EXHIBIT 2
STOCK PURCHASE AGREEMENT
dated as of February 27, 1998
by and among
INNOVATIVE VALVE TECHNOLOGIES, INC.,
and
CYPRESS INDUSTRIES, INC.
and
the STOCKHOLDERS named herein
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into
effective the 27th day of February, 1998, by and among INNOVATIVE VALVE
TECHNOLOGIES, INC., a Delaware corporation ("Invatec"), ROBERT J. GERTH,
TRUSTEE, ROBERT J. GERTH TRUST Dated February 8, 1996, a revocable trust
organized under the laws of the state of Illinois, whose address is 2300 North
Barrington Road, Hoffman Estates, Illinois 60195 (the "Gerth Trust"), ROGER A.
SZAFRANSKI, TRUSTEE, ROGER A. SZAFRANSKI TRUST DATED FEBRUARY 14, 1997, a
revocable trust organized under the laws of the state of Illinois, whose address
is 2300 North Barrington Road, Hoffman Estates, Illinois 60195 (the "Szafranski
Trust"), ROBERT J. GERTH, Individually, an Individual whose address is 2300
North Barrington Road, Hoffman Estates, Illinois 60195 ("Mr. Gerth"), and ROGER
A. SZAFRANSKI, Individually, an individual whose address is 2300 North
Barrington Road, Hoffman Estates, Illinois 60195 ("Mr. Szafranski") (the Gerth
Trust, the Szafranski Trust, Mr. Gerth and Mr. Szafranski being hereinafter
sometimes referred to collectively as the "Stockholders" or individually as a
"Stockholder"), and CYPRESS INDUSTRIES, INC., an Illinois corporation whose
address is 1475 Rodenburg Road, Schaumburg, Illinois 60193 (the "Company").
Invatec, Stockholders and the Company are sometimes hereinafter referred to
collectively as the "Parties" or individually as a "Party."
PRELIMINARY STATEMENT
WHEREAS the Gerth Trust is the legal owner and holder, and Mr. Gerth is
the beneficial owner, of One Hundred (100) shares of the Common Stock of the
Company, and the Szafranski Trust is the legal owner and holder, and Mr.
Szafranski is the beneficial owner, of One Hundred (100) shares of the Common
Stock of the Company, which shares constitute all of the issued and outstanding
Company Capital Stock; and
WHEREAS, Invatec desires to acquire from Stockholders, and Stockholders
desire to sell to Invatec, all of the Company Capital Stock, on the terms and
conditions and for the consideration set forth in this Agreement (the
"Acquisition");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, representations, warranties and undertakings contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby agree as follows:
PARAGRAPH 1. CERTAIN DEFINED TERMS. As used in this Agreement,
the following terms have the meanings assigned to them below in this PARAGRAPH
1. Capitalized terms used in this Agreement and not defined below in this
PARAGRAPH 1 have the meanings assigned to them in the preamble of this
Agreement, the Preliminary Statement or ARTICLE IX of the Uniform Provisions, as
the case may be.
"ACCOUNTING FIRM" means a nationally recognized independent
certified public accounting firm to be agreed upon by the Parties.
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"ACQUIRED BUSINESS" means the business conducted by the Company.
For purposes of Article VIII of the Uniform Provisions, the term
"Aquired Business" shall include any business conducted by the Company
during the twelve (12) months preceding the Effective Time.
"ACQUISITION CONSIDEIATION" has the meaning specified in
PARAGRAPH 2.
"CEILING AMOUNT" means Three Million Two Hundred Fifty Thousand
and No/1OO Dollars ($3,250,000.00); provided however that in no event
shall (i) the aggregate liability of the Selling Parties under this
Agreement exceed (a) $1,000,000.00 for Environmental Claims, or (b)
$2,250,000.00 for General Claims, or (ii) the aggregate liability of
each Selling Party under this Agreement exceed such Selling Party's Pro
Rata Share of (a) $1,000,000.00 for Environmental Claims, or (b)
$2,250,000.00 for General Claims.
"CLOSING" has the meaning specified in PARAGRAPH 3.
"CLOSING DATE" means the date of execution hereof by all of the
Parties.
"COMPANY" has the meaning specified in the preamble of this
Agreement.
"COMPANY CAPITAL STOCK" means the Common Stock, no par value, of
the Company.
"CONFIDENTIAITY AND NON-COMPETITION AGREEMENTS" means the
Confidentiality and Non-Competition Agreements to be entered into as of
the Effective Time between (a) Invatec and Mr. Gerth, and (b) Invatec
and Mr. Szafranski, each in the form thereof attached hereto as
EXHIBIT A.
"COUNSEL FOR THE COMPANY AND THE STOCKHOLDERS" means Winston &
Strawn of Chicago, Illinois.
"COUNSEL FOR INVATEC" means Boyer, Ewing & Harris Incorporated
of Houston, Texas.
"CURRENT BALANCE SHEET" means the balance sheet of the Company
as of the Current Balance Sheet Date.
"CURRENT BALANCE SHEET DATE" means December 31,1997.
"DISCLOSURE STATEMENT" means the written statement executed by
the Company and each of the Stockholders and delivered to Invatec prior
to the execution and delivery of this Agreement by Invatec in which
either (a) exceptions are taken to any of certain of the representations
and warranties made by the Company or the Stockholders herein or (b) it
is confirmed that no exception is taken to that representation and
warranty.
"EFFECTIVE DATE" means the Closing Date.
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"EFFECTIVE TIME" means the time on the Effective Date at which
the Parties fu11y execute this Agreement.
"ENVIRONMENTAL CLAIMS" shall mean all Damage Claims and all
Third Party Claims which relate expressly or by necessary implication to
the environment or Environmental Laws.
"GENERAL CLAIMS" shall mean all Damage Claims and all Third
Party Claims which are not Environmental Claims.
"INITIAL FINANCIAL STATEMENTS" means the balance sheets of the
Company as of December 31, 1997, and 1996, and the related statements of
operations and retained earnings for the year ended December 31, 1997
and the period from August 1, 1996 through December 31, 1996. The
Company's financial statements for the one-year period ended December
31, 1997 and the period from August 1, 1996 through December 31, 1996,
are attached hereto as EXHIBIT B.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of the
business of the Company, consistent with past customs and practice
(including with respect to quantity and frequency).
