ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of the ____ day of December, 1994, between CUPPLES
PRODUCTS, INC. ("Cupples"), a Missouri corporation, and ROBERTSON-CECO
CORPORATION ("Robertson-Ceco"), a Delaware corporation.
WHEREAS, Cupples desires to purchase from Robertson-Ceco and
Robertson-Ceco desires to sell to Cupples the assets owned by
Robertson-Ceco and used in connection with the operation of the
business of its Cupples Products Division (the "Cupples Division"), in
exchange for the consideration hereinafter set forth.
NOW, THEREFORE, in consideration of the promises, covenants,
provisions, terms and conditions herein stated, the receipt and
sufficiency of which is hereby acknowledged, the parties represent,
warrant, covenant and agree as follows:
1. DEFINITIONS.
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Except as otherwise provided herein, the capitalized terms set
forth below (in their singular and plural forms as applicable) have
the following meanings:
1.1 Acquired Employees shall mean all employees of the Cupples
Division as of the Closing Date that are not Hourly Employees, a list
of which as of the Effective Date is set forth on Schedule 1.1.
1.2 Agreement shall mean this Asset Purchase Agreement, as it
may be amended from time to time in accordance with the terms hereof.
1.3 Assets shall have the meaning set forth in Section 2.1(b).
1.4 Assumed Liabilities shall mean the Liabilities of the
Cupples Division assumed by Cupples, as set forth in Section 2.4.
1.5 Balance Sheet shall mean the balance sheet of Cupples
Division at July 31, 1994, as attached as Schedule 1.5.
1.6 Business shall mean the architectural and other curtain wall
business as conducted by the Cupples Division during the five year
period prior to the Effective Date, including, but not limited to, the
promotion, sales, design, engineering, project management, materials
and installation of standard and custom curtain walls.
1.7 Cash shall mean all cash and marketable securities set forth
on the Final Balance Sheet.
1.8 Closing shall mean the closing of the transactions
contemplated by this Agreement.
1.9 Closing Date shall have the meaning set forth in Section
3.2.
1.10 COBRA means the Consolidated Omnibus Budget Reconciliation
Act of 1985.
1.11 Consents shall mean those consents, approvals, waivers or
authorizations that are legally or contractually required to duly and
validly transfer or assign any of the Contracts or any rights
thereunder, specifically required pursuant to this Agreement and
listed on Schedule 5.11.
1.12 Contracts shall have the meaning set forth in Section
2.1(a)(iii).
1.13 Contract Rights shall have the meaning set forth in Section
2.1(a)(iii).
1.14 Cupples shall mean Cupples Products, Inc., a Missouri
Corporation.
1.15 Cupples Division shall mean the Cupples Products Division of
Robertson-Ceco, the Business of which is conducted principally at the
facility in St. Louis, Missouri.
1.16 Effective Date shall mean the close of business on November
15, 1994.
1.17 Encumbrances shall mean all liens, pledges, title defects,
security interests, or other ownership or title claims or interests of
third parties.
1.18 Environmental Law shall mean any law relating to the
protection of health or the environment, past, current or future,
including by way of illustration and not by way of limitation: the
Clean Air Act; the Federal Water Pollution Control Act; the Resource
Conservation and Recovery Act; the Comprehensive Environmental
Response, Compensation and Liability Act, and the Toxic Substance
Control Act.
1.19 Equipment shall have the meaning set forth in Section
2.1(a)(ii).
1.20 Excluded Assets shall mean those assets listed on Schedule
1.20.
1.21 Excluded Liabilities shall mean all Liabilities that are not
Assumed Liabilities, as set forth in Section 2.5.
1.22 Final Balance Sheet shall mean the balance sheet of Cupples
Division as of the Effective Date prepared in accordance with Section
2.2, an estimate of which is attached as Schedule 1.22.
1.23 Hourly Employee shall mean any employee of the Cupples
Division that earns wages calculated on a per hour worked basis.
1.24 Inventory shall have the meaning set forth in Section 2.1.
1.25 Knowledge with regard to Robertson-Ceco shall mean the
knowledge of the President, General Counsel, Controller or Treasurer
of Robertson-Ceco.
1.26 Laminating Press shall mean the laminating press currently
operated by HH Robertson (Australia) Pty. Ltd as described on Schedule
1.26, and all instructions, repair logs, manuals and documentation
with respect thereto.
1.27 Lease shall mean the lease dated October 31, 1989 by and
between H.H. Robertson Company and Sunquad, L.P., as amended, for the
building at 2650 South Hanley Road, presently occupied by the Cupples
Division.
1.28 Liabilities shall mean any debts, liabilities, claims, liens
or obligations whatsoever, whether direct or indirect, absolute,
accrued, contingent or otherwise, and whether due or to become due
regardless of when such debts, liabilities, claims, liens or
obligations arose or accrued, and shall include without limitation any
debts, liabilities, claims, liens or obligations that are reflected,
reserved against or otherwise disclosed in any and all financial
information provided to Cupples. "Liabilities" shall also include
damages, losses, actions, costs, expenses, reasonable attorneys fees,
court costs, and other costs of defense.
1.29 PDE Agreement shall mean that agreement dated August 1, 1994
between Robertson-Ceco, Robertson Espanola, S.A., and RBC Holdings,
L.P.
1.30 Promissory Note shall mean the Nine Hundred Thousand Dollar
($900,000) non-interest bearing promissory note to be delivered by
Robertson-Ceco to Cupples at Closing, substantially in the form set
forth on Exhibit 1.30.
1.31 Purchase Price shall mean the purchase price for the Assets,
determined in accordance with Section 2.2.
1.32 RC Asia shall mean the group of affiliated companies owned
and operated by Robertson-Ceco, specifically H.H. Robertson
(Australia) Pty., Ltd., H.H. Robertson Singapore Pte. Ltd, H.H.
Robertson Hong Kong Ltd. and H.H. Robertson Asia/Pacific Pte. Ltd.
1.33 Robertson-Ceco shall mean Robertson-Ceco Corporation, a
Delaware corporation.
1.34 WARN Act shall mean the Worker Adjustment and Retraining
Notification Act and any similar applicable state or local plant
closing laws.
1.35 Working Capital shall mean current assets less current
liabilities for the Cupples Division, excluding costs billed to RBC
Holdings, L.P. for re-worked materials under the PDE Agreement,
warranty and backcharge reserves and reserves for the sale of the
extrusion press but otherwise determined in accordance with historical
financial accounting practices of the Cupples Division as reflected in
Schedule 2.2(a)(i).
1.36 YKK License Agreement shall mean that certain license
agreement dated January 1, 1994 between Robertson-Ceco, Cupples
Products, YKK Architectural Products, Inc. and Yoshida Kogyo, K.K.,
Japanese corporations.
2. PURCHASE TRANSACTION.
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2.1 Delivery of the Assets.
