multiemployer plan" within the meaning of Section 3(37) of
ERISA and to which PKI now has or ever had any obligation to
contribute.
Section 3.20 of the Disclosure Schedule sets forth a correct and complete list
of all Arrangements and Plans which are currently in effect or with respect to
which PKI has any contingent liability, none of which constitutes a Title IV
Plan. Except as set forth in Section 3.20 of the Disclosure Schedule, to the
knowledge of the seller:
(1) each Arrangement and Plan is being administered in material
compliance with its terms and with all filing, reporting,
disclosure and other requirements of all applicable
statutes (including ERISA) and all regulations thereunder;
(2) no action is pending or threatened against PKI, or any
officer, director or employee thereof, or any fiduciary of
any Arrangement or Plan with respect to any Arrangement or
Plan;
(3) neither PKI, nor any officer, director or employee of PKI,
nor any fiduciary, has engaged in any transaction in
violation of Section 406(a) or (b) of ERISA or which is a
"prohibited transaction" (as defined in Section 4975(c)(1)
of the Code) for which no exemption exists under Section
408(b) of ERISA or Section 4975(d) of the Code or for which
no administrative exemption has been granted under Section
408(a) of ERISA which, assuming the taxable period of such
transaction expired as of the date hereof, could subject
PKI to a tax or penalty imposed by either Section 4975 of
the Code or Section 502(i) of ERISA;
(4) there have been no improper withdrawals, applications or
transfers of assets from any Plan or the trusts or other
funding media relating thereto, and no breaches of
fiduciary obligation with respect to the administering of
any Plans or trusts or other funding media relating
thereto;
(5) each Qualified Plan (together with its related funding
instrument) is intended to be qualified and tax exempt
under Sections 401 and 501 of the Code and is the subject
of a favorable IRS determination letter issued pursuant to
Rev. Proc. 93-39 with respect to such qualification and
exemption;
(6) PKI has not received notice that any material inquiry or
investigation by the Department of Labor, the IRS or the
PBGC is pending relating to any Arrangement or Plan or any
trust related thereto or funding medium thereunder; and
(7) there are no Plans or Arrangements to which PKI is a party
or by which it is bound and under which, as a result of
this Agreement or any transaction contemplated by this
Agreement, any director, officer, employee or other agent
of PKI or any other party claiming through any such Person
shall or may acquire rights with respect to any Plan or
Arrangement (including, without limitation, the creation,
increase or extension of new or existing rights), become
entitled to a distribution or payment with respect to any
Plan or Arrangement at a date earlier than if this
Agreement had not been signed or such transaction had not
occurred, or otherwise receive or become vested in rights
or benefits with respect to any Plan or Arrangement;
(8) PKI has made all contributions required in connection with
any Multiemployer Plan as of the date hereof by the terms
of the Multiemployer Plan or by the terms of any collective
bargaining agreement and it has no material contingent
liability with respect to any Multiemployer Plan; and
(9) PKI does not expect to terminate or withdraw from (in a
complete withdrawal as defined in Section 4203 of ERISA or
in a partial withdrawal as defined in Section 4205 of
ERISA), any Multiemployer Plan, nor is PKI aware of any
withdrawal liability (as defined in Section 4201 of ERISA)
assessed against PKI with respect to any Multiemployer Plan
under Subtitle E of Title IV of ERISA.
3.21 INTELLECTUAL PROPERTY. Section 3.21 of the Disclosure Schedule sets
forth a correct and complete list of all letters patent, patent applications,
trade names, trademarks, service marks, trademark registrations and
applications, copyright registrations and applications, and all agreements,
licenses and other rights with respect to any intellectual property, both
domestic and foreign, presently owned, possessed, used or held by PKI or
necessary for the conduct of any of its businesses (the "Intellectual
Property"). Except as set forth in such Section 3.21 of the Disclosure
Schedule:
(a) PKI owns or has binding, enforceable rights to use the
Intellectual Property;
(b) to the knowledge of the seller, neither the conduct of any
business of PKI nor any of the products sold or services
provided by PKI infringes upon or is inconsistent with the
rights of any other Person; and
(c) to the knowledge of the seller, neither the conduct of any other
Person's business nor the nature of any of the products it sells
or services it provides infringes upon or is inconsistent with
any Intellectual Property rights of PKI except for such
infringements or inconsistencies that have not had and are not
in the aggregate reasonably likely to have a Material Adverse
Effect.
