AGREEMENT
FOR
PURCHASE AND SALE OF SHARES
THIS AGREEMENT is made and entered into this 27th day of September,
1996, by and among Bruco International, Inc., a Nevada corporation ("Buyer"),
and Robertson-Ceco Corporation, a Delaware corporation ("RCC") and H.H.
Robertson Asia/Pacific Pte Ltd, a Singapore corporation ("Asia Pacific Holding"
and together with RCC, the "Selling Entities").
WHEREAS, Asia Pacific Holding owns all of the outstanding ordinary
shares of H.H. Robertson Hong Kong Ltd, H.H. Robertson (Australia) Pty Ltd. and
H.H. Robertson Singapore Pte Ltd. (the foregoing being the "Asian Pacific
Companies");
WHEREAS, Buyer desires to purchase all of the issued and outstanding
shares of the Asian Pacific Companies;
WHEREAS, the business of the Asian Pacific Companies as engaged in by
the Asian Pacific Companies directly and through P.T. H.H. Robertson Building
Products Indonesia and H.H. Robertson NZ Ltd (collectively the "Operating
Companies") on the date hereof is referred to herein as the "Business";
WHEREAS, for purposes of this Agreement, the "Facilities" shall mean
the facilities owned and leased by the Operating Companies;
WHEREAS, in connection with this transaction, RCC has delivered to
Buyer a binder of materials entitled H.H. Robertson Asia Pacific Schedules 1-44
together with other written items (collectively, the "Disclosure Schedule");
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements herein contained, the parties agree as follows:
ARTICLE I
THE TRANSACTION
1.1 Purchase of Shares. At the Closing, Asia Pacific Holding shall
transfer to Buyer and Buyer shall accept all of the issued and outstanding
shares of each of the Asian Pacific Companies, except trust shares of H.H.
Robertson Hong Kong Ltd owned beneficially through a nominee (the "Purchased
Shares").
1.2 Liabilities and Obligations. After the Closing, Asia Pacific
Holding shall indemnify Buyer and the Asian Pacific Companies from all debts,
obligations and liabilities of the Operating Companies relating to the Business
or otherwise of any kind, whether known or unknown, contingent, absolute, or
otherwise, as in existence on the Closing Date (the "Retained Liabilities"),
except for the Assumed Liabilities as defined below. The Assumed Liabilities
shall be the following liabilities of the Operating Companies:
(a) obligations under the terms of contracts, instruments and
other agreements described in the Disclosure Schedule or entered into
in the ordinary course of the Business, including the joint venture
agreement relating to P.T. H.H. Robertson Building Products Indonesia,
open bids, proposals, purchase and sales orders;
(b) all current liabilities, including accounts payable and
accrued expenses as of the close of business on the Closing Date;
(c) intercompany payables - trade non corporate as of the close of
business on the Closing Date;
(d) intercompany payables to corporate as of the close of business on
the Closing Date reduced by U.S. $1.2 million (the "RCC Debt") provided
such payables must be at least equal to U.S. $1.2 million;
(e) warranty and backcharge claims arising during the five year
period following Closing with respect to products of the Business
manufactured or services provided prior to Closing as well as claims
relating to work in process as of the Closing up to an aggregate
amount of U.S. $2,234,768.56; and
(f) liabilities for bank debt and capital leases incurred in
connection with the Business.
1.3 Intercompany Payables. Buyer will pay the RCC Debt on behalf of
the relevant Operating Companies at Closing and will pay or cause the relevant
Operating Companies to pay all other intercompany payables in accordance with
historical terms.
1.4 Trust Shares. At or promptly after the Closing, Asia Pacific
Holding will direct the nominee holding a trust share of H.H. Robertson Hong
Kong Ltd that the beneficial interest in such trust shall be transferred to
Buyer and shall cause the nominee to execute a new Declaration of Trust for the
benefit of Buyer.
ARTICLE II
CONSIDERATION FOR TRANSFER
2.1 Consideration for Purchased Shares. In addition to the
assumption and payment of the Assumed Liabilities by Buyer and Buyer's
performance of the covenants of Buyer hereunder, Buyer shall pay the following
amounts for the Purchased Shares:
999 shares H.H. Robertson Hong Kong Ltd $1000 (U.S.)