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(a) Subject to and upon the terms and conditions of this
Agreement, at Closing, Robertson-Ceco shall sell, transfer, convey,
assign and deliver to Cupples, and Cupples shall purchase from
Robertson-Ceco, all of the Business and assets (except the Excluded
Assets) used in connection with the Cupples Division as of the
Effective Date, less any assets disposed of in the ordinary course of
business between the Effective Date and the Closing Date, including,
without limitation, the following assets, rights and interests:
(i) the inventories of supplies, raw materials, work
in process, finished goods and similar items of the Cupples Division,
wherever located (collectively, the "Inventory");
(ii) the equipment, machinery, tooling, test fixtures,
hand tools, quality measurement tools and gauges, maintenance
equipment, office equipment, and similar items of the Cupples
Division, including but not limited to the Laminating Press and the
equipment listed on Schedule 2.1(a)(ii) (collectively, the
"Equipment");
(iii) all rights of Robertson-Ceco (collectively,
the "Contract Rights") under all contracts, agreements and other
instruments of the Cupples Division including, but not limited to,
those described on Schedule 5.11, and including but not limited to the
YKK License Agreement (collectively, the "Contracts");
(iv) all of Robertson-Ceco's right, title and interest
in and to all books, records and accounts, correspondence, production
records, product specifications, manufacturing and production
procedures, technical, accounting, manufacturing and procedural
manuals, customer lists, price lists, publications, advertising and
marketing materials, customer files, sales files, sales history,
product cost information, bills of materials, vendor lists, vendor
quotations and any other information which has been reduced to writing
which primarily relate to or arise out of the Cupples Division,
including but not limited to, such records and other materials in the
possession of any third party, and excluding any records solely
related to the Excluded Liabilities or Excluded Assets;
(v) all rights of Robertson-Ceco under express or
implied warranties from the suppliers of the Cupples Division which
relate to the Assets, excluding, however, any related to Excluded
Liabilities;
(vi) all of Robertson-Ceco's right, title and interest
in and to (including any goodwill associated therewith) all intangible
property rights used primarily by the Cupples Division, including but
not limited to inventions, discoveries, trade secrets, processes,
formulas, know-how, United States and foreign patents, patent
applications, trade names (including, but not limited to, the name
"Cupples Products" and all variants thereof), trademarks, trademark
registrations, applications for trademark registrations, copyrights,
copyright registrations, owned or, where not owned, used by the
Cupples Division and all licenses and other agreements to which
Robertson-Ceco is a party (as licensor or licensee) or by which
Robertson-Ceco is bound relating to any of the foregoing kinds of
property or rights used by the Cupples Division, including those
listed in Schedule 5.12 (collectively, the "Intellectual Property").
The "Intellectual Property" shall also include all processes,
formulations and other intangible property rights owned by Robertson-
Ceco and used by or in the possession of any third party for the
manufacture for Robertson-Ceco of products currently manufactured,
sold or distributed by Robertson-Ceco in conjunction with the Cupples
Division. No transfer of Intellectual Property hereunder (except for
the registered trademarks and service marks identified on Schedule
5.12 in the country where registered) will restrict, impede or
prohibit the right of any foreign subsidiary of Robertson-Ceco,
including RC Asia directly or through its affiliates, to continue to
conduct its business as currently conducted; provided, however, such
use of Intellectual Property by any foreign subsidiary of Robertson-
Ceco shall be for such foreign subsidiary's current use only and such
Intellectual Property shall not be licensed to or used by any third
party, except as may be consistent with current operational practices
or in connection with a sale of all or substantially all of the assets
or stock of RC Asia or an affiliate thereof (expressly subject to the
limitations and restrictions contained herein continuing with respect
to the buyer after such sale), and shall not be sold to any third
parties;
(vii) all Cash and accounts receivables of the
Cupples Division (Cupples shall have the right to indorse Robertson-
Ceco's name on any checks or other negotiable instruments or letters
of credit relating to such accounts receivable); and
(viii) all goodwill and rights of the Cupples
Division Business as a going concern.
(b) The assets of the Cupples Division described in Section
2.1(a) above shall be referred to collectively as the "Assets." The
Assets represent the only assets being acquired by Cupples pursuant to
this Agreement. In conjunction with the transactions contemplated
pursuant to this Agreement, Cupples has not agreed to offer employment
to any Hourly Employee or any other employee of Robertson-Ceco that is
not an Acquired Employee.
(c) Robertson-Ceco shall sell, transfer, convey, assign and
deliver the Assets to Cupples free and clear of all Encumbrances.
(d) The delivery of the Assets (excluding Cash) will be
made through making the Assets available to Cupples at the site where
they are located as of the Closing Date and any break down, shipping,
moving or set-up costs shall be borne by Cupples. Any Cash remaining
after the offsets provided for herein shall be paid to Cupples by wire
transfer pursuant to Cupples' written instructions.
2.2 Purchase Price.
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The "Estimated Purchase Price" for the Cupples Division is
$807,000, payable to Robertson-Ceco in immediately available funds on
the Closing Date. The Estimated Purchase Price shall be adjusted for
(i) the Change in Working Capital price adjustment set forth in
Section 2.2(a) below and (ii) the Benefit/Burden Price Adjustment set
forth in Section 2.2(b) below. The Estimated Purchase Price, as so
adjusted, shall be the "Purchase Price."
(a) Working Capital.
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(i) Working Capital Price Adjustment. The Estimated
Purchase Price shall be adjusted as provided below based on the
difference between the Working Capital of the Cupples Division on July
31, 1994 (which is agreed to be $970,000, the calculation of which is
set forth on Schedule 2.2(a)(i)) and on the Effective Date ("Change in
Working Capital"); provided, non-cash changes in the restructuring
reserve from the amount at July 31, 1994 or other reserves and write-
off of any receivables related to the PDE Agreement costs incurred
prior to August 1, 1994 and reserves for the sale of the extrusion
press, shall not be considered in the foregoing adjustment. If the
Change in Working Capital is greater than $1,708,000, then the
Estimated Purchase Price shall be increased by such difference and if
the Change in Working Capital is less than $1,708,000, then the
Purchase Price shall be reduced by such difference. This Working
Capital price adjustment shall be paid promptly by the applicable
party as soon as Robertson-Ceco and Cupples agree on the Working
Capital Statement pursuant to Section 2.2(a)(ii) below.
