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Exhibit 2.2
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STOCK PURCHASE AGREEMENT
BY AND AMONG
XXXXXXX DENVER MACHINERY INC.
AND
TCM INVESTMENTS, INC.
AND
THE HOLDERS OF ALL THE ISSUED AND OUTSTANDING
COMMON STOCK AND OPTIONS TO ACQUIRE COMMON STOCK
OF TCM INVESTMENTS, INC.
DATED AS OF AUGUST 10, 1996
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STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of the 10th day of August, 1996, by and among
XXXXXXX DENVER MACHINERY INC., a Delaware corporation ("Buyer"),
TCM INVESTMENTS, INC., an Oklahoma corporation ("TCM"), and the
holders of all the issued and outstanding shares of TCM Common
Stock and all issued and outstanding options to purchase TCM Common
Stock as set forth on Exhibit A hereto (the "Holders") (TCM,
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the Holders and Buyer are collectively referred to as the
"Parties"). For all purposes herein, each Holder is acting
individually only with respect to its Shares and not jointly with
the other Holders, except as expressly set forth herein.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, TCM and its Subsidiaries are engaged in the business
of manufacturing, buying, selling, distributing, assembling and
repairing pumps and compressors and other matters incidental
thereto (the "Business"); and
WHEREAS, TCM is a corporation duly organized and existing
under the laws of the State of Oklahoma which, as of the date
hereof, has authorized capital stock consisting of Five Hundred
Thousand (500,000) shares of common stock, with a par value of
$1.00 per share ("TCM's Common Stock"), of which there are Three
Hundred Forty-Five Thousand Two Hundred Ninety and 71/100
(345,290.71) shares outstanding on a fully diluted basis,
consisting of Two Hundred Forty-Seven Thousand Two Hundred Ninety
and 71/100 (247,290.71) issued and outstanding shares of TCM Common
Stock (the "Common Shares") and Ninety-Eight Thousand (98,000)
options to purchase shares of TCM Common Stock (the "Option
Shares") (the Common Shares and the Option Shares together, the
"Shares"); and
WHEREAS, Buyer desires to purchase and acquire, upon the terms
and subject to the conditions and exceptions contained herein, all
of the Shares from the Holders;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the
mutual promises, covenants and agreements contained herein and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereto hereby agree
as follows:
1. BASIC TRANSACTION.
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1.1 ACQUISITION OF SHARES. Upon the terms and
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subject to the conditions and exceptions contained herein, at
Closing, Buyer agrees to purchase and accept from the Holders and
each Holder agrees to sell, transfer and deliver to Buyer its
Common Shares and to cancel and terminate its Option Shares, which
collectively shall constitute all the Common Shares and Option
Shares.
1.2 PURCHASE PRICE. In consideration of and in
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exchange for the Common Shares and cancellation of the Option
Shares, Buyer shall pay to the Holders at Closing, by and through the
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Disbursement Agent, Seven Million Dollars ($7,000,000.00) plus
or minus the adjustments set forth in Section 1.4 below (the
"Purchase Price") less the Holdback Funds, by wire transfer of
immediately available FED funds to Holders in accordance with the
written instructions of the Disbursement Agent and Buyer shall wire
transfer the Holdback Funds in immediately available FED funds into
the Escrow Account established with Escrow Holder to be held and
disbursed in accordance with the Holdback Escrow Agreement. One
Hundred Thousand Dollars ($100,000.00) of the Purchase Price shall
be allocated equally between the Consulting Agreement and the Non-
Competition Agreement described in Sections 2.2.3 and 2.2.4 hereof,
respectively. Payment of the Purchase Price as aforesaid by Buyer
to the Disbursement Agent in accordance with his written
instructions shall fully discharge Buyer's obligation to the
Holders for the purchase of the Shares and, together with the
transfer described in Section 1.3, to Xxxx X. Xxxxxxxxx
("Xxxxxxxxx") under the Consulting Agreement and Non-Competition
Agreement.
1.3 Additional Consideration. As additional
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consideration for the Non-Competition Agreement described in
Section 2.2.4, Buyer shall cause that certain real estate legally
described on Schedule 1.3 (the "Adex Property"), which is
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presently owned by Adex, Inc., a Subsidiary of TCM, to be
transferred and assigned by quit claim deed to Alexander or his
designee subsequent to the Closing. Buyer and Alexander agree that
the Adex Property shall be valued at not less than its net book
value as reflected in the Final April 30, 1996 Financial Statements
for purposes of such transfer and assignment. In connection with
such transfer, Alexander shall indemnify and save and hold harmless
Buyer, its affiliates and subsidiaries, and their respective
partners, officers, directors, shareholders, agents and
representatives, and each of them, from and against any and all
costs, fines, claims and expenses (including attorney fees)
reasonably and actually incurred in connection with or arising out
of or resulting from any environmental conditions, contamination or
pollution of any nature or kind which exits, has existed, or may
exist in the future with respect to the Adex Property.
1.4 ADJUSTMENT IN PURCHASE PRICE - CHANGE IN NET WORTH.
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1.4.1 ADJUSTMENT. If the Net Worth of TCM and
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its Subsidiaries, as reflected on the Final April 30, 1996
Financial Statements, is: (i) less than Three Million Three Hundred
Fifty-One Thousand Dollars ($3,351,000.00) (the "Lesser Base
Amount"), the Purchase Price shall be reduced, dollar for dollar,
by the amount by which such Net Worth, as reflected on the Final
April 30, 1996 Financial Statements, is less than the Lesser Base
Amount; or (ii) greater than Three Million Four Hundred Fifty-One
Thousand Dollars ($3,451,000.00) (the "Greater Base Amount"), the
Purchase Price shall be increased, dollar for dollar, by the amount
by which such Net Worth, as reflected on the Final April 30, 1996
Financial Statements is greater than the Greater Base Amount.
1.4.2 DETERMINATION OF FINAL APRIL 30, 1996 FINANCIAL
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STATEMENTS.
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(a) PREPARATION OF PRELIMINARY FINANCIAL STATEMENTS.
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In order to determine the adjustment, if any, in the Purchase Price
as set forth above, promptly after execution hereof, TCM shall cause
its auditors ("TCM's Auditors") to complete an audit of TCM and its
Subsidiaries, on a consolidated basis, as of April 30, 1996 (the
"Financial Statement Date"). Immediately upon completion thereof,
TCM's Auditors shall deliver to Buyer and TCM, Audited Financial
Statements,
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together with the worksheets on which they are based (the "Preliminary
April 30, 1996 Financial Statements"), of TCM and its Subsidiaries as
of the close of business on the Financial Statement Date (without
giving effect to the transactions contemplated by this Agreement). The
Preliminary April 30, 1996 Financial Statements shall be prepared in
accordance with GAAP on a basis consistent with the application of such
principles used in the preparation of the audited financial
statements of TCM and its Subsidiaries for the year ending April
30, 1995.
(b) BUYER'S REVIEW OF PRELIMINARY APRIL 30, 1996
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FINANCIAL STATEMENTS. Following its receipt of the Preliminary
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April 30, 1996 Financial Statements, Buyer or Buyer's auditors,
Xxxxxx Xxxxxxxx ("Buyer's Auditors"), shall have ten (10) business
days to review the same. At or before the end of such ten (10)
business day period, Buyer shall either: (1) accept the Preliminary
April 30, 1996 Financial Statements in their entirety, in which
case the Preliminary April 30, 1996 Financial Statements shall be
the Final April 30, 1996 Financial Statements and the Net Worth of
TCM and its Subsidiaries shall be determined based thereon as
delivered; or (2) deliver to TCM and TCM's Auditors written notice
of those items in the Preliminary April 30, 1996 Financial
Statements which Buyer disputes, in which case all other items not
affected by the disputed items will be deemed to be as set forth on
the Preliminary April 30, 1996 Financial Statements as delivered.
Within a further period of five (5) business days after the end of
Buyer's aforementioned ten (10) business day period, Buyer and TCM
shall attempt in good faith to resolve any such disputed items. If
Buyer and TCM can reach an agreement on such disputed items within
such time, then such financial statements reflecting such agreement
shall be herein referred to as the Final April 30, 1996 Financial
Statements and the Net Worth of TCM and its Subsidiaries shall be
based thereon.
(c) DISPUTE RESOLUTION MECHANISM. Failing such
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resolution, at the end of said five (5) business days, Buyer and
Holders' Committee shall agree on an independent accounting firm
(the "Independent Accountants") to serve as arbitrator with respect
to the disputed items. The unresolved disputed items will be
referred to the Independent Accountants for final binding
arbitration of such disputed items. The Independent Accountants
shall establish procedures for resolution of the disputed items if
Buyer and Holders' Committee are unable to agree on such procedures
and shall determine the unresolved disputed items within fourteen
(14) business days after such reference. The Independent
Accountants shall review the opinions and adjustments suggested by
Buyer or Buyer's Auditors and shall determine what adjustments, if
any, should be made to the Preliminary April 30, 1996 Financial
Statements (such statement, together with the Independent
Accountants adjustments, being herein referred to as the Final
April 30, 1996 Financial Statements) and shall be binding on TCM
and Buyer. The Net Worth of TCM and its Subsidiaries as of the
Financial Statement Date shall then be as reflected in the Final
April 30, 1996 Financial Statements as determined in accordance
herewith. The decision of the Independent Accountants shall be
final and binding on the Parties hereto, and judgment may be
entered on the basis of such decision in any court having
jurisdiction. The fees of the Independent Accountants, if any,
shall be shared equally by Buyer and the Holders, with the Holders'
share being deducted from the Purchase Price otherwise payable to
them at Closing.
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2. CLOSING.
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2.1 CLOSING. Upon the terms and subject to the
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conditions and exceptions contained herein, the closing of the
transactions contemplated hereby (the "Closing") shall take place
at the offices of Xxxxxxx and Xxxxxx, P.C., Suite 805, 320 South
Boston, Tulsa, Oklahoma at 10:00 a.m. (local time) on August 14,
1996, or as soon as practicable thereafter following the date on
which all of the conditions set forth in Section 6 hereof are
satisfied or waived (the "Closing Date"), unless the Parties hereto
shall otherwise agree.
2.2 DELIVERIES AND PAYMENTS AT CLOSING.
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2.2.1 PAYMENT FOR TENDERED SHARES. At the
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Closing and subject to the adjustments provided in Section 1, Buyer
shall pay the Purchase Price due to Holders, less the Holdback
Funds, to the Disbursement Agent and shall pay the Holdback Funds
to the Escrow Holder as provided in Section 1 hereof against
receipt by Buyer from the Holders of all (a) share certificates
representing all the Common Shares, duly endorsed for transfer to
Buyer, and (b) termination agreements evidencing the cancellation
and termination of the Option Shares (the "Termination
Agreements"), in such form as Buyer may reasonably request.
2.2.2 CERTIFICATES. At the Closing, Buyer and
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TCM shall each deliver to the other the certificates and other
items described in Section 6 hereof.
2.2.3 CONSULTING AGREEMENT. At the Closing, in
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accordance with Section 6.1 hereof, Buyer and Alexander shall enter
into a Consulting Agreement substantially in the form attached
hereto as Exhibit B (the "Consulting Agreement").
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2.2.4 AGREEMENT NOT TO COMPETE. At Closing, in
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accordance with Section 6.1 hereof, Buyer and Alexander shall enter
into a Non-Competition Agreement substantially in the form attached
hereto as Exhibit C (the "Non-Competition Agreement").
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2.2.5 HOLDBACK ESCROW AGREEMENT. At the Closing,
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in accordance with Section 6.3.6 hereof, Buyer, TCM, Holders'
Agents and the Escrow Holder shall enter into a Holdback Escrow
Agreement substantially in the form attached hereto as Exhibit D
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(the "Holdback Escrow Agreement").
2.2.6 TERMINATION OF EMPLOYMENT AGREEMENT.
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Effective as of the Closing Date, all employment agreements between
TCM and it Subsidiaries and Alexander shall be terminated pursuant
to a Termination of Contract(s) of Employment, substantially in the
form attached hereto as Exhibit E (the "Termination of Employment
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Agreement(s)").
