ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT dated as of August 1, 1996 (the
"Agreement"), by and between GENERAL HOUSEWARES CORP., a Delaware
corporation, with an address of 1536 Beech Street, Terre Haute,
Indiana 47804 ("Seller") and WAGNERWARE CORPORATION, an Ohio
corporation, with an address of 800 West Liberty Street, Medina,
Ohio 44256 ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is desirous of selling certain of the tangible
and intangible assets related to the manufacture and sale of cast
iron and cast aluminum cookware ("Business") and having Buyer
assume certain scheduled liabilities of the Business; and
WHEREAS, Buyer is desirous of purchasing such assets and assuming
such liabilities on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the
representations and warranties, covenants and agreements
hereinafter made, the parties hereby agree as hereinafter set
forth:
1. PURCHASE AND SALE OF ASSETS:
1.1 Acquired Assets. Subject to the terms and conditions
hereof, at the Closing (as hereinafter defined), Seller shall
sell, transfer, assign, convey and deliver, or cause to be sold,
transferred, assigned, conveyed and delivered, to Buyer, and
Buyer shall purchase and accept all of the assets (excluding the
assets specifically set forth in Section 1.2 hereof) owned by
Seller and used in connection with or related to the Business
(collectively, such assets are referred to herein as the
"Acquired Assets"), including without limitation:
(a) Machinery, Equipment, Furniture and Fixtures. All of the
machinery, equipment, tooling, dies, patterns, molds, stampings,
computers, software, furniture, fixtures, supplies and all other
personal property not normally included in inventory, used or
held for use in connection with the Business, wherever located,
set forth on Schedule 1.1(a) hereto;
(b) Inventory. All of Seller's inventory used to produce cast
iron and cast aluminum cookware (including raw materials,
work-in-process, finished goods and parts) and supplies used or
held for use in connection with the Business, wherever located;
(c) Books, Records, Drawings and Similar Property. All operating
data, books and records of Seller which are necessary to the
operation of the Business, wherever located, including, without
limitation, customer lists, accounting and financial records,
employee records, credit information, invoices, correspondence,
engineering blueprints, drawings, designs, patterns, processes,
sales and marketing materials, formulae, trade secrets and
know-how, and other similar property and rights;
(d) Leases. All of Seller's right, title and interest in
certain leases and any improvements thereon as set forth on
Schedule 1.1(d) hereto;
(e) Contracts. All oral and written contracts, purchase
commitments and other agreements pertaining to the Business that
are set forth on Schedule 1.1(e) hereto;
(f) Real Property and Improvements. All of Seller's right,
title and interest in the real property and improvements listed
on Schedule 1.1(f);
(g) Permits, Licenses and Authorizations. All governmental
permits, licenses and authorizations of any kind whatsoever
associated with the Business set forth on Schedule 1.1 (g)
hereto; and
(h) Other Assets. All other assets owned by Seller, wherever
located (but excluding the assets identified in Section 1.2
hereof) relating to the Business, existing at the Closing, of
every kind and nature, whether or not carried on the books of
Seller, as set forth on Schedule 1.1(h).
1.2 Certain Excluded Assets. Notwithstanding Section 1.1
hereof, Seller shall not sell or transfer, and Buyer shall not
purchase or accept, the following assets of Seller (collectively,
the "Excluded Assets"):
(a) Cash;
(b) Any rights to receive refunds with respect to income taxes
paid by or with respect to Seller;
(c) All of Seller's accounts receivable associated with the
business;
(d) All right, title and interest to any employee benefit and
pension plan, contracts or agreements relating to employees or
former employees of Seller;
(e) All rights of Seller under this Agreement and the agreements
and instruments delivered by Buyer pursuant hereto;
(f) Minute books, stock certificates, stock ledger, general
ledger, check registers, sales journals, bank statements, payroll
records, tax returns and all rights of Seller in and to the
"Licensed Marks", the "Patent" and the "Products" (as such terms
are defined in the license agreement attached hereto as Exhibit
C);
(g) Motor vehicles;
(h) Any obligation, contract, commitment or other agreement
relating to the Business not set forth or described in Sections
1.1 hereof, including that certain Trademark License Agreement
dated November 22, 1993, by and between Seller and Innovation
Group Ltd., the lease on the Sidney warehouse described in the
Sublease attached hereto as Exhibit E and any agreement with the
stockholders of Seller; and
(i) Security deposits and any prepaid insurance to extent
policies are not assumed by Buyer.
2. ASSUMPTION OF CERTAIN LIABILITIES:
2.1 Assumed Liabilities. Buyer shall assume and thereafter pay,
perform or discharge when due the liabilities as described on the
Schedule of Assumed Liabilities attached hereto as Schedule 2(a)
(the "Assumed Liabilities") as of the Closing (except for any
liability arising out of Seller's failure to perform its
obligations thereunder to the extent such performance is due on
or prior to the Closing). Buyer shall acquire the Acquired
Assets free and clear of all liens, encumbrances, obligations and
liabilities, except to the extent expressly assumed by Buyer or
otherwise provided in or contemplated by this Agreement, as well
as any and all liabilities that may arise after the Closing.
2.2 Buyer's Responsibility. Buyer shall have all responsibility
to all creditors and all third parties and to Seller with respect
to, and shall pay, discharge and perform when due the Assumed
Liabilities. Buyer shall indemnify and hold Seller harmless from
and against any and all costs, loss, liability (including
reasonable attorneys' fees) arising from such obligations or
liabilities. Buyer shall also be responsible for all liabilities
and obligations incurred in connection with the operation of the
Business after the date hereof, including liability for taxes
relating to any period after the date hereof, and for any
liability arising out of an Occurrence (as defined in Section 2.3
(d) hereof) which takes place after the date hereof. Real estate
taxes on the real property included in the Acquired Assets (the
"Real Property") will be prorated to August 1, 1996.