15,000,000 shares H.H. Robertson (Australia) Pty Ltd $1000 (U.S.)
125,000 shares H.H. Robertson Singapore Pte Ltd $1000 (U.S.)
2.2 Transfer Taxes. At Closing, the Selling Entities and Buyer shall
each pay one-half (1/2) of any transfer taxes and sales taxes payable as a
result of the transfer of the Purchased Shares provided for herein.
ARTICLE III
THE CLOSING
3.1 Closing. The transfer of Purchased Shares contemplated by this
Agreement shall be effective as of the end of the Closing Date, as hereafter
defined (the "Closing") and shall occur at the offices of McDermott, Will &
Emery, 227 West Monroe Street, Chicago, Illinois at 10:00 A.M. on September 30,
1996 or at such other time or place as may be mutually agreed upon by the
parties (the "Closing Date").
3.2 Deliveries by Buyer. At the Closing, Buyer shall deliver (or
cause to be delivered) the following:
(a) $3000 U.S. in payment of the Purchased Shares;
(b) payment of the RCC Debt; and
(c) such other instruments or documents as may be necessary or
appropriate to carry out the transactions contemplated hereby.
3.3 Deliveries by the Selling Entities. At the Closing, the Selling
Entities shall deliver the following:
(a) certificates for the Purchased Shares together with such transfer
documents as are required in each applicable jurisdiction;
(b) all documents necessary to effect the transfer of beneficial
interest in the trust shares described in Section 1.4;
(c) resignations of those officers and directors of the
Operating Companies as are requested by Buyer prior to Closing;
(d) a certificate describing any information of which the Selling
Entities become aware which is contrary to the representations and
warranties or Disclosure Schedule to this Agreement (the "Closing
Certificate"); and
(e) such other instruments or documents as may be necessary or
appropriate to carry out the transactions contemplated by this Agreement.
3.4 Closing Agreements. At the Closing, the parties shall execute,
acknowledge and deliver such other instruments or documents as may be necessary
or appropriate to carry out the transactions contemplated by this Agreement.
3.5 Closing Conditions. Each party's obligation to close shall be
conditioned upon the following:
(a) the other party's representations and warranties shall be
accurate in all material respects as if made at Closing (after taking the
Closing Certificate into account);
(b) each party shall have performed its covenants required to be
performed at or before Closing; and
(c) there shall be no pending or threatened litigation or proceeding
which prevents the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE SELLING ENTITIES
The Selling Entities hereby represent and warrant to Buyer, as of the
date hereof, and as of the Closing Date, as set forth below. For purposes of
this Agreement a "Material Adverse Effect" shall mean any effect which is
materially adverse to the financial condition of the Business when taken as a
whole. For purposes of this Agreement, the phrase "to the knowledge of the
Selling Entities" or the phrase "to the best knowledge of the Selling Entities",
or other language of similar effect, shall mean to the actual knowledge at the
time of the Closing of Russ Hill, E.A. Roskovensky and John Sills. The
exceptions, modifications, descriptions and disclosures in the Disclosure
Schedule are made for all purposes of this Agreement and are exceptions to all
representations and warranties set forth in this Agreement or in any agreement
or instrument delivered pursuant to or in connection with this Agreement (the
"Related Agreements"). To the extent that prior to the date hereof a report,
document or other written information has been delivered to or is in the
possession of Buyer or its counsel which discloses the existence of any fact or
circumstance which should have been disclosed in this Agreement or in the
Related Agreements, such fact or circumstance is deemed disclosed for all
purposes of this Agreement and the Related Agreements and is an exception to the
representations and warranties set forth herein. Buyer shall have no right to
compel compliance or to bring an action for indemnification arising out of
matters deemed disclosed hereunder.
4.1 Authority. Each Selling Entity has the full corporate right,
power and authority, without the consent of any other person, to execute and
deliver this Agreement and the agreements it is hereby contemplated to execute
and to carry out the transactions contemplated hereby and thereby, including the
transfer of the Purchased Shares. All corporate and other acts or proceedings
required to be taken by each Selling Entity to authorize the execution, delivery
and performance of this Agreement and all agreements and transactions
contemplated hereby have been duly and properly taken.
4.2 Validity. This Agreement has been, and the agreements and other
documents to be delivered by each Selling Entity at Closing will be, duly
executed and delivered and constitute the valid and legally binding obligations
of each Selling Entity enforceable in accordance with their respective terms.