"PRO RATA SHARE" of a Stockholder means: (i) fifty percent (50%)
in the case of Mr. Gerth and the Gerth Trust, jointly and severally, and
(ii) fifty percent (50%) in the case of Mr. Szafranski and the
Szafranski Trust, jointly and severally.
"RESPONSIBLE OFFICER" means (i) John L. King for Invatec, and
(ii) either Mr. Gerth or Mr. Szafranski for the Company.
"SCHULZ INSURANCE ACCRUAL" means the amount of $43,181 to be
accrued by the Company as a current liability in the Final
Post-Closing Financial Statements for purposes of PARAGRAPH 5.
"THRESHOLD AMOUNT" means (a) Zero and No/100 Dollars ($0.00) for
Environmental Claims and (b) Two Hundred Fifty Thousand and No/l00
Dollars ($250,000.00) for General Claims.
"UNIFORM PROVISIONS" means the Uniform Provisions for Stock
Acquisitions attached hereto as ANNEX 1.
"WORKING CAPITAL" means the current assets minus the current
liabilities of the Company, determined in accordance with GAAP
(calculated as provided in SCHEDULE I attached hereto). Current
liabilities shall expressly exclude current maturities of long term debt
and accrued interest on Indebtedness; however, for purposes of
PARAGRAPH 5, the Final Post-Closing Financial Statements and the
calculation of the Working Capital thereunder,
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Working Capital shall include the entire amount of the Schulz Insurance
Accrual. The Working Capital at the Current Balance Sheet Date was
$2,620,918.00, determined as provided in SCHEDULE I attached hereto.
PARAGRAPH 2. STOCK PURCHASE. (A) ACQUISITION CONSIDERATION.
Subject to the terms and conditions hereof, on the Closing Date the Stockholders
collectively will sell, assign and transfer to Invatec, and Invatec will
purchase and acquire from the Stockholders collectively, all the outstanding
Company Capital Stock, free and clear of any restrictions or conditions to
transfer or assignment, rights of first refusal, mortgages, liens, pledges,
charges, encumbrances, equities, claims, covenants, conditions, restrictions,
options or agreements. On the Closing Date, each Stockholder, as the holder of
certificates representing all the outstanding Company Capital Stock such
Stockholder owns, will receive on surrender of those certificates to Invatec
with appropriate stock powers, subject to the provisions of this PARAGRAPH 2, as
payment for that Company Capital Stock, in cash or other immediately available
funds, such Stockholder's Pro Rata Share of an amount equal to (i) Seventeen
Million and No/l00 Dollars MINUS (ii) except as set forth below, the Company's
outstanding indebtedness at the Effective Time (including accrued interest on
Indebtedness and any prepayment penalties resulting from or arising out of the
prepayment of such Indebtedness) (the "Acquision Consideration"). The Parties
hereby acknowledge and agree that immediately prior to Closing, the Company will
draw on its line of credit in the amounts of (i) Seven Hundred Twenty-Five
Thousand Dollars ($725,000) in order to pay the Company obligations to Siegfried
Schulz under Section 2(a) of that certain Employment Agreement dated August 1,
1996, between the Company and Mr. Schulz, as amended by Amendment to Employment
Agreement dated November 15, 1996, which will decrease the amount of the
Acquisition Consideration payable hereunder, and (ii) Three Hundred Forty-Three
Thousand Dollars ($343,000) in order to make the distributions to the Gerth
Trust and the Szafranski Trust as contemplated in PARAGRAPH 2(E)(iii), which
will not decrease the amount of the Acquisition Consideration payable hereunder.
Payment of the Acquisition Consideration includes payment of $25,000 to Mr.
Szafranski and $25,000 to Mr. Gerth in consideration for their covenants and
obligations under the Confidentiality and Non-Competition Agreements and under
Article VIII of the Uniform Provisions.
(B) INCOME AND OTHER TAXES; TRANSACTION EXPENSES. Except for the amount
of any tax liability of the Stockholders arising out of the Section 338(h)(l0)
election contemplated in PARAGRAPH 2(C), for which the Company shall reimburse
the Stockholders as set forth below, Stockholders shall pay a11 income,
documentary, transfer, stamp, revenue or other taxes arising out of the transfer
of the Company Capital Stock or receipt of payments therefor, or any
consideration delivered in connection therewith. Neither Invatec nor the Company
shall be responsible for any business, occupation, income, withholding or
similar tax, or any taxes of any kind, of the Stockholders. Invatec, on the one
hand, and the Stockholders, on the other hand, will each pay their respective
legal, accounting, tax, broker's or other advisors' expenses incurred in
pursuing and consummating the Acquisition.
(C) SECTION 338 ELECTION. At Invatec's option, Stockholders will join
with Invatec in making an election under Section 338(h)(l0) of the Internal
Revenue Code (and any corresponding elections under state or local tax law) with
respect to the purchase and sale of the Company Capital
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Stock. Invatec shall be responsible for preparing drafts of all forms,
attachments and schedules necessary to effectuate the Section 338(h)(1O)
election. The Stockholders will have the opportunity to review any election
forms and the report of the proposed allocation of the Acquisition Consideration
at least sixty (60) days prior to filing. To the extent that by reason of such
election the Stockholders will realize any tax liability that would not have
been realized but for such election, the Company shall reimburse the
Stockholders on an after-tax basis for the amount of such tax upon payment
thereof by Stockholders (the liability for which shall not reduce Working
Capital for purposes of PARAGRAPH 5 below). In order to secure the obligation of
the Company to effect such reimbursement, the Company and/or Invatec shall at
the time of filing of the applicable election form deposit the required amount
in an escrow account for the benefit of the Stockholders. Invatec shall be
entitled to receive earnings derived from investing the escrowed funds. In the
event that the IRS subsequently determines that Stockholders have an additional
tax liability as a result of such election, the Company shall reimburse the
Stockholders on an after-tax basis for the amount of such additional tax upon
payment thereof by the Stockholders. Conversely, in the event that the tax
liability of the Stockholders is less than the amount paid to them in connection
with such election, the Stockholders shall immediately refund the amount of the
excess to the Company. Invatec, on the one hand, and the Stockholders, jointly
and severally, on the other hand, shall each pay one-half (1/2) of all costs and
expenses incurred in establishing and maintaining such escrow. Invatec and
Stockholders shall jointly and severally indemnify the escrow agent for all
claims against it arising out of such escrow.