(ii) Calculation of Working Capital. Promptly after
the Closing Date, Cupples shall deliver to Robertson-Ceco financial
information setting forth the Working Capital of the Cupples Division
as of the Effective Date ("Working Capital Statement") and all
documents, materials and back-up information used in the preparation
of the Final Balance Sheet and the Working Capital Statement. The
Working Capital Statement shall be prepared in a manner consistent
with the calculation of the July 31, 1994 Working Capital amount
($970,000), the Balance Sheet and the historical financial accounting
practices of the Cupples Division; provided, in the event of a
conflict, the order of the foregoing standards shall dictate which
standard is followed. Within ten (10) days after receipt of the
Working Capital Statement, Robertson-Ceco shall deliver to Cupples a
written notice specifying any disagreement it has with the Final
Balance Sheet or the Working Capital Statement and fully explaining
the reasons therefor; provided, if such written notice is not received
within such time period, the Final Balance Sheet and the Working
Capital Statement delivered by Cupples shall be conclusively deemed
accepted by Robertson-Ceco and agreed to by the parties. If such
written notice is given, for the next ten (10) days thereafter,
Cupples and Robertson-Ceco shall promptly negotiate in good faith to
reach an agreement on the Final Balance Sheet and the Working Capital
Statement. If the parties are unable to reach an agreement within ten
(10) days after Robertson-Ceco delivers its notice to Cupples, then
the dispute shall be submitted for determination by a mutually agreed
upon "Big Six" accounting firm. Both Cupples and Robertson-Ceco agree
to supply the selected accounting firm with any financial records,
books and accounts or any other information required to calculate the
Final Balance Sheet and the Working Capital Statement, to share
equally in the costs of such accounting firm in making its
determination and to be bound by the determination of such accounting
firm. The decision of such accounting firm shall be deemed to be, and
treated as, the award of an arbitrator, and judgment upon the award
may be entered by any court having jurisdiction thereof.
(b) Benefit/Burden.
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(i) Benefit/Burden Price Adjustment. The Estimated
Purchase Price shall be adjusted by the amount either Robertson-Ceco
or Cupples owes to the other party pursuant to Section 3.1
("Benefit/Burden Price Adjustment"). This Benefit/Burden Price
Adjustment shall be paid promptly by the applicable party as soon as
Robertson-Ceco and Cupples agree on the calculation of any amounts
owed pursuant to Section 3.1, as determined by Section 2.2(b)(ii)
below.
(ii) Calculation of Benefit/Burden Price Adjustment.
Within forty-five (45) days after the Closing Date, Cupples shall
deliver to Robertson-Ceco financial information required to determine
the amounts owed pursuant to the Benefit/Burden Price Adjustment (the
"Interim Statement") and all documents, materials and back-up
information used in the preparation of the Interim Statement. The
Interim Statement shall be prepared in a manner consistent with the
historical financial accounting practices of the Cupples Division.
Within ten (10) days after receipt of the Interim Statement,
Robertson-Ceco shall deliver to Cupples a written notice specifying
any disagreement it has with the Interim Statement and fully
explaining the reasons therefor; provided, if such written notice is
not received within such time period, the Interim Statement delivered
by Cupples shall be conclusively deemed accepted by Robertson-Ceco and
agreed to by the parties. If such written notice is given, for the
next ten (10) days thereafter, Cupples and Robertson-Ceco shall
promptly negotiate in good faith to reach an agreement on the Interim
Statement and any amounts owed pursuant to the Benefit/Burden Price
Adjustment. If the parties are unable to reach an agreement within
ten (10) days after Robertson-Ceco delivers its notice to Cupples,
then the dispute shall be submitted for determination by a mutually
agreed upon "Big Six" accounting firm. Both Cupples and Robertson-
Ceco agree to supply the selected accounting firm with any financial
records, books and accounts or any other information required to
calculate the Interim Statement, to share equally in the costs of such
accounting firm in making its determination and to be bound by the
determination of such accounting firm. The decision of such
accounting firm shall be deemed to be, and treated as, the award of an
arbitrator, and judgment upon the award may be entered by any court
having jurisdiction thereof.
2.3 Excluded Assets.
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Robertson-Ceco shall retain the Excluded Assets but shall
permit Cupples to have access to and to copy and use any retained
records in the manner and for any reasonable purpose Cupples
reasonably requests. Robertson-Ceco shall keep all retained records
relating to Cupples for at least 5 years. Thereafter, Robertson-Ceco
will not dispose of, alter or destroy any such records without giving
ninety days prior written notice to Cupples to permit Cupples to
examine, duplicate or take possession of such records at Cupples
expense.
2.4 Assumed Liabilities.
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Upon the Closing, as of the Effective Date, Cupples shall
assume the following Liabilities (collectively, the "Assumed
Liabilities"):
(a) all of the Liabilities listed on the Final Balance
Sheet (including those of RPM Erectors, Inc. that are transferred to
Robertson-Ceco) that are listed in Schedule 2.4;
(b) any Liability assumed pursuant to Section 3.1;
(c) the obligations of Robertson-Ceco (including the
issuance of warranties, except as otherwise provided in Section
2.5(c)), under the Contracts (including the Lease as specified in
Exhibit 4.8) to be performed after the Effective Date, excluding (i)
any contracts with or Liabilities (not included on the Final Balance
Sheet, transferred to Robertson-Ceco and listed in Schedule 2.4) of
RPM Erectors, Inc. and (ii) any Excluded Liabilities;
(d) the obligations under the PDE Agreement intended to be
fulfilled by Cupples Division after the Effective Date;
(e) the obligations of the Cupples Division as of the
Effective Date to complete all jobs in process and backlog, except for
any Excluded Liabilities;
(f) all obligations of Robertson-Ceco with respect to the
Acquired Employees, except as set forth in Section 2.5;
(g) all obligations of Robertson-Ceco under the YKK License
Agreement to be fulfilled after the Effective Date; and
(h) all unsatisfied normal operating Liabilities of the
Cupples Division (and RPM Erectors which are transferred to Robertson-
Ceco) incurred in the ordinary course of business after July 31, 1994
and on or prior to the Effective Date.
2.5 Excluded Liabilities.
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Other than the Assumed Liabilities, Robertson-Ceco shall
expressly remain liable for and not transfer or otherwise assign to
Cupples any Liabilities related to the Assets or the Cupples Division
relating to the period prior to the Effective Date, including, but not
limited to, the following (collectively, the "Excluded Liabilities"):
(a) All Liabilities relating to the Cupples Division or the
Assets, including the conduct of the Business or any predecessor of
Robertson-Ceco prior to the Effective Date, including all contractual
relationships, business dealings, products shipped, pending or
threatened litigation, environmental claims, employees, tangible
assets and intangible assets;
(b) All Liabilities relating to the business or the assets
of Robertson-Ceco which are not sold to Cupples pursuant to this
Agreement including all Liabilities (not included on the Final Balance
Sheet, transferred to Robertson-Ceco and listed in Schedule 2.4) of
RPM Erectors, Inc., contractual relationships, business dealings,
products, employees, tangible assets and intangible assets;
(c) All Liabilities (including Liabilities based upon
claims of product liability and including product returns or claims of
defective products) related to any product shipped by Robertson-Ceco
prior to the Effective Date, including the obligation to issue
warranties, in Robertson-Ceco's name, for any contracts or projects
for which a majority of product was shipped prior to the Effective
Date as specified on Schedule 5.15;
(d) All Liabilities of any Employee welfare, health,
dental, pension or similar plan, including providing reimbursement for
health care to the Acquired Employees prior to the Closing Date,
obligations of Robertson-Ceco to any Acquired Employee related to the
health care continuation provisions of COBRA, and all obligations of
Robertson-Ceco pursuant to the WARN Act;
(e) All Liabilities which are an Encumbrance of any Asset;
and
(f) All Liabilities of Robertson-Ceco relating to the
transactions contemplated by this Agreement.