2.3 Non-Assumed Liabilities. Seller shall remain liable and
responsible for the liabilities and obligations of the Business
not specifically assumed by Buyer hereunder (collectively, the
"Non-Assumed Liabilities"), including without limitation:
(a) The contracts, commitments and agreements which are Excluded
Assets under Section 1.2 (h) hereof;
(b) Liability for accrued vacation pay as of August 1, 1996;
(c) Post-retirement life, health and disability insurance
benefits, including but not limited to those specified in Section
7.3 hereof;
(d) Liability for all actions, suits, claims, proceedings or
investigations involving the Business which were either (i)
instituted or asserted prior to the date hereof, including
without limitation those listed on Schedules 5.4, 5.6 and 5.11
(a)(iii) and (iv) hereto, or (ii) arise out of any Occurrence
(defined as of the date of injury, death, damage, loss or
destruction of property giving rise to a claim) which takes place
prior to the date hereof, including in each case all workers'
compensation claims;
(e) Liability for severance pay;
(f) Responsibility or liability associated with the "employee
benefit plans" listed on Schedule 5.11(f); and
(g) All taxes relating to any period prior to the date hereof,
including but not limited to, (i) federal, state and local income
taxes and state or local income based franchise taxes, (ii) taxes
relating to the real property prorated to the date hereof and
(iii) FICA and other sate or federal payroll taxes and
withholding taxes.
3. PURCHASE PRICE FOR THE ACQUIRED ASSETS.
The Purchase Price for the Acquired Assets will be Four Million
Dollars ($4,000,000), payable by Buyer to Seller as follows: (a)
One Million Dollars ($1,000,000) cash payable by wire transfer in
immediately available funds delivered at the Closing to an
account designated by the Seller in Section 4.2 and (b) a
Promissory Note in the amount of Three Million Dollars
($3,000,000) delivered at the Closing, substantially in the form
of Exhibit A (the "Promissory Note"), secured by a mortgage on
the real property listed on Schedule 1.1(f) and a security
interest in all other Acquired Assets. The purchase price will
be reduced by an amount equal to the Book Value of any packaging
inventory returned to Seller by Buyer, which amount will be set
off against the final payment or payments due under the
Promissory Note as more fully provided therein.
4. CLOSING AND PAYMENT OF THE PURCHASE PRICE.
4.1 Closing. Subject to the satisfaction of the conditions
precedent of Buyer and Seller set forth in Article 10 and Article
11, the Closing of the transactions contemplated hereby (the
"Closing") shall be held at the offices of Vorys, Sater, Seymour
and Pease in Columbus, Ohio, on August 16, 1996, to be effective
as of August 1, 1996.
4.2 Payment of Purchase Price. At the Closing, Buyer shall
deliver to Seller, against transfer of title to the Acquired
Assets, the Purchase Price for the Acquired Assets by wire
transfer the sum of One Million Dollars ($1,000,000) to the
Seller's account at Harris Trust and Savings Bank, 111 West
Monroe Street, Chicago, IL 60690, GHC Account #268-5600, Routing
ABA #071 000 288 and delivery of the Promissory Note.
4.3 Transfer of Acquired Assets. At the Closing, Seller shall
transfer to Buyer all right, title and interest in and to the
Acquired Assets as provided herein. Said transfer shall be
effected by the delivery to Buyer of fully executed bills of
sale, endorsements, assignments and other good and sufficient
instruments of conveyance and transfer, all in form and substance
reasonably satisfactory to Buyer and its counsel.
4.4 Assumption of Liabilities. At the Closing, Buyer shall,
upon the request of Seller, execute and deliver assumption of
liabilities agreements, assuming and undertaking to perform and
pay when due the Assumed Liabilities, and instruments granting
security interests to Seller all in form and substance reasonably
satisfactory to Seller and its counsel.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants as follows:
5.1 Organization and Qualification of Seller. Seller is duly
organized, validly existing and in good standing under the laws
of the State of Delaware and it is duly authorized to do business
in the State of Ohio. Seller has requisite corporate power and
authority to own or lease all of its properties and assets
relating to the Business and to conduct the Business in the
manner and in the places where such properties are owned or
leased or the Business is now conducted.
5.2 Authority of Seller. This Agreement and each of the
agreements and other documents and instruments delivered or to be
delivered to Buyer pursuant to, or as contemplated in this
Agreement will constitute, when so delivered, the valid and
binding obligations of Seller and shall be enforceable in
accordance with their respective terms except insofar as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting
creditor's rights generally and except as to the availability of
equitable remedies. Upon approval of this Agreement and the
transactions contemplated hereby by Seller's Board of Directors,
the execution, delivery and performance of this Agreement and
each of the agreements and other documents and instruments
delivered or to be delivered to Buyer by Seller will have been
duly authorized by all necessary action of Seller and will be
within Seller's corporate powers.
Upon approval of this Agreement and the transactions contemplated
hereby by Seller's Board of Directors, the execution, delivery
and performance of this Agreement or any other agreement,
document or instrument by Seller will not, with the passage of
time, or the giving of notice, or both:
(a) result in a breach of, or constitute a default, or result in
any right of termination, or other effect adverse to Seller or
the Acquired Assets, under any indenture or loan or credit
agreement of Seller, or any other agreement, lease or instrument
to which Seller is a party or by which any of the Acquired Assets
is bound or affected;
(b) result in, or require, the creation or imposition of any
mortgage, deed of trust, pledge, lien, security interest or other
charge or encumbrance or claim of any nature whatsoever on the
Acquired Assets;
(c) result in a violation of, or default under any law, rule, or
regulation, or any order, writ, judgment, injunction, decree,
determination or award now in effect having applicability to
Seller or to the Acquired Assets;
(d) violate any provisions of the Certificate of Incorporation
or By-Laws of Seller; or
(e) require any approval, consent or waiver of, or filing with,
any person or entity, private or governmental other than the
persons listed on Schedule 5.2(e) hereto.
5.3 Assets.
(a) Title. Seller owns all of the Acquired Assets, free and
clear of all liens, pledges, mortgages, leases, security
interests, options, or any other material encumbrances or
imperfections of title, except for those items listed on the
Schedule of Liens attached hereto as Schedule 5.3(a) and, as to
Real Property, current taxes and assessments not yet due and
payable and easements, conditions and restrictions contemplated
by Section 7.4 hereof.
(b) Inventory. Finished goods, work-in-process, raw materials
and component parts being acquired by Buyer will be usable and/or
salable in the ordinary course of business.
5.4 Litigation. There is no action, suit, investigation or
proceeding pending before any Court or governmental agency
against Seller, and, to Seller's knowledge, there is no
threatened action, suit, investigation or proceeding, including
any bankruptcy proceeding against Seller, except as set forth on
the Schedule of Litigation attached hereto as Schedule 5.4.