(D) COMPANY/STOCKHOLDER DEBT LIMITATION. At the Effective Time there
will not be any indebtedness owed by the Company to any Stockholder (other than
salary accrued in the Ordinary Course of Business), and each Stockholder shall
repay to the Company at Closing the indebtedness owed by such Stockholder to the
Company.
(E) S CORPORATION TAX RETURNS. (i) The Stockholders shall have the
exclusive authority and obligation to prepare and timely file, or cause to be
prepared and timely filed, at Stockholders' sole cost and expense, all income
Tax Returns of the Company that are due with respect to the Company's fiscal
year ended December 31, 1997, and for the short year S Corporation Tax Return
for the period beginning January 1, 1998. Such authority shall include, but not
be limited to, the determination of the manner in which any items of income,
gain, deduction, loss or credit arising out of the income, properties and
operations of the Company shall be reported or disclosed in such Returns;
provided, that such Returns shall be prepared by treating items on such Returns
in a manner consistent with past practices with respect to such items, and in
accordance with applicable law. The Stockholders shall provide to Invatec drafts
of all income Tax Returns of the Company required to be prepared and filed by
the Stockholders under this PARAGRAPH 2(E) at least 30 days prior to the date
for the filing of such Returns. Within 15 days after receipt of such draft
Returns, Invatec shall notify the Stockholders of the existence of any objection
(specifying in reasonable detail the nature and basis of such objection) Invatec
may have to any item set forth on such draft Returns. Invatec and the
Stockholders agree to consult and resolve in good faith any such objection.
(ii) Except as provided in SUBPARAGRAPH 2(E)(i), Invatec shall have the
exclusive authority and obligation, at Invatec's sole cost and expense, to
prepare and timely file, or cause to be prepared and timely filed, all Returns
of the Company; provided, that such Returns shall be
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prepared by treating items on such Returns in a manner consistent with past
practices with respect to such items, and in accordance with applicable law.
Such authority shall include, but not be limited to, the determination of the
manner in which any items of income, gain, deduction, loss or credit arising out
of the income, properties and operations of the Company shall be reported or
disclosed in such Returns. Invatec shall provide to the Stockholders drafts of
all Returns of the Company required to be prepared and filed by Invatec under
this SUBPARAGRAPH 2(E)(ii) at least 30 days prior to the date for the
filing of such Returns. Within 15 days after receipt of such draft Returns, the
Stockholders shall notify Invatec of the existence of any objection (specifying
in reasonable detail the nature and basis of such objection) the Stockholders
may have to any items set forth on such draft Returns. Invatec and the
Stockholders agree to consult and resolve in good faith any such objection.
(iii) The Company has distributed to the Stockholders an aggregate
amount equal to Three Hundred Forty-Three Thousand and No/100 Dollars
($343,000.00) to pay the federal, state and/or local or other Taxes (other than
those state, local or other Taxes accrued on the Current Balance Sheet)
attributable to the income of the Company for the Company's fiscal year ended
December 31, 1997. Neither Invatec nor the Company shall have any liability or
responsibility for income taxes of the Stockholders with respect to the
Company's S corporation termination year commencing as of January 1, 1998. The
Stockholders shall promptly refund any overpayment or excess distribution, and
Invatec shall cause the Company to pay promptly to the Stockholders the amount
by which such distribution was insufficient to permit their payment of such
taxes in full.
(iv) In connection with the preparation, execution and filing of
Returns, audit examinations and any administrative or judicial proceedings
related to Tax liabilities imposed on the Stockholders with respect to the
income or operations of the Company for all periods ending on or prior to the
Closing Date, Invatec on the one hand, and the Stockholders on the other hand,
will cooperate fully with each other, including, without limitation, the
furnishing or making available for inspection during normal business hours of
records, personnel (as reasonably required), books of account, powers of
attorney or other materials necessary or helpful for the preparation, execution
and filing of such Returns, the conduct of audit examinations or the defense of
claim by Taxing Authorities as to the imposition of Taxes.
(v) Each Party shall promptly notify the other Parties in writing upon
receipt by such Party or any of such Party's Affiliates of written notice of any
inquiries, claims, assessments, audits or similar events with respect to Taxes
relating to a taxable period ending on or prior to the Closing Date (any such
inquiry, claim, assessment, audit or similar event, a "Pre-Closing Tax Matter").
The Stockholders, at their sole cost and expense, shall have the exclusive
authority to represent the interests of the Company with respect to any
Pre-Closing Tax Matter before any Taxing Authority or court and shall have the
sole right to extend or waive the statute of limitations with respect to a
Pre-Closing Tax Matter and to control the defense, compromise or other
resolution of any Pre-Closing Tax Matter, including responding to inquiries,
filing returns and settling audits; provided that the Stockholders shall not
enter into any settlement of or otherwise compromise any Pre-Closing Tax Matter
that affects or may affect the Tax liability (or the reporting position) of the
Company or Invatec for any periods beginning on or after the Closing Date
without the prior written consent of the Company and Invatec, which consent
shall not be unreasonably withheld.
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(vi) None of the Stockholders shall file or cause to be filed any
amended Return for the Company without the prior written consent of Invatec,
which consent shall not be unreasonably withheld. The Company and Invatec shall
not file any amended Return for the Company with respect to any period prior to
the Closing Date without the prior written consent of the Stockholders, which
consent shall not be unreasonably withheld.
PARAGRAPH 3. THE CLOSING. (A) TIME AND PLACE. On or before the Closing
Date, the Parties will take all actions necessary to effect the Acquisition (all
those actions collectively being the "Closing"). The Closing will take place at
the offices of Counsel for Invatec at 10:00 a.m., local time, or at such later
time on the Closing Date as Invatec shall specify by written notice to
Stockholders.