3.22 INSURANCE. Section 3.22 of the Disclosure Schedule sets forth a
summary of all insurance policies applicable to PKI during the past five years.
Such summary sets forth the type of insurance, name of the insurance company,
policy amount, number, term and description of coverage. There are no defaults
of PKI with respect to any such policies which would in the aggregate be
reasonably likely to result in a denial of coverage, termination of policy or
material increase in premium. Representations contained in the letter of Risk
Management Consulting Associates to Eastco dated April 1, 1997, a copy of which
is annexed hereto as Exhibit "1", are true and correct.
3.23 INTERESTED TRANSACTIONS. Except as set forth in Section 3.23 of the
Disclosure Schedule, no director or officer of PKI and no shareholder therein
(a) owns, directly or indirectly, any interest in, or is a director, officer,
substantial stockholder or employee of, or consultant to, any competitor,
lessor, sublessee, supplier, customer or distributor of PKI or is in any other
way associated with or involved in any businesses conducted by PKI other than
in such capacity as a director, officer or shareholder of PKI, (b) owns,
directly or indirectly, in whole or in part, any property, asset or right,
tangible or intangible, which is associated with any property, asset or right
owned by PKI or which PKI is presently operating or using or the use of which
is presently contemplated for their business, or (c) is an official or employee
of, or is otherwise connected with, any labor organization having dealings with
PKI.
3.24 BROKERS AND FINDERS. Neither the Seller, PKI nor any of PKI's
officers, directors, shareholders or employees has employed any broker, finder
or financial advisor or incurred any liability for any financial advisory fees,
brokerage fees, commissions or finders' fees, and no other broker or finder has
acted for PKI, directly or indirectly, in connection with this Agreement or the
transactions provided for herein.
3.25 SINCE DECEMBER 31, 1996 . Except as indicated in Section 3.25 of the
Disclosure Schedule, since December 31, 1996:
(a) PKI has not paid, declared or made any Dividends or other
Distributions on or with respect to its stock or purchased,
redeemed or otherwise acquired any of its stock;
(b) there has been no material adverse change in the condition
(financial or otherwise), assets, liabilities (contingent or
otherwise), business, operations, prospects, facilities or
profitability of PKI;
(c) PKI has not sold or otherwise disposed of any material assets or
incurred or become subject to any material liabilities,
contingent or otherwise, other than in the Ordinary Course;
(d) PKI has not paid or agreed to pay any bonuses or granted or
agreed to grant any raises to any of its employees or
established or agreed to establish or improve any Plans or
Arrangements for any of its employees;
(e) PKI has not made any loans to any of its officers, directors or
Shareholders or to any Affiliate of any of its officers,
directors or Shareholders, other than advances in the Ordinary
Course;
(f) PKI has not entered into any contract, lease or transaction or
made any commitment, which contract, lease, transaction or
commitment is expected to be Materially Adverse to PKI or any of
its businesses;
(g) PKI has not written off any material receivable or determined
that any material receivable is uncollectible or granted any
material and unusual discount to any Person for any other
reason;
(h) PKI has not executed any guaranty except in the Ordinary Course
or entered into or modified any loan or credit agreement or any
contract concerning any line or credit or similar financing
agreement or arrangement;
(i) no material damage or destruction has occurred to any facility
or material assets of PKI, whether or not covered by insurance;
and
(j) no other event has occurred which reasonably might be expected
to have a Material Adverse Effect.
3.26 ENVIRONMENTAL MATTERS. To the best of Seller's knowledge after due
inquiry, except as set forth in Section 3.26 of the Disclosure Schedule, PKI and
the Facility is in compliance with all federal, state and local environmental
laws, regulations or ordinances, including but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), and
PKI has not received any notice that it is the subject of any federal, state or
local investigation, the purpose of which (or one of the purposes of which) is
to evaluate whether any remedial or other action is needed. Except as set forth
in Section 3.26 of the Disclosure Schedule, the real property and Facility of
PKI has not been used for hazardous waste storage, treatment or disposal and
there does not exist (a) any contamination of soils, surface water or ground
water on or beneath the surface of any of PKI's real property, (b) any hazardous
materials or petroleum derivatives on or in the real property of PKI or the
building improvements or so close thereto as to have a Material Adverse effect
on the value thereof, (c) any chemical or petroleum or petroleum derivative
underground storage tank on the real property of PKI, (d) any asbestos or
asbestos-containing materials, or (e) any violation of any applicable federal,
state or local environmental laws, regulations or ordinances, including, without
limitation, CERCLA, or other state of affairs, which would require PKI to take
remedial, clean-up or other related action.