5.5 Leases. Attached hereto as Schedule 1.1(d) is a description
of each lease (whether oral or written) which shall be assigned
to and assumed by Buyer hereunder and under which Seller is the
lessee of personal or real property. A true, correct and
complete copy of each written lease identified in Schedule 1.1(d)
has been delivered to Buyer, and Buyer hereby acknowledges such
receipt. All rentals due under the leases have been paid and
there exists no default under the terms of any such lease, and no
event has occurred which, upon the passage of time or giving of
notice, or both, would result in any event of default or prevent
Seller from exercising and obtaining the benefits of any options
or other rights contained therein. Seller has all right, title
and interest of the lessee under the terms of each lease, free
and clear of all encumbrances, and all such leases are valid and
in full force and effect. None of the leases is terminable by
the Lessor as a result of the transactions contemplated by this
Agreement.
5.6 Contracts and Commitments. Schedule 1.1(e) hereto sets
forth a true, complete and correct list of all of Seller's
contracts which shall be assigned to and assumed by Buyer
hereunder ("Contract(s)"). All such Contracts were made at arms'
length and were not entered into with (a) any officer or director
of Seller or (b) any entity which Seller controls or in which
Seller has any direct or indirect interest. Each Contract is in
full force and effect, and Seller is not in material default
under any such Contract, nor has any event occurred which, with
the passage of time or the giving of notice, or both, would
constitute a material default thereunder, or cause the
acceleration of any obligation of Seller, or result in the
creation of any lien, charge or encumbrance whatsoever upon the
Acquired Assets. Except as set forth on Schedule 5.6 hereto, no
third party is in material default under any Contract made with
Seller or any obligation owed to Seller, nor has any event
occurred which, with the passage of time or giving of notice, or
both, would constitute a material default thereunder or cause the
acceleration of any obligation of Seller, or result in the
creation of any lien, charge or encumbrance whatsoever upon the
Acquired Assets.
5.7 Tax Matters. There are no tax liens upon or pending or, to
the best of Seller's knowledge, threatened against Seller with
respect to the Acquired Assets. Seller has made all withholdings
and deposits of tax as required by federal, state or local laws.
5.8 Undisclosed Liabilities. Seller does not have, and will not
have on the Closing, any liabilities or obligations of any kind
or amount secured by the Acquired Assets, whether accrued,
absolute, contingent or otherwise, except such as are being
discharged at the Closing or assumed by Buyer. To the best of
Seller's knowledge, except for the Assumed Liabilities or as
otherwise disclosed in this Agreement or in the Schedules hereto,
there are no liabilities of the Seller or any kind whatsoever,
whether or not accrued or fixed, absolute or contingent,
determined or determinable, nor is there any condition or
circumstance existing or which has existed, and no event shall
have occurred which could reasonably be expected to result in any
such liability which is or could be binding upon or become a
liability of the Buyer or upon the Acquired Assets.
5.9 Brokers or Finders. Seller shall be responsible for the
fees of any broker or finder in connection with the sale of the
Acquired Assets; provided, however, that such fees shall not
exceed, in the aggregate, Four Hundred Thousand Dollars
($400,000).
5.10 Outside Contractors and Vendors. Schedule 1.1(h) hereto
sets forth a true, complete and correct list of all persons other
than Seller who have possession of any assets of Seller used or
held for use in the Business, including vendors and contractors,
with the assets and their locations set forth thereon.
5.11 Labor Matters.
(a) With respect to the Business prior to the Closing:
(i) No present or former employee of Seller has any claim
against Seller (whether under federal or state law, under any
employee agreement or otherwise) on account of or for (A)
overtime pay, other than overtime pay for the current payroll
period, (B) wages or salaries (excluding wages or salaries for
the current payroll period), (C) vacations, time off or pay in
lieu of vacation or time off, or (D) any violation of any
statute, ordinance or regulation relating to minimum wages or
maximum hours of work, except as disclosed on Schedule 5.4;
(ii) No person or party (including, but not limited to,
governmental agencies of any kind) has any claim, and there is no
basis for any claim, against Seller arising out of any statute,
ordinance or regulation relating to discrimination of employees
or employment practices or occupational or safety and health
standards;
(iii) There is not pending or, to the best of Seller's
knowledge, threatened any labor dispute, strike or work stoppage
involving Seller's employees, except as set forth on Schedule
5.11(a)(iii);
(iv) There is not pending or, to the best of Seller's knowledge,
threatened any charge or complaint against Seller by or before
the National Labor Relations Board or any representative thereof,
or any comparable state agency or authority, except as set forth
on Schedule 5.11(a)(iv);
(v) Seller has no employment agreements or other agreements that
contain any severance or termination pay liabilities or
obligations, nor any bonus, vacation, deferred compensation,
profit-sharing, pension, retirement or other employee benefit
plans affecting persons employed or retained by Seller, except as
set forth on Schedule 5.11(a)(v) hereto;
(vi) Seller has made all required payments to the appropriate
governmental authorities with respect to applicable unemployment
compensation reserve accounts; and
(vii) Except as set forth on Schedule 5.11(a)(vii), no key
employee has notified Seller that he or she intends to terminate
his or her employment as a result of the transactions
contemplated by this Agreement.
(b) Schedule 5.11(b) is a list of union contracts of the Seller
with the employees of the business.
(c) Schedule 5.11(c) hereto is a list of all hourly paid
employees employed by Seller, which list identifies each such
person's primary responsibilities with the Business as of the
date hereof and the hourly rate of compensation for each such
employee.
(d) Schedule 5.11(d) hereto is a list of all salaried employees
employed by Seller, which list identifies the current position of
each such employee and the current rate of compensation for each
such employee.
(e) Schedule 5.11(e) hereto is a list of the accrued vacation
pay as of the date hereof for each employee of Seller.
(f) Each "employee benefit plan" (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA") established or maintained by Seller and which covers
any of Seller's employees is listed on Schedule 5.11(f) hereto.
Copies of each such employee benefit plan and the summary plan
description thereof have been previously delivered to Buyer.
5.12 Environmental Matters. To the best of Seller's knowledge,
there is no material chemical contamination on the facility or
violation of applicable environmental laws other than as set
forth on Schedule 5.12(a) or in the Phase I Environmental Site
Assessment Report, dated June 1, 1989, and performed by Applied
Environmental Technologies Corporation, attached hereto and
incorporated herein as Schedule 5.12(b), except that Seller
acknowledges that hazardous waste had been disposed of in the
"on-site dump" referred to in the first paragraph of "6.0 Summary
of Key Findings" in the report. Seller is in the process of
performing a hazardous waste closure of the "on-site dump"
pursuant to a Closure Plan approved by the Ohio Environmental
Protection Agency.