4.3 Violations and Approvals. Except for the consent of Foothill
Capital Corporation and as set forth in the Disclosure Schedule, the execution
and delivery of this Agreement and the agreements contemplated hereby and the
consummation of the transactions contemplated hereby and thereby will not
(immediately, upon notice, with the passage of time or both) result in the
creation of any lien, charge or encumbrance of any kind or the termination or
acceleration of any obligation of or relating to the Business and are not
prohibited by, do not and will not violate or conflict with any provision of,
and do not and will not (immediately, upon notice, with the passage of time or
both) constitute a default under or a breach of (i) the charter or by-laws of
any Selling Entity, (ii) any material note, bond, indenture, contract,
agreement, permit, license or other instrument to which any Selling Entity is a
party or, by which any Selling Entity, the Business or the assets thereof are
bound, (iii) any order, writ, injunction, decree or judgment of any court or
governmental agency applicable to any Selling Entity, the Business or the assets
thereof or (iv) any law, rule or regulation applicable to any Selling Entity,
the Business or the assets thereof. Except as set forth in the Disclosure
Schedule, and consents to assignment and other consents that are obtained in
connection with the Closing, no approval, authorization, registration, consent,
order or other action of or filing with any person, including any court,
administrative agency or other governmental authority of any country, is
required for the execution and delivery by each Selling Entity of this Agreement
or the agreements contemplated hereby or the consummation of the transactions
contemplated hereby and thereby except where their is no Material Adverse
Effect.
4.4 Due Organization; Shares. Each Operating Company is a
corporation duly organized and validly existing under the laws of its
jurisdiction of incorporation. Each Operating company has full power and
authority and all requisite rights, licenses, permits and franchises to own,
lease and operate its assets and to carry on its business except where their is
no Material Adverse Effect. The shares delivered at Closing will constitute all
of the issued and outstanding shares of each Asian Pacific Company, except the
trust shares covered by Section 1.4. There are no outstanding options, warrants
or similar rights to purchase any capital stock of any Asian Pacific Company.
4.5 Financial Statements. The financial statements of the Operating
Companies for the year ended December 31, 1995 included in the Disclosure
Schedule (the "Financial Statements") are fair presentations of the financial
condition and the results of operations as of the dates and for the periods
indicated prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods covered thereby (except as
specified therein and except for the lack of footnotes, and in the case of
interim Financial Statements subject to year-end audit adjustments consisting
only of normally recurring accruals which in the aggregate are not material).
4.6 Interim Change. Except as set forth in the Disclosure Schedule,
since December 31, 1995, each of the Operating Companies has operated its
business in the ordinary course, consistent with past operations, and there has
not been any event resulting in, or that is reasonably likely to result in, a
Material Adverse Effect.
4.7 Assets. The applicable Operating Company has good title to the
personal property owned by it as of the Closing Date, except for liens, claims
or encumbrances that do not materially detract from the value or interfere with
the present use of such assets or which will be discharged upon payment of the
associated Assumed Liability. EXCEPT FOR THE SPECIFIC REPRESENTATIONS AND
WARRANTIES SET FORTH HEREIN, NO WARRANTIES ARE BEING MADE AS TO CONDITION OR
SUFFICIENCY OF ANY ASSETS AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED ARE HEREBY
DISCLAIMED INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
4.8 Environmental Matters. To the knowledge of the Selling Entities,
each of the Operating Companies is currently complying in all material respects
with its obligations under all laws relating to the environment in connection
with the operation of its Business, its occupancy of its Facilities and
otherwise except for such failures to comply which can be readily cured and
which could not reasonably be expected to result in any material expense or
liability. To the knowledge of the Selling Entities, no environmentally
hazardous materials have ever been unlawfully generated, treated, stored, or
disposed of at any Facility.