2.2.7 RESIGNATIONS AND MERGER OF ESOP. As of the
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Closing Date, all officers and directors of TCM and its
Subsidiaries and all trustees of the ESOP shall resign other than
those whom Buyer shall have specified in writing at least five (5)
business days prior to the Closing. Within sixty (60) days
following the Closing, Buyer shall merge the ESOP into Buyer's
401(k)
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retirement saving plan and shall complete all Internal Revenue Service
filings related thereto as soon as is reasonably possible.
2.2.8 TERMINATION OF LIFE INSURANCE CONTRACTS.
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Effective as of the Closing Date, TCM shall cancel the two life
insurance policies it owns in the face amount of $1,000,000.00 on
Alexander's life. Any refundable prepaid premiums or cash
surrender value on such policies shall be TCM's property.
2.2.9 OTHER CLOSING TRANSACTIONS. At the
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Closing, each of the Parties hereto shall take such other actions
reasonably required hereby to be performed by it prior to or at the
Closing, including, without limitation, satisfying the conditions
set forth in Section 6 hereof.
3. REPRESENTATIONS AND WARRANTIES OF TCM AND HOLDERS.
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As an inducement to Buyer to enter into this Agreement
and to consummate the transactions contemplated hereby, Holders,
TCM and its Subsidiaries hereby represent and warrant that the
following are true and correct as of the date hereof and shall,
except as may be specifically provided for in this Agreement or
otherwise specifically agreed upon or waived, in each case in
writing by Buyer, be true and correct as of the Closing:
3.1 VALIDITY. This Agreement constitutes the
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legal, valid and binding obligation of TCM and is enforceable
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization, and
other laws affecting creditors' rights generally and general
principles of equity, regardless of whether asserted in equity or
at law.
3.2 SCHEDULES. The Schedules referred to in this
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Section 3 are attached hereto and incorporated herein by reference,
and all information set forth in such Schedules is true, correct
and complete in all material respects as of the date of this
Agreement, and such Schedules taken as a whole do not omit to state
any material fact necessary in order to make the statements therein
not misleading, and shall be deemed for all purposes of this
Agreement to constitute part of the representations and warranties
under this Section 3. Each of the documents and other writings
furnished to Buyer and its representatives, officers, directors and
employees, or any of them, (collectively, the "Buyer's
Representatives") by TCM and its representatives, officers,
directors and employees, or any of them, pursuant to this Agreement
is true, correct and complete in all material respects as of the
date furnished and at Closing and does not omit to state any
material fact necessary in order to make the statements therein not
misleading. TCM shall promptly provide Buyer with written
notification of any material event or occurrence or other material
information of any kind whatsoever necessary to maintain this
Agreement and all other documents and writings furnished to the
Buyer's Representatives pursuant to this Agreement as true, correct
and complete in all material respects at the time of the execution
hereof and at all times thereafter to and including the Closing
Date.
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3.3 CORPORATE AND FINANCIAL.
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3.3.1 ORGANIZATION. TCM is a corporation duly
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organized, validly existing and in good standing under the laws of
the State of Oklahoma and has the corporate power to carry on its
business as it is now being conducted or presently proposed to be
conducted. TCM is duly qualified as a foreign corporation to do
business, and is in good standing (to the extent the concept of
good standing exists), in each jurisdiction where the character of
its properties owned or held under lease or the nature of its
activities makes such qualification necessary.
3.3.2 SUBSIDIARIES. Schedule 3.3.2 sets forth
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for each Subsidiary of TCM (i) its name and jurisdiction of
incorporation, (ii) the number of shares of authorized capital
stock of each class of its capital stock, (iii) the number of
issued and outstanding shares of each class of its capital stock,
the names of the holders thereof, and the number of shares held by
each such holder, and (iv) the number of shares of its capital
stock held in treasury, if any. All of the issued and outstanding
shares of capital stock of each Subsidiary of TCM have been duly
authorized and are validly issued, fully paid and non-assessable.
Except as set forth in Schedule 3.3.2, either TCM or one of its
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Subsidiaries holds of record and owns beneficially all of the
outstanding shares of each Subsidiary, free and clear of any
restrictions on transfer (except as required by applicable
securities laws) or security interests, options, warrants, purchase
rights, contracts, commitments, equity claims and demands. Except
for the Option Shares which are being cancelled as of the Closing,
there are no outstanding or authorized options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights or
other contracts or commitments that could require any of TCM or its
Subsidiaries to sell, transfer or otherwise dispose of any capital
stock of any of its Subsidiaries or that could require any
Subsidiary of TCM to issue, sell or otherwise cause to become
outstanding any of its own capital stock. Except as set forth in
Schedule 3.3.2, neither TCM nor any of its Subsidiaries
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controls, directly or indirectly, or has any direct or indirect
equity participation in any Person which is not a Subsidiary of
TCM.
3.3.3 AUTHORITY; NO CONFLICT.
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(a) TCM has full power and authority to enter into
this Agreement and, with the consent of the Holders of the Option
Shares, to terminate the Option Shares as contemplated by this
Agreement, and all corporate action including, but not limited to,
approval by the Board of Directors which may be necessary on the
part of TCM to consummate such transactions has been taken or will
be taken prior to Closing. At or prior to Closing, TCM will
furnish Buyer with a certified copy of the Board of Directors
resolution or unanimous written consent approving this Agreement
and the transactions contemplated hereby.
(b) This Agreement and all other agreements to be
executed and delivered by TCM hereunder will not result in any
conflict with, breach of, or default or acceleration under, any
mortgage, agreement, lease, indenture, or other instrument, order,
judgment or decree to which TCM or any of its Subsidiaries is a
party or by which TCM or its properties or assets may be bound or
affected or violate any applicable law or regulation.
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(c) TCM has furnished the Buyer's Representatives
with a complete and correct copy of the Certificate of
Incorporation, as amended to date, of TCM as certified by the
Secretary of State of the State of Oklahoma and a complete and
correct copy of the Bylaws of TCM, as presently in effect,
certified by its incumbent secretary.
3.3.4 CAPITAL STRUCTURE.
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(a) The authorized capital stock of TCM consists of
Five Hundred Thousand (500,000) shares of $1.00 par value common
stock of which Two Hundred Forty-Seven Thousand Two Hundred Ninety
and 71/100 (247,290.71) shares are issued and outstanding and
options to purchase an additional Ninety-Eight Thousand (98,000)
shares of such common stock are issued and outstanding. There are
no preferred shares of TCM. All of the Common Shares are duly and
validly issued, fully paid and non-assessable and were offered,
issued and sold in compliance with all applicable federal and state
securities laws. No person or entity has any right of rescission
or claim for damages under federal or state securities laws with
respect to the issuance of any Shares of TCM's Common Stock
previously issued. None of the outstanding Shares have been issued
in violation of any preemptive or other rights of the Holders.
(b) Except for the Option Shares, TCM does not have
outstanding any securities or other rights which are either by
their terms or by contract convertible or exchangeable into capital
stock of or other equity interest in TCM or any preemptive or
similar rights to subscribe for or to purchase, or any options or
warrants or agreements for the purchase or issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character
relating to, TCM's Common Stock or other equity interest or
securities convertible into TCM's Common Stock or other equity
interest. Except as otherwise provided in the ESOP and for the
agreement herein to terminate the Option Shares, TCM is not subject
to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire or to register any shares of its
capital stock.
(c) There is no agreement to which TCM or any of
its Subsidiaries is a party restricting the transfer of any Shares
except as required by applicable state and federal securities laws.
(d) Any Shares which have been purchased or
redeemed by TCM have been purchased or redeemed in accordance with
all applicable federal and state laws, rules and regulations,
including, without limitation, all federal and state securities
laws. The sale of the Common Shares to Buyer and the termination
of the Option Shares by Seller shall not result in, and will not,
with the giving of notice or lapse of time or both, result in a
default or acceleration of the maturity of, or otherwise modify,
any agreement, note, mortgage, bond, security agreement, loan
agreement or other contract or commitment of TCM and its
Subsidiaries.
3.3.5 CORPORATE RECORDS. The stock records and
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minute books of TCM furnished to the Buyer's Representatives by TCM
prior to Closing fully and accurately reflect all issuances,
transfers and redemptions of the capital stock of TCM, correctly
show the total number of Common Shares issued and outstanding on
the date hereof and as of Closing, correctly set forth the Option
Shares and the number of Option Shares, correctly show all
corporate action taken by the directors and
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shareholders of TCM since the incorporation of TCM (including actions
taken by consent without a meeting) and contain true and complete
copies or originals of TCM's Certificate of Incorporation and all
amendments thereto, Bylaws as amended and currently in force, and the
minutes of all meetings or consent actions of TCM's directors and
shareholders since the incorporation of TCM. No resolutions,
regulations or bylaws have been passed, enacted, consented to or
adopted by such directors or shareholders since the incorporation
of TCM, except those contained in the minute books.
3.3.6 FINANCIAL STATEMENTS. TCM has delivered to
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the Buyer's Representatives true, correct and complete copies of
the audited consolidated financial statements of TCM and its
Subsidiaries for the fiscal years ended April 30, 1995 and April
30, 1994, including fiscal balance sheets, statements of income and
retained earnings, statements of changes in financial position, a
statement of cash flows and related notes (all of the foregoing
described financial statements together with the Final April 30,
1996 Financial Statements being herein collectively referred to as
the "Financial Statements").
3.3.7 LIABILITIES. Except as disclosed in the
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Schedules hereto (including Schedule 3.3.7) or in the Final
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April 30, 1996 Financial Statements, TCM and its Subsidiaries do
not have any material debt, liability, or obligation of any kind,
whether accrued, absolute, contingent or otherwise, including but
not limited to (a) liability or obligation on account of any
federal, state, local or foreign taxes or penalties, interest or
fines with respect to such taxes, (b) liability arising from or by
virtue of the production, manufacture, sale, lease, distribution,
delivery or other transfer or disposition of personal property or
services of any type, kind or variety, or (c) unfunded liabilities
with respect to the ESOP or any Pension Plan or profit sharing
plan, whether operated by TCM or any of its Subsidiaries covering
employees of TCM or its Subsidiaries, except liabilities incurred
in the ordinary course of business since the Financial Statement
Date (none of which has, individually or in the aggregate, been or
will be materially adverse to the business or financial condition
of TCM). The ESOP has no loans outstanding and has no obligation
to repay any such loans. Except as set forth on Schedule 3.3.7
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or as reflected on the Final April 30, 1996 Financial Statements,
TCM and its Subsidiaries have no material obligations (absolute or
contingent) to provide funds on behalf of, or to guarantee or
assume any debt, liability or obligation of any Person, except for
endorsements in connection with the deposit of items for
collection. All material contingent liabilities of TCM and its
Subsidiaries in connection with the recourse financing of the sale
of inventory to customers on the date hereof and the Closing Date
are and will relate only to genuine, legal, valid and collectible
obligations in the ordinary course of business of customers who are
the primary obligors.