(B) STOCKHOLDERS' DELIVERIES. At or before the Closing, Stockholders
shall deliver or cause to be delivered to Invatec the following, all of which
shall be duly executed by all of the parties thereto, other than Invatec:
(i) All of the stock certificates evidencing the Company Capital
Stock, with all necessary transfer tax and other revenue stamps acquired
and attached at the expense of the holder of each such certificate,
together with irrevocable stock powers in form and content acceptable to
Invatec, duly authorized and executed by the record holder of each such
stock certificate;
(ii) The Confidentiality and Non-Competition Agreements;
(iii) Consulting Agreement containing consulting and
noncompetition provisions between Siegfried Schulz and Invatec, in form
and content reasonably acceptable to Invatec;
(iv) Resignations of all directors and officers of the Company,
effective as of the Effective Time;
(v) All original promissory notes or other debt instruments
executed by the Company to any Stockholder, marked "Paid in Full;"
(vi) Payment of any outstanding amounts owed by any Stockholder
to the Company, as expressly set forth in SUBPARAGRAPH 2(D) hereof;
(vii) An opinion of counsel issued by Counsel for the Company
and the Stockholders, in the form attached hereto as EXHIBIT C;
(viii) No Withholding Certificates duly executed by the
Stockholders in the form attached hereto as EXHIBIT D;
(ix) Certificate of the Secretary or Assistant Secretary of the
Company, certifying as to copies of the Articles of Incorporation and
Bylaws of the Company
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attached thereto, and the resolutions of the Board of Directors of the
Company, in form and content reasonably acceptable to Invatec,
authorizing the transactions contemplated herein;
(x) Certificate of the Trustee of the Gerth Trust, certifying as
to a copy of the Robert J. Gerth Trust, the authority of the Trustee to
act thereunder for and in the name and on behalf of the Gerth Trust, and
otherwise addressing to the satisfaction of Invatec any issues which may
arise with respect to the authority of the Trustee of the Gerth Trust to
execute and deliver this Agreement and to perform the obligations of the
Gerth Trust hereunder;
(xi) Certificate of the Trustee of the Szafranski Trust,
certifying as to a copy of the Roger A. Szafranski Trust Agreement, the
authority of the Trustee to act thereunder for and in the name and on
behalf of the Szafranski Trust, and otherwise addressing to the
satisfaction of Invatec any issues which may arise with respect to the
authority of the Trustee of the Szafranski Trust to execute and deliver
this Agreement and to perform the obligations of the Szafranski Trust
hereunder;
(xii) All governmental, lender or other third party approvals to
be delivered by Stockholders, in form and content reasonably acceptable
to Invatec;
(xiii) Waiver and Termination Agreements terminating any
existing shareholder, voting or similar agreement between or among the
Stockholders, or any of them, and/or the Company, or any of them,
relating to the Company Capital Stock, and waiving the rights of the
parties thereunder, in form and content reasonably acceptable to
Invatec; and
(xiv) All other items required to be delivered hereunder or as
may be reasonably requested which are necessary or would reasonably
facilitate consummation of the transactions contemplated hereby,
including such certificates as are necessary from third parties to
establish the truth and accuracy of Stockholders' representations and
warranties set forth herein.
(C) INVATEC'S OBLIGATIONS. At the Closing, Invatec will deliver or cause
to be delivered to the Stockholders the following, all of which shall be duly
executed by Invatec:
(i) Certified checks or wire transfers of funds in the aggregate
amount of the Acquisition Consideration;
(ii) The Confidentiality and Non-Competition Agreements;
(iii) An opinion of counsel issued by Counsel for Invatec, in
the form attached hereto as EXHIBIT E;
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(iv) Certificate of the Secretary or Assistant Secretary of
Invatec certifying as to copies of the Certificate of Incorporation and
Bylaws of Invatec attached thereto, and the resolutions of the Board of
Directors of Invatec, in form and content reasonably acceptable to
Counsel for the Company and the Stockholders, authorizing the
transactions contemplated herein; and
(v) All other items required to be delivered hereunder or as may
be requested or which are necessary or would reasonably facilitate
consummation of the transactions contemplated hereby, including such
certificates as are necessary from third parties to establish the truth
and accuracy of Invatec's representations and warranties set forth
herein.
(D) FURTHER ASSURANCES. At and after the Closing, each of the Parties
shall take all appropriate action and execute all documents of any kind which
may be reasonably necessary or desirable to carry out the transactions
contemplated hereby. Each Stockholder, at any time at or after the Closing, will
execute, acknowledge and deliver any further stock powers, deeds, bills of sale,
assignments and other assurances, documents and instruments of transfer
reasonably requested by Invatec, and will take any other action consistent with
the terms of this Agreement that may reasonably be requested by Invatec, for the
purpose of assigning and confirming to Invatec all of the Company Capital Stock,
or if necessary, to the Company any assets included on the Current Balance
Sheet or any financial statements or asset lists dated as of or subsequent to
the Current Balance Sheet Date.
(E) TRANSITION SERVICES. For a period of six (6) months after the
Effective Time, each of Mr. Gerth and Mr. Szafranski will provide to the Company
services of the type, scope, level and quality provided by each of them to the
Company immediately prior to the Effective Time. Each of their duties shall also
include such services (i) as may be reasonably required or requested by Invatec
or the Company in order to accomplish a smooth transition in the ownership of
the Acquired Business, and to facilitate the integration of the Acquired
Business into Invatec's business, and (ii) as may be designated or assigned to
him by the President of Invatec, provided such services are substantially
similar to those performed by him prior to the Effective Time. During such six
month period, each of Mr. Gerth and Mr. Szafranski shall (i) devote the amount
of time, attention and energy to the business of Invatec and the Company
reasonably required in order to comply with the foregoing provisions of this
PARAGRAPH 3(E), (ii) diligently pursue the best interests of Invatec and the
Company, (iii) refrain from engaging, directly or indirectly, in any competing
business or venture, (iv) be paid $500 per month by the Company for these
services, and (v) be added to Invatec's group health insurance policy coverage,
the premiums for which shall be deducted from the payments described in clause
(iv) above.
(F) HART-SCOTT-RODINO. The Parties hereby acknowledge and agree that the
Acquisition Consideration is less than Fifteen Million Dollars ($15,000,000).