4.9 Employees. Except in the case of each of (i) through (iv) below,
as set forth in the Disclosure Schedule, with respect to the Business and each
Facility, (i) there have not been any labor disputes, any work stoppages,
pickets or work slow-downs due to labor disagreements in the past five years,
(ii) there is no labor strike, dispute, grievance, request for representation,
slowdown or stoppage pending or, to the knowledge of the Selling Entities,
threatened; (iii) each Operating Company has paid or properly accrued in the
ordinary course of business all wages and compensation due to employees,
including all vacations or vacation pay, holidays or holiday pay, sick days or
sick pay, and bonuses; and (iv) the transactions contemplated by this Agreement
will not create liability under any law, rule or regulation respecting
reductions in force or the impact on employees on plant closing or sales of
businesses.
4.10 Employee Benefit Plans. For purposes hereof, a "Plan" shall
mean any current written employee benefit plan, contract or arrangement,
established, maintained or contributed to by one of the Operating Companies.
The applicable Operating Company has delivered to Buyer or provided Buyer with
access to true and complete copies of all Plan documents in its possession.
4.11 Licenses and Permits. The licenses and permits held by each
Operating Company are valid and in full force and effect, and there are not
pending, or to the knowledge of the Selling Entities, threatened any proceedings
or circumstances which could reasonably be expected to result in the
termination, revocation, limitation or impairment of any license or permit. To
the knowledge of the Selling Entities, the licenses and permits held by each
Operating Company are all of such items that are necessary to own and operate
each Facility and conduct the Business as presently owned, operated or
conducted, except for such items as are not material to the Business and which
can be readily obtained.
4.12 Material Contracts. To the knowledge of the Selling Entities,
the Disclosure Schedule hereto sets forth an accurate, correct and complete list
or location of all contracts, instruments, and agreements to which any Operating
Company is a party or is bound, or by which any of their assets are subject or
bound which involve any of the following types of contracts (the "MATERIAL
CONTRACTS"):
(a) all purchase orders, agreements or contracts for the
purchase of any materials or services involving an amount in excess of
$50,000;
(b) any sales, license, service or distribution agreements and
contracts involving annual payments in excess of $50,000;
(c) all material leases, agreements, contracts and other
instruments affecting the Real Estate;
(d) all leases for personal property involving annual payments
of in excess of $50,000;
(e) all agreements and contracts with employees;
(f) all licenses, agreements, contracts and other instruments
affecting intellectual property;
(g) all agreements and contracts containing requirements or
"take or pay" provisions;
(h) all agreements and contracts with state, federal, local,
regulatory or other governmental entities; and
(i) any other contract, instrument or agreement which provides
for payment or performance by any party thereto having an aggregate
value of $50,000 or more.
To the knowledge of the Selling Entities all Material Contracts are valid,
binding and enforceable in accordance with their terms and are in full force and
effect and none of the parties to any Material Contract are in breach of,
violation of, or in default under the terms of any such Material Contract except
for such breaches, violations and defaults which can be readily cured by Buyer
and which will not result any material expense or liability. The Selling
Entities have made available accurate, correct and complete copies of each
Material Contract to Buyer.
4.13 Intellectual Property. Except as set forth in the Disclosure
Schedule, with respect to the intellectual property owned or used by the
Operating Companies, (i) the applicable Operating Company owns or has the right
to use the intellectual property; (ii) none of the intellectual property of the
Operating Companies infringes upon the rights of others or, to the knowledge of
the Selling Entities is being infringed upon by others; (iii) there are no
royalty, commission or similar arrangements, and no licenses, sublicenses or
agreements, pertaining to any intellectual property owned by the Operating
Companies; (iv) the Operating Companies have not agreed to indemnify any person
for or against any infringement of or by the intellectual property.
4.14 Legal Proceedings. Except as set forth in the Disclosure
Schedule, the Operating Companies are not engaged in or a party to or, to the
knowledge of the Selling Entities threatened with any dispute, action, suit or
other proceeding relating to any Facility or the Business. Neither the
Operating Companies, any Facility nor the Business is the named subject of or
directly subject to any judicial or administrative adjudicatory judgment, order,
writ, injunction, stipulation or decree of any court or any governmental agency
or any arbitrator.
4.15 Compliance with Law. To the knowledge of the Selling Entities,
as of the Closing, the Business, each Facility and the assets thereof conform in
all material respects to all applicable statutes, codes, laws, ordinances, rules
and regulations and each Operating Company has materially complied with all such
statutes, codes, laws, ordinances, rules and regulations.