3.27 HAZARDOUS MATERIALS. Except as set forth in Section 3.27 of the
Disclosure Schedule, PKI, at any time in the past, has not manufactured,
distributed, sold, dealt or stored any Hazardous Materials or products made of,
in whole or in part, any "Hazardous Materials". As used herein, Hazardous
Materials are any materials containing any (1) "hazardous substances", as
defined by CERCLA or any similar applicable state or local law, (2) petroleum,
including crude oil or any fraction thereof, (3) natural gas, natural gas
liquids or synthetic gas usable fuel and (4) asbestos, plychlorinated biphenyls
("PCB's") or isomers of dioxin.
3.28 NO MISLEADING STATEMENT, OMISSION OR OTHER INFORMATION. To the best
of Seller's knowledge after due inquiry, there is no material fact relevant to
the assets, liabilities, business or future business prospects of PKI, which has
not been set forth or described in this Agreement or the Disclosure Schedule,
the nondisclosure of which would have a Material Adverse Effect on PKI's
business or could result in liability to the Purchaser. None of the information
included in this Agreement and the Disclosure Schedule or other documents
furnished or to be furnished by PKI or the Seller contains any untrue statement
of a material nature or is misleading an any material resect or omits to state
any material fact necessary in order to make any of the statements herein or
therein not material misleading.
ARTICLE 4
EASTCO's and PURCHASER'S REPRESENTATIONS AND WARRANTIES
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Eastco and Purchaser hereby represents and warrants to Seller as follows,
which representations and warranties are true as of the date hereof, shall be
true as of the Closing and which shall survive the Closing:
4.01 ORGANIZATION AND AUTHORITY. Eastco is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
with full power and authority to own, lease and operate its property and to
carry on its business as now being conducted. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Minnesota with full power and authority to own, lease and operate its property
and to carry on its business as now being conducted.
4.02 AUTHORIZATION. Eastco and Purchaser have full corporate power and
authority to enter into this Agreement and to carry out their obligations
hereunder. The execution and delivery of this Agreement and the consummation
of the transactions provided for herein have been duly authorized by the Board
of Directors of the Purchaser and Eastco, and no other corporate proceedings on
the part of Eastco and Purchaser is necessary to authorize this Agreement and
the transactions provided for herein. This Agreement has been duly executed and
delivered by Eastco and Purchaser and is a legal, valid and binding obligation
of the Purchaser, enforceable against Eastco and Purchaser in accordance with
its terms, subject to the qualification, however, that enforcement of the rights
and remedies created hereby is subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
relating to or affecting creditors' rights and to general equity principles.
4.03 NO VIOLATIONS. Neither the execution and delivery of this Agreement
by Eastco and Purchaser, nor the consummation of the transactions provided for
herein, nor compliance by Eastco and Purchaser with any of the provisions hereof
will (a) violate, conflict with, or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration, or the creation of any lien, claim, security interest, charge or
encumbrance upon any of the properties or assets of Eastco and Purchaser, under
any of the terms, conditions or provisions of (1) their certificate of
incorporation or by-laws, (2) any note, bond, mortgage, indenture, deed of trust
or other financing document, or (3) any license, permit, lease, agreement or
other instrument or obligation to which Eastco and Purchaser is a party, or by
which either of them is bound or any of their properties or assets may be
subject, or (b) violate any judgment, ruling, order, writ, injunction or decree
in effect as of the date hereof or any statute, rule or regulation, applicable
to Eastco and Purchaser or any of their assets.