5.13 Insurance. All insurance policies providing insurance
coverage with respect to the Business, the Acquired Assets and
employees of Seller are set forth on Schedule 5.13 hereto.
5.14 Financial Information. The financial information for the
business previously provided by Seller to Buyer is consistent
with the books and records of Seller with respect to the
Business.
5.15 Compliance with Laws. Except as disclosed in this
Agreement or the Schedules hereto, Seller has complied in all
material respects with all laws, regulations, rules and orders of
any governmental department or agency or any other commission,
board, agency or instrumentality, federal, state or local, or
other requirements of law affecting the Business and operations
thereof, and Seller is not in default in any material respect
under or in violation of any provision of any federal, state or
local law, regulation, rule or order applicable to the Business.
5.16 Licenses and Rights. Seller possesses all franchises,
licenses, easements, permits and other authorizations from
governmental or regulatory authorities and from all other persons
or entities that are necessary to permit it to engage in the
Business as presently conducted in and at all locations and
places where it is presently operating. Such franchises,
licenses, permits and other authorizations are listed on Schedule
1.1(g).
5.17 Conduct of Business. The Acquired Assets, together with
the rights granted or assigned by Seller to Buyer pursuant to
this Agreement, the license agreement attached hereto as Exhibit
C and the sublease attached hereto as Exhibit E constitute all of
the assets necessary to the operation of the Business as
presently conducted.
5.18 Product Safety.
(a) To Seller's current actual knowledge, without investigation,
Seller has not been required to file any notification or other
report with, or provide information to, the United States
Consumer Product Safety Commission, or any product safety agency,
commission, board or other body of any jurisdiction, concerning
actual or potential hazards with respect to any product
manufactured, distributed or sold by Seller as part of the
Business being acquired by Buyer; and
(b) Seller has not made any knowing misrepresentation or
knowingly furnished any information containing any material
omission to any product safety testing laboratory or similar
organization with respect to any product manufactured,
distributed or sold by Seller as part of the Business being
acquired by Buyer.
5.19 Real Property. To Seller's current actual knowledge,
without investigation, with respect to the Real Property:
(a) Seller has adequate permanent rights of ingress to and
egress from the Real Property;
(b) All water, sewer, gas, electric, telephone, drainage and
other utility equipment, facilities and services required by law
or necessary for the operation of the Real Property as it is now
being operated are installed and connected pursuant to valid
permits, are adequate to service the Real Property and are in
operating condition; and no fact or condition exists which would
result in the termination or impairment of the furnishing of
service to the Real Property of water, sewer, gas, electric,
telephone, drainage and other such utility services; and
(c) Seller has received no notice from any insurance carrier,
nor does Seller have knowledge of, defects or inadequacies in the
Real Property which, if not corrected, would result in
termination of insurance coverage or increase in the costs
thereof.
6. REPRESENTATIONS AND WARRANTIES OF BUYER.
As of the date hereof and as of the Closing, Buyer represents and
warrants as follows:
6.1 Organization of Buyer. Buyer is duly organized, validly
existing and in good standing under the laws of the State of
Ohio.
6.2 Authority of Buyer. This Agreement and each of the
agreements and other documents and instruments delivered or to be
delivered to Seller pursuant to or as contemplated in this
Agreement will constitute, when so delivered, the valid and
binding obligation of Buyer and shall be enforceable in
accordance with their respective terms except insofar as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting
creditor's rights generally and except as to the availability of
equitable remedies. The execution, delivery and performance of
this Agreement and each of the agreements, documents and
instruments delivered or to be delivered to Seller by Buyer, have
been duly authorized by all necessary corporate action of Buyer
and are within Buyer's corporate powers. The execution, delivery
and performance of this Agreement or any other agreement,
document or instrument by Buyer does not and will not, with the
passage of time, or the giving of notice, or both:
(a) result in a breach of, or constitute a default, or result in
any right of termination, or other effect adverse to Buyer or the
Acquired Assets, under any indenture or loan or credit agreement
of Buyer or any other agreement, lease or instrument to which
Buyer is a party;
(b) result in a violation of, or default under any law, rule, or
regulation, or any order, writ, judgment, injunction, decree,
determination or award now in effect having applicability to
Buyer or to the Acquired Assets;
(c) violate any provisions of the Certificate of Incorporation
or By-Laws of Buyer; or
(d) require any approval, consent or waiver of, or filing with,
any person or entity, private or governmental.
6.3 Brokers or Finders. Buyer has not retained, employed or
used any broker or finder in connection with the purchase of the
Acquired Assets or in connection with the negotiation thereof.
7. COVENANTS OF SELLER AND BUYER.
7.1 Management Prior to Closing. On the date hereof, Seller and
Buyer will execute and deliver a Management Agreement in the form
of Exhibit B hereto pursuant to which Buyer will manage the
Business until the Closing. During such period, Buyer shall
advise Seller of all material developments related to Buyer's
management. Seller shall fully cooperate with Buyer in
connection therewith. If this Agreement is terminated pursuant
to Section 12.1, Seller shall reimburse Buyer for (i) preapproved
capital expenditures as specified in the Management Agreement and
(ii) unreimbursed payments by Buyer in respect of any liability
of Buyer which is not an Assumed Liability.
7.2 Pension Plans - Union Employees. Seller will continue to
accrue pension benefits under its existing defined benefit
pension plans under the agreements with the unions listed on
Schedule 5.11(b) until December 31, 1996, and then shall freeze
the benefits for the employees covered by such union contracts as
if the defined benefit pension plans were terminated on that
date.
7.3 Post-Retirement Life, Health and Disability Insurance
Benefits. Seller shall be liable for any post-retirement life,
health and disability benefits for all employees who have left
employment prior to the date hereof and who have met Seller's
eligibility requirements for such benefits.
7.4 Title Insurance. Seller shall furnish, and Buyer shall pay
for, an owner's title insurance commitment and policy in the
amount of One Million Dollars ($1,000,000). The title evidence
shall be certified within 30 days prior to Closing with
endorsement as of 8:00 A.M. on the business day prior to the date
of Closing, all in accordance with the standards of the Columbus
Bar Association, and shall show in Seller marketable title in fee
simple free and clear of all liens and encumbrances except; (a)
those created by or assumed by Buyer; (b) those specifically set
forth in this contract; (c) zoning ordinances; (d) legal
highways; and (e) covenants, restrictions, conditions and
easements of record which do not unreasonably interfere with
present lawful use. Buyer shall pay any additional costs
incurred in connection with mortgage insurance issued for the
protection of Buyer's lender. If Buyer desires a survey, Buyer
shall pay the cost thereof.