4.16 Brokers. None of the Selling Entities has retained any broker,
finder or agent or incurred any liability or obligation for any brokerage fees,
commissions or finders fees with respect to this Agreement or the transactions
contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF BUYER
Buyer hereby represents and warrants to the Selling Entities as of the
date hereof, and as of the Closing Date, as set forth below.
5.1 Authority. Buyer has full corporate right, power and authority,
without the consent of any other person, to execute and deliver this Agreement
and the agreements contemplated hereby and to consummate the transactions
contemplated hereby and thereby. All corporate and other acts or proceedings
required to be taken by Buyer to authorize the execution, delivery and
performance of this Agreement and the agreements contemplated hereby and all
transactions contemplated hereby and thereby have been duly and properly taken.
5.2 Validity. This Agreement has been, and the agreements and other
documents to be delivered at Closing will be, duly executed and delivered by
Buyer and will constitute lawful, valid and legally binding obligations of
Buyer, enforceable in accordance with their respective terms.
5.3 Violations and Approvals. The execution and delivery of this
Agreement and the agreements contemplated hereby and the consummation of the
transactions contemplated hereby and thereby will not (immediately, with notice,
the passage of time or both) result in the creation of any lien, charge or
encumbrance or the acceleration of any indebtedness or other obligation of Buyer
and are not prohibited by, do not violate or conflict with any provision of, and
do not and will not (immediately, with notice, the passage of time or both)
result in a default under or a breach of (i) the charter or by-laws of Buyer,
(ii) any material contract, agreement, permit, license or other instrument to
which Buyer is a party or by which it is bound, (iii) any order, writ,
injunction, decree or judgment of any court or governmental agency, or (iv) any
law, rule or regulation applicable to Buyer, except for such creations,
terminations, violations, conflicts, breaches, defaults, charges or encumbrances
which, in the aggregate will not have an adverse effect on Buyer's ability to
consummate the transactions contemplated hereby.
5.4 Brokers. Buyer has not retained any broker or finder or incurred
any liability or obligation for any brokerage fees, commissions or finders fees
with respect to this Agreement or the transactions contemplated hereby.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.1 Further Assurances; Cooperation. From time to time, after
Closing at Buyer's request and without further consideration, the applicable
Selling Entities shall execute, acknowledge and deliver such documents,
instruments or assurances and take such other actions as Buyer may reasonably
request with respect to assigning, conveying and transferring to Buyer any of
the Purchased Shares.
6.2 Records and Documents. Following the Closing Date, each party
shall grant the other, access to and the right to make or obtain copies (at the
copying party's expense) of those records and documents related to the Business
which are in the possession of the other party, as may be reasonably necessary
to the requesting party for any tax, financial reporting or other reasonable
purpose.
6.3 Noncompetition and Nondisclosure.
6.3.1 Noncompetition. In order to protect the value of the
Business and the Purchased Shares, each Selling Entity agrees until the earlier
of: (i) two (2) years from the Closing Date and (ii) the occurrence of a Buyer
Change of Control (as hereafter defined), not to (x) engage, directly or
indirectly, in any manner in the Business (other than the pre-engineered metal
buildings business) anywhere in Asia, except for sales of products of the
Business through distributors or dealers or (y) solicit for employment or as a
consultant or independent contractor any employee of the Operating Companies.
6.3.2 Breach. The Selling Entities agree that any breach of
Sections 6.3.1 above will result in irreparable damage to Buyer for which Buyer
will have no adequate remedy at law, and, therefore if such a breach should
occur, the Selling Entities agree that Buyer may seek a temporary or permanent
injunction or decree of specific performance by any court of competent
jurisdiction in favor of Buyer enjoining any such breach, without prejudice to
any other right or remedy to which Buyer shall be entitled. In the event that
any portion of this Section 6.3 shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its being extended over too great
a period of time or too large a geographic area or over too great a range of
activities, it shall be interpreted to extend only over the maximum lesser
period of time, geographic area, or range of activities as to which it may be
enforceable. Each of the covenants herein shall be deemed a separate and
severable covenant. In the event any Selling Entity breaches any provision of
this Section 6.3, Buyer shall be entitled to recover all costs of enforcement,
including reasonable attorneys' fees.
6.4 Bulk Transfer Compliance. As between Buyer and the Selling
Entities, neither Buyer nor the Selling Entities shall have any obligation to
give bulk transfer notices to creditors, claimants or other persons or entities.