4.04 BROKERS AND FINDERS. Neither the Purchaser nor Eastco nor any of
Purchaser's or Eastco's officers, directors, shareholders or employees has
employed any broker, finder or financial advisor or incurred any liability for
any financial advisory fees, brokerage fees, commissions or finders' fees, and
no other broker or finder has acted for Eastco or Purchaser, directly or
indirectly, in connection with this Agreement or the transactions provided for
herein.
ARTICLE 5
CONDITIONS PRECEDENT TO THE CLOSING
-----------------------------------
5.01 CONDITIONS TO OBLIGATIONS OF THE SELLER. The obligation of the Seller
to effect the Closing shall be subject to the fulfillment, at or prior to the
Closing Date, of each of the following conditions:
5.01.01 REPRESENTATIONS AND WARRANTIES OF PURCHASER AND EASTCO. The
representations and warranties of Purchaser and Eastco set forth in Article 4
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date, as though made at and as of the Closing,
except as otherwise contemplated in this Agreement, and the Seller shall have
received a Purchaser and Eastco Closing Certificate to that effect. As used
herein, "Purchaser and Eastco Closing Certificate" means a certificate in form
and substance reasonably satisfactory to Seller, dated the Closing Date, and
signed by the Purchaser and Eastco.
5.01.02 ISSUANCE OF EASTCO STOCK.
(a) At the Closing, Eastco shall deliver to Seller certificates
representing their proportionate ownership interests of
Eastco Stock. The Seller is acquiring the Eastco Stock for
their own account (and not for the account of others) for
investment and not with a view to the distribution thereof.
The Seller will not sell or otherwise dispose of such
shares without registration under the Securities Act of
1933, as amended, or an exemption therefrom, and the
certificate or certificates representing such shares shall
contain a legend substantially similar to the following:
"The securities which are
represented by this certificate have
not been registered under the
Securities Act of 1933, as amended.
The securities have been acquired
for investment purposes only and not
with a view to distribution or
resale, and may not be sold,
transferred, made subject to a
security interest, pledged,
hypothecated or otherwise disposed
of unless and until registered under
the Securities Act of 1933, as
amended, or an opinion of counsel
acceptable to Eastco Industrial
Safety Corp. is received that
registration is not required under
such Act."
(b) Until one year after the Closing, unless Rule 144 under the
Securities Act of 1933 would then otherwise authorize the
public sale of any of Eastco's common stock acquired by
Seller, Eastco will give at least ten (10) days notice of
the filing of a registration statement with the Securities
and Exchange Commission for the sale of its securities
("Registration Statement"), the first time after the date
hereof. Eastco will use its best efforts to include the
Eastco Stock in the Registration Statement. Notice shall
not be required to be given by Eastco if Eastco is unable
to include the Eastco Stock in such Registration Statement
because of the failure to obtain the consent of anyone
outside of Eastco which is necessary. Eastco shall not be
required to include the Eastco Stock with respect to any
Registration Statement applicable to any securities of
Eastco presently outstanding, the amendment of any existing
Registration Statement or to the filing of an S-8 or other
employee or benefit plan of Eastco. The inclusion of the
Eastco Stock in such Registration Statement will be at
Eastco's sole expense except for any commissions or
discounts payable and must be requested in writing by the
holders of at least 50% of the Eastco Stock within seven
(7) days of the giving by Eastco of notice to them. The
Seller shall cooperate in the preparation of such
Registration Statement by promptly providing and disclosing
all information required of them with respect to such
Registration Statement and which they have knowledge of.
5.01.03 SATISFACTION OF ALL OUTSTANDING LOANS. At the Closing,
Seller shall have arranged for all liens and encumbrances of PKI to be paid in
full.
5.01.04 PURCHASER'S DELIVERIES. At Closing there shall be delivered
to Seller the following:
(a) Asset Purchase Agreement by and among PR Industries, Inc.,
Purchaser and Eastco and all documents thereunder which
shall be consummated simultaneously with the closing of
this Agreement;
(b) Certified resolutions of the Purchaser and Eastco
authorizing the execution, delivery and consummation by
Purchaser and Eastco, respectively, of this Agreement.
5.01.05 OPINION OF PURCHASER'S COUNSEL. At the Closing, Seller
shall receive a signed opinion of Purchaser's Counsel, dated the Closing Date
and in the form of Exhibit "2" hereto.