3. EFFECTIVE DATE AND CLOSING.
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3.1 Effective Date.
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As of and after the Effective Date and prior to and
contingent on Closing, Cupples shall (i) bear the financial burden of
all Assumed Liabilities, (ii) bear the financial burden of (by
expressly assuming or paying as provided in Section 3.2(b), at
Cupples' election) all other normal operating Liabilities of the
Cupples Division incurred in the ordinary course of business after the
Effective Date and prior to the Closing Date including, without
limitation, those charged through the intercompany accounts which are
listed on Schedule 3.1, (iii) bear risk of loss to, destruction of or
damage to the Assets, and (iv) receive credit for all benefits of and
profits (or losses) from the operation of the Cupples Division.
3.2 Closing.
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(a) The transactions contemplated by this Agreement shall
take place on December 20, 1994 (the "Closing Date"), at 10:00 a.m. at
the offices of Peper, Martin, Jensen, Maichel and Hetlage or at such
other date or place to which Robertson-Ceco and Cupples shall agree in
writing.
(b) On the Closing Date (i) Cupples shall deliver to
Robertson-Ceco all documents and certificates contemplated by this
Agreement, and (ii) Robertson-Ceco shall deliver to Cupples such
instruments of transfer, assignment and conveyance of the Assets as
may be reasonably requested by Cupples pursuant to this Agreement
including, but not limited to, bills of sale. Robertson-Ceco or
Cupples, as the case may be, shall reimburse the other party for any
amount owing pursuant to Section 3.1, as provided in Section 2.2.
From time to time after the Closing, Robertson-Ceco will, at the
request of Cupples but without further consideration from Cupples,
execute and deliver such other and further instruments of sale,
transfer and conveyance and take such other and further action as
Cupples may reasonably request in order more effectively to vest title
to the Assets in Cupples, and transfer to Cupples title to any of the
Assets. Any accounts receivable which are part of the Assets and
which are paid to Robertson-Ceco shall be received in trust for the
benefit of Cupples and immediately paid to Cupples, including any
proceeds from any related letters of credit.
3.3 Allocation of Purchase Price.
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At the time the adjustments referred to in Section 2.2 are
agreed upon between the parties or otherwise determined, Cupples and
Robertson-Ceco shall agree on the allocation of the Purchase Price to
the Assets. Cupples and Robertson-Ceco agree (i) to jointly complete
and timely file Form 8594, and any other required reports in
accordance with Section 1060 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, with their
respective federal income tax returns for the tax year in which the
Closing Date occurs (and any amended Form 8594, if necessary) and (ii)
that no party will take a position on any report, return, or other
document filed with any governmental authority or in any judicial or
administrative proceeding, that is in any manner inconsistent with the
allocation of the Purchase Price agreed upon as provided above.
4. COVENANTS OF ROBERTSON-CECO AND CUPPLES.
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4.1 Promissory Note.
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Robertson-Ceco will deliver to Cupples at Closing the
Promissory Note. The Promissory Note shall be payable by Robertson-
Ceco only to the extent of and out of the proceeds from amounts
actually received by Robertson-Ceco pursuant to the PDE Agreement.
4.2 Consents.
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To the extent that any Consent is required to effectuate the
intent of this Agreement, Robertson-Ceco shall use its best efforts
(which need not include any payment) to obtain the Consent, and
Cupples shall use its best efforts (which need not include any
payment) to assist Robertson-Ceco in obtaining any such Consent. If
any consent for a Contract is not obtained, Robertson-Ceco shall
cooperate with Cupples in any reasonable arrangement to provide
Cupples with the benefits as if such Consent had been obtained, and if
Robertson-Ceco provides such benefits Cupples shall assume the
obligations thereunder. Nothing in this Section shall affect any of
the provisions of this Agreement requiring the Consent of certain
persons as a condition precedent to the Closing.
4.3 Missouri Certificate of No Tax Due.
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Prior to Closing, Robertson-Ceco shall provide Cupples with
a Certificate of No Tax Due from the Missouri Director of Revenue
regarding Robertson-Ceco.
4.4 Cupples Cooperation.
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Upon request by Robertson-Ceco, Cupples shall provide
reasonable cooperation and support (which does not include performing
warranty work services referred to in Section 4.12) to Robertson-Ceco,
with reasonable direct costs to be reimbursed by Robertson-Ceco, with
respect to any warranty, tax, personnel or legal issues with regard to
the Cupples Division. Cupples agrees to provide Robertson-Ceco with
reasonable access to any records included in the Assets that
Robertson-Ceco may reasonably request. As long as necessary, but not
to exceed two years, storage of such records shall be at Cupples main
office or reasonably similar location and Cupples shall provide
Robertson-Ceco with sufficient space in which to store (at Robertson-
Ceco's risk) its records relating to Excluded Liabilities and to
review such records (approximately 150 square feet of office space
designated by Cupples). Robertson-Ceco agrees to reimburse Cupples
upon demand for all direct costs (including an allocation of lease
charges, utilities and maintenance) of storing such records and
providing Robertson-Ceco with such office space. Cupples shall keep
all records acquired from Robertson-Ceco relating to the Business for
at least 5 years. Thereafter, Cupples will not dispose of, alter or
destroy any such records without giving ninety days prior written
notice to Robertson-Ceco to permit Robertson-Ceco to examine,
duplicate or take possession of such records at Robertson-Ceco's
expense.
4.5 Covenant Not to Compete.
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Robertson-Ceco covenants and agrees that it will not,
directly or indirectly, (i) engage in the Business, (ii) have a 51% or
greater interest in (or any interest which permits it to control) any
entity engaged in the Business, or (iii) offer consulting or
management services to an entity engaged in the Business for the 5
year period commencing on the Closing Date; provided, Robertson-Ceco
may continue its interest in R-C Asia's curtain wall business as
currently conducted outside the United States of America and its
possessions and territories. Robertson-Ceco recognizes that breach of
its obligations pursuant to this Section shall cause irreparable harm
to Cupples, and agrees that in the event of such breach, Cupples shall
have, in addition to any and all remedies of law, the right to an
injunction, specific performance or other equitable relief.
4.6 Employee Matters.
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(a) Subject to the terms hereof, Cupples agrees to offer
employment, as of January 1, 1995, to all of the employees of the
Cupples Division that are Acquired Employees. Cupples' employment of
the Acquired Employees shall not establish, nor be evidence of, any
obligation on the part of Cupples to continue such employment of the
Acquired Employees. Except with prior consent of Cupples (which may
be evidenced by actions of Gregg Sage), after the Effective Date,
Robertson-Ceco will not hire any additional employees that may be
considered Acquired Employees, unless Robertson-Ceco agrees that such
employees will not be deemed Acquired Employees.
(b) Cupples shall provide to all of the Acquired Employees
substantially the same compensation (in value) provided by Robertson-
Ceco to such Acquired Employee as of the Closing Date. Except with
prior consent of Cupples, Robertson-Ceco will not increase the base
salary paid to any Acquired Employee after the Effective Date.