3.3.8 ABSENCE OF CHANGES. Except as set forth on
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Schedule 3.3.8 and the other Schedules hereto, since the
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Financial Statement Date:
(a) There has been no change in the Business,
assets, liabilities, results of operation or financial condition of
TCM and its Subsidiaries, or in any of its relationships with
suppliers, customers, employees, lessors or others, which
individually or in the aggregate has had or is likely to have a
material adverse effect on the Businesses, assets or properties of
TCM and its Subsidiaries
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taken as a whole;
(b) There has been no material uninsured damage,
destruction or loss to the assets or properties of TCM or its
Subsidiaries taken as a whole;
(c) Except for the transactions provided for in
this Agreement, the businesses of TCM and its Subsidiaries have
been operated in all material respects in the ordinary course;
(d) The properties and assets of TCM and its
Subsidiaries taken as a whole have been maintained in all material
respects in good order, repair and condition, ordinary wear and
tear excepted;
(e) The books, accounts and records of TCM and its
Subsidiaries have been maintained in all material respects in the
usual, regular and ordinary manner on a basis consistent with prior
years;
(f) There has been no declaration, setting aside or
payment of any dividend or other distribution on or in respect of
the Shares nor has there been any direct or indirect redemption,
retirement, purchase or other acquisition by TCM of TCM's Common
Stock, except for the cancellation of the Option Shares at Closing
and except in accordance with the ESOP;
(g) Except for changes disclosed to Buyer on
Schedule 3.3.8, there has been (i) no increase in the
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compensation or in the rate of compensation or commissions payable
or to become payable by TCM or any of its Subsidiaries to (x) any
director whose regular compensation is listed on Schedule 3.3.8,
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or (y) any officer, salaried employee, salesman, distributor or agent
earning Forty-Five Thousand Dollars ($45,000.00) or more per annum;
(ii) no increase in the compensation or in the rate of compensation
payable or to become payable to hourly employees and salaried employees
of TCM and its Subsidiaries earning less than Forty-Five Thousand
Dollars ($45,000.00) per annum; (iii) no director, officer, or employee
hired at a salary in excess of Forty-Five Thousand Dollars ($45,000.00)
per annum; (iv) no increase in any payment of or payment or commitment
to pay any bonus, profit sharing or other extraordinary compensation to
any employee; and (v) no increase in the rate of commissions paid or
payable to any employee of TCM and its Subsidiaries;
(h) There has been no material labor dispute,
organizational effort by any union, unfair labor practice charge or
employment discrimination or harassment charge, nor institution of
nor, to the knowledge of TCM and its Subsidiaries, threatened
institution of any such effort, complaint or other proceeding in
connection therewith, involving TCM or any of its Subsidiaries or
affecting the operations of TCM and its Subsidiaries;
(i) Except for contributions to the ESOP, as
disclosed to Buyer on Schedule 3.3.8, there has been no
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issuance or sale by TCM and its Subsidiaries of their authorized
capital stock, options or warrants for such capital stock, bonds,
notes or other securities of TCM or any of its Subsidiaries or any
modification or amendment of the rights of the holders of any
outstanding capital stock, bonds, notes or other securities
thereof;
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(j) Except to the extent provided in the security
agreements between TCM and its Subsidiaries and each of the
suppliers of TCM's and its Subsidiaries' inventory providing for a
security interest solely in the inventory purchased by TCM and its
Subsidiaries from such suppliers in the ordinary course of TCM's
and its Subsidiaries' business to secure payment of the purchase
price of such inventory, there has been no mortgage, lien or other
encumbrance (other than as is created through the operation of law
in the ordinary course of business) or security interest (other
than liens for current taxes not yet due) created on or in
(including without limitation, any deposit for security consisting
of) any asset or assets of TCM and its Subsidiaries or assumed by
TCM and its Subsidiaries with respect to any asset or assets;
(k) There has been no material indebtedness or
other material liability or obligation (whether absolute, accrued,
contingent or otherwise) incurred by TCM and its Subsidiaries,
including, without limitation, any draws or advances under any
lines of credit, which would be required to be reflected on a
balance sheet of TCM and its Subsidiaries, prepared in accordance
with GAAP, except such as have been incurred in the ordinary course
of business of TCM and its Subsidiaries;
(l) No obligation or liability of TCM or its
Subsidiaries has been discharged or satisfied, other than the
current liabilities reflected on the Final April 30, 1996 Financial
Statement and current liabilities incurred in the ordinary course
of business;
(m) Except for the sale of inventory in the
ordinary course of business, there has been no sale, transfer or
other disposition of any assets of TCM and its Subsidiaries, the
fair market value of which individually exceeds Fifty Thousand
Dollars ($50,000.00);
(n) Except as set forth on Schedule 3.3.8, there
-----
have been no material charge-off's of or reserves established
with respect to the accounts receivable;
(o) There has been no amendment, termination or
waiver of any right of TCM or any of its Subsidiaries under any
contract or agreement or governmental license, permit or permission
which, individually or in the aggregate, has had or will have a
material adverse effect on the business or properties of TCM and
its Subsidiaries; and
(p) There has been no creation of, amendment to or
contributions made to any bonus, incentive compensation, deferred
compensation, profit sharing, retirement, pension, group insurance
or other benefit plan, or any union, employment or consulting
agreement or arrangement.
3.3.9 LITIGATION AND PROCEEDINGS. Except as set
--------------------------
forth on Schedule 3.3.9, there are no material actions, decrees,
--------------
suits, counterclaims, claims, proceedings or governmental or other
investigations pending or, to the knowledge of TCM and its
Subsidiaries, threatened against, by or affecting TCM or its
Subsidiaries in any court or before any arbitrator or governmental
agency, and no material judgment, award, order or decree of any
nature has been rendered against TCM or its Subsidiaries or with
respect thereto by any agency, arbitrator, court, commission or other
authority which has not been paid or discharged, nor, to the
knowledge of TCM and its Subsidiaries, does
27
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TCM or its Subsidiaries have any unasserted contingent liabilities
which, individually or collectively, might have a material adverse
effect on the assets or on the operation of TCM and its Subsidiaries
or which might prevent or impede the Closing. Neither TCM nor any of
its Subsidiaries have received notice that any of them have been
charged with and, to the knowledge of TCM, neither TCM nor any of its
Subsidiaries are under investigation with respect to any charge
concerning any provision of any federal, state or other applicable or
administrative regulation with respect to the business of TCM and
its Subsidiaries. There are no pending or, to the knowledge of
TCM, threatened claims against any of the officers or directors of
TCM and its Subsidiaries in connection with the business or affairs
of TCM and its Subsidiaries. The reserves relating to such
actions, decrees, suits, counterclaims, claims, proceedings, or
governmental investigations which are set forth on Schedule 3.3.9
--------------
are, in the good faith opinion of management of TCM and its
Subsidiaries, adequate to cover all liabilities and obligations of
TCM and its Subsidiaries; however, there can be no guarantee of
outcome.
3.4 BUSINESS OPERATIONS.
-------------------
3.4.1 PERMITS; COMPLIANCE WITH LAW.
----------------------------
(a) TCM and its Subsidiaries and each of its
officers, directors and employees have all material permits,
licenses, approvals and authorizations of and registrations with
and under all federal, state, local and foreign laws, authorities
and agencies required for TCM and its Subsidiaries and their
officers, directors and employees to carry on each part of their
respective activities as presently conducted in connection with the
business of TCM and its Subsidiaries and all of such permits,
licenses, approvals, authorizations and registrations are in full
force and effect, and no suspension or cancellation of any of them
is pending or threatened.
(b) Except to the extent otherwise disclosed herein
(including any Schedules hereto), TCM and its Subsidiaries have
complied in all material respects with all federal, state and local
laws, rules, regulations and ordinances applicable to it or its
Business or its employees (including, without limitation, the
National Labor Relations Act, as amended, Title VII of the Civil
Rights Act of 1964, as amended, and the Age Discrimination in
Employment Act, as amended). No past violation of any such law,
rule, regulation or ordinance has occurred which could or would
materially impair the right or ability of TCM and its Subsidiaries
or its respective officers, directors or employees to conduct their
respective activities in connection with the Business of TCM and
its Subsidiaries.
3.4.2 ENVIRONMENTAL.
-------------
(a) TCM and its Subsidiaries hereby warrant and
represent that:
(i) Except as set forth on Schedule 3.4.2, all
--------------
underground storage tanks, if any, that have been owned or operated
by TCM and its Subsidiaries at the facilities and properties
presently owned, operated and leased by TCM and its Subsidiaries,
and any other underground storage tanks which have been located at
such facilities and properties, have been removed, and all clean-up
associated therewith completed in accordance with applicable
Environmental Laws;
28
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(ii) Except as set forth in Schedule 3.4.2, TCM
--------------
and its Subsidiaries have obtained all permits, licenses,
governmental approvals and other authorizations which they are
required to have under Environmental Laws, and TCM and its
Subsidiaries have prepared, submitted, made or given all required
filings, reports, disclosures and notifications and maintained all
records that they are required to make or maintain under applicable
Environmental Laws relating to the generation, use, manufacture,
refining, transportation, treatment, storage, handling, cleanup,
disposal, transfer, production, processing, or release by or for
TCM and its Subsidiaries of Hazardous Substances on, in, under or
from any properties or facilities currently or previously owned,
operated or leased by TCM and its Subsidiaries;
(iii) Except as set forth in Schedule 3.4.2, TCM
--------------
and its Subsidiaries are and have been in compliance with all
applicable limitations, restrictions, conditions, prohibitions,
requirements, obligations, schedules and timetables contained in
the Environmental Laws and permits issued thereunder, with respect
to operations by TCM and its Subsidiaries at properties and
facilities currently and previously owned, operated and leased by
TCM and its Subsidiaries including, without limitation, the
generation, use, manufacture, transportation, treatment, storage,
handling, disposal, transfer, recycling, reclamation, production
and processing by or for TCM and its Subsidiaries of Hazardous
Substances at, on, under, or from any of the properties or
facilities;
(iv) Except as set forth in Schedule 3.4.2, there
--------------
is no civil, criminal or administrative action, suit, demand, claim,
hearing, notice or demand letter, environmental lien, notice of
violation, investigation, or proceeding pending or, to the knowledge
of TCM and its Subsidiaries, threatened against TCM and its
Subsidiaries involving any Environmental Laws or Hazardous
Substances;
(v) Except as set forth in Schedule 3.4.2, TCM
--------------
and its Subsidiaries and their officers, directors, managers, and
employees are not aware of any instance of or any investigation,
assessment, removal or remediation of a release of Hazardous
Substances at, on, under or from any facility owned or operated by
TCM or any of its Subsidiaries.
3.4.3 INSURANCE. Schedule 3.4.3 contains a complete
--------- --------------
list and description (including the expiration date, premium amount
and coverage thereunder) of all policies of insurance and bonds
presently maintained by, or providing coverage for, TCM and its
Subsidiaries or any of its officers and directors (as officers and
directors of TCM and its Subsidiaries), all of which are and will be
maintained through the Closing Date, in full force and effect,
together with a complete list of all pending claims under any
insurance policy or bond. All material terms, obligations and
provisions of each insurance policy and bond have been complied with,
all premiums due thereon have been paid, and no notice of
cancellation with respect thereto has been received. In the good
faith judgment of TCM, the policies and bonds presently maintained
by, or providing coverage for TCM and its Subsidiaries or any of
their officers and directors (as officers and directors of TCM and
its Subsidiaries), provide adequate coverage to insure the properties
and business of TCM and its Subsidiaries and the activities of their
officers and directors against such risks and in such amounts as are
prudent and customary. Except as set forth on Schedule 3.4.3,
--------------
neither TCM nor any of its Subsidiaries will have as of the Closing
Date any liability for premiums or for retrospective premium
adjustments for any period prior to the Closing Date. TCM has
heretofore delivered to Buyer's
29
14
Representatives true, correct and complete copies of all insurance
policies and bonds or the binders for all insurance policies and
bonds presently maintained by, or providing coverage for TCM, its
Subsidiaries or any of their officers and directors (as officers
and directors of TCM and its Subsidiaries), or a summary thereof.
The insurance coverage listed in Schedule 3.4.3 hereto is on an
occurrence basis. --------------
3.5 CONTRACTS; PROPERTIES AND ASSETS.
--------------------------------
3.5.1 CONTRACTS AND COMMITMENTS. Except as
-------------------------
reflected in the other Schedules hereto and other than the purchase
and sale of inventory in the ordinary course of TCM's and its
Subsidiaries' business, Schedule 3.5.1 contains a list which
--------------
identifies and briefly describes all written and oral contracts,
agreements, guaranties or commitments, to which TCM or its
Subsidiaries is a party or by which TCM or its Subsidiaries may be
bound (including, without limitation, employment agreements and
open purchase and sale orders), involving the payment by or to TCM
or its Subsidiaries of more than Fifty Thousand Dollars
($50,000.00) or which is otherwise material to, or in connection
with, the operation of the business of TCM and its Subsidiaries.
There are no material written or oral contracts, agreements,
guaranties or commitments to which TCM and its Subsidiaries is a
party or by which TCM and its Subsidiaries or their properties are
bound, other than as reflected on Schedule 3.5.1, and other
--------------
than those relating to the purchase or sale of inventory in the
ordinary course of TCM's and its Subsidiaries' business, involving
payments or obligations in the aggregate for all such contracts,
agreements, guaranties or commitments in excess of Three Hundred
Thousand Dollars ($300,000.00). Each such contract, agreement,
guaranty or commitment is in full force and effect and is valid and
enforceable in accordance with its terms and constitutes a legal
and binding obligation of the respective parties thereto and is not
the subject of any notice of default, termination or partial
termination. TCM and its Subsidiaries have complied in all
respects with the provisions of such contracts, agreements,
guaranties and commitments. A true and complete copy of each such
document has been submitted to Buyer for examination. Neither TCM
nor any of its Subsidiaries has any arrangement (formal or
informal) nor are any of them a party to any agreement with any
current or previous customer regarding any rebates or other
payments or gifts (in kind or in cash).