5.02 CONDITIONS TO OBLIGATIONS OF PURCHASER AND EASTCO. The obligations
of Purchaser and Eastco to effect the Closing shall be subject to the
fulfillment, at or prior to the Closing Date, of each of the following
conditions:
5.02.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller set forth in Article 3 shall be true and correct in all
material respects as of the date of this Agreement and as of the Closing, as
though made at and as of the Closing Date, except as otherwise contemplated in
this Agreement, and Purchaser shall have received a Seller Closing Certificate
to that effect. As used herein, "Seller Closing Certificate" means a
certificate in form and substance reasonably satisfactory to Purchaser, dated
the Closing Date.
5.02.02 NO MATERIAL ADVERSE CHANGE. Since December 31, 1996, there
shall have been no material adverse change in the businesses, condition
(financial or otherwise), results of operations or prospects of PKI, taken as
a whole, and Purchaser shall have received a Seller Closing Certificate to that
effect.
5.02.03 SELLER'S DELIVERIES. At Closing there shall be delivered
to Purchaser the following:
(a) certificate of good standing of PKI in each jurisdiction
set forth in Section 3.01 of the Disclosure Schedule;
(b) certified copies of the certificate of incorporation and
by-laws of PKI;
(c) resignations of all of the officers and directors of PKI;
(d) all books and records and corporate books of PKI;
(e) Asset Purchase Agreement by and among PRI Industries, Inc.,
Purchaser and Eastco and all documents thereunder which
shall be consummated simultaneously with the closing of
this Agreement;
(f) Voting trust agreement in the form annexed hereto as
Exhibit "3".
(g) Transfer of all intellectual properties used by PKI.
5.02.04 OPINION OF PKI GENERAL COUNSEL. At the Closing, Purchaser
shall receive a signed opinion of PKI's General Counsel, dated the Closing Date
and in the form of Exhibit "4" hereto.
ARTICLE 6
INDEMNIFICATION
---------------
6.01 INDEMNIFICATION OF PURCHASER AND EASTCO. After the Closing, and for
a period of twenty-four (24) months, the Seller shall indemnify and hold the
Purchaser and Eastco harmless against, and reimburse the Purchaser and Eastco
for, any actual damage, claim, loss, cost or expense incurred by the Purchaser
and Eastco (including reasonable attorney's fees up to $40,000 with respect to
(i) and (ii) below and $50,000 with respect to (iii) below) resulting from (a)
any breach of the representations, warranties, covenants or obligations of the
Seller in this Agreement, (b) any misrepresentation in, or omission, from, this
Agreement, the Disclosure Schedule and any information, certificate, license,
report, or other instrument furnished to the Purchaser and Eastco pursuant to
this Agreement. No attorney's fees will be reimbursed if: (a) an insurance
policy owned by the Purchaser or Eastco or anyone else covers the cost of any
claim under this section; or (b) the claim does not concern any other third
party. The Purchaser or Eastco shall consult with Seller or Robins on a claim
prior to settlement of any such claim; however, the final decision-making
authority in any such matter shall rest solely with the Purchaser or Eastco.
An offset shall be authorized against any agreement to which Purchaser or Eastco
and any Seller is a party, if the offset applies to (i) an account payable due
by Seller or PKI; or (ii) taxes owed by Seller or PKI; or (iii) potential
lawsuits with respect to (A) the Xxxxxxxx settlement and (B) the Kolms and
Xxxxxxxx claims involving possible infringement of Patent Numbers 4,838,017 and
4,777,789, both referred to in Section 3.12 of the Disclosure Schedule that
accrue prior to the date of this Agreement; and provided that notice of a claim
for accounts payable, taxes, or a matter referred to in Section 3.12 of the
Disclosure Schedule (1) is applicable to PKI, (2) Purchaser or Eastco or PKI is
given notice of such claim for accounts payable, taxes, or a matter referred to
in Section 3.12 of the Disclosure Schedule during the 24 month period following
the date of Closing by the claimant, (3) Purchaser or Eastco promptly gives
notice to Seller of such claim, and (4) Seller does not resolve such claim to
Purchaser's or Eastco's satisfaction within thirty days thereafter. Otherwise,
an offset shall not be allowed against any agreement to which Purchaser or
Eastco and any Seller is a party unless Purchaser or Eastco procures a judgment
against a Seller for the amount to be offset.