(c) Cupples shall credit or compensate (in its sole
discretion) Acquired Employees for any earned or accrued unused sick,
vacation or personal days accumulated by the Acquired Employees prior
to the Closing Date and shall assume any Liability from Robertson-Ceco
with regard thereto. From and after the Closing Date, the Acquired
Employees shall accrue sick, vacation and personal days pursuant to
the sick leave policies of Cupples then in effect.
(d) Robertson-Ceco shall continue to employ and to pay all
wages and salaries to the Acquired Employees hired by Cupples up to
and through December 30, 1994 (health insurance will continue through
December 31, 1994); provided, that after the Closing Date, such
Acquired Employees shall be under the sole direction of Cupples.
Cupples shall immediately reimburse Robertson-Ceco for all such
amounts (including any normal contributions made or payable to, but
not paid from, any employee welfare, benefit or other plan) paid or
payable by Robertson-Ceco from the Closing Date through December 30,
1994. Cupples shall bear all liability and risk related to the
actions of the Acquired Employees after the Closing Date and will
indemnify Robertson-Ceco therefor.
4.7 Use of Robertson-Ceco Name.
--------------------------
For a period of six (6) months after the Closing Date,
Cupples shall have the right to use for ordinary business purposes any
Assets that bear the Robertson-Ceco name, or any derivative thereof or
any trademark, trade name or symbol not included in the Assets;
provided, if necessary to avoid confusion with third parties, Cupples
shall indicate on such Assets that they are owned by Cupples.
4.8 Lease Obligations.
-----------------
Robertson-Ceco shall assign to Cupples, and Cupples shall
assume Robertson-Ceco's obligations under, the Lease to the extent and
under the terms specified in Exhibit 4.8.
4.9 Assignment of Contracts.
-----------------------
Cupples agrees that, if Closing does not occur, Cupples
shall, upon Robertson-Ceco's request, assign to Robertson-Ceco all
contracts entered into to provide services related to the Business.
4.10 Release of Bond.
---------------
By January 12, 1995, Cupples shall obtain the release of the
payment bond (Reference: 4919-94; Expiry: 1/12/95) for the amount of
$90,000 issued by Acstar for the benefit of Union Electric Company.
4.11 Use of Trademarks and Service Marks.
-----------------------------------
Neither Robertson-Ceco, nor any subsidiary or entity
controlled by Robertson-Ceco, shall use the trademark or service mark
"Cupples" anywhere in the world, except the service mark "Cupples" in
Australia only; provided, such service mark in Australia cannot be
transferred or assigned to any other person or entity and shall be
transferred and assigned, except as provided in Section 2.1(a)(vi),
without additional consideration, to Cupples at such time as it is no
longer used by Robertson-Ceco, or any such subsidiary or controlled
entity, in Australia.
4.12 Warranties.
----------
Upon the request of Robertson-Ceco, Cupples shall provide
Robertson-Ceco with a written estimate of the costs of warranty work
which is the responsibility of Robertson-Ceco (as specified in Section
2.5(c)). At the request and direction of Robertson-Ceco, Cupples
agrees to perform all necessary work relating to any warranty issued
by Robertson-Ceco, and Robertson-Ceco shall pay Cupples for such work;
provided, in no event shall Cupples charge Robertson-Ceco an amount
greater than Cupples' direct costs plus 5% of such direct costs for
any such work it performs on behalf of Robertson-Ceco.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ROBERTSON-CECO.
-----------------------------------------------------------
Robertson-Ceco represents, warrants and covenants to and with
Cupples:
5.1 Corporate Existence and Qualification.
-------------------------------------
Robertson-Ceco is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full corporate power and authority to own and use the Assets and
to transact its business at the places where the Assets are presently
located and in the places and in the manner in which such business is
presently being conducted. Robertson-Ceco holds all franchises,
licenses and permits necessary and required therefor, except where
failure would not have a material adverse effect on the Assets.
5.2 Authorization; Binding Effect.
-----------------------------
The execution and delivery of this Agreement by Robertson-
Ceco and the consummation by Robertson-Ceco of all transactions
contemplated hereby, have been duly authorized by all requisite
corporate action. This Agreement represents a legal, valid and
binding obligation of Robertson-Ceco enforceable in accordance with
its terms, except in all cases as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally, and except
that the availability of the equitable remedy of specific performance
or injunctive relief is subject to the discretion of the court before
which any proceeding is brought.
5.3 No Violation of Statute or Breach of Contract.
---------------------------------------------
Robertson-Ceco is not in default under or in violation of
any applicable statute, law, ordinance, decree, order, rule or
regulation of any government body or court, the provisions of any
franchise or license except for defaults or violations which would not
have an adverse effect on the Assets, or any provision of its
certificate of incorporation, by-laws, or any promissory note,
indenture or any other evidence of indebtedness or security therefor,
or any lease, contract, purchase or other commitment or any other
agreement by which it is bound, or which would result individually or
in the aggregate in any material adverse effect on any Assets, and the
consummation of this Agreement and the transactions contemplated
hereby will not constitute or result in any such default, breach or
violation.
5.4 Financial Information.
---------------------
The Balance Sheet and the income statement for the interim
period then ended were prepared in accordance with accounting
principles historically used and consistently applied throughout the
periods involved, fairly present the financial condition and results
of the operations of the Cupples Division as of such date and for such
period. Copy of such income statement is attached as Schedule 5.4.
5.5 Tax Returns and Audits.
----------------------
There are no liens against the Assets related to any failure
to pay taxes, except as set forth in Schedule 5.6.
5.6 Title.
-----
Robertson-Ceco has good and marketable title to the Assets
subject to no Encumbrances, except as set forth in Schedule 5.6.
Cupples is not assuming any such Encumbrances, and shall be entitled
to indemnification pursuant to Section 9.1 with respect thereto.
5.7 Leased Assets.
-------------
Robertson-Ceco, either directly or through any assignment or
sublease, is not the lessee or lessor of any Assets where individual
annual lease payments exceed $25,000, except as shown on Schedule 5.7.
To the knowledge of Robertson-Ceco, all rentals due prior to the
Effective Date under such leases have been paid and there are no
material defaults by Robertson-Ceco under such leases and no event has
occurred which, upon passage of time or the giving of notice, or both,
would result in any event of default or prevent Robertson-Ceco from
exercising and attaining the benefits of any options contained
therein. To Robertson-Ceco's knowledge, all such leases are valid and
presently in full force and effect.
5.8 Real Property.
-------------
No real property interests are being transferred by
Robertson-Ceco to Cupples.
5.9 Completeness of Assets.
----------------------
To the knowledge of Robertson-Ceco, the Assets include all
such assets as are currently used to carry on the Business of the
Cupples Division, except for the Excluded Assets and those disposed of
in the ordinary course of business.
5.10 Litigation.
----------
To the knowledge of Robertson-Ceco, except as set forth in
Schedule 5.10, no claim, action, suit or other proceeding to which
Robertson-Ceco is a party or of which any Asset is the subject, is
pending or threatened before or by any court, administrative or
regulatory body, or other governmental agency, or any arbitrator which
could result in any judgment, order, decree, or other determination
which would have an adverse affect on the Assets or which would
prevent the consummation of this Agreement. Cupples is not assuming
any such claims, actions, suits or other proceedings and shall be
entitled to indemnification pursuant to Section 9.1 with respect
thereto.