3.5.2 LICENSES; INTELLECTUAL PROPERTY. Except as
-------------------------------
described in Schedule 3.5.2, neither TCM nor any of its
--------------
Subsidiaries are a party, either as licensor or licensee, to any
material agreement for any inventions, patent, process, trademark,
service xxxx, trade name, copyright, trade secret or confidential
information ("Intellectual Property"). All Intellectual Property
and applications therefor or registrations thereof, owned or used
by TCM and its Subsidiaries are listed in Schedule 3.5.2 and
--------------
comprise all such Intellectual Property required for TCM and its
Subsidiaries to conduct, and to continue to conduct, their business
as presently conducted. If any such Intellectual Property is owned
by any Person other than TCM or one of its Subsidiaries, TCM shall
cause such Person to assign and transfer such Intellectual Property
to TCM or one of its Subsidiaries, without cost, prior to the
Closing. Except as set forth on Schedule 3.5.2, there are no
--------------
rights of third parties with respect to any of, and TCM and its
Subsidiaries have the right to use, the Intellectual Property owned
or used by TCM and its Subsidiaries. TCM and its Subsidiaries have
complied in all material respects with applicable laws relating to
the filing or registration of "fictitious names" or trade names, if
any.
30
15
3.5.3 TITLE TO PROPERTIES. TCM and its
-------------------
Subsidiaries have good and marketable title to all of their
properties, real and personal, tangible and intangible, including,
but not limited to, those reflected on the Final April 30, 1996
Financial Statements (except as since sold or otherwise disposed of
in the ordinary course of business), free and clear of all
encumbrances, liens, security interests, claims or charges of any
kind or character except (i) those referred to in Schedule 3.5.3
--------------
and (ii) liens for real estate taxes not yet due and payable. TCM
and its Subsidiaries possess all property and rights that TCM and its
Subsidiaries consider necessary to the conduct of their business as
presently conducted.
3.5.4 CONDITIONS OF PROPERTIES. Taken as a
------------------------
whole, all of the buildings and equipment owned or leased by TCM
and its Subsidiaries and used in its Business are in good condition
and repair in all material respects, normal wear and tear excepted,
suited for the uses intended, and operated in conformity with all
material applicable building, zoning and other applicable
ordinances, laws and regulations, and to the knowledge of TCM and
its Subsidiaries, there are no proposed changes therein that would
have a material adverse effect on such properties or their use.
3.5.5 REAL PROPERTY AND LEASES.
------------------------
(a) All leases pursuant to which TCM or its
Subsidiaries are lessee or lessor of any real or personal property
(the "Company Leases") are valid and enforceable with respect to
TCM or its Subsidiaries, as the case may be, and, to the knowledge
of TCM and its Subsidiaries, with respect to the other party or
parties thereto, in accordance with their respective terms; there
is not under any of such leases (i) any material default or any
claimed default by TCM or its Subsidiaries or event of default or
event which with notice or lapse of time, or both, would constitute
a default by TCM or its Subsidiaries and in respect of which
adequate steps have not been taken to prevent a default on its part
from occurring; or (ii) to the knowledge of TCM and its
Subsidiaries, any existing default by any lessee of TCM or its
Subsidiaries or any event of default or event which with notice or
lapse of time, or both, would constitute a material default by any
such lessee. A true, complete and accurate list of the Company
Leases, setting forth the lessor and lessee, property, initial and
renewal term and annual rentals is contained in Schedule 3.5.5.
--------------
(b) The copies of the Company Leases heretofore
furnished by TCM and its Subsidiaries to Buyer's Representatives
are true, correct and complete, and such Company Leases have not
been modified in any material respect and are in full force and
effect in accordance with their respective terms.
(c) The interest of TCM or its Subsidiaries in and
under each of the Company Leases is unencumbered and subject to no
present claim, contest, dispute, action or, to the knowledge of
TCM, threatened action at law or in equity.
(d) The present use and operation of, and
improvements upon, all real properties leased by TCM or its
Subsidiaries (the "Leased Properties") are in conformity with all
applicable material building, zoning and other applicable laws,
ordinances and regulations, and, to the knowledge of TCM and its
Subsidiaries, there are no proposed changes therein that would have
a material adverse
31
16
effect on the Leased Properties or their use.
(e) Except as set forth in Schedule 3.5.5, no
--------------
rent has been paid in advance and no security deposit has been paid
by, nor is any brokerage commission payable by TCM and its
Subsidiaries with respect to any Company Lease pursuant to which
either TCM or one of its Subsidiaries is lessee.
(f) There are no contractual obligations or
agreements in principle for either TCM or one of its Subsidiaries
to enter into new leases of real property or to renew or amend
existing Company Leases prior to the Closing Date.
(g) Schedule 3.5.5 lists all real property that
--------------
either TCM or any of its Subsidiaries owns (the "Real Estate").
With respect to each such parcel of Real Estate, TCM or one of its
Subsidiaries has good and marketable title to the parcel of Real
Estate free and clear of any security interests, easements,
covenants or other restrictions, except as described in the Surveys
provided pursuant to Section 5.5.2 below, except for installments
of regular or special assessments not yet delinquent and recorded
easements, and such other encumbrances as may be set forth on
Schedule 3.5.5. In addition, with respect to each parcel,
--------------
there are no outstanding leases, subleases or other agreements
(written or oral) granting to any party or parties the right to use
or occupy any portion of the parcel of Real Estate and there are no
outstanding options or rights of first refusal to purchase the
parcel of Real Estate or any portion thereof or the interest
therein.
3.5.6 INVENTORIES. The inventory of TCM and its
-----------
Subsidiaries consists of items of a quality and quantity usable and
salable in the ordinary course of their Businesses, and, taken as
a whole, the values of obsolete or slow moving materials and
materials below standard quality have been written down on its
books of account on a consistent basis to realizable market value,
or adequate reserves have been provided therefor. All goods sold
or otherwise distributed by TCM and its Subsidiaries and all
finished goods in the inventory of TCM and its Subsidiaries conform
in all respects to customary trade standards for marketable goods,
subject to returns of goods or warranty claims in accordance with
the prior history of TCM and its Subsidiaries.
3.6 EMPLOYEES AND BENEFITS.
----------------------
3.6.1 DIRECTORS OR OFFICERS. Schedule 3.6.1 correctly
--------------------- --------------
lists all of the present officers and directors of TCM and its
Subsidiaries.
3.6.2 COMPENSATION STRUCTURE. Schedule 3.6.2 contains
---------------------- --------------
a true and complete list of the names, titles, and compensation
arrangements of each employee of TCM and its Subsidiaries (including,
without limitation, all salary, wages, bonuses and fringe benefits
other than those fringe benefits made available to all employees on a
nondiscriminatory basis, in each case separately itemized) earning in
excess of Forty-Five Thousand Dollars ($45,000.00) per year. Except
as set forth in Schedule 3.6.2, no management or other key employee
--------------
or significant number of other employees of TCM or any of its
Subsidiaries has informed or advised TCM or any of its Subsidiaries
employees do not intend to continue such employee's or employees'
32
17
employment with TCM or one of its Subsidiaries, as the case may be,
after the date hereof. TCM and its Subsidiaries have heretofore
provided the Buyer's Representatives with copies of all written
agreements, and memoranda currently in effect which have been
provided to such employees relating to their current compensation.
A list of such agreements is included in Schedule 3.6.2.
--------------
3.6.3 EMPLOYEE BENEFITS.
-----------------
(a) Except as set forth in Schedule 3.6.3,
--------------
neither TCM nor any of its Subsidiaries has or maintains a "pension
plan" (as such term is defined in Section 3 of ERISA), "welfare
benefit plan" (as such term is defined in Section 3 of ERISA),
bonus plan, stock option plan, deferred compensation plan or other
similar plan for any of its employees.
(b) Each "employee benefit plan" as defined in
Section 3(3) of ERISA, maintained by or on behalf of TCM or one of
its Subsidiaries or by any other party (including any plans which
are "multiemployer plans" under Section 3(37)(A) of ERISA
("Multiemployer Plans")) and any defined benefit pension plan (as
defined in Section 3(35) of ERISA) terminated by TCM or one of its
Subsidiaries within the five (5) plan years ending immediately
before the Closing Date which covers or covered any employee of TCM
or its Subsidiaries, or any predecessor of either TCM or one of its
Subsidiaries is listed on Schedule 3.6.3 (all such plans listed on
--------------
Schedule 3.6.3 are sometimes collectively referred to herein as the
--------------
"Plans" and individually as a "Plan").
(c) True and complete copies of all the Plans and
Plan trusts, Summary Plan Descriptions, Actuarial Reports (if any)
and Annual Reports on Form 5500 for the most recent three years
with respect to the Plans, Internal Revenue Service determination
letters and any other related documents have been, or prior to the
Closing Date will be, provided to the Buyer's Representatives.
(d) Except as set forth on Schedule 3.6.3, with
--------------
respect to each Plan: (i) no litigation or administrative or other
proceeding is pending or known to be threatened; (ii) the Plan has
been administered in substantial compliance with, and has been
restated or amended (except for amendments not yet required by law
to be made) so as to comply with, all material applicable
requirements of law including all material applicable requirements
of ERISA, the Code and regulations promulgated thereunder by the
Internal Revenue Service and the United States Department of Labor.
No Plan nor any trustee, administrator or fiduciary thereof has at
any time been involved in any transaction relating to such Plan
which would constitute a breach of fiduciary duty under ERISA or a
"prohibited transaction" within the meaning of Section 406 of ERISA
or Section 4975 of the Code.
(e) Each Plan has been administered in all material
respects in compliance with applicable law and the terms of the
Plan.
(f) Each "employee pension benefit plan" within the
meaning of Section 3(2) of ERISA ("Pension Plan") maintained by or
on behalf of TCM is listed on Schedule 3.6.3, and copies of such
--------------
Pension Plans have been, or prior to the Closing Date will be,
provided to Buyer's Representatives. The Pension Plans are
qualified plans within the meaning of Section 401(a) of the Code,
and the
33
18
trusts thereunder are exempt from federal income tax under
Section 501(a) of the Code, and TCM's and each of its Subsidiaries'
predecessors, if any, have made or accrued, and as of the Closing
Date will have made or accrued, all payments and contributions
required to be made under the provisions of the Pension Plans or by
law with respect to any period prior to the Closing Date. Except
as set forth on Schedule 3.6.3, as of the date hereof, no
--------------
contribution to either the 401(k) plan or ESOP maintained by TCM
and its Subsidiaries has been authorized which has not been fully
paid.
(g) Except as disclosed on Schedule 3.6.3 and
--------------
except for obligations under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"), neither TCM nor any of its
Subsidiaries has any obligation to provide, or liability for,
health care, life insurance or other benefits after termination of
employment for former or present employees. As of the Closing
Date, TCM and its Subsidiaries will have cured any known material
violations or deficiencies under applicable statutes, orders and
regulations relating to its employee benefit plans or its
administration thereof and will have provided adequate reserves, or
insurance or qualified trust funds, for all claims incurred through
the Closing Date, based on an actuarial valuation satisfactory to
the actuaries of Buyer representing a projection of claims expected
to be incurred for such retirees during their period of coverage
under such Plan.
(h) To the knowledge of TCM and its Subsidiaries,
no fact or circumstance exists which could constitute grounds in
the future for the Pension Benefit Guaranty Corporation ("PBGC")
(or any successor to the PBGC) to take any action whatsoever under
Section 4042 of ERISA in connection with any plan which an
Affiliate of TCM or one of its Subsidiaries maintains within the
meaning of Section 4062 or 4064 of ERISA, and, in either case, the
PBGC has not previously taken any such action which has resulted
in, or reasonably might result in, any liability of an Affiliate or
TCM or any of its Subsidiaries to the PBGC, which would have a
materially adverse effect on the business of TCM and its
Subsidiaries.
(i) Only current and former employees of TCM and
its Subsidiaries or their dependents participate in the Plans.
(j) TCM is not an affiliate with any entity other
than entities required to be aggregated with it pursuant to
Sections 414(b), (c), (m) or (o) of the Code. No Plan is
cosponsored or has been adopted by any entity other than TCM or one
of its Subsidiaries.