The Stockholders further represent and warrant that (i) the Company, together
with all entities it controls, does not have annual net sales nor total assets
of Twenty-five Million Dollars ($25,000,000) or more; (ii) Mr. Gerth and the
Gerth Trust, on the one hand, and Mr. Szafranski and the Szafranski Trust, on
the other hand, are the "ultimate parent entities" of the Company, as such term
is defined in the Hart-Scott-Rodino Antitrust
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Improvements Act, as amended to date; (iii) the Gerth Trust, Mr. Gerth his
spouse and children, collectively, have annual net sales for the most recently
completed fiscal year and total assets for their most recent regularly prepared
balance sheet, of less than Ten Million Dollars ($10,000,000); and (iv) the
Szafranski Trust, Mr. Szafranski, his spouse and children, collectively, have
annual net sales for the most recently completed fiscal year and total assets
for their most recent regularly prepared balance sheet, of less than Ten Million
Dollars ($10,000,000).
PARAGRAPH 4. INCORPORATION OF UNIFORM PROVISIONS. The Uniform Provisions
hereby are incorporated in this Agreement by this reference and constitute a
part of this Agreement with the same force and effect as if set forth at length
herein, subject to the following revisions:
(i) Sections 1.04 and 10.02 are hereby amended by inserting at
the beginning thereof the phrase "Except as set forth in SECTION 1.04 of
THE DISCLOSURE STATEMENT,";
(ii) The introductory paragraph of Article II is hereby amended
by deleting therefrom the phrase "The Company and each Stockholder
jointly and severally" and substituting therefore the following:
Each Stockholder, severally (in accordance with such
Stockholder's Pro Rata Share) but not jointly and
severally with each other Stockholder (except as
contemplated in the definition of the term "Pro Rata
Share"),;
(iii) Section 2.14(a)(i) is hereby deleted in its entirety, and
substituted therefor is the following:
The Initial Financial Statements present fairly, in all
material respects, the financial position of the Company
at the respective dates of the balance sheets included
therein and the results of operations and cash flows of
the Company and stockholders' or other owners' equity
for the respective periods set forth therein and have
been prepared in accordance with GAAP. As of the date of
any balance sheet included in the Initial Financial
Statements, the Company did not have any outstanding
Indebtedness to any Person or any liabilities of any
kind (including contingent obligations, tax assessments
or unusual forward or long-term commitments), or any
unrealized or anticipated loss, which in the aggregate
then were Material to the Company and required to be
reflected in such Initial Financial Statements or in the
notes related thereto in accordance with GAAP which were
not so reflected. To the knowledge of the Company and
the Stockholders, all of the other Financial Statements
of the Company (including in each case any related
schedules or notes) delivered to Invatec present fairly,
in all material respects, the financial position of the
Company at the respective dates of the balance sheets
included therein and the results of operations and cash
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flows of the Company and stockholders' or other owners'
equity for the respective periods set forth therein and
have been prepared in accordance with GAAP (except for
certain footnote disclosures normally required by GAAP,
the omission of which did not cause such Financial
Statements to be materially misleading). To the
knowledge of the Company and the Stockholders, as of the
date of any balance sheet included in those Financial
Statements, the Company did not have any outstanding
Indebtedness to any Person or any liabilities of any
kind (including contingent obligations, tax assessments
or unusual forward or long-term commitments), or any
unrealized or anticipated loss, which in the aggregate
then were Material to the Company and required to be
reflected in such Financial Statements which were not so
reflected (except for certain footnote disclosures
normally required by GAAP, the omission of which did not
cause such Financial Statements to be materially
misleading).;
(iv) Section 2.16(c) is hereby amended by inserting at the
beginning thereof the phrase "during the period commencing on August 1,
1996, and to the knowledge of the Company and the Stockholders at all
times prior thereto,";
(v) Section 2.16(d) is hereby deleted in its entirety, and
substituted therefore is the following:
(d) no storage tanks exist, and to the knowledge of the
Company and the Stockholders no storage tanks have ever
existed, on or under any of the properties owned or
operated by the Company from which any Solid Wastes,
Hazardous Wastes or Hazardous Substances have been
released into the surrounding environment;
(vi) Section 2.17 is hereby amended in order to refer to
Sections 2.17, 2.19, 2.20, 2.23, and 2.27(h) of the Disclosure
Statement;
(vii) Section 2.27(d) is hereby amended by deleting therefrom
the phrase "at any time during the six-year period ending on the date
hereof" and substituting therefore the phrase "at any time since August
1, 1996, were, or to the knowledge of the Company and the Stockholders
at any time prior thereto";
(viii) Section 2.27(g) is hereby amended by inserting the phrase
"in all material respects" after the word "compliance" in the second
line;
(ix) Section 2.27(h) is hereby deleted in its entirety, and
substituted therefore is the following:
-11-
(h) UNIONS. Except as set forth in SECTION 2.27 of the
DISCLOSURE STATEMENT, since August 1, 1996, and to the
knowledge of the Company and the Stockholders at all
times prior thereto, (i) neither the Company nor any
ERISA Affiliate has been a party to any agreement with
any union, labor organization or collective bargaining
unit, (ii) no employees of the Company have been
represented by any union, labor organization or
collective bargaining unit, and (iii) none of the
employees of the Company has threatened to organize or
join a union, labor organization or collective
bargaining unit.;
(x) The first sentence of Section 2.28(d) is hereby deleted in
its entirety and substituted therefore is the following:
Except as set forth in SECTION 2.28 OF THE DISCLOSURE
STATEMENT, neither the Company nor any ERISA Affiliate
of the Company is, or at any time during the period
commencing on August 1, 1996 and ending on the Closing
Date was, or to the knowledge of the Company and the
Stockholders at any time prior thereto was, obligated to
contribute to a Multiemployer Plan.;
(xi) Section 2.29(b) is hereby amended by deleting therefrom the
phrase "or ever has been" and substituting therefore the phrase "or to
the knowledge of the Company and the Stockholders ever has been";
(xii) The last sentence of Section 2.29(d) is hereby amended by
deleting therefrom the phrases "or any predecessor corporation at any
time" and "and any predecessor corporation at any time";
(xiii) Sections 3.04, 3.05, 4.01(a), 4.01(c), 4.01(d), 4.02,
4.03, 4.04, 4.06, 4.07, 4.08, 4.10, 4.11, and all of Article V, are
hereby deleted in their entirety;
(xiv) Section 6.03 is hereby amended by deleting therefrom the
words "two years" and "indefinitely," and substituting therefore the
words "eighteen months" and "for two years," respectively;
(xv) Section 6.04(a) is hereby deleted in its entirety, and