6.5 Letters of Credit, Bonds and Guarantees. Until the expiration of
one year after Closing or the earlier sale of substantially all of the assets or
equity or other change of control of Buyer or the Operating Companies (a "Buyer
Change of Control"), RCC shall continue the letters of credit in the amount of
$2.0 million issued to support the Operating Companies credit facility. Buyer
shall reimburse RCC for all amounts drawn on such letters of credit. Within one
year after Closing, Buyer shall replace any bonds or guarantees issued by the
Selling Entities in connection with the Business in a manner satisfactory to RCC
and without requirement of any payment or incurrence of any obligation by RCC.
Buyer shall reimburse RCC for any liabilities incurred by the Selling Entities
with respect to such bonds and guarantees. RCC shall pay all administrative
costs of maintaining such letters of credit, bonds and guarantees.
6.6 Supply Commitment. Until the earlier of (i) two (2) years
following Closing or (ii) the occurrence of a Buyer Change of Control, RCC shall
supply Buyer with products of its metal building's business at a price that
provides RCC with a gross margin of 22% and in amounts not materially in excess
of the current requirements of the Business.
ARTICLE VII
SURVIVAL AND INDEMNIFICATION
7.1 Survival. All representations and warranties contained in this
Agreement shall survive the Closing for a period ending six months from the date
hereof. Any claim for indemnification that is asserted by written notice as
provided in Section 7.3(c) within the survival period shall survive until
resolved or judicially determined.
7.2 Indemnification. The Selling Entities shall jointly and
severally indemnify and hold harmless Buyer from and against any and all loss, -
damage, cost or expense (including reasonable attorneys' fees and expenses) (i)
caused by any misrepresentation, breach of warranty or failure to fulfill any
covenant or agreement of the Selling Entities contained herein; provided,
however that the Selling Entities shall no obligation to indemnify any party
with respect to any facts or circumstances fully disclosed in the Disclosure
Schedule or the Closing Certificate or (ii) arising from the Retained
Liabilities. Buyer shall indemnify and hold harmless the Selling Entities from
and against any and all loss, damage, cost or expense (including reasonable
attorneys' fees) (i) caused by any misrepresentation, breach of warranty or
failure to fulfill any covenant or agreement of Buyer contained herein, or (ii)
arising from the Assumed Liabilities.
7.3 General Provisions Relating to Indemnification. (a) No claim
may be made against the Selling Entities for indemnification pursuant to this
Article VII for any individual claim of less than $1,000. Claims of $1,000 or
more are referred to herein as "Qualified Claims". The Selling Entities shall
not be required to make any payments pursuant to this Article VII unless and
until the aggregate amount of all Qualified Claims shall exceed $10,000, as to
which the Selling Entities shall be responsible only for the excess over
$10,000. The maximum aggregate amount recoverable from the Selling Entities
with respect to claims relating to this Agreement shall be equal to $1,000,000,
plus any amounts recoverable with respect to the Retained Liabilities.
(b) The Selling Entities shall have no obligation to indemnify Buyer
for incidental damages, lost profits or similar items not directly related to
events giving rise to liability.
(c) The party seeking indemnification shall give written notice to
the indemnifying party of the facts and circumstances giving rise to any claim
for indemnification as soon as reasonably possible but failure to give prompt
notice shall only limit the indemnified party's right to a recovery to the
extent the indemnifying party is prejudiced by the delay.
(d) With respect to each third party claim subject to this Article
VII (a "Third Party Claim"), the party seeking indemnification (the "Indemnified
Party") must give prompt notice to the indemnifying party (the "Indemnifying
Party") as provided in (c) above of the Third Party Claim. The Indemnifying
Party, at its sole cost and expense, may, upon notice to the Indemnified Party
within twenty (20) days after the Indemnifying Party receives notice of the
Third Party Claim, assume the defense of the Third Party Claim, with counsel of
its choice. The Indemnifying Party shall not consent to a settlement of, or the
entry of any judgment arising from, any Third Party Claim, unless (i) the
settlement or judgment is solely for money damages and the Indemnifying Party
has agreed to pay the damages for which the Indemnified Party is entitled to
indemnification or (ii) the Indemnified Party consents thereto, which consent
shall not be unreasonably withheld. The Indemnifying Party shall provide the
Indemnified Party with fifteen (15) days prior notice before it consents to a
settlement of, or the entry of a judgment arising from, any Third Party Claim.