(k) No Pension Plan had an accumulated funding
deficiency as of the last day of the most recent plan year thereof.
Within the past ten (10) years, no Pension Plan has been completely
or partially terminated, no reportable event has occurred with
respect to such plan and, to the knowledge of TCM and its
Subsidiaries, no proceeding by the PBGC to terminate any such
Pension Plan has been instituted or threatened. With respect to
the Plans, to the knowledge of TCM and its Subsidiaries, no claims
are pending or threatened with respect to the assets thereunder or
the assets of TCM, its Subsidiaries and Affiliates, except for
routine claims for benefits. None of the Plans is a multiple
employer welfare arrangement, as defined in Section 3(40)(A) of
Title I of ERISA. Each Plan can be terminated after the Closing
Date to eliminate the liability for claims under such Plan
resulting from occurrences after the date of termination.
34
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3.6.4 LABOR-RELATED MATTERS. Neither TCM nor any
---------------------
of its Subsidiaries is a party to any collective bargaining
agreement or agreement with any union or labor organization.
Except as set forth on Schedule 3.6.4, there are no pending or
--------------
asserted claims against TCM or any of its Subsidiaries, or any of
its officers or directors for unfair labor practices, employment
discrimination, wrongful or retaliatory discharge, sexual
harassment, workers' compensation, employment compensation,
negligent hiring or retention or for unpaid salaries, wages or
other fringe benefits ("Employee Claims"). Except as set forth on
Schedule 3.6.4, to the knowledge of TCM and its Subsidiaries,
--------------
there are no threatened or unasserted Employee Claims of any
material kind or nature.
3.6.5 TRANSACTIONS WITH MANAGEMENT. Schedule 3.6.5
---------------------------- --------------
contains a description, by name, amount and type, of all outstanding
contracts with or commitments to present shareholders or former
shareholders, directors, officers, employees or agents, including any
business directly or indirectly controlled by any such person (other
than contracts or commitments relating to services to be performed by
an officer, director, or employee as a currently employed employee of
TCM or one of its Subsidiaries and other than contracts or
commitments with former shareholders, directors, officers, employees
or agents on an arm's length basis). There are neither any
outstanding loans due and owing by any Shareholder to TCM or one of
its Subsidiaries nor any outstanding loans due and owing from TCM or
one of its Subsidiaries to any Shareholder. Except as set forth in
Schedule 3.6.5, there are no inter-company obligations between TCM
-----
and its Subsidiaries that were not entered into or incurred on an
arms length basis.
3.7 OTHER.
-----
3.7.1 APPROVALS AND CONSENTS. Schedule 3.7.1 lists
---------------------- --------------
all consents or other approvals necessary in order for TCM and the
Holders, and each of them to consummate the transactions contemplated
by this Agreement, including but not limited to all governmental and
other regulatory approvals and consents of suppliers including,
without limitation, that of Xxxxxx, lenders, lessors, landlords and
governmental entities.
3.7.2 TAXES. All federal, state, local and
-----
foreign tax returns and reports of TCM and its Subsidiaries
required by law to be filed have been filed, and all federal,
state, local, foreign and any other taxes, assessments, fees and
other governmental charges with respect to the employees,
properties, assets, income or franchises of TCM and its
Subsidiaries shown on such returns and reports to be due and
payable, or which are otherwise due and payable, have been paid by
TCM or its Subsidiaries or accrued or reserved against on TCM's or
its Subsidiaries' financial statements or will be properly accrued
or reserved against on the books and records of TCM and its
Subsidiaries as of the Closing Date. Each of TCM and its
Subsidiaries has withheld and paid all taxes required to have been
withheld, and paid in connection with amounts paid to an employee,
independent contractor, creditor, stockholder or other third party.
No authority is expected to assess any additional taxes for any
period for which tax returns have been filed. There is no dispute
or claim concerning any tax liability of either TCM or any of its
Subsidiaries, based upon either (a) claims raised by any authority
in writing or (b) based upon personal contact by any agent of such
authority. Neither TCM nor any of its Subsidiaries has waived any
statute of limitation with respect to taxes
35
20
or agreed to any extension of time with respect to a federal income
tax assessment or deficiency. Neither TCM nor any of its
Subsidiaries is currently the beneficiary of any extension of time
within which to file any tax return.
3.7.3 PRODUCT WARRANTY. Except as set forth in
----------------
Schedule 3.7.3, to the knowledge of TCM and its Subsidiaries:
--------------
(a) The reserve for product warranty claims set
forth on the face of the Final April 30, 1996 Financial Statements
as adjusted for the passage of time through the Closing Date is in
accordance with the past practice of TCM and its Subsidiaries and
is adequate to cover all known, and incurred but not recognized,
product warranty claims and, as stated thereon, in accordance with
GAAP;
(b) There are no facts which TCM or its
Subsidiaries believe will lead to a voluntary or involuntary recall
of any pumps, compressors or other goods sold, leased or delivered
by any of TCM or its Subsidiaries.
3.7.4 PRODUCT LIABILITY. Each product
-----------------
manufactured or sold either by TCM or one of its Subsidiaries has
been in conformity with all applicable contractual commitments and
all express and implied warranties given therewith. Neither TCM
nor its Subsidiaries has any known liability for replacement or
repair of its goods or products or other damages in connection
therewith, subject only to the reserve for product warranty claims
set forth on the face of the Final April 30, 1996 Financial
Statements as adjusted for the passage of time through the Closing
Date in accordance with the past practices of TCM and its
Subsidiaries.
3.7.5 BROKERS. Neither TCM nor any of its
-------
Subsidiaries has retained any broker, finder, investment banker or
financial advisor in connection with this Agreement or any
transaction contemplated hereby to which Buyer may be held liable
for any fees or other compensation.
3.7.6 REPRESENTATIONS AND WARRANTIES. No
------------------------------
representation or warranty contained in this Section 3 or in any
written statement delivered by or at the direction of TCM pursuant
hereto or in connection with the transactions contemplated hereby
contains or shall contain any untrue statement, nor shall such
representations and warranties taken as a whole omit any statement
necessary in order to make any statement not misleading. There is
no material fact known to TCM or any of its Subsidiaries (other
than facts relating to general business conditions), which
adversely affects the business, operations, or assets or the
condition, financial or otherwise, of TCM and its Subsidiaries in
any respect which has not been disclosed in this Agreement or in
the Schedules.
3.8 Representations and Warranties of Holders.
-----------------------------------------
Each Holder represents and warrants for itself severally (and not
jointly and severally with TCM or other Holders) that:
(a) Each Holder holds, of record, the number of
Common Shares and/or Option Shares as is set forth in Exhibit A
---------
free and clear of any restrictions on transfer other than those
imposed under federal and state securities laws, and free and clear
of all security interests, liens, charges, encumbrances, options,
warrants, purchase rights, contracts, commitments and claims,
except for those agreements or restrictions which will be
terminated prior to Closing. Other than as provided
36
21
in the ESOP and as provided herein relating to the termination of the
Option Shares at Closing, no Holder or any other person is a party to
any other option, warrant, purchase right or other contract or
commitment that could require it to sell, transfer or otherwise
dispose of any of its Common Shares or Option Shares. Other than
as provided in the ESOP, no Holder is a party to any voting trust,
proxy, buy/sell agreement or other contract or agreement or
understanding with respect to the voting of his Common Shares or
Options.
(b) Cushair, Inc., Jalex Industries, Inc. and
Design Directions, Inc. are duly organized, validly existing and in
good standing under the laws of the jurisdiction of their
incorporation. The ESOP is a qualified employee stock ownership
plan under ERISA.
(c) Each Holder has full power and authority and,
in the case of (i) Cushair, Inc., Jalex Industries, Inc. and Design
Directions, Inc., full corporate power and authority, and (ii) in
the case of the ESOP, full approval and authorization in accordance
with the ESOP, in each case, to execute and deliver this Agreement
and to perform Holder's obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of such
Holder, enforceable in accordance with its terms and conditions,
except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and other laws effecting
creditors' rights generally and general principles of equity,
regardless of whether asserted in equity or at law. No Holder is
a debtor in a case commenced voluntarily or involuntarily under
either federal or state bankruptcy or insolvency laws.
(d) Neither the execution and the delivery of this
Agreement by a Holder, nor the performance by Holder of its
obligations hereunder, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge or other restriction of any government, governmental agency
or court to which Holders are subject or, in the case of (x)
Cushair, Inc., Jalex Industries, Inc. or Design Directions, Inc.,
any provision of their charter or bylaws, (y) the ESOP, the
agreement under which it is established and all amendments thereto,
or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any third party the
right to accelerate, terminate, modify or cancel, or require any
notice under any agreement, contract, lease, license, instrument or
other arrangement to which any Holder is a party or by which he or
it is bound or to which any of his or its assets is subject, except
for those agreements or restrictions which will be terminated prior
to Closing, or (iii) with respect to the ESOP, violate any
fiduciary duties the trustees may have to its participants.
(e) Each Holder has determined that the
consideration to be paid by Buyer for the Shares is fair.
(g) No representations, warranties, promises,
inducements, coercion or other pressures of any kind were brought
to bear upon or influenced in any way Holder's decision to sell its
Shares other than its determination that the Purchase Price and the
terms of sale herein are fair; and
(h) Each Holder hereby waives all rights, claims
and entitlements that such Holder may have under all federal and
state securities laws.
(i) As of the Closing Date, each Holder has
received from TCM or its Subsidiaries all
37
22
director's fees, dividends, bonuses or other compensation to which
Holder or any entity controlled by Holder may be entitled from such
entities.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
---------------------------------------
Buyer hereby represents and warrants to the Holders as
follows:
4.1 ORGANIZATION OF BUYER. Buyer is a
---------------------
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
4.2 AUTHORIZATION. Buyer has all necessary power
-------------
and authority and has taken all action necessary to enter into this
Agreement and the other agreements, documents and instruments to be
executed and delivered by Buyer in connection with or pursuant to
this Agreement, to consummate the transactions contemplated hereby
and thereby and to perform its obligations hereunder and
thereunder. A certified copy of the Board of Directors resolution
approving the consummation of the transactions contemplated hereby
shall be delivered to TCM at Closing. This Agreement has been duly
executed and delivered by Buyer and is a legal, valid and binding
obligation of Buyer, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization and other similar laws
affecting creditors' rights generally and general principles of
equity, regardless of whether asserted in a proceeding in equity or
at law. The agreements, documents and instruments to be executed
and delivered by Buyer in connection with or pursuant to this
Agreement, when executed and delivered, will constitute the legal,
valid and binding obligations of Buyer, enforceable against it in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization and
other similar laws affecting creditors' rights generally and
general principles of equity, regardless of whether asserted in a
proceeding in equity or at law.
4.3 NO CONFLICT OR VIOLATION. Neither the
------------------------
execution and delivery of this Agreement and the other agreements,
documents and instruments to be executed and delivered by Buyer in
connection with or pursuant to this Agreement, nor the consummation
of the transactions contemplated hereby or thereby will result in:
(a) a violation of or a conflict with any provision of Buyer's
Certificate of Incorporation or Bylaws; (b) a breach of, or a
default under, any term or provision of any contract, agreement,
indebtedness, lease, commitment, license, franchise, permit,
authorization or concession to which Buyer is a party, which breach
or default would have a material adverse effect on the business or
financial condition of Buyer or its ability to consummate the
transactions contemplated hereby; or (c) a violation by Buyer of
any statute, rule, regulation, ordinance, code, order, judgment,
writ, injunction, decree or award, which violation would have a
material adverse effect on the business or financial condition of
Buyer or its ability to consummate the transactions contemplated
hereby.
4.4 CONSENTS AND APPROVALS. No consent,
----------------------
approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority, or any
other person or entity, is required to be made or obtained by Buyer
in connection with the execution, delivery and performance of this
Agreement and the other agreements, documents and instruments to be
executed
38
23
and delivered by Buyer in connection herewith or pursuant hereto and
the consummation of the transactions contemplated hereby.
4.5 NO BROKER. Buyer has not retained any
---------
broker, finder, investment banker or financial advisor in
connection with this Agreement or any transaction contemplated
hereby to which TCM will be held liable for any fees or other
compensation.