substituted therefore is the following:
Section 6.04 LIMITATIONS ON DAMAGE CLAIMS. (a)
In the event Invatec should have any Damage Claim
hereunder following the Effective Time against any
Stockholder which does not involve an Invatec
Indemnified Loss (each such Damage Claim not involving
an Invatec Indemnified Loss being an "Invatec
Unindemnified Loss"), that Stockholder will not be
liable to Invatec on account of that Invatec
Unindemnified Loss unless the liability of that
Stockholder
-12-
in respect of that Invatec Unindemnified Loss, when
aggregated with the liability of all Stockholders in
respect of the sum of (i) all Invatec Unindemnified
Losses and (ii) all Invatec Indemnified Losses under
SECTION 7.O2, exceeds, and only to the extent the
aggregate amount of all those Invatec Unindemnified
Losses and Invatec Indemnified Losses does exceed, the
Threshold Amount. With respect to General Claims, after
there have occurred aggregate Invatec Unindemnified
Losses and Invatec Indemnified Losses in the amount of
the Threshold Amount, the Stockholders will be obligated
to indemnified the Invatec Indemnified Parties from and
against further such Invatec Unindemnified Losses and
Invatec Indemnified Losses up to an aggregate amount of
One Million Seven Hundred Fifty Thousand and No/100
Dollars ($1,750,000.00); thereafter, the Stockholders
will not be obligated to indemnify the Invatec
Indemnified Parties from and against any further such
Invatec Unindemnified Losses and Invatec Indemnified
Losses until there have occurred additional aggregate
Invatec Unindemnified Losses and Invatec Indemnified
Losses in the amount of Five Hundred Thousand and No/l00
Dollars ($500,000.00), after which the Stockholders will
once again be obligated to indemnify the Invatec
Indemnified Parties from and against further such
Invatec Unindemnified Losses and Invatec Indemnified
Losses up to an aggregate amount of Five Hundred
Thousand and No/100 Dollars ($500,000.00). With respect
to Environmental Claims, after there have occurred
aggregate Invatec Unindemnified Losses and Invatec
Indemnified Losses in the amount of the Threshold
Amount, the Stockholders will be obligated to indemnify
the Invatec Indemnified Parties from and against further
such Invatec Unindemnified Losses and Invatec
Indemnified Losses up to an aggregate amount of One
Million and No/100 Dollars ($1,000,000.00). In no event
shall (i) the aggregate liability of the Stockholders
under this Agreement, including SECTION 7.02, exceed the
Ceiling Amount or (ii) the aggregate liability of each
Stockholder under this Agreement, including SECTION
7.02, exceed that Stockholder's Pro Rata Share of the
Ceiling Amount. For purposes of determining the amount
of Invatec Unindemnified Losses and Invatec Indemnified
Losses, no effect will be given to any resulting Tax
benefit to Invatec or any other Invatec Indemnified
Party.
(xvi) SECTION 7.02 is hereby deleted in its entirety, and
substituted therefore is the following:
Subject to the applicable provisions of SECTIONS 7.01
and 7-06, each Stockholder, severally (in accordance
with such Stockholder's Pro
-l3-
Rata Share) but not jointly and severally with each
other Stockholder (except as contemplated in the
definition of the term "Pro Rata Share"), covenants and
agrees that such Stockholder will indemnify each Invatec
Indemnified Party against, and hold each Invatec
Indemnified Party harmless from and in respect of, all
Third Party Claims that arise from, are based on or
relate or otherwise are attributable to (i) any breach
of the representations and warranties of Stockholders or
the Company set forth herein or in certificates
delivered in connection herewith, or (ii) any
nonfulfi1lment of any covenant or agreement on the part
of the Company or the Stockholders under this Agreement
(each such Third Party Claim being an "Invatec
Indemnified Loss");
(xvii) Section 7.06(a) is hereby deleted in its entirety, and
substituted therefore is the following;
Section 7.O6 LIMITATIONS ON INDEMNIFICATION. (a)
Notwithstanding the provisions of SECTION 7.O2, no
Stockholder shall be required to indemnify or hold
harmless any of the Invatec Indemnified Parties on
account of any Invatec Indemnified Loss under SECTION
7.02 unless the liability of the Stockholders in respect
of that Invatec Indemnified Loss, when aggregated with
the liability of all Stockholders in respect of the sum
of (i) all Invatec Unindemnified Losses and (ii) all
Invatec Indemnified Losses under SECTION 7.02, exceeds,
and only to the extent the aggregate amount of all those
Invatec Unindemnified Losses and Invatec Indemnified
Losses does exceed, the Threshold Amount. With respect
to General Claims, after there have occurred aggregate
Invatec Unindemnified Losses and Invatec Indemnified
Losses in the amount of the Threshold Amount, the
Stockholders will be obligated to indemnify the Invatec
Indemnified Parties from and against further such
Invatec Unindemnified Losses and Invatec Indemnified
Losses up to an aggregate amount of One Million Seven
Hundred Fifty Thousand and No/lOO Dollars
($1,750,000.00); thereafter, the Stockholders will not
be obligated to indemnify the Invatec Indemnified
Parties from and against any further such Invatec
Unindemnified Losses and Invatec Indemnified Losses
until there have occurred additional aggregate Invatec
Unindemnified Losses and Invatec Indemnified Losses in
the amount of Five Hundred Thousand and No/lOO Dollars
($500,000.00), after which the Stockholders will once
again be obligated to indemnify the Invatec Indemnified
Parties from and against further such Invatec
Unindemnified Losses and Invatec Indemnified Losses up
to an aggregate amount of Five Hundred Thousand and
No/100 Dollars ($500,000.00). With respect to
Environmental Claims, after there
-14-
have occurred aggregate Invatec Unindemnified Losses and
Invatec Indemnified Losses in the amount of the
Threshold Amount, the Stockholders will be obligated to
indemnify the Invatec Indemnified Parties from and
against further such Invatec Unindemnified Losses and
Invatec Indemnified Losses up to an aggregate amount of
One Million and No/100 Dollars ($1,000,000.00). In no
event shall (i) the aggregate liability of the
Stockholders under this Agreement, including SECTION
7.02, exceed the Ceiling Amount, or (ii) the aggregate
liability of each Stockholder under this Agreement,
including SECTION 7.02, exceed that Stockholder's Pro
Rata Share of the Ceiling Amount. For purposes of
determining the amount of Invatec Indemnified Losses, no
effect will be given to any resulting Tax benefit to any
Invatec Indemnified Party. Anything in this Agreement to
the contrary notwithstanding, with respect to the
obligation of the Stockholders to indemnify an Invatec
Indemnified Party with respect to a Damage Claim or
Third Party Claim based on a breach of a warranty or
representation or covenant contained herein which
relates to the truth, completeness or correctness of the
Initial Financial Statements, the amount of the Invatec
Unindemnified Loss or the Invatec Indemnified Loss, as
applicable, shall be limited to the amount by which (a)
the aggregate gross amount of all such Invatec
Unindemnified Losses and Invatec Indemnified Losses
exceeds (b) the amount by which the balance sheet
reserves provided in the Initial Financial Statements
exceed the amount of the balance sheet reserves required
by GAAP to be provided in such Initial Financial
Statements.