5.11 Contracts.
---------
Schedule 5.11 lists all material (performance required
beyond 6 months or more than $25,000 to be paid) contracts,
agreements, informal understandings or arrangements to which
Robertson-Ceco is a party which may in any way affect any of the
Assets.
To the knowledge of Robertson-Ceco, each of the contracts
and agreements in Schedule 5.11 is the valid and binding obligation of
the parties thereto in accordance with its terms and conditions.
Neither Robertson-Ceco nor, to the knowledge of Robertson-Ceco, any
other party to any such contract or agreement is in default with
respect to any term or condition thereof, nor has any event occurred
which, through the passage of time or the giving of notice, or both,
would constitute a default thereunder or would cause the acceleration
of any obligation of any party thereto or the creation of an
Encumbrance upon any Asset.
5.12 Inventions, Patents, Trademarks and Trade Names.
-----------------------------------------------
The Intellectual Property consists of all such items used in
connection with the Business of the Cupples Division. To the
knowledge of Robertson-Ceco, except as set forth in Schedule 5.12,
Robertson-Ceco has the right to use and to transfer to Cupples all
Intellectual Property free and clear of all Encumbrances, adverse
claims, assignments, and restrictions and without conflict with the
rights of others. To the knowledge of Robertson-Ceco, there are no
interference proceedings, infringement suits, oppositions or actions
for revocation pending or threatened against Robertson-Ceco regarding
the Intellectual Property. To the knowledge of Robertson-Ceco, none
of products manufactured or sold by Robertson-Ceco and none of the
processes used in the Business infringe upon any Intellectual Property
right of others. To the knowledge of Robertson-Ceco, Robertson-Ceco
does not license, lease or by similar arrangements grant any
Intellectual Property for use by others except as stated on Schedule
5.12. To the knowledge of Robertson-Ceco, except as stated in
Schedule 5.12, Robertson-Ceco does not use any Intellectual Property
under license, lease or similar arrangements from others.
5.13 Conduct of Business.
-------------------
Between the Effective Date and the Closing Date, except with
the prior written consent of Cupples:
(a) Reorganizations.
---------------
Robertson-Ceco will not sell or otherwise dispose of,
or purchase or acquire, any assets with respect of the Cupples
Division except in the ordinary course of business or as permitted by
this Agreement;
(b) Incentive Compensation.
----------------------
Robertson-Ceco has not and will not modify or increase
compensation arrangements of any of the Acquired Employees of the
Cupples Division;
(c) Wages.
-----
Robertson-Ceco has not and will not make or enter into
any agreement providing for any changes in rates of wages or salaries,
employment benefits or term of duration of employment of any of the
Acquired Employees; and
(d) Ordinary Course of Business.
---------------------------
Robertson-Ceco has and will carry on the Business of
the Cupples Division in substantially the same manner as currently
conducted and will not take any action or enter into any contracts
other than in the ordinary and regular course of the Cupples Division
Business as currently conducted.
5.14 Access and Consultation and Use of Information.
----------------------------------------------
Robertson-Ceco will give to Cupples and its representatives,
including its employees, agents, accountants and lawyers, full access
to Robertson-Ceco's business and technical information related to the
Cupples Division, and will furnish copies of all documents, financial
and operating data and information with respect to the Business and
properties of the Cupples Division as shall be requested by Cupples
from time to time or at any time.
5.15 Product Warranties; Product Liability.
-------------------------------------
To the knowledge of Robertson-Ceco, except as set forth in
Schedule 5.15, there is not pending nor threatened any claims,
actions, suits or other proceedings with respect to goods shipped by
Robertson-Ceco prior to or on the Effective Date except routine claims
which, in the aggregate, do not involve amounts greater than $1,000.
Cupples is not assuming, and Robertson-Ceco shall indemnify Cupples
pursuant to Section 9.1 for, any costs of all returns, claims,
liabilities, losses, damages and expenses (including, without
limitation, reasonable attorneys' fees) arising out of, relating to or
having its origin in sales of products of the Cupples Division shipped
on or before the Effective Date (collectively, "Costs"). To the
knowledge of Robertson-Ceco, no investigation or complaint is known to
be pending with respect to any product of the Cupples Division,
whether on the part of customers, users, persons affected thereby, or
by any government agency.
5.16 Environmental Matters.
---------------------
To the knowledge of Robertson-Ceco, except as disclosed on
Schedule 5.16, Robertson-Ceco is not in violation of any Environmental
Laws in connection with the ownership, lease operation, maintenance or
use of the Assets related to the Business or the conduct of the
Business. Cupples is not assuming any environmental Liabilities of
Robertson-Ceco and shall be entitled to indemnification pursuant to
Section 9.1 with respect thereto.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ALL WARRANTIES, EXPRESS
OR IMPLIED, OF ROBERTSON-CECO ARE HEREBY DISCLAIMED AND EXCLUDED.
6. REPRESENTATIONS AND WARRANTIES OF CUPPLES.
-----------------------------------------
Cupples hereby represents and warrants to Robertson-Ceco that:
6.1 Organization.
------------
Cupples is a corporation duly organized, validly existing
and in good standing under the laws of the State of Missouri. Cupples
has full corporate power and authority to perform its obligations
pursuant to this Agreement and to own the Assets and operate the
Business.
6.2 Authorization.
-------------
The execution and delivery of this Agreement by Cupples and
the consummation by Cupples of all transactions contemplated hereby,
have been duly authorized by all requisite corporate action. This
Agreement represents a legal, valid and binding obligation of Cupples
enforceable in accordance with its terms, except in all cases as may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally, and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding is brought.
6.3 No Violation of Statute or Breach of Contract.
---------------------------------------------
Cupples is not in default under or in violation of any
applicable statute, law, ordinance, decree, order, rule or regulation
of any government body or court, the provisions of any franchise or
license, or any provision of its articles of incorporation, bylaws, or
any promissory note, indenture or any other evidence of indebtedness
or security therefor, or any lease, contract, purchase or other
commitment or any other agreement by which it is bound, or which may
result individually or in the aggregate in any adverse effect on any
Assets, and the consummation of this Agreement and the transactions
contemplated hereby will not constitute or result in any such default,
breach or violation.
6.4 Business Investigation.
----------------------
Cupples conducted an investigation of the Assets and the
operations of the Cupples Division. Cupples is not relying on any
forecasted operating results or budgets prepared by Robertson-Ceco,
but rather upon its own forecasts and analysis. No representation or
warranty is being made by Robertson-Ceco except to the extent set
forth in this Agreement. Cupples has no knowledge of the existence of
any facts or circumstances which would constitute a breach of any
representation, warranty or covenant of Robertson-Ceco in this
Agreement, or which would, with the passage of time or adequate
notice, constitute such a breach.