5. COVENANTS OF TCM.
----------------
TCM and its Subsidiaries covenants and agrees that, from
and after the date of this Agreement and until the Closing, TCM and
its Subsidiaries will conduct its Business subject to the following
provisions and limitations:
5.1 MAINTENANCE OF BUSINESSES PRIOR TO CLOSING.
------------------------------------------
TCM and its Subsidiaries shall continue to carry on the Business in
the ordinary course and consistent with past practice and will not
take any action inconsistent therewith or with the consummation of
the transactions contemplated by this Agreement without the consent
of Buyer. Without limiting the generality of the foregoing, TCM
and its Subsidiaries shall: (a) maintain their assets in all
material respects in their current state of repair, excepting
normal wear and tear; (b) maintain insurance covering their assets
similar to that in effect on the date hereof; (c) use their good
faith efforts to preserve their current business organizations; (d)
use their good faith efforts to keep available the services of the
current material employees and other material personnel of the
Business; and (e) use their good faith efforts to preserve the
current business relationships with customers, suppliers and others
having business dealings with TCM and its Subsidiaries. Neither
TCM nor any of its Subsidiaries shall engage in any practice, take
any action, embark on any course of inaction or enter into any
transaction that would cause any of its representations and
warranties set forth in Section 3 hereof to be untrue as of the
Closing Date or result in any of such representations and
warranties being untrue as of the Closing Date. Without limiting
the generality of the foregoing, neither TCM nor any of its
Subsidiaries shall take any of the following actions: (i) issue any
shares of their common capital stock; (ii) except as contemplated
by this Agreement, purchase or propose the purchase of any such
shares including, without limitation, pursuant to any purchase
option or put rights under the terms of the ESOP, or other equity
interest or any class of securities convertible into, or rights,
warrants or options to acquire, any such shares or other
convertible securities or enter into any agreement with respect to
the foregoing; or (iii) acquire by merging or consolidating with,
or by purchasing a substantial portion of the assets or stock of,
or by any other manner, any business or any corporation,
partnership, association or other entity or division thereof;
(iv) sell, mortgage, lease, buy or otherwise acquire, transfer or
dispose of any real or personal property or any interest therein,
except for the sale of inventory in the ordinary course; (v) except
as may be disclosed in Schedule 5.1, materially increase the
------------
compensation payable or to become payable to any director, officer
or employee of TCM or its Subsidiaries not in the ordinary course
of business; (vi) incur any long-term liabilities or indebtedness
outside the ordinary course of business or in excess of One Hundred
Thousand Dollars ($100,000.00) without the prior written consent of
Buyer; (vii) pay any claim or discharge or satisfy any lien or
encumbrance or pay any obligation or liability other than in the
ordinary course of business or as required by the terms of any
instrument evidencing or governing
39
24
the same or by the terms hereof; (viii) except as may be disclosed in
Schedule 5.1, enter into or amend, or make any contributions to, any
------------
Plan or bonus, incentive compensation, deferred compensation, profit
sharing, retirement, Pension Plan, group insurance or other benefit
plan; or (ix) agree to do any of the foregoing.
5.2 INVESTIGATION OF BUYER. Between the date
----------------------
of this Agreement and the Closing, Buyer intends to continue to
conduct a review of the business and financial condition of TCM and
its Subsidiaries. In connection with such review by Buyer, TCM and
its Subsidiaries shall allow Buyer and its representatives, during
normal business hours to make such inspection of TCM's and its
Subsidiaries' assets and to inspect and make copies of such books,
records, contracts and other information reasonably requested by
Buyer. TCM and its Subsidiaries shall furnish to Buyer promptly
upon request all such additional documents and information with
respect to the affairs of TCM and its Subsidiaries as Buyer or
Buyer's Representatives may from time to time reasonably request
and shall instruct such employees, customers and suppliers to
cooperate with Buyer, and to provide such information as Buyer and
Buyer's Representatives may reasonably request.
5.3 CONSENTS AND GOOD FAITH EFFORTS. As soon
-------------------------------
as practicable after the date of this Agreement, TCM and its
Subsidiaries shall commence all reasonable action and shall use its
good faith efforts to obtain all material applicable permits,
consents, approvals and agreements of, and to give all notices and
make all filings with, any third parties or governmental
authorities as may be necessary or appropriate to authorize,
approve or permit the consummation of the transactions provided for
hereby on or prior to the Closing Date.
5.4 NO SOLICITATION. Neither TCM, its
---------------
Subsidiaries nor any of their directors, officers, employees,
agents, representatives and affiliates shall solicit or request
from third parties any offers to purchase all or substantially all
of the assets or substantially all of the stock of TCM or any of
its Subsidiaries, nor participate in any negotiations related to
any such offers.
5.5 TITLE INSURANCE AND SURVEYS.
---------------------------
5.5.1 TITLE INSURANCE. TCM will obtain (and will
---------------
cause its Subsidiaries to obtain) with respect to each parcel of
Real Estate that any of TCM and its Subsidiaries owns, except for
the Adex Property for which no Title Policy shall be required, an
ALTA Owner's Policy of Title Insurance Form 1402.92 (or equivalent
policy) (the "Title Policy"), in such amount as Buyer reasonably
may determine to be the fair market value of such Real Estate
(including all improvements located thereon), insuring title to
such Real Estate to be in Buyer as of the Closing (subject only to
the standard preprinted exceptions described in such Title Policy
and in Schedule 5.5.1). Each Title Policy delivered hereunder
--------------
shall (a) insure title to the Real Estate, and (b) contain an
"extended coverage endorsement" insuring over the general
exceptions contained customarily in such policies.
5.5.2 SURVEYS. With respect to each parcel of
-------
Real Estate that any of TCM and its Subsidiaries owns, other than
the Adex Property for which no Survey shall be required, and as to
which a Title Policy is to be procured pursuant to Section 5.5.1
above, TCM will procure (and will cause its Subsidiaries to
procure) in preparation for the Closing a current survey of the
Real Estate
40
25
certified to Buyer, prepared by a licensed surveyor and
conforming to current ALTA Minimum Detail Requirements for Land
Title Surveys, disclosing the location of all improvements,
easements, party walls, sidewalks, roadways, utility lines, and
other matters shown customarily on such surveys, and showing access
affirmatively to public streets and roads (the "Survey(s)"). The
Survey(s) shall not disclose any survey defect or encroachment from
or onto the Real Estate which has not been cured or insured over
prior to the Closing.
5.6 NOTICE. TCM shall promptly give Buyer
------
written notice in the event TCM becomes aware of the existence or
occurrence of any event or condition which would make any
representation or warranty of TCM or its Subsidiaries contained
herein untrue in any material respect or which might prevent the
consummation of the transactions contemplated hereby.
6. CONDITIONS AND OBLIGATIONS TO CLOSE.
-----------------------------------
6.1 CONDITIONS TO OBLIGATIONS OF TCM, BUYER AND
-------------------------------------------
THE HOLDERS. The obligations of TCM, Buyer and the Holders to
-----------
consummate the transactions to be performed by each of them in
connection with the Closing are subject to the satisfaction of the
following conditions:
6.1.1 Holder Approval. The Holders shall execute
---------------
this Agreement, and deliver to Buyer the certificates representing
the Common Shares and Termination Agreements evidencing the
cancellation of the Option Shares.
6.1.2 AGREEMENTS BETWEEN BUYER AND ALEXANDER.
--------------------------------------
Buyer and Alexander shall have entered into, effective as of the
Closing: (A) the Consulting Agreement; and (B) the Non-Competition
Agreement. In addition, Alexander shall assign, transfer and
deliver to Buyer or its designee at Closing Stock Certificate No.
4 representing one (1) share of TCM Mfg. Int'l., Limited, a
subsidiary of Twentieth Century.
6.1.3 XXXXXX AND NECESSARY APPROVAL. The Xxxxxx
-----------------------------
Contract shall be in full force and effect, Twentieth Century shall
not be in default thereunder, neither party thereto shall have
given notice of termination to the other thereunder, and TCM shall
have procured Xxxxxx'x approval or consent under Section 9.1
thereof, if necessary, in connection herewith. In addition, TCM
and Buyer shall have received all other authorizations, consents
and approvals of government and governmental agencies.
6.1.4 Final Determination of Net Worth. A final
--------------------------------
determination of Net Worth of TCM and it Subsidiaries as of the
Financial Statement Date and any resultant adjustment in the
Purchase Price shall have been made in accordance with Section 1.4.
6.1.5 WAIVER. Any party may waive any condition
------
to its obligation to close specified in this Section 6.1 by
executing a writing so stating at or prior to the Closing.
6.2 CONDITIONS TO OBLIGATIONS OF TCM AND HOLDERS.
--------------------------------------------
In addition to the conditions set forth in Section 6.1, the
obligations of TCM and Holders to consummate the Closing are
subject to the satisfaction and fulfillment at or prior to the
Closing of each of the following conditions, any of
41
26
which may be waived by TCM or the Holders:
6.2.1 REPRESENTATIONS, WARRANTIES AND COVENANTS.
-----------------------------------------
All representations and warranties of Buyer contained in this
Agreement shall be true and correct in all material respects on the
date hereof and as of the Closing Date as though made on the
Closing Date, and Buyer shall have performed or complied with all
covenants and obligations to be performed or complied with by it
under the terms of this Agreement at or prior to the Closing.
6.2.2 NO GOVERNMENTAL PROCEEDINGS OR LITIGATION.
-----------------------------------------
No action by any governmental agency shall have been instituted or
threatened for the purpose of enjoining or preventing the Closing
or that questions the validity or legality of the transactions
contemplated hereby.
6.2.3 CERTIFICATES. Buyer shall have delivered
------------
to TCM such certificates of its officers and others to evidence
compliance with the conditions set forth in this Section 6 as may
be reasonably requested by TCM, including, without limitation:
(a) A Certificate of Good Standing for Buyer issued
by the Delaware Secretary of State;
(b) A certificate executed by the President or
Secretary of Buyer certifying, as of the Closing Date to (i) a true
and complete copy of the Certificate of Incorporation of Buyer;
(ii) a true and complete copy of the Bylaws of Buyer; (iii) a true
and correct copy of the resolution of the board of directors of
Buyer authorizing the transactions contemplated hereby and the
instruments and deliveries to be executed and made by Buyer in
connection with the consummation of the transactions contemplated
hereby; and (iv) incumbency matters;
(c) TCM's and Holders' satisfaction as of the
Closing Date of all of the conditions relative to Buyer set forth
in this Section 6.
6.2.4 OTHER ACTIONS BY BUYER. All actions to be
----------------------
taken by Buyer in connection with the consummation of the
transactions contemplated herein and all certificates, opinions,
instruments and other documents which are to affect the transaction
contemplated hereby shall be reasonably satisfactory in form and
substance to TCM and the Holders.
6.3 CONDITIONS TO BUYER'S OBLIGATIONS. In
---------------------------------
addition to the conditions set forth in Section 6.1, the
obligations of Buyer to consummate the transactions contemplated by
this Agreement are subject to the satisfaction and fulfillment at
or prior to the Closing of each of the following conditions, any of
which may be waived by Buyer:
6.3.1 REPRESENTATIONS, WARRANTIES AND COVENANTS.
-----------------------------------------
All representations and warranties of TCM and the Holders contained
in this Agreement shall be true and correct in all material
respects on the date hereof and as of the Closing Date as though
made on the Closing Date, and TCM shall have performed or complied
with all covenants and obligations to be performed or complied with
by it under the terms of this Agreement at or prior to the Closing.
6.3.2 NO GOVERNMENTAL PROCEEDINGS OR LITIGATION.
-----------------------------------------
No action by any governmental
42
27
agency or other person or entity shall have been instituted or
threatened for the purpose of enjoining or preventing the
transactions contemplated by this
Agreement or that questions the validity or legality of the
transactions contemplated hereby or that has or could reasonably be
expected to have, in the opinion of Buyer, a material adverse
operation or financial condition of TCM.
6.3.3 RESIGNATIONS. Buyer shall have received
------------
the resignations effective as of the Closing of each director and
officer of TCM and its Subsidiaries, other than those whom Buyer
shall have specified in writing at least five (5) business days
prior to the Closing and the trustees of the ESOP.
6.3.4 OTHER ACTIONS. All actions to be taken by
-------------
TCM and the Holders in connection with the consummation of the
transactions contemplated hereby and all certificates, instruments
and other documents required to affect the transactions
contemplated hereby will be reasonably satisfactory in form and
substance to Buyer.