7.5 Notice of Breach by Seller. Seller covenants and agrees
that, during the period from the date hereof through and
including the Closing, to the extent Seller obtains knowledge
that any of the representations or warranties contained in
Article 5 hereof would be incorrect in any respect were those
representations or warranties made immediately after such
knowledge was obtained, Seller shall notify Buyer in writing
promptly of such fact and exercise its best efforts to remedy
same.
7.6 Consummation of Agreement by Seller. Seller shall use its
best efforts to satisfy all conditions to the Closing that are
within its control to enable the transactions contemplated by
this Agreement to be fully carried out.
7.7 Notice of Breach by Buyer. Buyer covenants and agrees that,
during the period from the date hereof through and including the
Closing, to the extent Buyer obtains knowledge that any of the
representations or warranties contained in Articles 5 and 6
hereof would be incorrect in any respect were those
representations or warranties made immediately after such
knowledge was obtained, Buyer shall notify Seller in writing
promptly of such fact and exercise its best efforts to remedy
same.
7.8 Consummation of Agreement by Buyer. Buyer shall use its
best efforts to satisfy all conditions to the Closing that are
within its control to enable the transactions contemplated by
this Agreement to be fully carried out.
7.9 Payment of Obligations Retained by Seller. Subject to its
right to contest any debt or claim in good faith, Seller shall
pay all obligations of the Business retained by it in accordance
with reasonable business practice.
8. INDEMNIFICATION.
8.1 Indemnification by Seller. Subject to Section 8.5, Seller
hereby agrees to defend, indemnify and hold Buyer and its
officers, directors, shareholders, employees, and agents harmless
from and against any damages, liabilities, losses and expenses
(including, without limitation, reasonable attorneys' fees) of
any kind or nature whatsoever which may be sustained or suffered
by Buyer or its officers, directors, shareholders, employees and
agents, arising out of, based upon or by reason of: (a) the
operation of the Business prior to the date hereof; (b) the
Non-Assumed Liabilities; (c) a breach of any representation or
warranty, or a failure to perform any agreement or covenant, made
by Seller in this Agreement or in any Exhibit, Schedule,
certificate or other document delivered hereunder, or (d) any
claim, action or proceeding asserted or instituted growing out of
any matter or thing covered by such breached representations,
warranties, agreements or covenants.
8.2 Indemnification by Buyer. Subject to Section 8.5, Buyer
hereby agrees to defend, indemnify and hold Seller and its
officers, directors, shareholders, employees and agents, harmless
from and against any damages, liabilities, losses and expenses
(including, without limitation, reasonable attorneys' fees) of
any kind or nature whatsoever which may be sustained or suffered
by Seller or its officers, directors, shareholders, employees and
agents, arising out of, based upon, or by reason of: (a) the
operation of the Business from and after the date hereof; (b) the
Assumed Liabilities; (c) a breach of any representation or
warranty, or a failure to perform any agreement or covenant, made
by Buyer in this Agreement or in any Exhibit, Schedule,
certificate or other document delivered hereunder, or (d) any
claim, action or proceeding asserted or instituted growing out of
any matter or thing covered by such breached representations,
warranties, agreements or covenants.
8.3 Limitation on Claims. All claims pursuant to Section 8.1
for damages, liabilities, losses and expenses in the aggregate
shall not exceed the sum of the Purchase Price payable pursuant
hereto and the amounts payable pursuant to the License Agreement
referred to in Section 9.5 hereof, it must be brought no later
than one (1) year from Closing.
8.4 Notice Defense of Claims. Each party to this Agreement
shall give prompt written notice to the other party of each claim
for indemnification hereunder specifying the amount and nature of
the claim, and of any matter which is likely to give rise to an
indemnification claim. The indemnifying party has the right to
control, at its expense, the defense of any such matter or its
settlement. The indemnifying party will use its reasonable
efforts to reach an expeditious resolution of any such matter.
Failure to give timely notice of a matter which may give rise to
an indemnification claim shall not affect the rights of the
indemnified party to collect such claims from the indemnifying
party so long as such failure to so notify does not materially
adversely affect the indemnifying party's ability to defend such
claim against a third party. No indemnifying party, in the
defense of any claim or litigation, shall, except with the
consent of an indemnified party, which consent shall not be
unreasonably withheld or delayed, consent to entry of any
judgment or enter into any settlement by which such indemnified
party is to be bound and which judgment or settlement does not
include, as an unconditional term thereof, the giving by the
claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
8.5 Additional Indemnification for Environmental Remediation.
Notwithstanding the limitations set forth in Section 8.3, Seller
shall indemnify and hold harmless Buyer from and against any and
all claims, actions, causes of action, costs, expenses, damages
and other charges which Buyer incurs or is required to expend in
relation to the cleanup or reduction or securing of contamination
that existed on the real property being acquired as part of the
Acquired Assets (the "Premises") on the day of Closing, including
all lawful storage, treatment and/or disposal of removed
contamination, Premises restoration following such activities,
payment of natural resource and other damages (all of such
activities being called "Remediation"), and all third party and
professional costs, including engineering, consultant and
attorneys' fees associated with or necessary in order to carry
out such Remediation; PROVIDED, HOWEVER, that this
indemnification shall be enforceable only with respect to
expenditures incurred by Buyer as a result of Buyer being ordered
to conduct such Remediation either by an agency or court of
competent jurisdiction of either the State of Ohio or of the
United States of America, or by both, and Seller shall not be
required to indemnify Buyer for any expenditures made for any
Remediation or partial Remediation conducted other than pursuant
to such an order or orders. Buyer shall give Seller written
notice of any written threat or proposal to issue an order for
Remediation by any such governmental entity as soon as
practicable but in any event within 30 days of Buyer's receipt of
such order or threat or proposal for such order of Remediation
(or such lesser period as shall be necessary to provide Seller an
adequate opportunity to respond thereto) and at least 30 days
before Buyer agrees to any such order. Buyer shall not be
required to negotiate, contest, challenge or appeal any such
order or proposed order, or part thereof, by any such
governmental entity. However, if Seller wishes to negotiate,
contest, challenge or appeal any such order or threat or proposal
for such order of Remediation, it may do so at its sole risk and
cost, and Buyer agrees to be named as a party and to sign
whatever documents and take whatever actions are reasonable and
necessary to assist Seller in such negotiation, contest,
challenge or appeal, but Buyer shall be free without imperiling
its right to enforce this indemnification to perform all lawful
orders that have not been properly stayed. Seller's obligation
to indemnify Buyer under this Section 8.5 shall terminate and be
unenforceable from and after the tenth anniversary of the
Closing, and from and after said tenth anniversary, Buyer shall
indemnify Seller from and against all liability for such
Remediation.