6.5 Litigation.
----------
To the knowledge of Cupples, Schedule 5.10 is a complete
list of all litigation pending or threatened against Robertson-Ceco
which may have an adverse affect on the Assets.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF CUPPLES.
----------------------------------------------
The obligations of Cupples under this Agreement are subject to
the fulfillment (or waiver in writing by Cupples) at or prior to
Closing of each of the following conditions:
(a) All representations, warranties and covenants of Robertson-
Ceco contained herein shall be accurate on and as of the Effective
Date and Robertson-Ceco shall have performed all obligations and
agreements undertaken by it herein to be performed at or prior to the
Closing Date and Robertson-Ceco shall have delivered certifications to
Cupples to that effect.
(b) There shall not be pending or threatened any litigation,
proceeding or governmental investigation seeking to restrain, prohibit
or prevent, the transactions contemplated by this Agreement.
(c) During the period from the Effective Date to the Closing
Date there shall not have been any material adverse change in the
Assets or Assumed Liabilities; and the Assets shall not have been
materially adversely affected by fire, flood, or other calamity,
whether or not insured.
(d) Robertson-Ceco shall have obtained in writing and delivered
to Cupples all Consents, including, but not limited to, the consent of
Foothill Capital Corporation to the proposed transaction.
(e) A satisfactory resolution of the issues related to the YKK
License Agreement shall have been obtained in writing which will allow
Cupples to realize the benefits of the Ichida and Rinku Gate projects,
on terms satisfactory to Cupples.
(f) All Encumbrances shall have been removed from all of the
Assets.
(g) Robertson-Ceco shall have executed and delivered such deeds,
bills of sale, assignments, and other documents of transfer or grant,
as reasonably requested by and reasonably satisfactory in form and
substance to Cupples and its counsel, as are reasonably required to
transfer to Cupples all right, title and interest of Robertson-Ceco in
and to the Assets.
(h) An opinion shall be delivered to Cupples by George Pultz,
counsel to Robertson-Ceco, in a form reasonably satisfactory to
Cupples.
(i) The Promissory Note shall be delivered to Cupples.
(j) Robertson-Ceco shall have executed and delivered an
Assignment of Lease in substantially the form of Exhibit 4.8.
(k) Robertson-Ceco shall have delivered to Cupples such
additional certificates, instruments and documents as Cupples or its
counsel may reasonably request.
8. CONDITIONS PRECEDENT TO ROBERTSON-CECO'S OBLIGATIONS.
----------------------------------------------------
The obligations of Robertson-Ceco under this Agreement are
subject to the fulfillment (or waiver in writing by Robertson-Ceco) as
of or prior to Closing of each of the following conditions:
(a) All representations and warranties of Cupples contained
herein shall be accurate as of the Effective Date and Cupples shall
have performed all obligations and agreements undertaken by it herein
to be performed at or prior to the Closing Date and Cupples shall have
delivered a certificate to Robertson-Ceco to that effect.
(b) Seller shall have received a release from Gregg Sage,
covering any consulting or employment agreement, stock award or other
obligation relating to his consulting relationship and/or employment
by Robertson-Ceco in connection with the Cupples Division.
(c) Robertson-Ceco shall have obtained in writing and delivered
to Cupples all Consents, including, but not limited to, the consent of
Foothill Capital Corporation to the proposed transaction.
(d) Robertson-Ceco shall have received releases from YKK
Architectural Products relating to the Ichida and Rinku Gate projects.
(e) An opinion shall be delivered to Robertson-Ceco by Peper,
Martin, Jensen, Maichel and Hetlage, counsel to Cupples, in a form
reasonably satisfactory to Robertson-Ceco.
(f) Cupples shall have executed and delivered an Assignment of
Lease in substantially the form of Exhibit 4.8.
(g) There shall not be pending or threatened any litigation,
proceeding or governmental investigation seeking to restrain, prohibit
or prevent, or change the terms of, or obtain damages in connection
with, the transactions contemplated by this Agreement.
9. INDEMNIFICATION AND PROCEDURES.
------------------------------
9.1 Robertson-Ceco Indemnification.
------------------------------
Robertson-Ceco shall indemnify and hold Cupples and its
affiliates, successors, assigns, agents and employees (the "Cupples
Group"), harmless from and against any losses, third-party claims,
actions, administrative proceedings, demands, suits, judgments,
damages, penalties, fines, costs, taxes, fees and expenses (including,
without limitation, attorneys' fees and expenses, consultant fees, and
expert fees), and any and all liabilities of any kind suffered or
incurred by, imposed upon or resulting to the Cupples Group, to the
extent caused by, arising out of or relating to: (1) operation of the
Business or ownership or use of the Assets on or before the Effective
Date other than an Assumed Liability, including, but not limited, to
any liability for any taxes; (2) any breach of any representation,
warranty or covenant by Robertson-Ceco contained herein; (3) any
Excluded Asset or Excluded Liability; or (4) Robertson-Ceco's use,
generation, storage, discharge, disposal, transportation, or release
of any hazardous substances (as defined under 42 USC Section 9601) or
implementing regulations issued thereunder or petroleum products.
9.2 Cupples Indemnification.
-----------------------
Cupples shall indemnify and hold Robertson-Ceco and its
affiliates, successors, assigns, agents and employees (the "Robertson-
Ceco Group"), harmless from and against any losses, third-party
claims, actions, administrative proceedings, demands, suits,
judgments, damages, penalties, fines, costs, taxes, fees and expenses
(including, without limitation, attorneys' fees and expenses,
consultant fees, and expert fees), and any and all liabilities of any
kind suffered or incurred by, imposed upon or resulting to the
Robertson-Ceco Group, to the extent caused by, arising out of or
relating to: (1) operation of the Business or ownership or use of the
Assets or any Assumed Liability after the Effective Date; or (2) any
breach of any representation, warranty or covenant by Cupples
contained herein
9.3 Procedures.
----------
Upon obtaining knowledge of facts causing it to believe that
it has or will have a claim against the other party under this
Agreement, the party (the "Indemnified Party") shall promptly give the
other party (the "Indemnifying Party") written notice of such claim.
The Indemnifying Party shall have thirty (30) days from the receipt of
such notice to notify the Indemnified Party whether or not it desires
to defend the Indemnified Party against such claim or demand. All
costs and expenses incurred by the Indemnifying Party in defending
such claim or demand shall be a liability of, and shall be paid by,
the Indemnifying Party. In the event that the Indemnifying Party
notifies the Indemnified Party within the specified time period that
it desires to defend the Indemnified Party against such claim or
demand and except as hereinafter provided, the Indemnifying Party
shall have the right to defend the Indemnified Party by appropriate
proceedings using legal counsel reasonably satisfactory to the
Indemnified Party. The Indemnifying Party shall not, without the
prior written consent of the Indemnified Party, settle, compromise or
offer to settle or compromise any such claim or demand on a basis
which would result in the imposition of a consent order, injunction,
decree or agreement which would restrict or affect the future activity
or conduct of the Indemnified Party. The Indemnified Party may
participate in, but not control, any such defense or settlement at its
sole cost and expense. The Indemnified Party shall fully cooperate
with the Indemnifying Party and the Indemnifying Party shall cooperate
fully with the Indemnified Party in the reasonable conduct of any such
claim, contest or action, legal proceedings, negotiation or
settlement. Upon receiving notice required by this Section, if the
Indemnifying Party does not elect to participate in contesting or
settling the claim, the Indemnifying Party shall be estopped from
challenging the reasonableness of any contest or settlement of the
claim undertaken by the Indemnified Party.