(xviii) The second sentence of Section 8.01(a) is hereby amended
by adding to the end thereof the following:
;provided, however, that "TRADE SECRETS AND CONFIDENTIAL
INFORMATION" shall not include such information as (i)
becomes known to the public generally through no fault
of any Stockholder, (ii) is required to be disclosed by
law or the order of any Governmental Authority under
color of law, provided, that prior to disclosing any
information pursuant to this clause (ii), each
Stockholder shall, if possible, give prior written
notice thereof to Invatec and provide Invatec with the
opportunity to contest such disclosure, or (iii) the
disclosing party reasonably believes is required to be
disclosed in connection with the defense of a lawsuit
against the disclosing party.;
(xix) Section 9.01 is hereby amended by deleting therefrom the
definition of "GAAP" and substituting therefor the following:
-15-
"GAAP" means, as applied to any of the Financia1
Statements, generally accepted accounting principles and
practices in the United States as in effect from time to time
which have been or are applied on a basis consistent with the
most recent audited Financial Statements delivered to Invatec
prior to the Effective Time.; and
(xx) Section 10.02 is hereby amended by deleting therefrom the
phrase "jointly and severally" and substituting therefore "severally (in
accordance with their respective Pro Rata Shares), but not jointly and
severally (except as contemplated in the definition of the term "Pro
Rata Share),".
PARAGRAPH 5 POST-CLOSING ADJUSTMENT TO ACQUISITION CONSIDERATION. Within
sixty (60) days after the Closing Date, Invatec shall deliver to the
Stockholders an audited combined balance sheet and income statement of the
Company, prepared by Crowe, Chizek and Company LLP as of the Effective Date (the
"Post-Closing Financial Statements"). These Post-Closing Financial Statements
shall become final and binding on the Parties on the 15th day following receipt
thereof by the Stockholders unless the Stockholders furnish written notice of
their disagreement ("Notice of Disagreement") to Invatec prior to such date. Any
Notice of Disagreement shall specify in detail the nature of any disagreement
so asserted. If a Notice of Disagreement is sent by the Stockholders to Invatec
in accordance with this PARAGRAPH 5, then the Post-Closing Financial Statements
shall become final and binding upon the Parties on the earlier to occur of: (i)
the date the Parties resolve in writing any differences they have with respect
to any matter specified in the Notice of Disagreement, or (ii) the date any
disputed matters are final1y resolved in writing by the Accounting Firm. During
the 10-day period following the delivery of a Notice of Disagreement, the
Parties shall seek in good faith to resolve in writing any differences which
they may have with respect to any matter specified in the Notice of
Disagreement. If, at the end of such 10-day period (or such longer period of
time as the Parties may agree upon in writing), the Parties have not reached
agreement on such matters, the matters which remain dispute, together with
copies of this Agreement, the Post-Closing Financial Statements, and the Notice
of Disagreement, shall be submitted, within five (5) days following the
expiration of such 10-day period (or any agreed upon extension thereof), to the
Accounting Firm for review and resolution. In connection with such submission,
Invatec and each Stockholder shall promptly execute any waivers, releases,
indemnification agreements or fee agreements requested by the Accounting Firm.
All proceedings conducted by the Accounting Firm shall be conducted at the
offices of the Accounting Firm. The Accounting Firm shall render a decision
resolving the matters in dispute as soon as practicable following the date of
the submission to the Accounting Firm. The cost of any proceeding (including the
fees of the Accounting Firm but excluding the fees and disbursements of each
Party's independent auditors and counsel) pursuant to this PARAGRAPH 5 shall be
borne one-half by Invatec and one-half, jointly and severally, by the
Stockholders. The fees and disbursements of Stockholders' independent auditors
and counsel incurred in connection with this PARAGRAPH 5 shall be borne by
Stockholders, and the fees and disbursements of Invatec's independent auditors
and counsel incurred in connection with this PARAGRAPH 5 shall be borne by
Invatec. The final determination as described in any of the procedures set forth
hereinabove shall constitute the "Final Post-Closing Financial Statements."
Stockholders hereby agree, jointly and severally, to pay to Invatec within five
business days of delivery of the Final Post-Closing Financial Statements to
Invatec and to Stockholders, an aggregate
- 16-
amount equal to the amount, if any, by which Two Million, Six Hundred and Twenty
Thousand Nine Hundred and Eighteen Dollars ($2,620,918.OO) exceeds the Working
Capital, as set forth in the Final Post-Closing Financial Statements.