6.3.5 TERMINATION OF CONTRACTS.
------------------------
(a) The Contract(s) of Employment between TCM or
any of its Subsidiaries and Alexander shall have been terminated as
of the Closing Date.
(b) The oral contract between TCM and any of its
Subsidiaries and Xxx Xxxxx or Xxxxx & Company, Inc., whereby the
latter provides accounting and computer assistance to TCM and is
Subsidiaries on a fee basis, shall be terminated and all fees due
Xxx Xxxxx or Xxxxx & Company, Inc. pursuant thereto shall have been
paid and discharged.
6.3.6 HOLDBACK ESCROW AGREEMENT. Buyer, TCM,
-------------------------
Holders' Agents and the Escrow Agent shall have entered into the
Holdback Escrow Agreement.
6.3.7 CERTIFICATES. TCM shall have delivered to
------------
Buyer such certificates of its officers and others to evidence
compliance with the conditions set forth in this Section 6 as may
be reasonably requested by Buyer, including, without limitation:
(a) A Certificate of Good Standing for TCM issued
by the Oklahoma Secretary of State;
(b) A certificate executed by the President or
Secretary of TCM certifying to, as of the
Closing Date: (i) a true and complete copy of
the Certificate of Incorporation of TCM;
(ii) a true and complete copy of the bylaws of
TCM; (iii) a true and correct copy of
resolutions of the board of directors of TCM
authorizing the execution, delivery and
performance of this Agreement by TCM, the
execution, delivery and performance of the
agreements, documents and instruments to be
executed and delivered by TCM in connection
herewith or pursuant hereto, and the
consummation of the transactions contemplated
hereby and thereby; and (iv) incumbency
matters; and
(c) Buyer's satisfaction as of the Closing Date of
all conditions relative to TCM and the
43
28
Holders set forth in this Section 6.
6.3.8 NO MATERIAL ADVERSE CHANGE. From April 30,
--------------------------
1996 to the Closing Date there shall have been no material adverse
change in the assets or liabilities, the business or condition
(financial or otherwise) of TCM and its Subsidiaries, its
relationships with its employees or customers regardless of reason,
including, without limitation, any material adverse change in its
relationship with Xxxxxx, or any legislative or regulatory changes,
revocation of any license or rights to do business, failure to
obtain permits required by TCM or any of its Subsidiaries, fire,
explosion, accident, casualty, labor trouble, flood, riot, storm,
condemnation or act of God or otherwise.
7. TERMINATION.
-----------
7.1 TERMINATION. This Agreement and the
-----------
transactions contemplated hereby may be terminated at any time
prior to the Closing, as follows:
7.1.1 MUTUAL CONSENT. By mutual consent of TCM,
--------------
Holders and Buyer;
7.1.2 REQUIRED CONSENTS. By Buyer, if any party,
-----------------
including, without limitation, any governmental agency, whose
consent or approval is required to permit the consummation of the
transactions contemplated hereby on the part of TCM or its
Subsidiaries, fails to consent to or approve such transactions;
7.1.3 HOLDER APPROVAL. By Buyer, if all Holders
---------------
do not execute this Agreement;
7.1.4 MATERIAL INFORMATION. By Buyer, if TCM or
--------------------
its Subsidiaries fail to disclose any material information about
TCM or its Subsidiaries' assets or their Business or provides Buyer
with any materially inaccurate or misleading information taken as
a whole and not corrected about TCM or any of its Subsidiaries'
assets or their Business;
7.1.5 HOLDERS' FAILURE TO CLOSE. By Buyer, if
-------------------------
Buyer is prepared to close and all conditions to TCM's and Holders'
obligations to close pursuant to Section 6 hereof have been
satisfied and one or more Holders fail to close on the Closing
Date; and
7.1.6 BUYER'S FAILURE TO CLOSE. By TCM or the
------------------------
Holders, if TCM and the Holders are prepared to close and all
conditions to Buyer's obligations to close as set forth in
Section 6 hereof have been satisfied and Buyer fails to close on
the Closing Date.
7.2 CUT-OFF DATE. If the Closing shall not
------------
have occurred on or before August 15, 1996, this Agreement shall
automatically terminate without further action of any party hereto.
7.3 EFFECT OF TERMINATION. If this Agreement
---------------------
is terminated pursuant to Sections 7.1.1, 7.1.2 or 7.2 hereof, all
rights and obligations of TCM, the Holders and Buyer hereunder
shall terminate, and if this Agreement is terminated pursuant to
Sections 7.1.3, 7.1.4, 7.1.5 or 7.1.6 hereof, the non-breaching
party shall be entitled to exercise and pursue all rights and
remedies available to
44
29
it hereunder, at law, in equity or otherwise, including the right to
recover reasonable attorney fees and expenses expended to the date
of breach and in pursuing such remedies.
8. INDEMNIFICATION.
---------------
8.1 INDEMNIFICATION BY HOLDERS. Each Holder
--------------------------
severally (and not jointly) hereby agrees to indemnify, save, hold
harmless and defend Buyer, its affiliates and subsidiaries, and
their respective partners, officers, directors, shareholders,
agents and representatives, and each of them, from and against any
and all costs, losses, liabilities, damages, lawsuits,
deficiencies, claims and expenses reasonably and actually incurred
(whether or not arising out of third-party claims), including,
without limitation, interest, penalties, additions, reasonable
travel expenses, reasonable attorneys' fees and all amounts paid in
connection with the defense or settlement of any of the foregoing
(herein, the "Damages"), in connection with or arising out of or
resulting from any one or more of the following: (a) any inaccuracy
in any representation or warranty made by TCM and its Subsidiaries,
herein or in any Exhibit, Schedule, tax return or other document
provided pursuant to or in connection with this Agreement; (b) the
breach of any covenant or agreement or any misrepresentation made
by TCM and its Subsidiaries contained in this Agreement, including
the Schedules and Exhibits hereto, or any other agreement,
instrument or document executed by TCM or its Subsidiaries pursuant
hereto or in connection herewith; (c) any failure of the Holders to
duly perform or observe any term, provision, covenant or agreement
herein on the part of such parties to be performed or observed; (d)
any liability, breach, default, claim, accident, injury or damage
of any kind occurring prior to the Closing Date; and (e) the
release of Hazardous Substances at, on or from any facility used
prior to Closing by either TCM or any of its Subsidiaries to
process, recycle, reclaim, refine, transport, store, dispose of or
otherwise handle Hazardous Substances generated by TCM and its
Subsidiaries; provided, however, that no Holder shall be liable for
any amount of Damages in excess of the amount received by it
hereunder.
8.2 INDEMNIFICATION BY BUYER. Buyer hereby
------------------------
indemnifies and agrees to save and hold harmless the Holders from
and against any and all Damages incurred in connection with or
arising out of or resulting from any one or more of the following:
(a) the breach of any covenant or agreement or any
misrepresentation made by Buyer contained in this Agreement,
including the Schedules and Exhibits hereto, or any other
agreement, instrument or document executed by Buyer pursuant hereto
or in connection herewith or (b) any failure of Buyer to duly
perform or observe any term, provision, covenant or agreement
herein on the part of Buyer to be performed or observed.
8.3 DEFENSE OF CLAIMS. If any action or
-----------------
proceeding (including any governmental investigation or inquiry)
shall be brought or asserted or threatened to be brought or
asserted against a party (the "Indemnified Party") in respect of
which indemnity may be sought from the other party (the
"Indemnifying Party"), such Indemnified Party shall promptly notify
the Indemnifying Party in writing, and the Indemnifying Party shall
assume the defense thereof, including the employment of counsel
satisfactory to such Indemnified Party and the payment of all
expenses. The Indemnifying Party shall not, except with the
written consent of the Indemnified Party, consent to the entry of
a judgment or settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to the
Indemnified Party of an unconditional release from all
45
30
liability in respect of such third party claim or demand. The
Indemnified Party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expense of such
Indemnified Party unless: (a) the Indemnifying Party has agreed to
pay such fees and expenses; or (b) the Indemnifying Party shall have
failed to assume the defense of such action or proceeding or shall
have failed to employ counsel reasonably satisfactory to such
Indemnified Party in any such action or proceeding; or (c) the
named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been
advised by counsel that there may be one or more legal defenses
available to such Indemnified Party that are different from or
additional to those available to the Indemnifying Party (in which
case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of
the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense of such action or proceeding on behalf
of such Indemnified Party, it being understood, however, that the
Indemnifying Party shall not, in connection with any one such
action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys at any time for such Indemnified Party). The
Indemnifying Party shall not be liable for any settlement of any
such action or proceeding effected without its written consent, but
if settled with its written consent or if there be a final judgment
for the plaintiff in any such action or proceeding, the
Indemnifying Party agrees to indemnify and hold harmless such
Indemnified Parties from and against any loss or liability by
reason of such settlement or judgment. If either party shall claim
indemnification for Damages hereunder for any claim other than a
third party claim, the Indemnified Party shall promptly notify the
Indemnifying Party of the nature of the claim and the amount of the
Damages and payment therefor shall be made by the Indemnifying
Party forthwith upon receipt of such notice.
8.4 LIMITATION ON INDEMNIFICATION.
-----------------------------
Notwithstanding the provisions of Section 8.1, there will be an
aggregate ceiling in the amount of Two Hundred Fifty Thousand
Dollars ($250,000.00) on the obligation of the Holders to indemnify
Buyer under this Agreement and, further, the Holders shall have no
obligation to indemnify Buyer hereunder except strictly in
accordance with the terms and limitations of the Holdback Escrow
Agreement.
8.5 ESCROWING OF FUNDS. In order to have an
------------------
available source of funds for the Holders' indemnification of
claims asserted by Buyer under this Section, TCM, Holders and Buyer
agree that on or before the Closing Date, the Holdback Funds shall
be deposited by Buyer in the Escrow Account to be held and
disbursed pursuant to the terms of the Holdback Escrow Agreement.
The Holders' liability to indemnify Buyer under this Agreement,
absent fraud, shall be limited to the Holdback Funds and Buyer
shall have no right to collect any Damages from any Holder,
individually or collectively, but only out of the Holdback Funds
and in accordance with the provisions of the Holdback Escrow
Agreement.
8.6 DAMAGES. The term "Damages" as used in
-------
this Section is not limited to matters asserted by third parties
against TCM and its Subsidiaries or Buyer, as the case may be, but
includes Damages incurred or sustained by TCM, Holders or Buyer, as
the case may be, in the absence of third party claims.
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31
9. ARBITRATION. Other than as provided in Section 1.4.2
-----------
which is excepted herefrom, the Parties hereto agree that any
disputes, disagreements or claims for the breach by any party of
any representations, warranties, agreements or covenants hereunder
("Disputes") shall be submitted to binding arbitration. The
arbitration committee to whom any Disputes are submitted shall
consist of an arbitrator chosen by Buyer, an arbitrator chosen by
the Holders' Committee, and a third arbitrator chosen by the
arbitrators selected by Buyer and Holders' Committee. The decision
of the arbitration committee shall be based on majority rule and
shall be final and binding on the parties hereto; provided,
however, that any party shall be permitted to file suit in a court
of appropriate jurisdiction to enforce any decision of the
arbitration committee. The decision of the arbitration committee
regarding any dispute, including one relating to a claim for
indemnification, shall be communicated in writing to the Escrow
Agent, Buyer and the Holders when rendered. Notwithstanding any
other provision hereof, this Section shall survive the Closing and
shall remain in effect until the Holdback Escrow Agreement
terminates.
10. DEFINITIONS. The following terms when used herein
-----------
shall have the following meanings; such terms to be equally
applicable to both the singular and plural of the terms defined
(capitalized terms defined elsewhere in this Agreement to have the
meaning so ascribed to them in all provisions of this Agreement):
"Affiliate" means any trade or business (whether
incorporated or unincorporated) which is a member of a group
described in Section 414(c) of the Code of which TCM is also a
member.
"Bank" means State Bank & Trust, N.A., a national banking
association.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Disbursement Agent" means Xxxxx X. Xxxxxx, Attorney at
Law, or if he should resign, die or become disabled, the attorney
selected by the Holders' Committee; provided a successor selected
by the Holders' Committee shall have all the same powers and rights
of the original Disbursement Agent hereunder.