9. MISCELLANEOUS COVENANTS AND AGREEMENTS OF SELLER AND OF
BUYER.
9.1 Consents of Third Parties. To the extent that any transfer
or assignment of any contract, license, permit, or right to be
transferred and assigned to Buyer as provided herein, shall
require the consent of the other party thereto, or of any other
person or governmental or other authority, this Agreement shall
not constitute an agreement to assign the same if any attempted
assignment would constitute a breach thereof or have any other
adverse effect thereon. Seller agrees that it will use
reasonable efforts before and after the Closing to obtain and
deliver the consent of the other parties and the approvals of
other persons or authorities, to the extent necessary, to the
assignment of all such contracts, leases, licenses, permits,
commitments or rights to Buyer. If such consent or approval is
not obtained at the Closing and the Buyer elects to proceed with
the Closing, Seller shall act as Buyer's agent, to the extent
permissible under the applicable document, in order to obtain for
Buyer the benefits thereunder, and Seller will cooperate with
Buyer in any reasonable arrangement designed to provide for Buyer
all benefits under any such contracts, licenses, leases,
commitments or rights. Nothing herein shall be deemed a waiver
by Buyer of its right to receive at the Closing an effective
assignment of all of the Acquired Assets unless it elects to
proceed with the Closing.
9.2 Taxes, Assessments, and Charges. Each of Seller and Buyer
shall be responsible for, and shall pay when due, any sales, use,
transfer or stamp taxes which may be imposed on the sale of the
Acquired Assets by a seller or buyer, respectively, as is
customary in such transactions.
9.3 Warranty Program. Products manufactured by Seller as part
of the Business being acquired by Buyer are subject to certain
express and implied warranties. Buyer shall assume and pay,
perform and discharge all warranty obligations of Seller;
provided, however, that for a period of 18 months from and after
the date hereof, Seller shall, upon receipt of evidence
satisfactory to it of return of a product and shipment of a
replacement product and Buyer's costs, reimburse Buyer the actual
costs incurred by Buyer in satisfying the warranty. From and
after the end of such 18 month period, Buyer shall be solely
responsible for discharging all warranty claims arising out of
the Business, regardless of the date of manufacture or sale of
the product which is the subject of a warranty claim.
9.4 Settlement of Claims. Seller and Buyer agree that
notwithstanding the responsibility of Seller therefor, it is
advantageous to both of them to settle claims (other than
warranty claims covered by Section 9.3 hereof) presented by trade
customers within twelve (12) months after the date hereof arising
out of products sold or services rendered prior to the date
hereof in a manner satisfactory to the trade customers, and, in
order to facilitate settlement of any claim, Buyer, upon
providing written notice to Seller and if Seller does not object
for valid reasons within five (5) business days after such notice
is given, may use its best efforts to repay, replace or grant
credit in respect of products sold or services rendered prior to
the date hereof, and Seller will reimburse Buyer, within thirty
(30) days of demand upon Seller, for its incremental costs of
producing such replacement products, and any reasonable
out-of-pocket expenses incurred in making any such repairs or
replacement or in granting any such credit. Claims presented by
trade customers after 12 months shall be the sole responsibility
of Buyer.
9.5 Sales Orders and Purchase Orders. At the Closing, Seller
will furnish Buyer with a Schedule identified as Schedule 9.5 of
the purchase orders and sales orders which are to be assigned to
and paid or performed by Buyer after the Closing.
9.6 License Agreement. At the Closing, Seller and Buyer shall
execute and deliver a License Agreement, in the form of Exhibit C
hereto.
9.7 Purchase of Products from Buyer. Seller shall cause its
subsidiary Chicago Cutlery etc., Inc., an Indiana corporation, to
purchase, for a period of three years from and after the date of
Closing, not less than One Million Dollars ($1,000,000) of
products from Buyer at a purchase price equal to the lower of (a)
Buyer's cost plus 30% or (b) Buyer's price, net of all
allowances, to its lowest net-priced customer. Seller shall have
the right to request and receive information establishing Buyer's
cost or price to its lowest priced customer and shall have the
right to audit Buyer's books and records to verify such
information.
9.8 Support Services Agreement. At the Closing, Seller and
Buyer will execute and deliver a Support Services Agreement in
the form of Exhibit D hereto.
9.9 Sidney Warehouse Sublease. At the Closing, Seller and Buyer
will execute and deliver a Sublease in the form of Exhibit E
hereto.
9.10 Allocation of Purchase Price to Acquired Assets. The
purchase price shall be allocated to the Acquired Assets as
determined by Buyer, subject to the consent of Seller which shall
not be unreasonably withheld.
9.11 Non-Exclusive License. Seller hereby grants to Buyer the
non-exclusive right to use Seller's name and logo (Trademark
Registration No. 1,140,402) in sales and marketing materials and
invoices and other forms sold pursuant to Section 1.1(c),
packaging sold pursuant to Section 1.1(b) and cast iron and cast
aluminum cookware sold pursuant to Section 1.1(b) or manufactured
and sold by Buyer from and after the Closing for the period of
one year from the date of the Closing. From and after the first
anniversary of the Closing, Buyer shall not use Seller's name or
logo in any manner whatsoever.
9.12 Covenant Not to Compete. Except as provided in Section
9.7, Seller agrees that, for a period of five years from and
after the Closing, it will not engage in the manufacture or sale
of heavy gauge cast aluminum cookware, heavy gauge anodized
aluminum cookware or cast iron cookware. For purpose of this
section, "heavy gauge" means ten gauge or heavier.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER TO CLOSE.
The obligation of Buyer to purchase the Acquired Assets as
contemplated hereby and to perform its other obligations
hereunder to be performed on or after the Closing, shall be
subject to the fulfillment, on or prior to the Closing, unless
otherwise waived in writing by Buyer, of the following
conditions:
10.1 Financing. Buyer shall have obtained financing of the
transaction contemplated by this Agreement on commercially
reasonable terms customary for such transactions.