9.4 Survival of Representations and Warranties.
------------------------------------------
All representations, warranties and covenants of the parties
contained herein shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of either party,
and shall survive the Closing Date and delivery against payment
hereunder. All claims based upon a breach of representations and
warranties of Cupples or Robertson-Ceco made in this Agreement and the
schedules attached hereto shall be made within fifteen (15) months of
the Closing Date, except claims based upon a breach of the
representations and warranties contained in Sections 5.1, 5.2, 6.1 or
6.2 may be made at any time.
10. MISCELLANEOUS PROVISIONS.
------------------------
10.1 Expenses.
--------
Each party hereto will be responsible for payment of all
costs and expenses incurred by it in connection with the transactions
contemplated by this Agreement (except as provided in Section 9
hereof) including all its own legal and accounting fees and expenses
whether or not the transactions contemplated by this Agreement are
consummated.
10.2 No Liability in Certain Events.
------------------------------
In the event that both Cupples and Robertson-Ceco agree in
writing to terminate this Agreement, then this Agreement shall
terminate without liability of any party to any other party.
10.3 Construction.
------------
As used in this Agreement, (i) the words "hereof", "herein",
and "hereunder" and words of similar import shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, (ii) terms referring to one gender shall refer to either
gender, and (iii) the terms "including", "included", or similar terms
shall mean "including but not limited to".
10.4 Assignment; Modification.
------------------------
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns, but this Agreement cannot be assigned by any party except
with the prior written consent of the other. This Agreement
represents the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof, supersedes all prior
negotiations and writings between the parties, cannot be amended,
supplemented or modified except by an agreement in writing signed by
the party against whom any such amendment, supplement or modification
is sought.
10.5 Waivers.
-------
Any written waiver under this Agreement shall be effective
only for the period and on the conditions and for the specific
instances and purposes specified in such writing.
10.6 Applicable Law.
--------------
This Agreement is being made and delivered and is intended
to be performed in the State of Missouri and shall be construed and
enforced in accordance with the laws of Missouri.
10.7 Publicity.
---------
No press releases, public announcements, confirmation or
other information regarding this Agreement or the transactions
provided for hereunder shall be made by either party or any of their
employees, officers or directors without the express prior written
approval of the other party, except as required by law or court order.
The parties will consult with respect to the timing and content of
disclosure to Robertson-Ceco's suppliers, customers and personnel.
10.8 Finder's Fees.
-------------
All negotiations relating to this Agreement and the
transactions contemplated hereby have been and will be carried on by
Cupples and Robertson-Ceco and their duly authorized representatives.
No person acted as a broker or finder or in any similar capacity for
Cupples or Robertson-Ceco. If any person shall claim to have been
engaged by Cupples or Robertson-Ceco as a broker or finder, such party
shall indemnify the other against any claim by such claimant for
commission, fees or other compensation with respect thereto.
10.9 No Third Party Beneficiaries.
----------------------------
This Agreement represents the understandings and obligations
between Cupples and Robertson-Ceco and may not be relied on by any
third parties to create any rights hereunder.
10.10 No Presumption Against Drafter.
------------------------------
All parties have participated substantially in the
negotiation and drafting of this Agreement and each party hereby
disclaims any defense or assertion in any litigation that any
ambiguity herein should be construed against the drafter.
10.11 Headings.
--------
The headings of the articles, sections and paragraphs of
this Agreement are solely for convenience and reference and shall not
limit or otherwise affect the meaning or interpretation of any of the
terms or provisions hereof.
10.12 Counterparts.
------------
Two or more copies of this Agreement may be executed in
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same Agreement.
10.13 Notices.
-------
Any notice or other communications required or permitted
hereunder shall be sufficiently given if in writing and delivered
personally or sent by telecopier, commercial overnight delivery
service, registered or certified mail, postage prepaid, addressed as
follows or to such other address of which the parties may have given
notice:
To Cupples: Cupples Products, Inc.
2650 South Hanley Road
St. Louis, Missouri 63144
Attn: President
Telecopy: (314) 781-6736
with a copy to: Peper, Martin, Jensen, Maichel and
Hetlage
720 Olive Street, 24th Floor
St. Louis, Missouri 63101
Attn: Thomas A. A. Cook
Telecopy: (314) 621-4834
To Robertson-Ceco: Robertson Ceco Corporation
222 Berkeley Street
Boston, Massachusetts 02116
Attn: Chief Financial Officer
Telecopy: (617) 424-5556
with a copy to: McDermott, Will & Emery
227 W. Monroe Street
Chicago, Illinois 60606
Attn: Helen R. Friedli, P.C.
Telecopy: (312) 984-3669
or to such other address as any party may specify by notice to the
others.
10.14 Severability.
------------
If any portion of this Agreement shall be held unenforceable
by any court of competent jurisdiction, all other provisions of this
Agreement shall remain in force to the full extent thereof, the
provisions of this Agreement being entirely severable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered and attested to as of the date and
year first above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION (IN SECTION
2.2) WHICH MAY BE ENFORCED BY THE PARTIES.
CUPPLES PRODUCTS, INC.
Signed:
---------------------------
Print Name: Gregg C. Sage
Title: President
ROBERTSON-CECO CORPORATION
Signed:
------------------------------
Print Name:
--------------------------
Title:
-------------------------------
Schedules
---------
1.1 Acquired Employees
1.5 Cupples Division 7/31/94 Balance Sheet
1.20 Excluded Assets
1.22 Final Balance Sheet (11/15/94)
1.26 Laminating Press
2.1(a)(ii) Equipment
2.2(a)(i) Cupples Products 7/31/94 Working Capital
2.4 Assumed Liabilities
3.1 Intercompany Accounts
5.4 Cupples Division Income Statement for interim period
ending 7/31/94
5.6 Encumbrances
5.7 Leased Assets
5.10 Litigation
5.11 Contracts/Consents
5.12 Intellectual Property
5.15 Product Warranties; Product Liability
5.16 Environmental Matters
Exhibits
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1.30 Promissory Note (Robertson-Ceco)
4.8 Assignment and Assumption of Lease
January 9, 1995
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street
Washington, DC 20549
RE: Form 8-K for __________________________
Gentlemen:
I transmit herewith report on Form 8-K for Robertson-Ceco Corporation
for _____________________________________
Very truly yours,
/s/ John C. Sills
- - - -----------------------------
John C. Sills
Executive Vice President and
Chief Financial Officer
ROBERTSON-CECO CORPORATION
222 Berkeley Street
Boston, MA 02116
617-424-5500