"Xxxxxx" means Xxxxxx, a division of Schlumberger
Technology Corporation, a Texas corporation with its head office at
Sugar Land, Texas.
"Xxxxxx Contract" means the Reciprocating Pump Service
Agreement dated May 23, 1995 between Xxxxxx and Twentieth Century.
"Environmental Laws" means all applicable federal, state and
local laws, statutes, decrees, ordinances, codes, rules,
regulations and orders directed to TCM or any of its Subsidiaries
relating to the Release or threatened Release into the environment
(including, without limitation, ambient air, surface water, ground
water and surface and subsurface soil) of any pollutant,
contaminant, chemical or industrial, toxic, hazardous or regulated
substances, materials or wastes, or relating to the manufacture,
processing, distribution, use, generation, treatment, storage,
disposal, transport,
47
32
reclamation, recycling, or handling of or exposure to pollutants,
contaminants, chemicals or industrial, toxic, hazardous or regulated
substances, materials, or wastes, including, without limiting the
foregoing, the Resource Conservation and Recovery Act ("RCRA"), as
amended, 42 U.S.C. Sections 6901 et seq., the Comprehensive
-- ---
Environmental Response, Compensation and Liability Act ("CERCLA"),
as amended, 42 U.S.C. Sections 9601 et seq., the Toxic Substance
-- ---
Control Act ("TSCA"), as amended, 15 U.S.C. Sections 2601 et seq.,
-- ---
the Clean Air Act, as amended, 42 U.S.C. Sections 7401 et seq., the
-- ---
Clean Water Act, as amended, 42 U.S.C. Sections 1251 et seq., the
-- ---
Occupational Safety and Health Act ("OSHA"), as amended, 29 U.S.C.
Sections 651 et seq., all applicable analogous or similar state and
-- ---
local statutes, all other applicable federal, state and local so
called "Superfund" or "Superlien" laws, and all applicable federal,
state and local underground or aboveground storage tank laws, and
all applicable regulations and rules promulgated pursuant to the
aforementioned laws and statutes.
"ESOP" means the Employee Stock Ownership Plan of TCM and its
Subsidiaries effective May 1, 1989 and as amended thereafter.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"Hazardous Substances" means hazardous substances, toxic
substances, hazardous wastes, hazardous materials, and other
substances regulated under RCRA, CERCLA, TSCA, the Clean Air Act,
the Clean Water Act, OSHA, and other Environmental Laws, including
without limitation, asbestos, petroleum products, and waste and
used oil.
"Holdback Funds" means the sum of Two Hundred Fifty Thousand
Dollars ($250,000.00).
"Holders' Committee" means Xxxx X. Xxxxxxxxx, Xxx Xxxxx and
Xxxxxxxx X. Xxxxxx, whose consent, approval or authorization shall
be deemed given by the act, consent, approval or authorization of
a majority thereof.
"Net Worth" means Total Shareholders' Equity of TCM and its
Subsidiaries on a consolidated basis as of the Financial Statement
Date, as determined by TCM's Auditors and as adjusted in accordance
with the procedure outlined in Section 1.4.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a
trust, a joint venture, an unincorporated organization, or a
governmental entity (or any department, agency, or political
subdivision thereof).
"Subsidiary" means any corporation with respect to which a
specified Person (or a Subsidiary thereof) owns a majority of the
common stock or has the power to vote or direct the voting of
sufficient amounts to elect a majority of the directors.
"Twentieth Century" means 20th Century Mfg. & Supply Co., an
Oklahoma corporation, and wholly owned subsidiary of TCM.
48
33
11. PAYOFF OF BANK. Within thirty (30) days following the
--------------
Closing, Buyer shall either pay in full or cause to be paid in full
by TCM or one or more of its Subsidiaries, all debts and
obligations owing from TCM and its Subsidiaries to the Bank, as
disclosed to Buyer in Schedule 3.5.1, so as to permit the Bank
--------------
to release Xxxx Xxxxxxxxx from any and all guarantees he may have
given the Bank in connection therewith.
12. IRREVOCABLE APPOINTMENT OF HOLDERS' COMMITTEE. Pursuant
---------------------------------------------
to the Holders' Agreement by and among the Holders, the Holders'
Committee has been irrevocably appointed as agents for the Holders
to act in the name, place and stead of the Holders to do or refrain
from doing all things the Holders might do hereunder and under the
Holdback Escrow Agreement with respect to the transfer and sale of
the Shares, the payment and resolution of Indemnification Claims
and the consummation of the transactions contemplated herein and
therein. Buyer and any other Person may conclusively and absolutely
rely, without inquiring, upon any action of the Holders' Committee,
as the action of the Holders in all matters referred to herein or
in the Holdback Escrow Agreement and the Holders confirm all that
the Holders' Committee shall do or cause to be done by virtue of
their appointment as agents of the Holders'.
13. MISCELLANEOUS.
-------------
13.1 SURVIVAL OF REPRESENTATIONS. All statements
---------------------------
contained in any Exhibit, Schedule, certificate or instrument of
conveyance delivered by or on behalf of the parties pursuant to
this Agreement or in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the
parties delivering the same hereunder. Subject to the provisions
of Sections 8 and 9 hereof, the representations, warranties,
covenants and agreements of TCM, the Holders and Buyer contained
herein and as provided in the preceding sentence shall survive the
Closing Date for a period of one (1) year without regard to any
investigation made by any of the Parties hereto.
13.2 ASSIGNMENT. This Agreement shall be binding upon
----------
and shall inure to the benefit of the Parties and their respective
successors and assigns; provided, however, that TCM may not assign
its rights or obligations hereunder without the prior written
consent of Buyer.
13.3 NOTICES. All notices, requests, demands and other
-------
communications which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly
given when received if personally delivered; on the next business
day following receipt if transmitted by telecopy, electronic or
digital transmission method; upon receipt, if sent for next day
delivery to a domestic address by a recognized overnight delivery
service; and upon receipt, if sent by certified or registered mail,
return receipt requested. In each case notice shall be sent:
If to Buyer: Xxxxxxx Denver Machinery Inc.
1800 Xxxxxxx Expressway
X.X. Xxx 0000
00
00
Xxxxxx, Xxxxxxxx 62306-4024
ATTN: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx X. XxXxxxxx, Xx., Esquire
Schmiedeskamp, Robertson, Neu & Xxxxxxxx
525 Jersey
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
If to TCM: TCM Investments, Inc.
0000 X. 00xx X Xxxxxx
Xxxxx, Xxxxxxxx 00000
ATTN: Xxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxxx, Esquire
Xxxxxxx and Xxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
If to Holders: To each Holder at its respective address
as set forth on the signature pages
hereof.
or to such other place and with such other copies as either party
may designate as to itself by written notice to the others.
13.4 GOVERNING LAW. This Agreement shall be governed by
-------------
and construed in accordance with the laws of the State of Oklahoma.
To the extent jurisdiction exists, any claim arising pursuant to
this Agreement shall be filed in a court located in the State of
Oklahoma.
13.5 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This
----------------------------------------
Agreement, together with all Exhibits and Schedules hereto which
are incorporated herein by this reference, constitutes the entire
agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, among the
parties. This Agreement may be amended, modified or supplemented
only by a writing signed by all of the parties hereto. No waiver
of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
13.6 MULTIPLE COUNTERPARTS. This Agreement may be
---------------------
executed in one or more counterparts, including a facsimile
thereof, each of which shall be deemed to be an original, including
the signature thereon, but all of which together shall constitute
one and the same
50
35
agreement.
13.7 EXPENSES. Except as set forth below or as otherwise
--------
specified herein, each party hereto shall pay its own legal,
accounting, out-of-pocket and other expenses incident to this
Agreement and to any action taken by such party in preparation for
carrying this Agreement into effect; provided, however, that TCM
shall pay all reasonable fees and expenses accrued prior to Closing
for legal services rendered to the Holders related to this
Agreement and the transactions contemplated hereby. Itemized
statements setting forth the legal services rendered, the time
expended and the hourly fee charges shall be submitted to Buyer
prior to Closing by each Holder or its attorney.
13.8 SEVERABILITY. In the event that any one or more of
------------
the provisions contained in this Agreement or in any other document
referred to herein, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, then such invalidity,
illegality or unenforceability shall not affect any other provision
of this Agreement or any other such instrument.
13.9 TITLES. The titles, captions or headings of the
------
Sections herein are inserted for convenience of reference only and
are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
13.10 BINDING EFFECT. This Agreement shall be binding
--------------
upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
13.11 CUMULATIVE REMEDIES. All rights and remedies of
-------------------
any party hereto are cumulative of each other and of every other right
or remedy such party may otherwise have at law or in equity, and
the exercise of one or more rights or remedies shall not prejudice
or impair the concurrent or subsequent exercise of other rights or
remedies. With respect to remedies for breaches of representations
and warranties set forth herein, the foregoing provisions are
subject to the provisions of Section 9 hereof.
36
IN WITNESS WHEREOF, the parties hereto have executed, or
caused their respective duly authorized representatives to execute,
this Agreement under seal as of the day and year first above
written.
"Buyer"
XXXXXXX DENVER MACHINERY INC.
By:
-------------------------------------------
Title:
----------------------------------------
[CORPORATE SEAL]
"TCM"
TCM INVESTMENTS, INC.
By:
-------------------------------------------
Title:
----------------------------------------
[CORPORATE SEAL]
"Holders":
Cushair, Inc.
By:
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
Address: 0000 X. 000xx Xxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxxx X. Xxxxx
Address: 0000 X. 000xx Xxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxx Xxxxx
Address: c/x Xxxxx & Company
0000 X. 000xx Xxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
[SIGNATURES CONTINUED ON NEXT PAGE]
52
37
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT AMONG
XXXXXXX DENVER MACHINERY INC., TCM INVESTMENTS, INC.
AND THE HOLDERS NAMED HEREIN
Jalex Industries, Inc.
By:
-------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
Address: 000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxx X. Xxxxxxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxxxx X. Xxxxxxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Design Directions, Inc.
By:
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
Address: 00000 Xxxxx 00xx Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxxxxxx X. Xxxxxx
Address: 00000 Xxxxx 00xx Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
TCM Employee Stock Ownership Plan
By:
-------------------------------------------
Xxxx X. Xxxxxxxxx, Trustee
By:
-------------------------------------------
Xxx Xxxxx, Trustee
By:
-------------------------------------------
Xxxxxxxx X. Xxxxxx, Trustee
Address: c/o TCM Investments, Inc.
0000 Xxxxx 00xx Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
[SIGNATURES CONTINUED ON NEXT PAGE]
53
38
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT AMONG
XXXXXXX DENVER MACHINERY INC., TCM INVESTMENTS, INC.
AND THE HOLDERS NAMED HEREIN
----------------------------------------------
Xxxx X. Xxxxxxx
Address: 00000 Xxxxx 00xx X. Xxxxxx
Xxxxx, Xxxxxxxx 00000
By:
-------------------------------------------
Xxx Xxxxx
His Attorney-In-Fact
Xxxxxx X. Xxxxxx R-Trust
By:
-------------------------------------------
Xxxxxx X. Xxxxxx, Trustee
Address: 0000 X. 000xx X. Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxxxx X. Xxxxxx
Address: 0000 X. 00xx X. Xxxxxx
Xxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxxxx Xxxxxxx, Xx.
Address: Xxxxx 0, Xxx 0000
Xxxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
Address: 00000 X. 000xx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxxx X. Xxxxxx
Address: 000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxxxxx X. Xxxxx
Address: 0000 X. 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
[SIGNATURES CONTINUED ON NEXT PAGE]
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39
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT AMONG
XXXXXXX DENVER MACHINERY INC., TCM INVESTMENTS, INC.
AND THE HOLDERS NAMED HEREIN
----------------------------------------------
Xxxxxx X. Xxxxx
Address: 0000 X. Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
----------------------------------------------
Xx. Xxxxx X. Xxxxxx
Address: 0000 X. Xxxxxxxx
Xxxxx, Xxxxxxxx 00000
By:
-------------------------------------------
Xxx Xxxxx
His Attorney-In-Fact
----------------------------------------------
Xxxxx Xxxxxx
Address: 0000 X. 000xx X. Xxxxxx
Xxxxx, Xxxxxxxx 00000
----------------------------------------------
Xxxxx X. Xxxx
Address: 00 X. Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
55