10.2 Representations and Warranties. The representations and
warranties of Seller set forth in Sections 5.1 and 5.2 hereof
shall be true and correct in all material respects at the Closing
as if made on and as of such date, and Buyer shall have received
a certificate to such effect, executed by the President or any
Vice President of Seller, dated as of the date of Closing, in
form reasonably satisfactory to Buyer and its counsel.
10.3 Performance of Covenants. Seller shall have performed all
of its obligations contained in this Agreement to be performed on
or prior to the Closing, and Buyer shall have received a
certificate to such effect, executed by the President or any Vice
President of Seller, dated as of the Closing, in form reasonably
satisfactory to Buyer and its counsel.
10.4 Threatened or Pending Proceedings. No proceedings shall
have been initiated or threatened by any governmental department,
commission, bureau, board, agency or instrumentality or any other
bona fide third party seeking to enjoin or otherwise restrain or
to obtain an award for damages in connection with the
consummation of the transactions contemplated hereby.
10.5 Corporate Action. All corporate action necessary to
authorize (a) the execution, delivery and performance by Seller
of this Agreement and any other agreements or instruments
contemplated hereby to which Seller is a party and (b) the
consummation of the transactions and performance of Seller's
other obligations contemplated hereby and thereby, shall have
been duly and validly taken by the Board of Directors of Seller,
and Buyer shall have been furnished with copies of all applicable
resolutions, certified by the Secretary or Assistant Secretary of
Seller.
10.6 Delivery of Certificates and Documents to Buyer. Seller
shall have delivered, or caused to be delivered, to Buyer the
certificates as to the legal existence and good standing of
Seller issued by the Secretary of State of the State of Delaware.
10.7 Additional Agreements. Seller shall have executed and
delivered to Buyer the License Agreement, in the form of Exhibit
C hereto, the Support Services Agreement in the form of Exhibit D
hereto and the Sublease in the form of Exhibit E hereto.
10.8 Deed. Seller shall convey to Buyer marketable title in fee
simple to the Real Property by transferable and recordable
general warranty deed, free and clear of all liens and
encumbrances not excepted by this contract.
10.9 Legal Opinion. Buyer shall have received the written
opinion of Raymond J. Kulla, Esq., counsel to Seller, dated as of
the Closing, in substantially the form of Exhibit F hereto.
10.10 Consents. Seller shall have received the approvals,
consents and authorizations of all third persons and governmental
agencies necessary for the sale and transfer of the Acquired
Assets to Buyer.
10.11 Releases. Seller shall have received and delivered to
Buyer releases of all liens on the Acquired Assets.
11. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER TO CLOSE.
The obligation of Seller to sell the Acquired Assets as
contemplated hereby, and to perform its other obligations
hereunder to be performed on or after the Closing, shall be
subject to the fulfillment, on or prior to the Closing, unless
otherwise waived in writing by Seller, of the following
conditions:
11.1 Representations and Warranties. The representations and
warranties of Buyer set forth in Article 6 hereof shall be true
and correct in all material respects on the Closing as if made on
and as of such date, and Seller shall have received a certificate
to such effect, executed by the President or any Vice President
of Buyer, dated as of the Closing, in form reasonably
satisfactory to Seller and its counsel.
11.2 Performance of Covenants. Buyer shall have performed all
of its obligations contained in this Agreement to be performed on
or prior to the Closing, and Seller shall have received a
certificate to such effect, executed by the President or any Vice
President of Buyer, dated as of the Closing, in form reasonably
satisfactory to Seller and its counsel.
11.3 Threatened or Pending Proceedings. No proceedings shall
have been initiated or threatened by any governmental department,
commission, bureau, board, agency or instrumentality or any other
bona fide third party seeking to enjoin or otherwise restrain or
to obtain an award for damages in connection with the
consummation of the transactions contemplated hereby.
11.4 Corporate Action. All corporate action, necessary to
authorize (a) the execution, delivery and performance by Buyer or
Seller of this Agreement and any other agreements or instruments
contemplated hereby to which Buyer or Seller is a party and (b)
the consummation of the transactions and performance of Buyer's
and Seller's other obligations contemplated hereby and thereby,
shall have been duly and validly taken by Buyer and Seller, and
Seller shall have been furnished with copies of all applicable
resolutions adopted by the Board of Directors or the Executive
Committee of Buyer, certified by the Secretary or Assistant
Secretary of Buyer.
11.5 Delivery of Certificates and Documents to Seller. Buyer
shall have delivered, or caused to be delivered, to Seller
certificates as to the legal existence and good standing of Buyer
issued by the Secretary of State of the State of Ohio.
11.6 Additional Agreements. Buyer and its affiliated purchaser,
if any, under Section 13.11 hereof shall have executed and
delivered to Seller the License Agreement, in the form of Exhibit
C hereto, the Support Services Agreement in the form of Exhibit D
hereto, the Sublease in the form of Exhibit E hereto and
instruments evidencing the liens, mortgages and security
interests securing the Promissory Note.
11.7 Legal Opinion. Seller shall have received the written
opinion of Persky, Shapiro, Salim, Esper, Arnoff & Nolfi Co. LPA,
counsel to Buyer, dated as of the Closing, in form and substance
reasonably acceptable to Seller and its counsel.
11.8 Consents. Buyer shall have received the approvals,
consents and authorizations of all third parties and governmental
agencies necessary for the purchase and transfer of the Acquired
Assets to Buyer.
12. TERMINATION OF AGREEMENT.
12.1 Termination. At any time prior to the Closing, this
Agreement may be terminated (a) by the written consent of Buyer
and Seller, (b) by Seller if there has been a material
misrepresentation, breach of warranty or breach of covenant by
Buyer in its representations, warranties and covenants set forth
herein, (c) by Buyer, after giving Seller written notice thereof
and providing Seller with thirty (30) days within which to cure
such matter, if there has been a material misrepresentation,
breach of warranty or breach of covenant by Seller in its
representations, warranties and covenants set forth herein, (d)
by Seller if the conditions stated in Article 11 have not been
satisfied at or prior to the Closing or (e) by Buyer if the
conditions stated in Article 10 have not been satisfied at or
prior to the Closing.