6.02 INDEMNIFICATION OF SELLER. After the Closing, the Purchaser and
Eastco shall indemnify and hold the Seller harmless against, and reimburse the
Seller for any actual damage, claim, loss, cost or expense incurred by the
Seller (including reasonable attorney's fees) resulting from any breach of the
representations, warranties, covenants or obligations of the Purchaser and
Eastco in this Agreement.
ARTICLE 7
MISCELLANEOUS PROVISIONS
-------------------------
7.01 NOTICES. All notices required or permitted to be given under this
Agreement shall be in writing and shall be given by certified or registered
mail, postage prepaid, or by delivery through Federal Express or any other
private courier service with a copy faxed at the same time. Such notices shall
be mailed and faxed to the following addresses and facsimile numbers:
If to Eastco or the Purchaser, to:
Xx. Xxxxxx Xxxxxxxxxxxx
Eastco Industrial Safety Corp.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxxx Xxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xx. Xxxxxxx X. Xxxxxxx
Xxxxxxxxxx Xxxxx Xxxxxxx Xxxx
Xxxxxx and Xxxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
If to Seller to:
Xxxxxx Xxxxxx
PR Industries, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxxx Xxxxxx
PR Industries, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
with copies to:
Manly Xxxxxxxxx, Esq.
Xxxxxxxxx & Bix Ltd.
Xxxxx 000
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Notices shall be effective (a) if mailed with the proper postage prepaid, three
Business Days after the date of mailing, (b) delivery by private courier, on the
date of delivery, and in each case thereafter by facsimile.
7.02 GOVERNING LAW. The validity and effectiveness of this Agreement shall
be governed by and construed accordance with the internal laws of the State of
New York, without giving effect to the provisions, policies or principles of any
state law relating to choice or conflict of laws.
7.03 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and assigns.
7.04 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which may bear the signatures of less than all the
Parties, but all of which together shall constitute one agreement.
7.05 ENTIRE AGREEMENT. This Agreement, together with the Exhibits hereto,
and the Disclosure Schedule constitutes the entire agreement among the Parties
with respect to the subject matter of this Agreement, and no Party shall be
bound by any communications between or among any of them on the subject matter
hereof unless in writing. Any prior agreements between the Seller and the
Purchaser are hereby terminated.
7.06 SEVERABILITY. The Parties agree that if any term or provision of this
Agreement contravenes or is invalid under any federal, state or local law, court
decision, rule, ordinance or regulation, this Agreement shall, as to the
jurisdiction in which such legal authority is promulgated or rendered, be
construed as if it did not contain the offending term or provision, and the
remaining provisions of this Agreement shall not be affected thereby; provided,
however, that if the removal of such offending term or provision materially
alters the burdens or benefits of any of the Parties under this Agreement, the
Parties agree to negotiate in good faith such modifications to this Agreement
as are appropriate to insure that the burdens and benefits of each Party under
such modified Agreement are reasonably comparable to the burdens and benefits
originally contemplated and expected.
7.07 CAPTIONS. The captions herein are inserted for convenience of
reference only and shall not affect the construction of this Agreement.
7.08 ARBITRATION. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association (the "Association"). Any claim brought by Seller shall be settled
by the Association at its offices in Nassau County, New York; any claim brought
by Purchaser or Eastco shall be settled by the Association at its offices in
Minneapolis, Minnesota. A judgment upon the award rendered by the Arbitrators
may be entered in any court having jurisdiction thereof.
7.09 EXPENSES. Except as otherwise provided herein, the parties hereto
shall be responsible for their own costs and expenses with respect to the
transactions contemplated hereby, including but not limited to legal fees.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, all on the date first
written above.
EASTCO GLOVE TECHNOLOGIES, INC.
By: /s/ XXXXXXXX XXXXXX
--------------------
XXXXXXXX XXXXXX
EASTCO INDUSTRIAL SAFETY CORP.
By: /s/ XXXXXXXX XXXXXX
--------------------
XXXXXXXX XXXXXX
/s/ XXXXXX XXXXXX
-------------------
XXXXXX XXXXXX
/s/ XXXXXXX XXXXXX
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XXXXXXX XXXXXX