Conversely, Invatec hereby agrees to pay to each Stockholder, within five
business days of delivery of the Final Post-Closing Financial Statements to
Invatec and to Stockholders, an amount equal to such Stockholder's Pro Rata
Share of the amount, if any, by which the Working Capital, as set forth in the
Final Post-Closing Financial Statements, exceeds Two Million, Six Hundred and
Twenty Thousand, Nine Hundred and Eighteen Dollars ($2,620,918.00).
Determinations hereunder shall be consistent with the methodology reflected in
SCHEDULE I. Further, the Final Post-Closing Financial Statements shall include a
calculation of the Indebtedness of the Company at the Effective Time (excluding
the letter of credit issued in support of the Amwest Performance Bond referenced
in the Disclosure Statement), and Stockholders hereby agree, jointly and
severally, to pay to Invatec within five business days of delivery of the Final
Post-Closing Financial Statements to Invatec and to Stockholders, an aggregate
amount equal to the amount, if any, by which the Company's actual Indebtedness
as of the Effective Time, as set forth in the Final Post-Closing Financial
Statements, exceeds the estimated amount of the Company's Indebtedness used in
calculating the Acquisition Consideration paid to Stockholders at Closing.
Conversely, Invatec hereby agrees to pay to each Stockholder, within five
business days of delivery of the Final Post-Closing Financial Statements to
Invatec and to Stockholders, an amount equal to such Stockholder's Pro Rata
Share of the amount, if any, by which the estimated amount of the Company's
Indebtedness used in calculating the Acquisition Consideration paid to
Stockholders at Closing, exceeds the Company's actual Indebtedness as of the
Effective Time, as set forth in the Final Post-Closing Financial Statements.
Finally, the Acquisition Consideration shall be reduced by, and the Stockholders
jointly and severally hereby agree to pay promptly to Invatec, the amount, if
any, drawn on the letter of credit issued in support of the Amwest Performance
Bond referenced in the Disclosure Statement, or any replacement letter of
credit.
PARAGRAPH 6. MULTIPLE COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement
may be executed in multiple counterparts, each of which will be an original, but
all of which together will constitute one and the same instrument. For purposes
of the Agreement and all documents, instruments and agreements executed in
connection herewith, facsimile signatures shall be deemed to be original
signatures. In addition, if any Party executes facsimile copies of this
Agreement or any documents, instruments or agreements executed in connection
herewith, such copies shall be deemed originals.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date first above written.
INVATEC:
INNOVATIVE VALVE
TECHNOLOGIES, INC.
By:/s/ John L. King
Name: John L. King
Title: Vice President
-17-
THE COMPANY:
CYPRESS INDUSTRIES, INC.
By:/s/ ROGER A. SZAFRANSKI
Roger A. Szafranski, President
STOCKHOLDERS:
ROBERT J. GERTH TRUST DATED
FEBRUARY 8, 1996
By:/s/ ROBERT J. GERTH
Robert J. Gerth, Trustee
ROGER A. SZAFRANSKI TRUST DATED
FEBRUARY 14, 1997
By:/s/ ROGER A. SZAFRANSKI
Roger A. Szafranski, Trustee
/s/ ROBERT J. GERTH
ROBERT J. GERTH, Individually
/s/ ROGER A. SZAFRANSKI
Roger A. Szafranski, Individually
-18-
The undersigned, the spouses of each of Mr. Gerth and Mr. Szafranski,
are fully aware of, understand, and fu1ly consent and agree to the provisions of
this Stock Purchase Agreement, and its binding effect upon any community or
other property interests that they may own in the Company Capital Stock (or
alternatively, in order to confirm that they have no right, title or interest,
legal or beneficial, in any shares of Company Capital Stock), and their
awareness, understanding, consent and agreement are evidenced by their execution
hereof. The undersigned spouses of each of Mr. Gerth and Mr. Szafranski
additionally join in the execution hereof in order to (i) sell, assign and
transfer unto Invatec all of their respective rights, titles and interests,
legal or beneficial, if any, in the Company Capital Stock, and (ii) consent to
the transfer of the Company Capital Stock to Invatec pursuant to the Stock
Purchase Agreement.
MARGARET D. GERTH,
SPOUSE OF ROBERT J. GERTH
CANDICE L. SZAFRANSKI,
SPOUSE OF ROGER A. SZAFRANSKI
Schedule I - Working Capital
Exhibit A - Confidentiality and Non-Competition Agreements
Exhibit B - Initial Financial Statements
Exhibit C - Opinion of Counsel for the Company and the Stockholders
Exhibit D - No Withholding Certificates
Exhibit E - Opinion of Counsel for Invatec
-19-
SCHEDULE I
WORKING CAPITAL AS OF 12/31/97
12/31/97
Cash 24,803
Accounts Receivable 3,198,719
Accounts Rec. - Other 39,159
Jobs in Progress 216,499
Inventory 348,930
---------
Total Current 3,828,110
Checks Written in excess
of Bank Balances 88,821
Accounts Payable 413,796
Accrued Expenses 683,659
Less: Accrued interest (54,997)
---------
Total Current 1,131,279
Working Capital 2,696,831
Interim Period (2/98)Capital
Expenditure (75,913)
---------
$2,620,918
-20-
The undersigned, the spouses of each of Mr. Gerth and Mr. Szafranski,
are fully aware of, understand, and fully consent and agree to the provisions of
this Stock Purchase Agreement, and its binding effect upon any community or
other property interests that they may own in the Company Capital Stock (or
alternatively, in order to confirm that they have no right, title or interest,
legal or beneficial, in any shares of Company Capital Stock), and their
awareness, understanding, consent and agreement are evidenced by their execution
hereof. The undersigned spouses of each of Mr. Gerth and Mr. Szafranski
additionally join in the execution hereof in order to (i) sell, assign and
transfer unto Invatec all of their respective rights, titles and interests,
legal or beneficial, if any, in the Company Capital Stock, and (ii) consent to
the transfer of the Company Capital Stock to Invatec pursuant to the Stock
Purchase Agreement.
/s/ MARGARET D. GERTH
MARGARET D. GERTH,
SPOUSE OF ROBERT J. GERTH
/s/ CANDICE L. SZAFRANSKI
CANDICE L. SZAFRANSKI,
SPOUSE OF ROGER A. SZAFRANSKI