12.2 Effect of Termination. If this Agreement shall be
terminated as provided in Section 12.1, or as provided in Section
12.4 below, all obligations of the parties hereunder shall
terminate without liability of any party to the other; provided,
however, such termination shall not affect the rights and
obligations of the parties under the Management Agreement
attached hereto as Exhibit B.
12.3 Right to Proceed. Anything in this Agreement to the
contrary notwithstanding, if any of the conditions specified in
Article 10 hereof have not been satisfied at or prior to the
Closing, Buyer shall have the right to proceed with the
transactions contemplated hereby without waiving any of its
rights hereunder; and if any of the conditions specified in
Article 11 hereof have not been satisfied at or prior to the
Closing, Seller shall have the right to proceed with the
transactions contemplated hereby without waiving any of its
rights hereunder.
12.4 Automatic Termination. This Agreement and the transactions
contemplated hereby shall automatically terminate on August 16,
1996 if the Closing does not occur on or prior to that date;
provided, however, nothing herein shall be deemed to limit or
otherwise affect the liability of any party hereto whose default
hereunder has caused the Closing not to have occurred by such
date.
13. MISCELLANEOUS.
13.1 Expenses. Buyer and Seller shall each pay the fees and
expenses of their respective representatives and legal counsel
incurred in connection with the transactions contemplated by this
Agreement.
13.2 Risk of Loss. All risk of loss with respect to the
Acquired Assets between the date hereof and the Closing shall be
upon Buyer.
13.3 Notices. Any demand, notice or other communication
required or permitted under or in connection with the
transactions contemplated by this Agreement shall be in writing
and shall be deemed to be effective when delivered in person, by
facsimile transmission, overnight carrier or deposited in the
United States mail and sent by certified or registered mail,
return receipt requested, postage prepaid, addressed as follows
(or to such other address as may be provided by the party to be
notified on ten days prior written notice to the other party
hereto):
To Seller: General Housewares Corp.
1536 Beech Street
P. O. Box 4066
Terre Haute, IN 47804
Attn: Paul A. Saxton, President
With a copy to:
Raymond J. Kulla, Esq.
General Housewares Corp.
1536 Beech Street
Terre Haute, IN 47804
To Buyer: Peter J. Slyman, President
Wagnerware Corporation
800 West Liberty Street
Medina, OH 44256
With a copy to:
Thomas Esper
Persky, Shapiro, Salim, Esper, Arnoff & Nolfi
Co. LPA
1410 Terminal Tower
Cleveland, OH 44113
13.4 Governing Law. This Agreement shall in all respects be
enforced, interpreted and construed in accordance with and
governed by the laws of the State of Ohio.
13.5 Waiver. Except as set forth in Section 8.3, the failure of
any party hereto at any time or times hereafter to exercise any
right, power, privilege or remedy hereunder or to require strict
performance by the other or another party of any of the
provisions, terms or conditions contained in this Agreement or in
any other document, instrument or agreement contemplated hereby
or delivered in connection herewith shall not waive, affect, or
diminish any right, power, privilege or remedy of such party at
any time or times thereafter to demand strict performance
thereof; and no rights of any party hereto shall be deemed to
have been waived by any act or knowledge of such party, or any of
its agents, officers or employees, unless such waiver is
contained in an instrument in writing, signed by such party. No
waiver by any party hereto of any of its rights on any one
occasion shall operate as a waiver of any other of its rights or
any of its rights on a future occasion.
13.6 Section Headings. The section headings in this Agreement
are for convenience of reference only and shall not be deemed to
be a part of this Agreement or to alter or affect any provisions,
terms or conditions contained herein.
13.7 Exhibits and Schedules. Any Exhibits and/or Schedules
referenced herein shall be deemed to be attached hereto and made
a part hereof. All references herein to this Agreement shall
include all Schedules, Exhibits, certificates and other documents
required to be delivered hereunder.
13.8 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If any portion of this
Agreement is declared invalid for any reason in any jurisdiction,
such declaration shall have no effect upon the remaining portions
of this Agreement which shall continue in full force and effect
as if this Agreement had been executed with the invalid portions
thereof deleted. Furthermore, the entirety of this Agreement
shall continue in full force and effect in all other
jurisdictions.
13.9 Entire Understanding. This Agreement contains the entire
understanding between the parties hereto with respect to the
transactions contemplated hereby, and such understanding shall
not be modified except in writing signed by or on behalf of the
parties hereto.
13.10 Binding Effect. This Agreement shall be binding upon and
shall inure to the exclusive benefit of the parties hereto and
their respective successors and assigns. This Agreement is not
intended to, nor shall it, create any rights in any other party.
13.11 Assignability. Neither this Agreement nor any rights or
obligations hereunder are assignable by Seller or Buyer except
Buyer may assign its right to purchase the real property
identified on Schedule 1.1(f) to an affiliate of Buyer, provided
the affiliate unconditionally guarantees and secures the
obligations of Buyer under this Agreement.
13.12 Remedies. Neither Seller nor Buyer waives any right or
remedy available to it to enforce this Agreement or to seek
damages for the breach of the representations and warranties
contained herein except to the extent that such right or remedy
is specifically waived or limited in this Agreement.
13.13 Best Knowledge of Seller. The term "best of Seller's
knowledge" means knowledge of the Executive Officers of Seller of
such circumstances as would ordinarily lead on investigation, in
the exercise of reasonable diligence, to a knowledge of the
actual facts.
13.14 Access to Records. Subsequent to Closing, Seller shall
maintain in its possession, and intact, all records not delivered
to Buyer pursuant hereto and relating to the Business created at
or prior to the Closing for a period of five (5) years. After
the Closing, Buyer shall have access during normal business hours
to all such records, upon reasonable request therefore, and may
from time to time copy any such records as Buyer sees fit.
Seller may, at its option, during such five (5) year period,
deliver any of such records to Buyer. For a period of five (5)
years after Closing, Seller shall have reasonable access to
records delivered to Buyer hereunder after having identified a
business necessity for such access, such as the preparation of
tax returns.
13.15 Counterparts. This Agreement may be signed in any number
of counterparts each of which shall be deemed to be an original
and all of which together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective duly authorized officers as of
the day and year first written above.
SELLER:
GENERAL HOUSEWARES CORP.
By:/s/ Paul A. Saxton
Name: Paul A. Saxton
Title: President
BUYER:
WAGNERWARE CORPORATION
By:/s/ Peter J. Slyman
Name: Peter J. Slyman
Title: President