The Indemnified Party shall be entitled to participate in the defense of (but
not control) any Third Party Claim, the defense of which is assumed by the
Indemnifying Party, with its own counsel and at its own expense. The parties
shall cooperate in the defense of any Third Party Claim and the relevant records
of each party shall be made available on a timely basis.
(e) After the Closing, the indemnification rights provided for in
this Article VII shall be the exclusive remedy of the parties with respect to
any dispute arising out of or related to this Agreement.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Termination. Either party may terminate this Agreement if the
Closing has not occurred by October 31, 1996 (a "General Termination"). After a
General Termination, each party shall remain liable for any actual damages
caused by its breach of this Agreement prior to termination.
8.2 Amendments and Waiver. No amendment, waiver or consent with
respect to any provision of this Agreement shall in any event be effective,
unless the same shall be in writing and signed by the parties hereto, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
8.3 Notices. All notices, requests, consents, demands and other
communications hereunder must be in writing and shall be delivered in person, by
courier service or by telecopy, telegram or telex as follows:
(a) If to the Selling Entities:
Robertson-Ceco Corporation
5000 Executive Parkway
Suite 425
San Ramon, CA 94583
Telephone No.: (510) 866-3010
Telecopy No.: (510) 866-3020
Attn: E.A. Roskovensky
(b) If to Buyer:
Bruco International, Inc.
55 West Monroe
Suite 3300
Chicago, Illinois 60603
Telephone No.: (312) 641-3200
Telecopy No.: (312) 641-6492
Attn: Bruce Sperling
Notice shall be deemed given when sent or delivered as provided herein. Any
party may change its address or add or change parties for receiving notice by
written notice given to the others named above.
8.4 Expenses. Except as otherwise expressly provided herein, each
party to this Agreement shall pay its own costs and expenses in connection with
the transactions contemplated hereby.
8.5 Rules of Construction. The word "including" shall mean
including, without limitation. The Article, Section and other headings
contained herein are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. All dollar ($) amounts
referred to herein refer to United States Dollar amounts.
8.6 Counterparts. This Agreement may be executed (which may be by
facsimile with hard copy by express delivery) in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
8.7 Successors and Assigns. This Agreement shall bind and inure to
the benefit of the parties named herein and their respective successors and
assigns. The Selling Entities may not assign any rights, benefits, duties or
obligations under this Agreement. Buyer may assign its rights, benefits, duties
and obligations without the consent of any person.
8.8 Entire Agreement. This Agreement and the documents referred to
herein contain the entire agreement and understanding among the parties with
respect to the transactions contemplated hereby and supersede all other
agreements, understandings and undertakings among the parties on the subject
matter hereof. This agreement supersedes and terminates the agreement dated
June 28, 1996 providing for the purchase by Buyer of certain assets of the
Operating Companies.
8.9 Announcements. No announcement of the specific terms of this
Agreement shall be made by any party without the written approval of the other
party (which approval shall not be unreasonably withheld), except filings
required to be made with the Securities and Exchange Commission and as otherwise
required by applicable law or rules of a national securities exchange.
8.10 Partial Invalidity. In the event that any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
8.11 Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the State of
Illinois. Each party hereby irrevocably and unconditionally consents and
submits to the in personam jurisdiction of Illinois state courts and federal
courts located in Cook County, Illinois over all matters relating to this
Agreement. Each party agrees that service of process in any action or
proceeding hereunder may be made upon such party by certified mail, return
receipt requested to the address for notice set forth herein. Each party
irrevocably waives any objection it may have to the venue of any action, suit or
proceeding brought in such courts or to the convenience of the forum and each
party irrevocably waives the right to proceed in any other jurisdiction. Final
judgment in any such action, suit or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment, a certified or true
copy of which shall be conclusive evidence of the fact and the amount of any
indebtedness or liability of any party therein described.
* * *
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by a duly authorized officer all as of the date first
written above.
BRUCO INTERNATIONAL, INC. ROBERTSON-CECO CORPORATION
By: By:
Its: Its:
H.H. ROBERTSON ASIA/PACIFIC PTE LTD
By:
Its: