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EXHIBIT 10(i)
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (THE "AGREEMENT") IS DATED AS OF APRIL
30, 1997, 1997, BY AND BETWEEN JARED A. TRUSSLER ("TRUSSLER"), RAY CROSNO
("CROSNO") AND LESLIE SCOTT ("SCOTT") (COLLECTIVELY REFERRED TO HEREIN AS
"SELLERS") AND ASTROTECH INTERNATIONAL CORPORATION, A DELAWARE CORPORATION
("BUYER" OR "ASTROTECH").
WHEREAS, SELLERS OWN ALL OF THE ISSUED AND OUTSTANDING SHARES OF
CAPITAL STOCK OF TRUSCO TANK INC., A CALIFORNIA CORPORATION ("TRUSCO" OR THE
"COMPANY") CONSISTING OF 4,500 SHARES OF COMMON STOCK, NO PAR VALUE (THE
"TRUSCO STOCK"); AND
WHEREAS, TRUSSLER HAS AN OWNERSHIP INTEREST IN THREE PARCELS OF REAL
PROPERTY LEASED BY, AND USED IN THE BUSINESS OF, TRUSCO ("REAL PROPERTY"); AND
WHEREAS, THE OVERALL TRANSACTION CONTEMPLATES THAT BUYER WILL ACQUIRE
THE TRUSCO STOCK AND TWO PARCELS OF REAL PROPERTY LOCATED IN SAN LUIS OBISPO,
CALIFORNIA AND LEASE OF ONE PARCEL LOCATED IN FRESNO, CALIFORNIA; AND
WHEREAS, SIMULTANEOUSLY WITH EXECUTION OF THIS AGREEMENT, BUYER
INTENDS TO ENTER INTO AGREEMENTS TO ACQUIRE THE TWO PARCELS OF REAL PROPERTY
LOCATED IN SAN LUIS OBISPO, CALIFORNIA AND LEASE THE PROPERTY LOCATED IN
FRESNO, CALIFORNIA. ("REAL PROPERTY AGREEMENTS"); AND
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WHEREAS, SELLERS DESIRE TO SELL AND BUYER DESIRES TO PURCHASE THE
TRUSCO STOCK, UPON THE TERMS AND CONDITIONS HEREINAFTER SET FORTH.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND
AGREEMENTS CONTAINED HEREIN, SELLERS AND BUYER, INTENDING TO BE LEGALLY BOUND
AGREE AS SET FORTH BELOW:
CERTAIN CAPITALIZED TERMS USED IN THIS AGREEMENT ARE DEFINED IN
ARTICLE 9 BELOW.
ARTICLE I
THE TRANSACTION
1.1. SALE AND PURCHASE OF SHARES. SUBJECT TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT AND IN CONSIDERATION OF THE PURCHASE PRICE, SELLERS SHALL
SELL, ASSIGN, TRANSFER AND DELIVER TO BUYER AT THE CLOSING, AND BUYER SHALL
PURCHASE FROM SELLERS AT THE CLOSING, THE TRUSCO STOCK.
1.2 PURCHASE PRICE. THE AGGREGATE PURCHASE PRICE (THE "PURCHASE
PRICE") FOR THE TRUSCO STOCK SHALL CONSIST OF $8,605,794, IN CASH. THE CASH
CONSIDERATION WILL BE ADJUSTED DOWNWARD ON A DOLLAR-FOR-DOLLAR BASIS TO THE
EXTENT OF:
(a) ANY NET LOSS ATTRIBUTABLE TO TRUSCO'S OPERATIONS FOR THE
PERIOD COMMENCING JANUARY 1, 1997 THROUGH THE CLOSING DATE;
(b) THE AMOUNT, IF ANY, BY WHICH LONG-TERM DEBT OF THE COMPANY
EXCEEDS $2,776,557, AS OF THE CLOSING;
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(c) ANY DISTRIBUTION MADE TO THE SELLERS ON OR AFTER JANUARY 1,
1997 (OTHER THAN THE DISTRIBUTIONS CONTEMPLATED BY PARAGRAPH
4.1(d), BELOW); AND
(d) ANY EXPENSES AND/OR PAYMENTS NOT MADE IN THE NORMAL AND
ORDINARY COURSE OF BUSINESS (INCLUDING EXPENSES RELATING TO
THIS TRANSACTION).
1.3. CLOSING. THE CLOSING HEREUNDER ("CLOSING") SHALL TAKE PLACE AT
THE OFFICES OF SINSHEIMER, SCHIEBELHUT & BAGGETT, 1010 PEACH STREET SAN LUIS
OBISPO, CALIFORNIA, OR SUCH OTHER PLACE AGREED UPON BY BUYER AND SELLERS, ON
THE CLOSING DATE SELECTED BY THE BUYER AND SELLERS WHICH SHALL BE THE LATEST
OF:
(a) MAY 1, 1997, IF ALL CONDITIONS SET FORTH IN ARTICLE 6 HAVE
BEEN SATISFIED OR WAIVED; OR
(b) THE FIFTH BUSINESS DAY AFTER ANY INJUNCTION AGAINST
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT IS LIFTED, DISCHARGED OR DISMISSED, IF ALL OTHER
CONDITIONS SET FORTH IN ARTICLE 6 HAVE BEEN SATISFIED OR
WAIVED; OR
(c) SUCH OTHER DATE AS SHALL BE MUTUALLY AGREED TO IN WRITING BY
SELLER AND BUYER ON WHICH ALL OTHER CONDITIONS SET FORTH IN
ARTICLE 6 SHALL HAVE BEEN SATISFIED OR WAIVED.
1.4. DELIVERIES AND PROCEEDINGS AT CLOSING.
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(a) DELIVERIES BY SELLERS. SELLERS SHALL DELIVER OR CAUSE TO BE
DELIVERED TO BUYER AT THE CLOSING:
(i) CERTIFICATES REPRESENTING THE TRUSCO STOCK DULY
ENDORSED IN NEGOTIABLE FORM OR WITH STOCK POWERS DULY
EXECUTED IN BLANK WITH ALL TRANSFER TAXES, IF ANY,
PAID IN FULL;
(iii) GOOD STANDING CERTIFICATES OF TRUSCO IN CALIFORNIA
AND THOSE STATES OR JURISDICTIONS WHERE IT IS
QUALIFIED TO TRANSACT BUSINESS AS A FOREIGN
CORPORATION AS OF A DATE WITHIN 10 BUSINESS DAYS OF
THE CLOSING DATE;
(iv) AN INCUMBENCY AND SPECIMEN SIGNATURE CERTIFICATE
SIGNED BY THE OFFICERS OF TRUSCO AND CERTIFIED BY THE
SECRETARY OF TRUSCO.
(v) TRUE AND CORRECT COPIES OF THE CHARTER DOCUMENTS OF
TRUSCO, SINCE THE DATE OF THEIR INCORPORATION
CERTIFIED BY THE SECRETARY OF STATE OF CALIFORNIA,
AND THE BYLAWS CERTIFIED BY THE SECRETARY;
(vi) A CERTIFICATE DATED THE CLOSING DATE CERTIFYING TO
THE FULFILLMENT OF THE CONDITIONS SET FORTH IN
SECTION 6;
(vii) THE OPINION OF REICKER, CLOUGH, PFAU & PYLE LLP,
LEGAL COUNSEL TO SELLERS, IN THE FORM ATTACHED AS
EXHIBIT A;
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(viii) RESIGNATIONS OF THE DIRECTORS AND CERTAIN OFFICERS OF
TRUSCO EFFECTIVE AT THE CLOSING;
(ix) A CERTIFICATE DATED THE CLOSING DATE OF THE CHIEF
FINANCIAL OFFICER OF TRUSCO CERTIFYING (1) THE
LONG-TERM DEBT OF TRUSCO AS OF THE CLOSING, AND TO
THE EXTENT PRACTICABLE BASED UPON AVAILABLE
INFORMATION (2) THE AMOUNT OF NET LOSS, IF ANY,
ATTRIBUTABLE TO TRUSCO'S OPERATIONS FOR THE PERIOD
COMMENCING JANUARY 1, 1997 THROUGH THE CLOSING DATE,
ALL IN FORM AND SUBSTANCE SATISFACTORY TO BUYER,
TOGETHER WITH DOCUMENTED VERIFICATION THEREOF, WHICH
SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO BUYER;
(x) SUCH OTHER AGREEMENTS AND DOCUMENTS AS BUYER MAY
REASONABLY REQUEST; AND
(xi) REPAYMENT BY SELLERS OF ALL AMOUNTS DUE AND OWING BY
SELLERS TO TRUSCO.
(b) DELIVERIES BY BUYER. BUYER SHALL DELIVER OR CAUSE TO BE
DELIVERED TO SELLER AT THE CLOSING:
(i) THE PURCHASE PRICE FOR THE TRUSCO STOCK, WHICH SHALL
BE PAID TO SELLERS BY WIRE TRANSFER IN IMMEDIATELY
AVAILABLE FUNDS TO AN ACCOUNT OR ACCOUNTS WHICH SHALL
BE DESIGNATED TO BUYER AT LEAST
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TWO BUSINESS DAYS PRIOR TO THE CLOSING BY SELLERS
(ii) RESOLUTIONS OF THE BOARD OF DIRECTORS OF BUYER
AUTHORIZING THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE PERFORMANCE OF THE TRANSACTIONS
CONTEMPLATED HEREBY CERTIFIED BY THE SECRETARY OF
BUYER;
(iii) A CERTIFICATE DATED THE CLOSING DATE CERTIFYING TO
THE FULFILLMENT OF THE CONDITIONS SET FORTH IN
SECTION 6.
(iv) THE OPINION OF RAYMOND T. ROYKO, BUYER'S LEGAL
COUNSEL, IN THE FORM ATTACHED AS EXHIBIT B; AND
(v) SUCH OTHER AGREEMENTS AND DOCUMENTS THAT SELLERS MAY
REASONABLY REQUEST.
(c) AT THE CLOSING, THE FOLLOWING EVENTS SHALL BE DEEMED TO TAKE
PLACE SIMULTANEOUSLY:
(i) BUYER SHALL DELIVER TO SELLERS THE PURCHASE PRICE;
(ii) SELLERS SHALL DELIVER TITLE TO THE TRUSCO STOCK IN
ACCORDANCE WITH THE TERMS HEREOF TO BUYER; AND
(iii) BUYER SHALL ACQUIRE THE PARCEL OF REAL PROPERTY
TOGETHER WITH
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IMPROVEMENTS SITUATED THEREON, LOCATED AT 4388 SANTA FE ROAD,
SAN LUIS OBISPO, CALIFORNIA AND THE 10 ACRE PARCEL OF REAL
PROPERTY ADJACENT THERETO ("SAN LUIS REAL PROPERTY") AND
OBTAIN A LEASE FOR THE REAL PROPERTY LOCATED AT 2421 EAST
CALIFORNIA AVENUE, FRESNO, CALIFORNIA ("FRESNO REAL
PROPERTY") ON THE TERMS AN CONDITIONS SET FORTH IN THE REAL
PROPERTY AGREEMENTS.
(d) THE CLOSING SHALL BE DEEMED TO HAVE OCCURRED ONLY WHEN ALL
THE OPINIONS, CERTIFICATES AND OTHER DOCUMENTS REQUIRED TO BE
DELIVERED AT THE CLOSING PURSUANT TO ARTICLES 1 AND 6 HAVE
BEEN DELIVERED, THE TRUSCO STOCK, TOGETHER WITH STOCK POWERS
DIRECTING THE SECRETARY OF TRUSCO TO TRANSFER RECORD
OWNERSHIP OF THE TRUSCO STOCK TO BUYER AND WITH ALL
APPROPRIATE STOCK TRANSFER STAMPS AFFIXED, IF ANY, HAVE BEEN
DELIVERED AGAINST RECEIPT OF THE PURCHASE PRICE AND TITLE TO
SAN LUIS REAL PROPERTY HAS BEEN TRANSFERRED TO BUYER, OR ITS
ASSIGNS AND THE BUYER HAS OBTAINED THE LEASEHOLD INTEREST IN
THE FRESNO REAL PROPERTY IN ACCORDANCE WITH THEIR RELATED
AGREEMENTS.
1.5. TERMINATION OF THIS AGREEMENT. THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY MAY BE TERMINATED:
(a) AT ANY TIME PRIOR TO THE CLOSING DATE BY MUTUAL CONSENT OF
BUYER AND SELLERS;
OR
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(b) IN ANY EVENT, AUTOMATICALLY ON MAY 2, 1997, IF THE CLOSING
HAS NOT OCCURRED ON OR BEFORE SUCH DATE (OTHER THAN THROUGH
THE FAILURE OF ANY PARTY SEEKING TO TERMINATE THIS AGREEMENT
TO COMPLY FULLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT),
UNLESS EXTENDED BY MUTUAL CONSENT OF BUYER AND SELLERS. IN
THE EVENT OF TERMINATION OF THIS AGREEMENT BY EITHER BUYER OR
SELLERS AS PROVIDED IN THIS AGREEMENT, THIS AGREEMENT SHALL
FORTHWITH TERMINATE AND THERE SHALL BE NO LIABILITY ON THE
PART OF EITHER BUYER OR SELLERS OR THEIR RESPECTIVE OFFICERS
OR DIRECTORS; PROVIDED, HOWEVER, SECTION 4.3 AND SECTION 8.1
SHALL SURVIVE SUCH TERMINATION.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLERS
AS AN INDUCEMENT TO BUYER TO ENTER INTO THIS AGREEMENT AND CONSUMMATE
THE TRANSACTIONS CONTEMPLATED HEREBY, THE SELLERS HEREBY JOINTLY AND SEVERALLY
REPRESENT AND WARRANT TO THE BUYER AS FOLLOWS (PROVIDED, EACH REPRESENTATION OR
WARRANTY WHICH EXPRESSLY IS MADE IN THIS ARTICLE 2 "TO THE BEST KNOWLEDGE" OF
SELLERS SHALL BE DEEMED TO BE MADE SOLELY BY EACH INDIVIDUAL SELLER ACTING
ALONE AND BASED UPON THAT INDIVIDUAL SELLER'S KNOWLEDGE AND IS NOT BEING MADE
JOINTLY AND SEVERALLY):
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2.1 ORGANIZATION AND QUALIFICATION. TRUSCO IS DULY INCORPORATED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF CALIFORNIA, WITH
CORPORATE POWER AND AUTHORITY TO OWN, LEASE AND OPERATE ITS ASSETS AND BUSINESS
AND CARRY ON ITS BUSINESS AS PRESENTLY AND HERETOFORE OWNED OR CONDUCTED, AND
IS IN GOOD STANDING AS A FOREIGN CORPORATION AND LICENSED OR QUALIFIED TO
TRANSACT BUSINESS IN EACH JURISDICTION IN WHICH THE NATURE OF THE PROPERTIES
OWNED BY IT OR THE BUSINESS TRANSACTED BY IT REQUIRES IT TO BE SO LICENSED OR
QUALIFIED.
2.2 CAPITAL STOCK AND OWNERSHIP. (a) TRUSCO'S CAPITALIZATION CONSISTS
OF 50,000 SHARES OF AUTHORIZED COMMON STOCK, NO PAR VALUE, OF WHICH ALL 4,500
SHARES ARE ISSUED AND OUTSTANDING. SELLERS ARE THE BENEFICIAL AND REGISTERED
OWNER OF ALL THE TRUSCO STOCK.
(b) THERE ARE NOT OUTSTANDING ANY (i) SECURITIES OF TRUSCO
CONVERTIBLE INTO OR EXCHANGEABLE FOR ANY SHARES OF CAPITAL
STOCK OR OTHER SECURITIES OF TRUSCO, OR (ii) SUBSCRIPTIONS,
OPTIONS, WARRANTS, CALLS, UNSATISFIED PREEMPTIVE RIGHTS OR
OTHER RIGHTS OF ANY KIND ENTITLING ANY THIRD PARTY TO ACQUIRE
FROM TRUSCO ANY SHARES OF CAPITAL STOCK, INCLUDING TREASURY
SHARES, OR OTHER SECURITIES OF TRUSCO.
(c) THE TRUSCO STOCK HAS BEEN DULY AND VALIDLY ISSUED, ARE FULLY
PAID AND NONASSESSABLE AND ARE OWNED BY SELLERS FREE AND
CLEAR OF ANY LIEN, CHARGE, ENCUMBRANCE OR OTHER SECURITY
INTEREST.
(d) UPON DELIVERY OF AND PAYMENT FOR THE TRUSCO STOCK, THE BUYER
WILL ACQUIRE GOOD AND VALID TITLE THERETO, FREE AND CLEAR OF
ANY LIEN, CHARGE, ENCUMBRANCE, SECURITY INTEREST OR OTHER
RESTRICTIONS OR LIMITATIONS OF
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ANY KIND WHATSOEVER.
2.3 AUTHORITY FOR TRANSACTIONS. THE SELLERS AND EACH OF THEM HAS FULL
LEGAL RIGHT, POWER AND AUTHORITY TO ENTER INTO AND PERFORM THIS AGREEMENT AND
TO PERFORM HIS OBLIGATIONS HEREUNDER. THE EXECUTION, DELIVERY AND PERFORMANCE
OF THIS AGREEMENT BY SELLERS AND THE COMPANY AND CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AUTHORIZED BY THE SHAREHOLDERS
OF TRUSCO. NO OTHER ACTION IS NECESSARY TO AUTHORIZE THE EXECUTION AND DELIVERY
OF THIS AGREEMENT OR THE PERFORMANCE BY SELLERS AND THIS AGREEMENT HAS BEEN
DULY EXECUTED, DELIVERED AND IS THE VALID AND BINDING OBLIGATION OF SELLERS,
AND EACH OF THEM, RESPECTIVELY, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
2.4 ASSETS. (a) EXCEPT AS DISCLOSED IN EXHIBIT 2.4, TRUSCO HAS GOOD,
MARKETABLE AND INDEFEASIBLE TITLE TO, OR VALID AND EXISTING LEASEHOLD INTERESTS
IN, (i) ALL THE REAL AND PERSONAL PROPERTY AND OTHER ASSETS REFLECTED ON THE
1996 BALANCE SHEET (EXCEPT FOR ANY SUCH ASSETS DISPOSED OF IN THE ORDINARY
COURSE OF BUSINESS SINCE THE BALANCE SHEET DATE OR ANY SUCH ASSETS DISPOSED OF
SINCE THE BALANCE SHEET DATE AS CONTEMPLATED OR PERMITTED HEREBY), INCLUDING
THOSE DESCRIBED IN SECTIONS 2.5 AND 2.6, AND (ii) SUCH ASSETS, INCLUDING THOSE
DESCRIBED IN SECTIONS 2.5 AND 2.6, AS MAY HAVE BEEN ACQUIRED SINCE THE BALANCE
SHEET DATE (EXCEPT FOR ANY SUCH ASSETS DISPOSED OF IN THE ORDINARY COURSE OF
BUSINESS SINCE THE BALANCE SHEET DATE OR ANY SUCH ASSETS DISPOSED OF SINCE THE
BALANCE SHEET DATE AS CONTEMPLATED OR PERMITTED HEREBY), IN EACH CASE FREE AND
CLEAR OF ALL LIENS, CHARGES, ENCUMBRANCES AND SECURITY INTERESTS, EXCEPT (i)
THE LIEN OF CURRENT TAXES NOT YET DUE AND PAYABLE OR OF TAXES THE VALIDITY OF
WHICH IS BEING CONTESTED IN GOOD FAITH BY APPROPRIATE PROCEEDINGS, (ii) LIENS
(IF ANY) SECURING INDEBTEDNESS REFLECTED ON THE 1996 BALANCE SHEET WITH SUCH
CHANGES IN THE AMOUNT THEREOF AS MAY HAVE OCCURRED IN THE ORDINARY COURSE OF
BUSINESS SINCE THE BALANCE SHEET DATE.
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(b) IN THE AGGREGATE, ALL PHYSICAL PROPERTIES AND ASSETS OF THE
COMPANY, INCLUDING THOSE DESCRIBED IN SECTION 2.5, ARE, IN ALL MATERIAL
RESPECTS, IN GOOD CONDITION AND REPAIR (WEAR AND TEAR EXCEPTED) AND SUFFICIENT
FOR THE USES IN WHICH THEY ARE PRESENTLY EMPLOYED FOR THE PROPER CONDUCT OF THE
BUSINESS.
2.5 REAL ESTATE. (a) EXHIBIT 2.5(a) SETS FORTH A LIST AND SUMMARY
DESCRIPTION OF (i) ALL REAL PROPERTY OWNED BY THE COMPANY AND ALL BUILDINGS AND
OTHER STRUCTURES LOCATED ON SUCH REAL PROPERTY; (ii) ALL LEASES, SUBLEASES OR
OTHER AGREEMENTS UNDER WHICH THE COMPANY IS LESSOR OR LESSEE OF ANY REAL
PROPERTY; (iii) ALL OPTIONS HELD BY THE COMPANY OR CONTRACTUAL OBLIGATIONS ON
ITS PART TO PURCHASE OR ACQUIRE ANY INTEREST IN REAL PROPERTY; AND (iv) ALL
OPTIONS GRANTED BY THE COMPANY OR CONTRACTUAL OBLIGATIONS ON ITS PART TO SELL
OR DISPOSE OF ANY INTEREST IN REAL PROPERTY.
(b) EXCEPT AS DISCLOSED IN EXHIBIT 2.5(b), IN THE PRELIMINARY TITLE
REPORT (OR DISCLOSED ON ANY PUBLIC RECORD) AND, TO THE BEST KNOWLEDGE OF
SELLERS, WITH RESPECT TO ANY REAL PROPERTY OWNED OR LEASED BY THE COMPANY THERE
EXISTS NO APPLICABLE ZONING ORDINANCE, BUILDING CODE, USE OR OCCUPANCY
RESTRICTION, OR VIOLATION OF ANY THEREOF, OR ANY CONDEMNATION ACTION OR
PROCEEDING WITH RESPECT THERETO, THAT MATERIALLY DETRACTS FROM OR INTERFERES
WITH THE VALUE THEREOF OR FROM OR WITH THE PRESENT USE OF SUCH PROPERTY. EXCEPT
AS DISCLOSED IN EXHIBIT 2.20, TO THE BEST KNOWLEDGE OF SELLERS THERE EXISTS NO
VIOLATION OF ANY ENVIRONMENTAL LAW OR REGULATIONS THEREUNDER WITH RESPECT TO
ANY REAL PROPERTY. WITH RESPECT TO LEASES OF REAL PROPERTY BY THE COMPANY,
THERE EXIST NO DEFAULTS BY THE COMPANY OR BY ANY THIRD PARTY, THAT MATERIALLY
ADVERSELY AFFECT ANY SUCH LEASE.
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2.6 PLANTS AND REPRESENTATIVES' OFFICES. EXHIBIT 2.6 ATTACHED HERETO
SETS FORTH A LIST AND SUMMARY DESCRIPTION OF EACH OF THE COMPANY'S PLANTS,
FACILITIES AND REPRESENTATIVES' OFFICES, WHETHER OWNED OR LEASED.
2.7 KNOW-HOW, TRADEMARKS, PATENTS, ETC. EXHIBIT 2.7 ATTACHED HERETO
CONTAINS A COMPLETE AND CORRECT LIST OF ALL PATENTS, PATENT APPLICATIONS,
PROCESSES, TRADEMARKS, TRADEMARK APPLICATIONS, TRADE NAMES, BRAND NAMES AND
COPYRIGHTS, DOMESTIC AND FOREIGN WHICH THE COMPANY OWNS OR USES (COLLECTIVELY
THE "INTELLECTUAL PROPERTY"). THE COMPANY OWNS OR IS LICENSED TO USE THE
INTELLECTUAL PROPERTY WITHOUT, AND TO THE BEST KNOWLEDGE OF SELLERS EXCEPT AS
DISCLOSED ON EXHIBIT 2.7, INFRINGEMENT OF OR CONFLICT WITH ANY RIGHTS OF THIRD
PARTIES. TO THE BEST KNOWLEDGE OF SELLERS, THERE ARE NO DEFENSES TO THE
VALIDITY OF ANY INTELLECTUAL PROPERTY.
2.8 INVESTMENTS. TRUSCO DOES NOT OWN, DIRECTLY OR INDIRECTLY, ANY
EQUITY INTEREST IN ANY LEGAL ENTITY.
2.9 SELLERS' INTERESTS. EXCEPT AS OTHERWISE SPECIFICALLY CONTEMPLATED
BY SECTION 6 HEREIN, FROM AND AFTER THE CLOSING, (a) SELLERS WILL NOT HAVE ANY
CONTRACTUAL ARRANGEMENTS WITH THE COMPANY, EXCEPT EMPLOYMENT CONTRACTS
CONTEMPLATED BY THIS AGREEMENT OR AS OTHERWISE PERMITTED OR REQUIRED BY THIS
AGREEMENT, AND (b) ALL OF THE INTEREST, DIRECT OR INDIRECT OF THE SELLERS (i)
IN ALL CAPITAL STOCK OF THE COMPANY AND (ii) IN ANY RIGHT, PROPERTY OR ASSET
NOT TITLED TO THE COMPANY BUT UTILIZED BY AND MATERIAL TO THE COMPANY IN ITS
BUSINESS AND OPERATIONS WILL BE CONVEYED TO THE BUYER AT THE CLOSING (EXCEPT AS
OTHERWISE PERMITTED BY THIS AGREEMENT).
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2.10 FILINGS; FINANCIAL STATEMENTS; LIABILITIES. (a) THE COMPANY IS IN
FULL COMPLIANCE WITH THE REQUIREMENTS OF ALL STATE AND FEDERAL SECURITIES LAWS
AND REGULATIONS.
(b) THE FINANCIAL STATEMENTS HAVE BEEN PREPARED IN ACCORDANCE
WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES APPLIED ON A
CONSISTENT BASIS THROUGHOUT THE PERIODS INVOLVED (EXCEPT AS
MAY BE INDICATED IN THE NOTES THERETO) AND EACH FAIRLY
PRESENTS THE CONSOLIDATED FINANCIAL POSITION OF THE COMPANY
AS OF THE RESPECTIVE DATES THEREOF AND THE CONSOLIDATED
RESULTS OF ITS OPERATIONS AND CHANGES IN FINANCIAL POSITION
FOR THE PERIODS INDICATED.
(c) EXCEPT AS SPECIFICALLY DESIGNATED OR RESERVED AGAINST IN THE
1996 BALANCE SHEET, THE COMPANY HAS NO LIABILITIES OF THE
TYPE REQUIRED TO BE REFLECTED AS LIABILITIES ON A BALANCE
SHEET OR DISCLOSED IN THE NOTES THERETO PREPARED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
WHICH IN THE AGGREGATE COULD HAVE A MATERIAL ADVERSE EFFECT
ON THE OPERATIONS OR FINANCIAL CONDITION OF THE COMPANY.
2.11 RECEIVABLES. THE ACCOUNTS RECEIVABLE REFLECTED ON THE FINANCIAL
STATEMENTS WERE AND ARE ACCOUNTS RECEIVABLE OF THE COMPANY AT THE CLOSING DATE
AND WILL BE BONA FIDE OBLIGATIONS ARISING ONLY IN THE ORDINARY COURSE OF
BUSINESS OF THE COMPANY IN ACCORDANCE WITH ITS NORMAL CREDIT POLICIES AND,
SUBJECT TO THE RESERVE FOR DOUBTFUL ACCOUNTS, ARE COLLECTIBLE.
2.12 INVENTORIES. THE INVENTORIES REFLECTED ON THE FINANCIAL
STATEMENTS WERE ACQUIRED
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IN THE ORDINARY COURSE OF BUSINESS OF THE COMPANY IN ACCORDANCE WITH ITS NORMAL
INVENTORY PRACTICES. ALL OBSOLETE INVENTORY HAS BEEN ADEQUATELY RESERVED FOR IN
THE BALANCE SHEET.
2.13 ABSENCE OF CERTAIN CHANGES OR EVENTS. SINCE THE BALANCE SHEET
DATE THERE HAS NOT BEEN: (a) ANY MATERIAL ADVERSE CHANGE IN THE ASSETS,
LIABILITIES, OPERATIONS OR FINANCIAL CONDITION OF THE COMPANY; (b) ANY
AMENDMENT TO THE CERTIFICATE OF INCORPORATION OR BY-LAWS OF THE COMPANY; (c)
ANY DECLARATION, SETTING ASIDE OR PAYMENT OF ANY DIVIDEND OR OTHER DISTRIBUTION
(WHETHER IN CASH, STOCK, PROPERTY OR ANY COMBINATION THEREOF EXCEPT AS
SPECIFICALLY PERMITTED IN THIS AGREEMENT) IN RESPECT OF THE COMPANY'S CAPITAL
STOCK, OR ANY REDEMPTION OR OTHER ACQUISITION BY THE COMPANY OF ANY SHARES OF
THE COMPANY'S CAPITAL STOCK; (d) ANY DAMAGE, DESTRUCTION OR CASUALTY LOSS,
WHETHER COVERED BY INSURANCE OR NOT, MATERIALLY AND ADVERSELY AFFECTING THE
OPERATIONS OR FINANCIAL CONDITION OF THE COMPANY; (e) ANY CHANGE IN THE
COMPANY'S BOARD OF DIRECTORS OR EXECUTIVE OFFICERS; EXCEPT AS DISCLOSED IN
EXHIBIT 2.13 (f) ANY INCREASE IN THE RATE OR TERMS OF COMPENSATION PAYABLE OR
TO BECOME PAYABLE BY THE COMPANY TO ITS DIRECTORS, OFFICERS OR KEY EMPLOYEES,
EXCEPT AS DISCLOSED IN EXHIBIT 2.13 (g) ANY ENTRY INTO ANY MATERIAL AGREEMENT,
COMMITMENT OR TRANSACTION (INCLUDING WITHOUT LIMITATION ANY BORROWING, CAPITAL
EXPENDITURE OR CAPITAL FINANCING) BY THE COMPANY, EXCEPT AGREEMENTS,
COMMITMENTS OR TRANSACTIONS IN THE ORDINARY COURSE OF BUSINESS OR AS PERMITTED
OR REQUIRED BY THIS AGREEMENT; OR (h) ANY CHANGE BY THE COMPANY IN ITS
ACCOUNTING METHODS, PRINCIPLES OR PRACTICES.
2.14 CONTRACTS. EXHIBIT 2.14 LISTS OR DESCRIBES ALL CONTRACTS,
AUTHORIZATIONS, APPROVALS OR ARRANGEMENTS TO WHICH THE COMPANY IS A PARTY, OR
BY WHICH IT IS BOUND, AND WHICH (i) OBLIGATE OR MAY OBLIGATE THE COMPANY TO PAY
MORE THAN $5,000 OR ENTITLE OR MAY ENTITLE THE COMPANY TO RECEIVE MORE THAN
$5,000, IN EACH CASE EXCLUDING CONTRACTS IN THE ORDINARY
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COURSE OF BUSINESS AND PURCHASE ORDER ARRANGEMENTS WITH CUSTOMERS OR SUPPLIERS;
(ii) ARE FINANCING DOCUMENTS, LOAN AGREEMENTS OR AGREEMENTS PROVIDING FOR THE
GUARANTEE OF THE OBLIGATIONS OF ANY PARTY; (iii) ARE LICENSE OR OTHER
AGREEMENTS PROVIDING FOR THE MANUFACTURE OF PRODUCTS; OR (iv) ARE EMPLOYMENT OR
CONSULTING CONTRACTS OR ARRANGEMENTS AND, WITH RESPECT TO ALL SUCH CONTRACTS,
AUTHORIZATIONS, APPROVALS AND ARRANGEMENTS NEITHER THE COMPANY NOR, ANY OTHER
PARTY TO ANY SUCH CONTRACT, IS IN MATERIAL BREACH THEREOF OR MATERIAL DEFAULT
THEREUNDER, AND THERE DOES NOT EXIST UNDER ANY THEREOF ANY EVENT WHICH, WITH
THE GIVING OF NOTICE OR THE LAPSE OF TIME, WOULD CONSTITUTE SUCH A BREACH OR
DEFAULT, EXCEPT FOR SUCH BREACHES, DEFAULTS AND EVENTS AS TO WHICH REQUISITE
WAIVERS OR CONSENTS HAVE BEEN OBTAINED.
2.15 LITIGATION. EXCEPT AS SPECIFICALLY DISCLOSED IN EXHIBIT 2.15
THERE IS NO CLAIM, ACTION, PROCEEDING OR INVESTIGATION PENDING OR THREATENED,
AGAINST OR RELATING TO THE COMPANY BEFORE ANY COURT OR GOVERNMENTAL,
ADMINISTRATIVE OR REGULATORY AUTHORITY OR BODY WHICH, IF DECIDED ADVERSELY,
COULD HAVE A MATERIALLY ADVERSE EFFECT ON THE OPERATIONS OR FINANCIAL CONDITION
OF THE COMPANY, OR WHICH MIGHT AFFECT SELLERS' ABILITY TO PERFORM THEIR OR HIS
OBLIGATIONS HEREUNDER OR THEIR OR HIS OWNERSHIP OF THE TRUSCO STOCK, AND THE
COMPANY IS NOT SUBJECT TO ANY OUTSTANDING ORDER, WRIT, INJUNCTION OR DECREE
WHICH MATERIALLY ADVERSELY AFFECTS THE OPERATIONS OR FINANCIAL CONDITION OF THE
COMPANY.
2.16 TAXES. ALL TAX RETURNS, REPORTS AND FORMS REQUIRED TO BE FILED
BY, OR WITH RESPECT TO ANY ACTIVITIES OF, THE COMPANY, WITH ANY TAXING
AUTHORITY HAVE BEEN FILED IN ACCORDANCE WITH ALL APPLICABLE LAWS. ALL TAXES AND
OTHER GOVERNMENTAL CHARGES FOR WHICH THE COMPANY IS LIABLE HAVE BEEN PAID OR
ARE PROPERLY ACCRUED AND REFLECTED ON THE BALANCE SHEET. THE FEDERAL INCOME TAX
RETURNS WITH RESPECT TO THE OPERATIONS OF THE COMPANY HAVE BEEN AUDITED BY THE
IRS AND CALIFORNIA FRANCHISE TAX BOARD FOR THE TAXABLE YEARS ENDED 1990, 1991
AND
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1992 . THERE ARE NO OUTSTANDING AGREEMENTS OR WAIVERS EXTENDING THE STATUTORY
PERIOD OF LIMITATION APPLICABLE TO ANY TAX RETURN (WHETHER FEDERAL, STATE OR
LOCAL) FOR OR INCLUDING THE COMPANY.
2.17 COMPLIANCE WITH LAW.
(a) TO THE BEST KNOWLEDGE OF SELLERS, THE COMPANY HAS CONDUCTED,
AND IS NOW CONDUCTING, ITS BUSINESSES AND OPERATIONS, IN ALL
MATERIAL RESPECTS, IN COMPLIANCE WITH ALL APPLICABLE DOMESTIC
AND FOREIGN LAWS, RULES, REGULATIONS AND COURT OR
ADMINISTRATIVE ORDERS AND PROCESSES, INCLUDING, WITHOUT
LIMITATION, ANY THAT RELATE TO HEALTH AND SAFETY, SALE AND
DISTRIBUTION OF PRODUCTS AND SERVICES, ANTI-COMPETITIVE
PRACTICES, COLLECTIVE BARGAINING, EQUAL OPPORTUNITY AND
IMPROPER PAYMENTS.
(b) TO THE BEST KNOWLEDGE OF SELLERS, THE COMPANY POSSESSES, IN
ALL MATERIAL RESPECTS, ALL GOVERNMENTAL LICENSES, PERMITS,
AUTHORIZATIONS AND APPROVALS NECESSARY TO CARRY ON THE WHOLE
OF ITS BUSINESSES AND OPERATIONS AS PRESENTLY CONDUCTED.
2.18 LABOR MATTERS. EXHIBIT 2.18 CONTAINS A TRUE, CORRECT AND COMPLETE
LIST OF ALL COLLECTIVE BARGAINING AGREEMENTS AND EXCEPT AS LISTED ON EXHIBIT
2.18 THERE ARE NOT ANY WRITTEN THREATS OR IN EXISTENCE ANY (a) WORK STOPPAGES
RESPECTING EMPLOYEES OF THE COMPANY, (b) DISPUTES, GRIEVANCE OR ARBITRATION
PROCEEDING ARISING OUT OF COLLECTIVELY BARGAINED OR LABOR OR EMPLOYMENT
AGREEMENTS TO WHICH THE COMPANY IS A PARTY, AND (c) TO THE BEST KNOWLEDGE OF
SELLERS, UNFAIR LABOR PRACTICE COMPLAINTS AGAINST THE COMPANY. NO TRANSACTION
CONTEMPLATED BY THIS AGREEMENT IS IN ANY WAY PROHIBITED OR RESTRICTED BY OR
SUBJECT TO ANY
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CONDITIONS UNDER ANY COLLECTIVELY BARGAINED OR OTHER LABOR OR EMPLOYMENT
AGREEMENT AND WILL NOT ENTITLE ANY PERSON TO BENEFITS, PAYMENTS OR DAMAGES,
WITH RESPECT TO SUCH AGREEMENTS AND WILL NOT OTHERWISE CAUSE THE COMPANY TO
INCUR ANY LIABILITY UNDER SUCH AGREEMENTS.
2.19 INSURANCE. EXHIBIT 2.19 SETS FORTH A COMPLETE LIST OF ALL
POLICIES OF INSURANCE OF WHICH THE COMPANY IS THE OWNER, INSURED OR BENEFICIARY
OR PROGRAMS OF SELF-INSURANCE, COVERING PERIODS AFTER DECEMBER 31, 1991. SUCH
SCHEDULE INDICATES FOR EACH INSURANCE POLICY THE CARRIER, RISKS INSURED AND THE
EXPIRATION DATE. ALL SUCH POLICIES (OTHER THAN "CLAIMS MADE" POLICIES THAT HAVE
EXPIRED) ARE IN FULL FORCE AND EFFECT. EXCEPT AS SET FORTH ON EXHIBIT 2.19, ALL
PREMIUMS UNDER SUCH INSURANCE POLICIES FOR PERIODS TO THE CLOSING DATE HAVE
BEEN PAID, AND THE COMPANY SHALL NOT HAVE ANY LIABILITY AFTER THE CLOSING FOR
PREMIUMS UNDER SUCH INSURANCE POLICIES FOR PERIODS PRIOR TO THE CLOSING,
INCLUDING RETROSPECTIVE OR RETROACTIVE PREMIUM ADJUSTMENTS, EXCEPT IN THE
ORDINARY COURSE. TO THE BEST KNOWLEDGE OF SELLERS, THERE HAVE BEEN NO MATERIAL
DEFAULTS WITH RESPECT TO ANY PROVISION CONTAINED IN ANY INSURANCE POLICY, NOR
HAS THERE BEEN ANY FAILURE TO GIVE ANY NOTICE OR PRESENT ANY CLAIM UNDER SUCH
POLICIES IN A TIMELY FASHION OR IN THE MANNER OR DETAIL REQUIRED BY ANY SUCH
INSURANCE POLICY. THERE IS NO MATERIAL INACCURACY IN ANY APPLICATION FOR
INSURANCE POLICIES. THE COMPANY HAS NOT RECEIVED ANY NOTICE OF CANCELLATION OR
NON-RENEWAL WITH RESPECT TO, OR NOTICE THAT ANY EXISTING INSURANCE POLICY
COVERING THE CURRENT PERIOD WILL NOT IN THE FUTURE BE AVAILABLE ON
SUBSTANTIALLY THE SAME TERMS NOW IN EFFECT. SELLERS HAVE DELIVERED TO BUYER
CORRECT AND COMPLETE COPIES OF ALL OF THE INSURANCE POLICIES AND HAVE MADE
AVAILABLE TO THE BUYER COPIES OF ALL INSURANCE COMPANY LOSS REPORTS SINCE
DECEMBER 31, 1991. SCHEDULE 2.19 ALSO SETS FORTH, TO THE
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EXTENT NOT OTHERWISE SET FORTH ON THE INSURANCE COMPANY LOSS REPORTS PROVIDED
HEREUNDER, (a) THE NATURE OF ANY WORKER'S COMPENSATION CLAIMS EXPERIENCED BY
THE COMPANY SINCE DECEMBER 31, 1991 AND ALL WORKER'S COMPENSATION CLAIMS THAT
ARE OPEN ON THE DATE HEREOF, (b) THE AMOUNT PAID THEREON TO THE DATE HEREOF,
(c) THE CURRENT STATUS OF EACH, AND (d) FOR EACH SUCH CLAIM THAT IS OPEN, THE
AMOUNTS RESERVED THEREFOR.
2.20 ENVIRONMENTAL MATTERS. EXCEPT AS DISCLOSED IN EXHIBIT 2.20:
(a) TO THE BEST KNOWLEDGE OF SELLERS, THERE ARE NO EXISTING
ENVIRONMENTAL LIABILITIES OF THE COMPANY, NOR ARE THERE ANY
CLAIMS, INVESTIGATIONS, SUITS, OR PROCEEDING BY THIRD PARTIES
OR GOVERNMENTAL AGENCIES AGAINST THE COMPANY RELATING TO
ENVIRONMENTAL MATTERS;
(b) NO TANKS, CONTAINERS, CYLINDERS, DRUMS OR CANS CONTAINING ANY
HAZARDOUS TOXIC WASTES MATERIALS OR SUBSTANCES, POLLUTANTS OR
CONTAMINANTS WERE UNLAWFULLY BURIED ON ANY OF THE COMPANY'S
PREMISES BY THE COMPANY, OR TO THE BEST KNOWLEDGE OF SELLERS,
NO OTHER PERSON HAS UNLAWFULLY BURIED ANY SUCH ITEMS ON THE
COMPANY'S PREMISES;
(c) THE 1996 BALANCE SHEET DOES NOT INCLUDE AN ENVIRONMENTAL
RESERVE, NO SUCH RESERVE IS ESTABLISHED FOR THE COMPANY, AND
TO THE BEST KNOWLEDGE OF SELLERS, NO SUCH RESERVE IS
APPROPRIATE OR NECESSARY TO COVER, IN THE AGGREGATE, ANY
EXISTING AND KNOWN ENVIRONMENTAL LIABILITIES OF THE COMPANY;
AND
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(d) TO THE BEST KNOWLEDGE OF SELLERS, NEITHER SELLERS, THE BUYER
NOR THE COMPANY NEED OBTAIN ANY LETTERS, CONSENTS OR
APPROVALS FROM ANY GOVERNMENTAL AUTHORITY OR PARTICIPATE IN
ANY GOVERNMENTAL IMPOSED PROGRAM OR PLAN WITH RESPECT TO
ENVIRONMENTAL LIABILITIES, OTHER THAN LETTERS, APPROVALS OR
CONSENTS ALREADY OBTAINED OR PROGRAMS OR PLANS IN WHICH THE
COMPANY IS ALREADY PARTICIPATING, AND WHICH HAVE BEEN FULLY
DISCLOSED IN EXHIBIT 2.20.
2.21 EMPLOYEE BENEFIT PLANS. (a) EXHIBIT 2.21 LISTS, AND THE BUYER HAS
BEEN FURNISHED WITH TRUE, ACCURATE AND UP-TO-DATE COPIES OF, ALL PLANS AND ANY
RELATED TRUST, GROUP ANNUITY CONTRACT, INSURANCE POLICY OR OTHER FUNDING
ARRANGEMENT. FOR EACH PLAN, THE BUYER HAS BEEN FURNISHED, WHERE APPLICABLE,
WITH A COPY OF THE TWO MOST RECENT ANNUAL REPORTS ON IRS FORM 5500 (INCLUDING
ALL SCHEDULES AND EXHIBITS THERETO, IF ANY), A COPY OF THE MOST RECENTLY
COMPLETED ACTUARIAL VALUATION REPORT, IF ANY, AND A COPY OF THE MOST RECENTLY
DISTRIBUTED SUMMARY PLAN DESCRIPTION AND THE DATE SUCH SUMMARY PLAN DESCRIPTION
WAS DISTRIBUTED.
(b) (i) THE WRITTEN TERMS OF EACH OF THE PLANS AND ANY RELATED
TRUST AGREEMENT, GROUP ANNUITY CONTRACT, INSURANCE POLICY OR
OTHER FUNDING ARRANGEMENT ARE IN COMPLIANCE WITH THE
APPLICABLE REQUIREMENTS, IF ANY, OF ERISA, THE CODE OR OTHER
APPLICABLE FEDERAL OR STATE LAW AND EACH OF THE PLANS HAS
BEEN ADMINISTERED IN COMPLIANCE WITH SUCH REQUIREMENTS AND IN
ACCORDANCE WITH ITS TERMS AND THE PROVISIONS OF THE
APPLICABLE COLLECTIVE BARGAINING AGREEMENTS, IF ANY. (ii)
EACH OF THE PLANS WHICH HAS ANY RELATED FUNDING ARRANGEMENT
IS QUALIFIED UNDER
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SECTION 401(a), 403(a), 405(a), 408(k) OR 501(a) OR (c) OF
THE CODE, HAS RECEIVED A FAVORABLE DETERMINATION OR RULING
LETTER FROM THE IRS AS TO ITS QUALIFICATION UNDER THE
APPROPRIATE SECTION AND A COPY OF THE MOST RECENT
DETERMINATION OR RULING LETTER FOR EACH PLAN HAS BEEN
FURNISHED TO BUYER, AND SUCH FAVORABLE DETERMINATION HAS NOT
BEEN MODIFIED, REVOKED OR LIMITED BY FAILURE TO SATISFY ANY
CONDITION THEREOF OR BY A SUBSEQUENT AMENDMENT TO, OR FAILURE
TO AMEND SUCH PLAN AND NOTHING ELSE HAS OCCURRED SINCE THE
DATE OF EACH SUCH LETTER THAT COULD REASONABLY BE EXPECTED TO
CAUSE THE LOSS OF SUCH QUALIFICATION OR EXEMPTION. (iii) ALL
CONTRIBUTIONS WHICH WERE DUE AND PAYABLE ON OR BEFORE THE
DATE HEREOF TO THE PLANS HAVE BEEN MADE IN FULL AND IN PROPER
FORM, AND ADEQUATE ACCRUALS HAVE BEEN PROVIDED FOR IN THE
FINANCIAL STATEMENTS FOR ALL OTHER CONTRIBUTIONS OR AMOUNTS
AS MAY BE REQUIRED TO BE PAID TO THE PLANS WITH RESPECT TO
PERIODS WHICH INCLUDE THE DATE HEREOF OR ENDED PRIOR THERETO,
AND THE COMPANY HAS NOT MADE OR AGREED TO MAKE, OR IS
REQUIRED TO MAKE (IN ORDER TO BRING ANY OF THE PLANS INTO
SUBSTANTIAL COMPLIANCE WITH THE APPLICABLE REQUIREMENTS, IF
ANY, OF ERISA, THE CODE OR OTHER APPLICABLE FEDERAL OR STATE
LAW), ANY CHANGES IN BENEFITS WHICH WOULD MATERIALLY INCREASE
THE COSTS OF MAINTAINING ANY OF THE PLANS OTHER THAN CHANGES
DESIGNED TO REFLECT THE TAX REFORM ACT OF 1986. (iv) THE
PRESENT VALUE OF ALL BENEFITS OF EACH OF THE PLANS WHICH HAS
A RELATED FUNDING ARRANGEMENT (DETERMINED USING THE
ASSUMPTIONS CONTAINED IN THE ACTUARIAL REPORT) AND THE
CURRENT VALUE OF THE ASSETS OF EACH SUCH PLAN WAS, AS OF THE
VALUATION DATES CONTAINED IN THE ACTUARIAL REPORT, AS
REFLECTED IN SUCH REPORT. (v) THE
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INTEREST RATE, MORTALITY, PROJECTED COMPENSATION AND OTHER
ACTUARIAL ASSUMPTIONS THEN USED FOR THE PURPOSE OF
DETERMINING THE CONTRIBUTIONS REQUIRED TO BE MADE TO EACH
SUCH PLAN ARE REFLECTED IN THE ACTUARIAL REPORT.
(c) (i) NO PLAN THAT IS SUBJECT TO PART 3 OF SUBTITLE B OF TITLE
I OF ERISA OR SECTION 412 OF THE CODE HAD AN ACCUMULATED
FUNDING DEFICIENCY, WHETHER OR NOT WAIVED. (ii) ALL PREMIUMS
(AND INTEREST CHARGES AND PENALTIES FOR LATE PAYMENT), IF
ANY, DUE THE PBGC AS OF THE DATE HEREOF WITH RESPECT TO THE
PLANS HAVE BEEN PAID AND THERE HAS BEEN NO "REPORTABLE
EVENT", AS DEFINED IN SECTION 4043 OF ERISA, WITH RESPECT TO
ANY OF THE PLANS SUBJECT TO TITLE IV OF ERISA THAT THE
COMPANY KNOWS OR SHOULD HAVE KNOWN ABOUT (iii) NO EMPLOYER
LIABILITY OR WITHDRAWAL LIABILITY TO PBGC, TO ANY EMPLOYEE
PENSION BENEFIT PLAN OR TO ANOTHER PERSON OR ENTITY HAS BEEN,
OR IS EXPECTED BY THE COMPANY OR TO BE, INCURRED BY THE
COMPANY. (iv) NONE OF THE PLANS SUBJECT TO TITLE IV OF ERISA
HAS BEEN TERMINATED, NO PROCEEDINGS TO TERMINATE ANY OF SUCH
PLANS HAS BEEN INSTITUTED, AND THERE HAS BEEN NO COMPLETE OR
PARTIAL WITHDRAWAL, CESSATION OF FACILITY OPERATIONS OR
OCCURRENCE OF ANY OTHER EVENT THAT WOULD RESULT IN THE
IMPOSITION OF LIABILITY ON THE COMPANY UNDER TITLE IV OF
ERISA AND THE COMPANY HAS NO KNOWLEDGE OF ANY FACT THAT
EXISTS THAT WOULD CONSTITUTE GROUNDS FOR TERMINATION OF SUCH
PLAN BY THE PENSION BENEFIT GUARANTY CORPORATION OR FOR THE
APPOINTMENT BY THE APPROPRIATE UNITED STATES DISTRICT COURT
OF A TRUSTEE TO ADMINISTER SUCH PLAN, IN EACH CASE AS
CONTEMPLATED BY
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SECTION 4042 OF ERISA. (v) THERE IS NOT NOW NOR HAS THERE
BEEN, ANY TRANSACTION INVOLVING ANY PLAN WHICH IS A
"PROHIBITED TRANSACTION" UNDER SECTIONS 406 AND 407 OF ERISA
OR SECTION 4975 OF THE CODE IN CONNECTION WITH WHICH THE
COMPANY COULD BE SUBJECT TO ANY LIABILITY UNDER TITLE I OF
ERISA OR ANY EXCISE TAX IMPOSED BY SECTION 4975 OF THE CODE.
(vi) THE COMPANY HAS MATERIALLY SATISFIED ANY BOND COVERAGE
REQUIREMENT OF ERISA AND ALL REPORTING AND DISCLOSURE
OBLIGATIONS UNDER ERISA AND THE CODE WITH RESPECT TO EACH OF
THE PLANS AND ANY RELATED FUNDING ARRANGEMENT. (vii) NO
LIABILITY FOR FAILURE TO COMPLY WITH THE WITHHOLDING TAX
REQUIREMENTS APPLYING TO PAYMENTS FROM THE PLANS HAS BEEN OR
IS REASONABLY EXPECTED BY THE COMPANY TO BE, INCURRED BY THE
COMPANY. (viii) NO ACTION OR CONDUCT HAS BEEN TAKEN OR HAS
NOT BEEN TAKEN WITH RESPECT TO THE PLANS THAT HAS OR IS
REASONABLY EXPECTED BY THE COMPANY TO RESULT IN THE
IMPOSITION OF ANY EXCISE TAX ON THE COMPANY WITH RESPECT TO
THE PLANS. (ix) EXCEPT FOR BENEFITS WHICH MAY BECOME PAYABLE
AS A RESULT OF TERMINATION OF EMPLOYMENT OF CERTAIN
INDIVIDUALS AS CONTEMPLATED BY THIS AGREEMENT, NO TRANSACTION
CONTEMPLATED BY THIS AGREEMENT WILL RESULT IN ANY PERSON
BEING ENTITLED TO BENEFITS OR PAYMENTS WITH RESPECT TO ANY
COMPANY PLAN. (x) THERE IS NO SUIT, ACTION, DISPUTE, CLAIM,
ARBITRATION OR LEGAL, ADMINISTRATIVE OR OTHER PROCEEDING OR
GOVERNMENTAL INVESTIGATION PENDING OR THREATENED, ALLEGING A
BREACH OR BREACHES OF THE TERMS OF ANY OF THE PLANS, OR OF
ANY FIDUCIARY DUTIES THEREUNDER, OR VIOLATIONS OF ERISA OR
THE CODE OR OTHER APPLICABLE FEDERAL OR STATE LAW WITH
RESPECT TO ANY SUCH PLAN WHICH MIGHT REASONABLY BE EXPECTED
TO RESULT IN LIABILITY TO THE
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COMPANY OR TO HAVE AN ADVERSE EFFECT ON THE OPERATIONS OR
CONDITION (FINANCIAL OR OTHERWISE) OF THE COMPANY OR ANY SUCH
PLAN, NOR, IS THERE ANY BASIS OR GROUNDS FOR ANY SUCH SUIT,
ACTION, DISPUTE, CLAIM, ARBITRATION, PROCEEDING OR
INVESTIGATION.
(d) THE COMPANY HAS NEVER BEEN A PARTICIPATING EMPLOYER IN OR
SUBJECT TO ANY LIABILITY TO ANY MULTIEMPLOYER PLAN.
(e) PETROWEST EQUIPMENT, A CALIFORNIA CORPORATION, ("PETROWEST")
IS A PARTICIPATING EMPLOYER UNDER THE COMPANY'S 401(k) PROFIT
SHARING PLAN. SELLERS SHALL CAUSE PETROWEST TO CEASE
PARTICIPATION IN SUCH PLAN EFFECTIVE AS OF, OR PRIOR TO, THE
CLOSING DATE.
2.22 BROKERS. EXCEPT FOR AMOUNTS PAID TO DENNIS MCCARTHY FOR SERVICES
RENDERED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT, SELLERS HAVE NOT PAID
OR BECOME OBLIGATED TO PAY ANY FEE OR COMMISSION TO ANY BROKER, FINDER,
INVESTMENT BANKER OR OTHER INTERMEDIARY IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, OR ANY PRIOR TRANSACTIONS CONTEMPLATED BY THE
SELLERS RELATING TO THE TRUSCO STOCK, INCLUDING BUT NOT LIMITED TO
INVESTIGATIONS INTO A POSSIBLE ESOP ARRANGEMENT, AND THE COMPANY HAS NO SUCH
OBLIGATION, AND HAS MADE NO SUCH PAYMENT, TO ANY PERSON OR ENTITY.
2.23 BANK ACCOUNTS. EXHIBIT 2.23 ATTACHED HERETO IS A CORRECT AND
COMPLETE LIST OF THE NAMES OF EACH BANK, SAVINGS & LOAN, OR OTHER FINANCIAL
INSTITUTION, IN WHICH THE COMPANY HAS AN ACCOUNT (INCLUDING CASH CONTRIBUTION
ACCOUNTS, OR SAFE DEPOSIT BOXES) AND THE CORRESPONDING ACCOUNT NUMBERS AND THE
NAMES OF ALL PERSONS AUTHORIZED TO DRAW ON SUCH
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ACCOUNTS OR TO HAVE ACCESS THERETO.
2.24 NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS WITH CERTAIN
INSTRUMENTS. EXCEPT FOR THE COMPANY'S LENDERS AND BONDING COMPANY, NEITHER THE
EXECUTION DELIVERY AND PERFORMANCE OF THIS AGREEMENT, NOR THE CONSUMMATION AND
PERFORMANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, NOR COMPLIANCE
BY SELLERS OR THE COMPANY WITH ANY OF THE PROVISIONS HEREOF OR THEREOF, WILL
VIOLATE (WITH OR WITHOUT THE GIVING OF NOTICE OR THE LAPSE OF TIME OR BOTH), OR
CONFLICT WITH, OR REQUIRE ANY CONSENT, APPROVAL, WAIVER, FILING OR NOTICE
UNDER, ANY STATUTE, RULE OR REGULATION, APPLICABLE TO SELLERS OR THE COMPANY OR
APPLICABLE TO THE ASSETS OF, OR BUSINESS CONDUCTED BY SELLERS OR THE COMPANY,
NOR WILL REQUIRE ANY CONSENT APPROVAL OR NOTICE UNDER NOR WILL CONFLICT WITH,
OR RESULT IN THE BREACH OF ANY PROVISION OF, OR CONSTITUTE A DEFAULT UNDER, OR
RESULT IN THE ACCELERATION OF THE PERFORMANCE OF THE OBLIGATIONS OF SELLERS OR
THE COMPANY UNDER, OR RESULT IN THE CREATION OF A LIEN, CHARGE OR ENCUMBRANCE
UPON ANY OF THE PROPERTIES OR ASSETS OF SELLERS OR THE COMPANY PURSUANT TO, ANY
OF THE TERMS, CONDITIONS OR PROVISIONS OF THE CERTIFICATE OF INCORPORATION OR
BYLAWS OF THE COMPANY, OR ANY INDENTURE, MORTGAGE, DEED OF TRUST, LOAN
AGREEMENT, LEASE, LICENSE AGREEMENT, CONTRACT, INSTRUMENT OR OTHER AGREEMENT,
OR ANY ORDER, WRIT, INJUNCTION, JUDGMENT OR DECREE, TO WHICH SELLERS OR THE
COMPANY IS A PARTY OR BY WHICH ANY OF THE PROPERTIES OR ASSETS OF THE SELLERS
OR THE COMPANY MAY BE BOUND OR AFFECTED.
2.25 ABSENCE OF UNTRUE STATEMENTS; OMISSIONS. NO REPRESENTATION OR
WARRANTY BY THE SELLERS IN THIS AGREEMENT, AND NO STATEMENT, EXHIBIT OR
SCHEDULE FURNISHED TO BUYER BY AND ON BEHALF OF THE SELLERS UNDER AND PURSUANT
TO, OR IN ANTICIPATION OF, THIS AGREEMENT, CONTAINS OR WILL CONTAIN ANY UNTRUE
STATEMENT OF A MATERIAL FACT OR OMITS OR WILL OMIT TO STATE A MATERIAL FACT
NECESSARY TO MAKE THE STATEMENTS CONTAINED HEREIN OR THEREIN NOT MISLEADING.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
AS AN INDUCEMENT TO SELLERS TO ENTER INTO THIS AGREEMENT AND
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY, BUYER REPRESENTS AND WARRANTS
TO SELLERS AS FOLLOWS:
3.1. ORGANIZATION AND GOOD STANDING. BUYER IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF DELAWARE.
BUYER HAS ALL REQUISITE CORPORATE POWER AND AUTHORITY TO MAKE, EXECUTE AND
DELIVER THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
3.2. DUE AUTHORIZATION. THE EXECUTION, DELIVERY AND PERFORMANCE BY
BUYER OF THIS AGREEMENT HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON
THE PART OF BUYER. THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED AND
CONSTITUTES, WHEN EXECUTED AND DELIVERED BY BUYER SHALL CONSTITUTE, THE LEGAL,
VALID AND BINDING OBLIGATIONS OF BUYER, ENFORCEABLE AGAINST IT IN ACCORDANCE
WITH ITS TERMS.
3.3. BROKERAGE. EXCEPT FOR RETAINING PARKER/HUNTER INCORPORATED TO ACT
AS ITS INVESTMENT ADVISER THE FEES FOR WHICH BUYER IS SOLELY RESPONSIBLE, BUYER
HAS NOT MADE ANY AGREEMENT OR TAKEN ANY OTHER ACTION THAT MIGHT CAUSE SELLERS
OR THE COMPANY TO BECOME LIABLE FOR A BROKER'S FEE OR COMMISSION AS A RESULT OF
THE TRANSACTIONS CONTEMPLATED HEREUNDER.
3.4. NO APPROVALS OR NOTICES REQUIRED; NO CONFLICTS WITH CERTAIN
INSTRUMENTS.
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EXCEPT FOR APPROVAL REQUIRED FROM BANK ONE, TEXAS, N.A., NEITHER THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT, NOR THE CONSUMMATION AND
PERFORMANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, NOR COMPLIANCE
BY BUYER WITH ANY OF THE PROVISIONS HEREOF OR THEREOF, WILL VIOLATE (WITH OR
WITHOUT THE GIVING OF NOTICE OR THE LAPSE OF TIME OR BOTH), OR CONFLICT WITH,
OR REQUIRE ANY CONSENT, APPROVAL, WAIVER, FILING OR NOTICE UNDER, ANY STATUTE,
RULE OR REGULATION, APPLICABLE TO BUYER OR APPLICABLE TO THE ASSETS OF, OR
BUSINESS CONDUCTED BY, BUYER, NOR WILL REQUIRE ANY CONSENT APPROVAL OR NOTICE
UNDER NOR WILL CONFLICT WITH, OR RESULT IN THE BREACH OF ANY PROVISION OF, OR
CONSTITUTE A DEFAULT UNDER, OR RESULT IN THE ACCELERATION OF THE PERFORMANCE OF
THE OBLIGATIONS OF BUYER UNDER, OR RESULT IN THE CREATION OF A LIEN, CHARGE OR
ENCUMBRANCE UPON ANY OF THE PROPERTIES OR ASSETS OF BUYER PURSUANT TO, ANY OF
THE TERMS, CONDITIONS OR PROVISIONS OF THE CERTIFICATE OF INCORPORATION, AS
AMENDED, OR BYLAWS OF BUYER, OR ANY INDENTURE, MORTGAGE, DEED OF TRUST, LOAN
AGREEMENT, LEASE, LICENSE AGREEMENT, CONTRACT, INSTRUMENT OR OTHER AGREEMENT,
OR ANY ORDER, WRIT, INJUNCTION, JUDGMENT OR DECREE, TO WHICH BUYER IS A PARTY
OR BY WHICH ANY OF THE PROPERTIES OR ASSETS OF THE BUYER MAY BE BOUND OR
AFFECTED.
3.5. ABSENCE OF UNTRUE STATEMENTS; OMISSIONS. NO REPRESENTATION OR
WARRANTY BY THE BUYER IN THIS AGREEMENT, AND NO STATEMENT, EXHIBIT OR SCHEDULE
FURNISHED TO SELLER BY OR ON BEHALF OF BUYER UNDER AND PURSUANT TO, OR IN
ANTICIPATION OF, THIS AGREEMENT, CONTAINS OR WILL CONTAIN ANY UNTRUE STATEMENT
OF A MATERIAL FACT OR OMITS OR WILL OMIT TO STATE A MATERIAL FACT NECESSARY TO
MAKE THE STATEMENTS CONTAINED HEREIN OR THEREIN NOT MISLEADING.
3.6 INVESTMENT REPRESENTATION. BUYER REPRESENTS THAT IT IS ACQUIRING
THE TRUSCO STOCK FOR ITS OWN ACCOUNT FOR INVESTMENT AND NOT WITH A VIEW TO OR
FOR SALE IN CONNECTION WITH ANY DISTRIBUTION OF SUCH SECURITIES.
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ARTICLE 4
COVENANTS OF SELLERS
4.1. CONDUCT OF BUSINESS PENDING CLOSING. FROM AND AFTER THE DATE
HEREOF AND PENDING CLOSING, AND UNLESS BUYER SHALL OTHERWISE CONSENT OR AGREE
IN WRITING, THE COMPANY SHALL, AND SELLER SHALL CAUSE THE COMPANY TO, CONDUCT
ITS AFFAIRS AS FOLLOWS:
(a) ORDINARY COURSE; COMPLIANCE. THE COMPANY'S BUSINESS SHALL BE
CONDUCTED ONLY IN THE ORDINARY COURSE AND CONSISTENT WITH
PAST PRACTICE, INCLUDING BILLING, SHIPPING AND COLLECTION
PRACTICES, INVENTORY TRANSACTIONS AND PAYMENT OF ACCOUNTS
PAYABLE. THE COMPANY SHALL MAINTAIN ITS PROPERTY, EQUIPMENT
AND OTHER ASSETS CONSISTENT WITH PAST PRACTICE AND SHALL
COMPLY TIMELY WITH THE PROVISIONS OF ALL ITS LEASES,
AGREEMENTS, CONTRACTS AND COMMITMENTS IN CONNECTION WITH THE
COMPANY BUSINESS OR ITS ASSETS.
(b) PRESERVATION OF BUSINESS. THE COMPANY SHALL USE REASONABLE
EFFORTS: TO PRESERVE ITS BUSINESS ORGANIZATION INTACT, TO
KEEP AVAILABLE TO BUYER THE SERVICES OF ITS PRESENT
EMPLOYEES; AND TO PRESERVE FOR BUYER THE GOODWILL OF ITS
SUPPLIERS, CUSTOMERS AND OTHERS HAVING BUSINESS RELATIONS
WITH IT.
(c) PROHIBITED TRANSACTIONS. THE COMPANY SHALL NOT, NOR SHALL
SELLER CAUSE THE COMPANY TO:
(i) AMEND ITS CHARTER DOCUMENTS OR BY LAWS; (ii) TRANSFER
ANY SHARES
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OF CAPITAL STOCK OR ASSETS OF THE COMPANY, EXCEPT IN
THE ORDINARY COURSE OF BUSINESS AND EXCEPT AS
PERMITTED BY SECTION 1.6 ABOVE, OR AS PROVIDED IN
SECTION 4.1(d) BELOW, WHETHER BY DIVIDEND OR
OTHERWISE, OR TO PERMIT SUCH ASSETS TO BECOME BOUND
BY OR SUBJECT TO ANY CONTRACTS OR OTHER AGREEMENTS;
(iii) ISSUE ANY DEBT SECURITIES OR ASSUME, GUARANTEE
OR ENDORSE OR OTHERWISE AS AN ACCOMMODATION BECOME
RESPONSIBLE FOR THE OBLIGATIONS OF ANY PERSON, OR
MAKE ANY LOANS OR ADVANCES, EXCEPT IN THE ORDINARY
COURSE OF BUSINESS; INCREASE LONG-TERM DEBT, OR
EXCEPT FOR THE CAPITAL EXPENDITURES PREVIOUSLY
APPROVED BY BUYER AND DESCRIBED ON EXHIBIT 4.1 OR
SUCH OTHER CAPITAL EXPENDITURES WHICH ARE
SUBSEQUENTLY APPROVED BY ASTROTECH IN WRITING, MAKE
ANY CAPITAL EXPENDITURES IN EXCESS OF $10,000
INDIVIDUALLY OR $50,000 IN THE AGGREGATE WITHOUT
ASTROTECH'S CONSENT.
(d) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
TRUSCO'S SHAREHOLDERS AND BOARD OF DIRECTORS MAY CAUSE TRUSCO
TO DISTRIBUTE TO ITS SHAREHOLDERS WITH RESPECT TO THEIR
SHARES OF TRUSCO STOCK CASH IN AN AMOUNT EQUAL TO 49.6% OF
TRUSCO'S TAXABLE INCOME FOR (a) THE PERIOD ENDED DECEMBER 31,
1996 (LESS ANY SUCH DISTRIBUTIONS MADE IN 1996 TO COVER SUCH
TAX COST), AND (b) THE PERIOD BEGINNING JANUARY 1, 1997, AND
ENDING ON THE CLOSING DATE, PROVIDED HOWEVER THAT TRUSCO'S
TAXABLE INCOME SHALL BE DETERMINED BY A FIRM OF CERTIFIED
PUBLIC ACCOUNTANTS AND CALCULATED IN ACCORDANCE WITH, ON THE
SAME BASIS AND IN THE MANNER OF TRUSCO'S PRIOR PRACTICE,
CONSISTENTLY APPLIED. OTHERWISE, TRUSCO WILL
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29
NOT DECLARE, SET ASIDE OR PAY ANY DIVIDEND OR OTHER
DISTRIBUTION (WHETHER IN CASH, STOCK OR PROPERTY) IN RESPECT
OF ITS CAPITAL STOCK.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND, EXCEPT AS
CONTEMPLATED IN THIS AGREEMENT, PRIOR TO THE CLOSING DATE, SELLERS WILL NOT
PERMIT THE COMPANY TO TAKE ANY ACTION WHICH WOULD RESULT IN A BREACH OF ANY
REPRESENTATION OR WARRANTY CONTAINED IN ARTICLE 2 HEREOF.
4.2. NO SOLICITATION OF TRANSACTION. PRIOR TO THE CLOSING DATE (OR
SOONER IF THIS AGREEMENT IS TERMINATED SOONER PURSUANT TO ITS TERMS), SELLERS
SHALL NOT, DIRECTLY OR INDIRECTLY, THROUGH ANY OFFICER, DIRECTOR, AGENT OR
OTHERWISE, SOLICIT OR INITIATE SUBMISSION OF PROPOSALS OR OFFERS FROM ANY
PERSON RELATING TO ANY ACQUISITION OR PURCHASE OF ALL OR (OTHER THAN IN THE
ORDINARY COURSE OF BUSINESS) A PORTION OF THE ASSETS OF, OR ANY EQUITY INTEREST
IN, THE COMPANY OR ANY BUSINESS COMBINATION WITH THE COMPANY, PARTICIPATE IN
ANY NEGOTIATIONS REGARDING, OR FURNISH TO ANY OTHER PERSON ANY INFORMATION WITH
RESPECT TO, OR OTHERWISE COOPERATE IN ANY WAY WITH, OR ASSIST OR PARTICIPATE
IN, FACILITATE OR ENCOURAGE, ANY EFFORT OR ATTEMPT BY ANY OTHER PERSON TO DO OR
SEEK ANY OF THE FOREGOING. SELLERS SHALL IMMEDIATELY CEASE AND CAUSE TO BE
TERMINATED ANY EXISTING DISCUSSIONS OR NEGOTIATIONS WITH ANY PARTIES CONDUCTED
HERETOFORE WITH RESPECT TO ANY OF THE FOREGOING.
4.3. ACCESS TO INFORMATION. (a) BETWEEN THE DATE OF THIS AGREEMENT AND
THE CLOSING DATE, SELLERS WILL CAUSE THE COMPANY, DURING MUTUALLY AGREEABLE
HOURS, TO (i) GIVE THE BUYER AND ITS AUTHORIZED REPRESENTATIVES REASONABLE
ACCESS TO ALL BOOKS, RECORDS, OFFICES AND OTHER FACILITIES AND PROPERTIES OF
THE COMPANY, (ii) PERMIT THE BUYER TO MAKE SUCH INSPECTIONS THEREOF AS THE
BUYER MAY REASONABLY REQUEST, AND (iii) CAUSE THE COMPANY TO FURNISH THE
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30
BUYER WITH SUCH FINANCIAL AND OPERATING DATA AND OTHER INFORMATION WITH RESPECT
TO THE BUSINESS, OPERATIONS AND PROPERTIES OF THE COMPANY AS THE BUYER MAY FROM
TIME TO TIME REASONABLY REQUEST; PROVIDED HOWEVER, THAT ANY SUCH INVESTIGATION
SHALL BE CONDUCTED IN SUCH A MANNER AS NOT TO INTERFERE UNREASONABLY WITH THE
BUSINESS OPERATIONS OF THE COMPANY.
(b) ANY INFORMATION PROVIDED OR OBTAINED PURSUANT TO CLAUSE (a)
ABOVE, AND ALL SUCH INFORMATION ACQUIRED DURING NEGOTIATIONS
AND IN CONTEMPLATION OF THIS AGREEMENT, SHALL BE HELD BY THE
BUYER IN STRICT CONFIDENCE SHALL NOT BE USED FOR ANY PURPOSE
OTHER THAN AS REQUIRED TO CARRY OUT THE PURPOSES AND INTENT
OF THIS AGREEMENT AND SHALL NOT BE DIVULGED TO PERSONS NOT
PARTIES TO THIS AGREEMENT, EXCEPT THE BUYERS' ATTORNEYS,
LENDERS, FINANCIAL ADVISORS, ACCOUNTANTS AND OTHER SUCH
PERSONS UNDER A PROFESSIONAL OBLIGATION OF CONFIDENTIALITY
WITH REGARD TO THE INFORMATION CONVEYED TO THEM, AND ONLY TO
THE EXTENT THAT SUCH PERSONS HAVE NEED FOR SUCH INFORMATION
IN CONNECTION WITH THEIR SERVICES, AND BUYER AGREES TO TAKE
ALL REASONABLE STEPS TO ASSURE THAT ANY SUCH PERSONS SHALL
NOT USE SUCH INFORMATION FOR ANY PURPOSE OTHER THAN AS
REQUIRED TO CARRY OUT THE PURPOSES AND INTENT OF THIS
AGREEMENT.
(c) IN THE EVENT OF TERMINATION OF THE AGREEMENT, ANY SUCH
INFORMATION PROVIDED OR OBTAINED PURSUANT TO CLAUSE (a) OR
(b) ABOVE SHALL BE RETURNED TO THE COMPANY, AND SHALL NOT BE
DISCLOSED OR USED BY THE BUYER IN ANY MANNER WHATSOEVER.
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(d) IN ADDITION TO THE FOREGOING, ALL INFORMATION PROVIDED TO
BUYER SHALL BE SUBJECT TO THAT CERTAIN CONFIDENTIALITY
UNDERTAKING INCLUDED IN THE "LETTER OF INTENT" FOR THE
ACQUISITION OF TRUSCO DATED FEBRUARY 6, 1997.
4.4. INSURANCE. THE SELLERS SHALL CAUSE THE COMPANY TO MAINTAIN OR
CAUSE TO BE MAINTAINED IN FULL FORCE AND EFFECT THE POLICIES OF INSURANCE
LISTED ON SCHEDULE 2.19, SUBJECT ONLY TO VARIATIONS REQUIRED BY THE ORDINARY
OPERATIONS OF THE COMPANY BUSINESS, OR ELSE SHALL OBTAIN, PRIOR TO THE LAPSE OF
ANY SUCH POLICY, SUBSTANTIALLY SIMILAR COVERAGE WITH INSURERS OF RECOGNIZED
STANDING. SELLER OR THE COMPANY SHALL PROMPTLY ADVISE BUYER IN WRITING OF ANY
CHANGE OF INSURER OR TYPE OF COVERAGE IN RESPECT OF THE POLICIES LISTED ON
SCHEDULE 2.19 HERETO.
4.5. PRESERVE ACCURACY OF REPRESENTATIONS AND WARRANTIES. SELLERS
SHALL ENSURE THAT THE COMPANY CONDUCTS THE BUSINESS IN SUCH A MANNER THAT, AT
THE CLOSING, THE REPRESENTATIONS AND WARRANTIES OF SELLERS CONTAINED IN THIS
AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS THOUGH SUCH
REPRESENTATIONS AND WARRANTIES WERE MADE ON, AS OF, AND WITH REFERENCE TO SUCH
DATE. SELLERS SHALL PROMPTLY NOTIFY BUYER OF ANY ACTION, SUIT OR PROCEEDING
THAT SHALL BE INSTITUTED OR THREATENED AGAINST SELLERS OR THE COMPANY TO
RESTRAIN, PROHIBIT OR OTHERWISE CHALLENGE THE LEGALITY OF ANY TRANSACTION
CONTEMPLATED BY THIS AGREEMENT. EACH OF SELLERS SHALL PROMPTLY NOTIFY BUYER OF
ANY LAWSUIT, CLAIM, PROCEEDING OR INVESTIGATION THAT MAY BE THREATENED,
BROUGHT, ASSERTED OR COMMENCED AFTER THE DATE HEREOF AGAINST THE COMPANY. EACH
OF SELLERS SHALL NOTIFY BUYER OF ANY FACTS OR CIRCUMSTANCES AS TO WHICH IT
OBTAINS KNOWLEDGE THAT CAUSE ANY OF THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN ARTICLE 2 OF THIS AGREEMENT OR RELATING TO ANY MATTERS REQUIRED TO
BE SET FORTH IN THE SCHEDULES HERETO TO BE UNTRUE.
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4.6. NOTICE OF CHANGES. UNTIL THE CLOSING, SELLERS SHALL GIVE BUYER
PROMPT WRITTEN NOTICE OF ANY MATERIAL CHANGE OR INACCURACIES IN ANY DATA
PREVIOUSLY GIVEN OR MADE AVAILABLE TO BUYER PURSUANT TO THIS AGREEMENT.
4.7 CONSENTS AND APPROVALS. AS PROMPTLY AS PRACTICABLE, SELLERS SHALL
MAKE, OR CAUSE TO BE MADE SUCH FILINGS AND SUBMISSIONS UNDER LAW AS MAY BE
REQUIRED FOR IT TO CONSUMMATE THE SALE AND TRANSFER OF THE TRUSCO STOCK
HEREUNDER, AND SHALL USE ITS BEST EFFORTS TO OBTAIN, OR CAUSE TO BE OBTAINED,
ALL AUTHORIZATIONS, APPROVALS, CONSENTS AND WAIVERS FROM ALL GOVERNMENTAL
BODIES NECESSARY TO BE OBTAINED BY IT.
4.8 SECTION 338(h)(10) ELECTION. ASTROTECH INTENDS TO MAKE AN EXPRESS
ELECTION PURSUANT TO SECTION 338 OF THE INTERNAL REVENUE CODE ("CODE") WITH
RESPECT TO THE PURCHASE OF THE CAPITAL STOCK OF TRUSCO. THE SELLERS AGREE TO
JOIN WITH ASTROTECH IN THE FILING OF AN ELECTION PURSUANT TO SECTION 338(h)(10)
OF THE CODE, UNDER WHICH, FOR FEDERAL INCOME TAX PURPOSES, THE COMPANY WILL BE
DEEMED TO HAVE SOLD ITS ASSETS. IF THE SELLERS ARE REQUIRED TO PAY ANY
INCREASED FEDERAL OR CALIFORNIA INCOME TAXES BY REASON OF ASTROTECH'S MAKING
SUCH ELECTION, THEN THE PURCHASE PRICE SHALL BE INCREASED BY AN AMOUNT WHICH,
AFTER DEDUCTION OF APPLICABLE FEDERAL AND CALIFORNIA INCOME TAXES, WILL LEAVE
THE SELLERS WITH THE SAME AFTER-TAX SALES PROCEEDS THEY WOULD HAVE RECEIVED IF
ASTROTECH HAD PURCHASED THE TRUSCO SHARES WITHOUT HAVING MADE ANY ELECTION
UNDER SECTION 338(h)(10) OF THE INTERNAL REVENUE CODE. ANY CALIFORNIA SALE TAX
IMPOSED ON THIS TRANSACTION BY REASON OF ASTROTECH'S ELECTION, SHALL BE BORNE
BY ASTROTECH. BUYER AND SELLERS AGREE THAT THE PURCHASE PRICE SHALL BE
ALLOCATED TO THE ASSETS OF TRUSCO AS SET FORTH IN EXHIBIT 4.8.
4.9 COMPANY GUARANTIES. THE COMPANY HAS PREVIOUSLY PROVIDED GUARANTIES
(THE
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"COMPANY GUARANTIES") OF CERTAIN OBLIGATIONS OF PETROWEST. THE SELLERS AGREE TO
USE THEIR REASONABLE BEST EFFORTS TO OBTAIN A RELEASE OF THE COMPANY
GUARANTIES. FOR THIS PURPOSE, THE "BEST EFFORTS" OF THE SELLERS SHALL INCLUDE,
WITHOUT LIMITATION, TO THE PARTY HOLDING COMPANY GUARANTIES THE REPLACING OF
THE COMPANY GUARANTIES WITH GUARANTIES OF THE SELLERS. IN ANY EVENT, THE
SELLERS DO HEREBY INDEMNIFY AND HOLD THE BUYER HARMLESS FROM ANY AND ALL
JUDGMENTS, DAMAGES, LOSSES, LIABILITIES, OBLIGATIONS, COSTS AND EXPENSES
(WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) ARISING OUT OF OR
RESULTING FROM THE COMPANY GUARANTIES. THE SELLERS AGREE TO PAY, AS INCURRED,
ALL COSTS AND EXPENSES INCURRED WITH RESPECT TO THE DEFENSE OF ANY ACTIONS,
LAWSUITS OR PROCEEDINGS BROUGHT AGAINST THE COMPANY WITH RESPECT TO THE COMPANY
GUARANTIES.
4.10. EMPLOYEE LIABILITIES. IT IS AGREED AND UNDERSTOOD THAT CERTAIN
EMPLOYEES OF THE COMPANY HAVE DEVOTED ALL OR SUBSTANTIALLY ALL OF THEIR TIME TO
THE BUSINESS OF PETROWEST AND THAT EFFECTIVE UPON CLOSING OF THE TRANSACTIONS
CONTEMPLATED HEREBY, THE COMPANY WILL TERMINATE THE EMPLOYMENT OF SUCH
EMPLOYEES (INCLUDING MR. LES GRAULICH WHO DEVOTED APPROXIMATELY 50% OF HIS TIME
TO THE BUSINESS OF PETROWEST) WHOSE EMPLOYMENT RELATIONSHIPS PROSPECTIVELY WILL
BE SOLELY WITH PETROWEST. SELLERS HEREBY AGREE THAT, NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED HEREIN, THEY WILL INDEMNIFY AND HOLD BUYER HARMLESS
FROM AND AGAINST ANY LIABILITY, OBLIGATION OR LITIGATION ARISING OUT OF OR
RESPECT TO TERMINATION OF SUCH EMPLOYEES BY THE COMPANY OR BY THE COMPANY'S
FAILURE TO EMPLOY ANY SUCH EMPLOYEE.
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ARTICLE 5
COVENANTS OF BUYER
5.1. FILINGS AND AUTHORIZATIONS. AS PROMPTLY AS PRACTICABLE, THE BUYER
SHALL MAKE, OR CAUSE TO BE MADE, SUCH FILINGS AND SUBMISSIONS UNDER LAW, RULES
AND REGULATIONS APPLICABLE TO IT, INCLUDING THE HSR ACT, AS MAY BE REQUIRED FOR
IT TO CONSUMMATE THE SALE AND TRANSFER OF THE TRUSCO STOCK HEREUNDER, AND SHALL
USE ITS BEST EFFORTS TO OBTAIN, OR CAUSE TO BE OBTAINED, ALL AUTHORIZATIONS,
APPROVALS, CONSENTS AND WAIVERS FROM ALL GOVERNMENTAL BODIES NECESSARY TO BE
OBTAINED BY IT.
5.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES. THE BUYER SHALL
PROMPTLY NOTIFY SELLERS OF ANY ACTION, SUIT OR PROCEEDING THAT SHALL BE
INSTITUTED OR THREATENED AGAINST THE BUYER TO RESTRAIN, PROHIBIT OR OTHERWISE
CHALLENGE THE LEGALITY OF ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT. THE
BUYER SHALL NOTIFY SELLERS OF ANY FACTS OR CIRCUMSTANCES AS TO WHICH IT OBTAINS
KNOWLEDGE THAT CAUSE ANY OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN
ARTICLE 3 OF THIS AGREEMENT OR RELATING TO ANY MATTERS REQUIRED TO BE SET FORTH
IN THE SCHEDULES HERETO TO BE UNTRUE. UNTIL THE CLOSING, THE BUYER SHALL GIVE
SELLERS PROMPT WRITTEN NOTICE OF ANY MATERIAL CHANGE OR INACCURACIES IN ANY
DATA PREVIOUSLY GIVEN OR MADE AVAILABLE TO SELLERS PURSUANT TO THIS AGREEMENT.
5.3 SECTION 338(h)(10) ELECTION. ASTROTECH INTENDS TO MAKE AN EXPRESS
ELECTION PURSUANT TO SECTION 338 OF THE INTERNAL REVENUE CODE ("CODE") WITH
RESPECT TO THE PURCHASE OF THE CAPITAL STOCK OF TRUSCO. THE SELLERS AGREE TO
JOIN WITH ASTROTECH IN THE FILING OF AN ELECTION PURSUANT TO SECTION 338(h)(10)
OF THE CODE, UNDER WHICH, FOR FEDERAL INCOME TAX PURPOSES, THE SHAREHOLDERS
WILL BE DEEMED TO HAVE SOLD THE ASSETS OF TRUSCO. IF THE SELLERS ARE REQUIRED
TO PAY ANY INCREASED FEDERAL OR CALIFORNIA INCOME TAXES BY REASON OF
ASTROTECH'S MAKING SUCH ELECTION, THEN THE PURCHASE PRICE SHALL BE INCREASED BY
AN AMOUNT WHICH, AFTER DEDUCTION OF APPLICABLE FEDERAL AND CALIFORNIA INCOME
TAXES, WILL LEAVE THE SELLERS WITH THE
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SAME AFTER-TAX SALES PROCEEDS THEY WOULD HAVE RECEIVED IF ASTROTECH HAD
PURCHASED THE TRUSCO SHARES WITHOUT HAVING MADE ANY ELECTION UNDER SECTION
338(h)(10) OF THE INTERNAL REVENUE CODE. ANY CALIFORNIA SALE TAX IMPOSED ON
THIS TRANSACTION BY REASON OF ASTROTECH'S ELECTION, SHALL BE BORNE BY
ASTROTECH. BUYER AND SELLER AGREE THAT THE PURCHASE PRICE SHALL BE ALLOCATED
TO THE ASSETS AS SET FORTH IN EXHIBIT 4.8.
5.4 BONDS. SELLERS HAVE PREVIOUSLY PROVIDED GUARANTIES TO BONDING
COMPANIES FOR CERTAIN CONTRACTUAL OBLIGATIONS OF THE COMPANY (THE "BONDS"). THE
BUYER AGREES TO USE ITS REASONABLE BEST EFFORTS TO OBTAIN A RELEASE OF THE
BONDS. FOR THIS PURPOSE, THE "BEST EFFORTS' OF BUYER SHALL INCLUDE, WITHOUT
LIMITATION, THE OFFER TO THE PARTY HOLDING THE BONDS OR REPLACING THE BONDS
WITH GUARANTIES AND/OR BONDS PROVIDED BY THE BUYER. IN ANY EVENT, THE BUYER
DOES HEREBY INDEMNIFY AND HOLD SELLERS HARMLESS FROM ANY AND ALL JUDGMENTS,
DAMAGES, LOSSES, LIABILITIES, OBLIGATIONS, COSTS AND EXPENSES (INCLUDING
WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) ARISING OUT OF OR
RESULTING FROM THE BONDS. THE BUYER AGREES TO PAY, AS INCURRED, ALL COSTS AND
EXPENSES INCURRED WITH RESPECT TO THE DEFENSE OF ANY ACTIONS LAW SUITS OR
PROCEEDINGS BROUGHT AGAINST THE SELLERS WITH RESPECT TO THE BONDS.
5.5 POST-CLOSING DISTRIBUTION. BUYER (a) ACKNOWLEDGES THAT THE
DISTRIBUTION TO THE SELLERS CONTEMPLATED BY PARAGRAPH 4.1(d), ABOVE, MAY NOT BE
MADE PRIOR TO CLOSING BECAUSE IT MAY NOT BE POSSIBLE TO CALCULATE PRIOR TO THAT
TIME THE EXACT AMOUNT OF TRUSCO'S TAXABLE INCOME FOR THE PERIOD ENDING ON THE
CLOSING DATE, AND (b) COVENANTS AND AGREES THAT IF SUCH DISTRIBUTION IS NOT
MADE PRIOR TO THE CLOSING, THEN (i) AS SOON AS PRACTICABLE AFTER THE CLOSING,
BUYER SHALL CAUSE TRUSCO TO CALCULATE THE AMOUNT OF THE DISTRIBUTION PERMITTED
BY PARAGRAPH 4.1(d), ABOVE, AND TO MAKE THE DISTRIBUTION TO EACH OF THE SELLERS
IN ACCORDANCE WITH THE SHARES OF TRUSCO STOCK HELD BY EACH OF THE SELLERS
IMMEDIATELY PRIOR TO THE CLOSING, AND (ii)
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BUYER SHALL CAUSE TRUSCO TO REPORT THOSE PAYMENTS AS DISTRIBUTIONS BY TRUSCO TO
THE SELLERS WITH RESPECT TO THEIR SHARES OF TRUSCO STOCK.
5.6 CONTRACTOR LICENSES. IT IS UNDERSTOOD THAT THE COMPANY IS A
LICENSED CONTRACTOR IN SEVERAL STATES AND ACKNOWLEDGES THAT TRUSSLER HAS MADE
HIS LICENSE AVAILABLE TO THE COMPANY IN THE STATES OF CALIFORNIA AND NEVADA
("CONTRACTOR LICENSES"). THE BUYER AGREES TO USE ITS REASONABLE BEST EFFORTS TO
REMOVE TRUSSLER FROM THE CONTRACTOR LICENSES AS PROMPTLY AS PRACTICABLE AFTER
THE CLOSING DATE. THE BUYER FURTHER AGREES AND DOES HEREBY INDEMNIFY AND HOLD
TRUSSLER HARMLESS FROM ANY AND ALL JUDGMENTS, DAMAGES, LOSSES, LIABILITIES,
OBLIGATIONS, COSTS AND EXPENSES RESULTING FROM THE CONTRACTOR LICENSES WHICH
MAY ARISE FROM AND AFTER THE CLOSING DATE. BUYER AGREES TO PAY, AS INCURRED,
ALL COSTS AND EXPENSE INCURRED WITH RESPECT TO THE DEFENSE OF ANY ACTIONS,
LAWSUITS OR PROCEEDINGS BROUGHT AGAINST TRUSSLER WITH RESPECT TO THE CONTRACTOR
LICENSES.
ARTICLE 6
CONDITIONS TO CLOSING
6.1 MUTUAL CONDITIONS PRECEDENT. THE OBLIGATIONS OF BUYER AND SELLER
TO PROCEED WITH THE CLOSING UNDER THIS AGREEMENT ARE SUBJECT TO THE FULFILLMENT
PRIOR TO THE CLOSING OF THE FOLLOWING CONDITIONS:
(a) LITIGATION. NO ORDER OF ANY GOVERNMENTAL BODY SHALL BE IN
EFFECT THAT ENJOINS, RESTRAINS OR PROHIBITS THE TRANSACTIONS
CONTEMPLATED HEREBY OR THAT WOULD LIMIT OR ADVERSELY AFFECT
BUYER'S OWNERSHIP OF THE TRUSCO STOCK OR CONTROL OF THE
COMPANY, AND THERE SHALL NOT HAVE BEEN
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THREATENED, NOR SHALL THERE BE PENDING, ANY ACTION OR
PROCEEDING BY OR BEFORE ANY GOVERNMENTAL BODY CHALLENGING ANY
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR SEEKING
MONETARY RELIEF BY REASON OF THE CONSUMMATION OF SUCH
TRANSACTIONS.
(b) FILINGS; CONSENTS. THE FILING AND WAITING PERIOD REQUIREMENTS
OF ANY APPLICABLE FEDERAL OR STATE OR GOVERNMENTAL BODY
RELATING TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT SHALL HAVE BEEN COMPLIED WITH.
6.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. THE OBLIGATIONS OF
BUYER TO PROCEED WITH THE CLOSING UNDER THIS AGREEMENT ARE SUBJECT TO THE
FULFILLMENT PRIOR TO OR AT CLOSING OF THE FOLLOWING CONDITIONS (ANY ONE OR MORE
OF WHICH MAY BE WAIVED IN WHOLE OR IN PART BY BUYER AT BUYER'S OPTION):
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. EACH OF THE
REPRESENTATIONS AND WARRANTIES OF SELLERS CONTAINED IN
ARTICLE 2 OF THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF THE CLOSING DATE, WITH THE
SAME FORCE AND EFFECT AS THOUGH SUCH REPRESENTATIONS AND
WARRANTIES HAD BEEN MADE ON, AS OF AND WITH REFERENCE TO SUCH
DATE.
(b) PERFORMANCE AND COMPLIANCE. SELLERS SHALL HAVE PERFORMED IN
ALL MATERIAL RESPECTS ALL OF THE COVENANTS AND COMPLIED IN
ALL MATERIAL RESPECTS WITH ALL OF THE PROVISIONS REQUIRED BY
THIS AGREEMENT TO BE
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PERFORMED OR COMPLIED WITH BY IT ON OR BEFORE THE CLOSING.
(c) NO MATERIAL ADVERSE CHANGE. BETWEEN THE DATE HEREOF AND THE
CLOSING DATE, THERE SHALL HAVE BEEN (i) NO MATERIAL ADVERSE
CHANGE IN THE FINANCIAL CONDITION, ASSETS, LIABILITIES, OR
NET WORTH, BUSINESS OR PROSPECTS OF THE COMPANY, EXCEPT
CHANGES IN THE ORDINARY COURSE OF BUSINESS, NONE OF WHICH
INDIVIDUALLY OR IN THE AGGREGATE, COULD HAVE A MATERIAL
ADVERSE EFFECT ON THE OPERATIONS OF THE COMPANY, AND NO EVENT
OR CONDITION SHALL HAVE OCCURRED OR EXIST THAT MIGHT BE
EXPECTED TO CAUSE SUCH A CHANGE IN THE FUTURE, AND (ii) NO
STRIKE, WALK-OUT, UNION ORGANIZING ACTIVITY, SLOW-DOWN OR
LOCK-OUT, OR OTHER LABOR TROUBLE, OR ANY OTHER NEW OR
CONTINUED EVENT, DEVELOPMENT OR CONDITION OF ANY CHARACTER
THAT COULD HAVE A MATERIAL ADVERSE EFFECT ON THE OPERATIONS
OF THE COMPANY.
(d) CLOSING DOCUMENTS. BUYER SHALL HAVE RECEIVED THE DOCUMENTS
REFERENCED IN SECTION 1.4(a).
(e) FINANCING. BUYER SHALL HAVE OBTAINED SUFFICIENT FINANCING TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
AND TO PAY RELATED FEES AND EXPENSES.
(f) DUE DILIGENCE REVIEW. BUYER SHALL BE SATISFIED WITH ITS DUE
DILIGENCE REVIEW OF THE COMPANY BUSINESS, INCLUDING BUT NOT
LIMITED TO THE FINANCIAL CONDITION AND PROSPECTS OF THE
COMPANY.
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(h) EMPLOYMENT CONTRACTS. THE COMPANY, WITH BUYER'S APPROVAL,
SHALL HAVE ENTERED INTO EMPLOYMENT AGREEMENTS, IN THE FORM
ATTACHED HERETO AS EXHIBIT 6.2(h), WITH RAY CROSNO AND LESLIE
SCOTT ON TERMS SATISFACTORY TO EACH OF THEM, TO ASSURE THEIR
CONTINUED SERVICE WITH THE COMPANY FOR THE PERIOD STATED IN
THE EMPLOYMENT AGREEMENTS.
(i) AUDIT REQUIREMENT. BUYER SHALL HAVE RECEIVED AND BE SATISFIED
WITH THE AUDITED BALANCE SHEET, INCOME STATEMENT AND
STATEMENT OF CASH FLOWS FOR THE COMPANY (INCLUDING, THE REAL
PROPERTY) AT DECEMBER 31, 1996, WHICH SHALL BE PREPARED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND
CERTIFIED BY COOPERS AND LYBRAND L.L.P.
(j) MR. TRUSSLER SHALL HAVE ENTERED INTO A COVENANT AGAINST
COMPETITION SUBSTANTIALLY IN THE FORM OF EXHIBIT 6.2(j),
UNDER WHICH HE SHALL AGREE THAT, FOR A PERIOD OF FIVE (5)
YEARS FOLLOWING THE CLOSING DATE, HE SHALL NOT COMPETE WITH
TRUSCO WITHIN THE CONTINENTAL UNITED STATES WITH RESPECT TO
ANY BUSINESS IN WHICH TRUSCO IS ENGAGED AS OF THE CLOSING
DATE; PROVIDED, NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT OR SUCH COVENANT AGAINST COMPETITION TO THE
CONTRARY, MR. TRUSSLER SHALL NOT BE PROHIBITED FROM (AND
SHALL BE DEEMED NOT TO BE IN VIOLATION OF SUCH COVENANT
AGAINST COMPETITION SOLELY BY REASON OF) EITHER:
(i) HIS PARTICIPATING (AS AN OWNER, EMPLOYEE, LENDER,
CONSULTANT, OR OTHERWISE) IN PETROWEST OR ITS
BUSINESS
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ACTIVITIES; OR
(ii) HIS UNDERTAKING (DIRECTLY OR INDIRECTLY, WHETHER AS
AN OWNER, EMPLOYEE, LENDER, CONSULTANT, OR OTHERWISE)
TO DESIGN, DEVELOP, PRODUCE, MARKET, OR SELL TO
PETROWEST OR ANY OTHER PERSON UNDERGROUND TANKS OR
SUPER TANKS AT ANY TIME AFTER TERMINATION OR
EXPIRATION OF THE AGREEMENT BETWEEN TRUSCO AND
PETROWEST CONTEMPLATED BY PARAGRAPH 6.2(m), BELOW.
(k) REAL PROPERTY. ASTROTECH OR ITS ASSIGNS SHALL HAVE ACQUIRED
TITLE TO THE SAN LUIS REAL PROPERTY, SUBJECT TO THOSE
EXCEPTIONS TO TITLE THAT HAVE BEEN APPROVED BY BUYER IN THE
ESCROWS HANDLING THE REAL PROPERTY SALES, AND OBTAIN A LEASE
FOR THE FRESNO REAL PROPERTY.
(l) [INTENTIONALLY LEFT BLANK]
(m) PETROWEST
TRUSCO SHALL HAVE ENTERED INTO THE REQUIREMENTS AGREEMENT AND
DISTRIBUTION AGREEMENT WITH PETROWEST SUBSTANTIALLY IN THE
FORM ATTACHED HERETO AS EXHIBIT 6.2(m)
(n) MANAGEMENT SERVICES AGREEMENT. TRUSCO SHALL HAVE ENTERED INTO
A MANAGEMENT SERVICES AGREEMENT WITH PETROWEST SUBSTANTIALLY
IN THE FORM OF EXHIBIT 6.2 (n) PROVIDING FOR THE EXCHANGE OF
SERVICES OF
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EMPLOYEES OF TRUSCO AND PETROWEST, ALL AS PROVIDED IN SUCH
AGREEMENT.
6.3 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER. THE OBLIGATIONS
OF SELLERS TO PROCEED WITH THE CLOSING HEREUNDER ARE SUBJECT TO THE FULFILLMENT
PRIOR TO OR AT CLOSING OF THE FOLLOWING CONDITIONS (ANY ONE OR MORE OF WHICH
MAY BE WAIVED IN WHOLE OR IN PART BY SELLERS AT SELLERS' OPTION):
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. EACH OF THE
REPRESENTATIONS AND WARRANTIES OF BUYER CONTAINED IN ARTICLE
3 OF THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON, AS OF, AND WITH REFERENCE TO THE CLOSING DATE,
WITH THE SAME FORCE AND EFFECT AS THOUGH SUCH REPRESENTATIONS
AND WARRANTIES HAD BEEN MADE ON, AS OF AND WITH REFERENCE TO
SUCH DATE.
(b) CLOSING DOCUMENTS. SELLER SHALL HAVE RECEIVED THE DOCUMENTS
REFERENCED IN SECTION 1.4.
(c) PERFORMANCE AND COMPLIANCE. BUYER SHALL HAVE PERFORMED IN ALL
MATERIAL RESPECTS ALL OF THE COVENANTS AND COMPLIED IN ALL
MATERIAL RESPECTS WITH ALL OF THE PROVISIONS REQUIRED BY THIS
AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY IT ON OR BEFORE
THE CLOSING.
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ARTICLE 7
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATIONS
7.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. ALL REPRESENTATIONS,
WARRANTIES AND AGREEMENTS MADE BY ANY PARTY IN THIS AGREEMENT ARE AND WILL BE
DEEMED AND CONSTRUED TO BE CONTINUING REPRESENTATIONS AND WARRANTIES AND WILL
SURVIVE UNTIL THE EIGHTEEN (18) MONTH ANNIVERSARY OF THE CLOSING DATE
HEREUNDER, PROVIDED, HOWEVER, TO THE EXTENT THAT SUCH REPRESENTATIONS AND
WARRANTIES RELATE TO TAX MATTERS (INCLUDING SELLERS' OBLIGATION TO PAY ANY TAX
RESULTING FROM THE TRANSFER OF THE LICENSING BUSINESS),THEY WILL SURVIVE UNTIL
60 DAYS AFTER THE EXPIRATION OF THE APPLICABLE PERIOD DURING WHICH ANY
DEFICIENCY IN TAXES MAY BE ASSESSED WITH RESPECT TO THE COMPANY FOR ANY TAXABLE
PERIOD ENDING ON OR BEFORE THE CLOSING DATE (GIVING EFFECT TO ANY EXTENSIONS OR
TOLLING OF ANY APPLICABLE STATUTE OF LIMITATIONS).
7.2. INDEMNITY. EACH PARTY SHALL INDEMNIFY AND HOLD THE OTHER PARTY
HERETO HARMLESS TO THE EXTENT PROVIDED IN THIS ARTICLE 7 FROM AND AGAINST ANY
AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, DEMANDS, JUDGMENTS, SETTLEMENTS,
COSTS AND EXPENSES OF ANY NATURE WHATSOEVER (INCLUDING REASONABLE ATTORNEYS'
FEES) DIRECTLY OR INDIRECTLY RESULTING FROM, IN CONNECTION WITH, OR ARISING OUT
OF (i)) ANY BREACH OF ANY REPRESENTATION OR WARRANTY CONTAINED IN THIS
AGREEMENT, OR (ii) THE NONPERFORMANCE, PARTIAL OR TOTAL, OF ANY COVENANT OR
AGREEMENT OF THE INDEMNIFYING PARTY CONTAINED IN THIS AGREEMENT, IN EITHER CASE
TO THE EXTENT NOT WAIVED BY THE INDEMNIFIED PARTY.
7.3. THIRD PARTY CLAIMS. IF A CLAIM BY A THIRD PARTY IS MADE AGAINST
AN INDEMNIFIED PARTY, AND IF SUCH PARTY INTENDS TO SEEK INDEMNITY WITH RESPECT
THERETO, THE INDEMNIFIED PARTY SHALL PROMPTLY (AND IN ANY CASE WITHIN THIRTY
DAYS OF SUCH CLAIM BEING MADE AND DOCUMENTED) NOTIFY THE INDEMNIFYING PARTY OF
SUCH CLAIM. THE INDEMNIFYING PARTY SHALL HAVE TEN DAYS AFTER RECEIPT OF SUCH
NOTICE TO UNDERTAKE, CONDUCT AND CONTROL, THROUGH COUNSEL OF ITS OWN CHOOSING
AND AT ITS EXPENSE, THE SETTLEMENT OR DEFENSE THEREOF, AND THE INDEMNIFIED
PARTY
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SHALL COOPERATE WITH IT IN CONNECTION THEREWITH; PROVIDED THAT (i) THE
INDEMNIFYING PARTY SHALL PERMIT THE INDEMNIFIED PARTY TO PARTICIPATE IN SUCH
SETTLEMENT OR DEFENSE THROUGH COUNSEL CHOSEN BY THE INDEMNIFIED PARTY AND (ii)
THE INDEMNIFYING PARTY SHALL PROMPTLY REIMBURSE THE INDEMNIFIED PARTY FOR THE
FULL AMOUNT OF ANY LOSS RESULTING FROM SUCH CLAIM AND ALL RELATED EXPENSES
INCURRED BY THE INDEMNIFIED PARTY WITHIN THE LIMITS OF THIS AGREEMENT. SO LONG
AS THE INDEMNIFYING PARTY IS REASONABLY CONTESTING ANY SUCH CLAIM IN GOOD
FAITH, THE INDEMNIFIED PARTY SHALL NOT PAY OR SETTLE ANY SUCH CLAIM.
NOTWITHSTANDING THE FOREGOING, THE INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO
PAY OR SETTLE ANY SUCH CLAIM, PROVIDED THAT IN SUCH EVENT IT SHALL WAIVE ANY
RIGHT TO INDEMNITY THEREFOR BY THE INDEMNIFYING PARTY. IF THE INDEMNIFYING
PARTY DOES NOT NOTIFY THE INDEMNIFIED PARTY WITHIN TEN DAYS AFTER THE RECEIPT
OF THE INDEMNIFIED PARTY'S NOTICE OF A CLAIM OF INDEMNITY HEREUNDER THAT IT
ELECTS TO UNDERTAKE THE DEFENSE THEREOF, THE INDEMNIFIED PARTY SHALL HAVE THE
RIGHT TO CONTEST, SETTLE OR COMPROMISE THE CLAIM IN THE EXERCISE OF ITS
REASONABLE JUDGMENT AT THE EXPENSE OF THE INDEMNIFYING PARTY.
7.4. NO COMPANY CONTRIBUTION. SELLERS SHALL HAVE NO RIGHT TO SEEK
CONTRIBUTION FROM THE COMPANY IN THE EVENT SELLERS ARE REQUIRED TO MAKE ANY
PAYMENTS UNDER THIS ARTICLE OR OTHERWISE.
ARTICLE 8
MISCELLANEOUS
8.1. EXPENSES. SELLERS AND BUYER SHALL EACH PAY ITS OWN COSTS AND
EXPENSES (INCLUDING ALL LEGAL, ACCOUNTING, BROKER, FINDER AND INVESTMENT BANKER
FEES) RELATING TO THIS AGREEMENT, THE NEGOTIATION LEADING UP TO THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT; THE COMPANY WILL NOT, AND
THE SELLERS WILL NOT CAUSE THE COMPANY TO, PAY
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ANY COSTS AND EXPENSES OF SELLERS RELATED TO THE FOREGOING OR REIMBURSE SELLERS
FOR SUCH COSTS AND EXPENSES EXCEPT AS PROVIDED IN THIS AGREEMENT.
IF THIS AGREEMENT IS NOT CONSUMMATED FOR ANY REASON, BUYER WILL PAY
ALL COSTS AND EXPENSES OF THE AUDIT PERFORMED BY COOPERS & LYBRAND L.L.P. AND
GLEN, BURDETTE, PHILLIPS & BRYSON DESCRIBED IN SECTION 6.2(i) IN EXCESS OF
$27,500.
8.2. AMENDMENT. THIS AGREEMENT SHALL NOT BE AMENDED OR MODIFIED EXCEPT
BY A WRITING DULY EXECUTED BY THE BUYER AND THE SELLERS.
8.3. ENTIRE AGREEMENT. THIS AGREEMENT, INCLUDING THE EXHIBITS AND THE
OTHER DOCUMENTS DELIVERED PURSUANT TO THIS AGREEMENT, CONTAIN ALL OF THE TERMS,
CONDITIONS AND REPRESENTATIONS AND WARRANTIES AGREED UPON BY THE PARTIES
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND SUPERSEDE ALL PRIOR AND
CONTEMPORANEOUS AGREEMENTS, NEGOTIATIONS, CORRESPONDENCE, UNDERTAKINGS AND
COMMUNICATIONS OF THE PARTIES, ORAL OR WRITTEN, RESPECTING SUCH SUBJECT MATTER.
8.4. EXHIBITS. THE EXHIBITS TO THIS AGREEMENT SHALL BE CONSTRUED WITH,
AND AS AN INTEGRAL PART OF, THIS AGREEMENT.
8.5. HEADINGS. THE HEADINGS CONTAINED IN THIS AGREEMENT ARE INTENDED
SOLELY FOR CONVENIENCE AND SHALL NOT AFFECT THE RIGHTS OF THE PARTIES TO THIS
AGREEMENT.
8.6. NOTICES. ALL NOTICES, REQUESTS, DEMANDS AND OTHER COMMUNICATIONS
MADE IN CONNECTION WITH THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE DEEMED
TO HAVE BEEN DULY GIVEN ON THE DATE OF DELIVERY, IF DELIVERED TO THE PERSONS
IDENTIFIED BELOW, OR THE NEXT DAY BY
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OVERNIGHT CARRIER, OR THREE DAYS AFTER MAILING IF MAILED BY CERTIFIED OR
REGISTERED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, ADDRESSED AS
FOLLOWS:
IF TO BUYER:
ASTROTECH INTERNATIONAL CORPORATION
960 PENN AVENUE
SUITE 800
PITTSBURGH, PA 15222 HOUSTON, TX 77068
ATTENTION: RAYMOND T. ROYKO
SECRETARY
IF TO THE SELLERS:
JARED A. TRUSSLER RAY CROSNO LESLIE SCOTT
P.O. BOX 67 156 COUNTRYSIDE LANE 4205 PORTOLA
MANGONUI, FAR NORTH SAN LUIS OBISPO, CA 93401 ATASCADERO, CA 93422
NEW ZEALAND
WITH A COPY TO:
MICHAEL E. PFAU, ESQ.
REICKER, CLOUGH, PFAU & PYLE LLP
1421 STATE STREET
SANTA BARBARA, CALIFORNIA 93102-1470
SUCH ADDRESSES MAY BE CHANGED, FROM TIME TO TIME, BY MEANS OF A NOTICE GIVEN IN
THE MANNER PROVIDED IN THIS SECTION.
8.7. SEVERABILITY. IF ANY PROVISION OF THIS AGREEMENT IS HELD TO BE
UNENFORCEABLE FOR ANY REASON, IT SHALL BE ADJUSTED RATHER THAN VOIDED, IF
POSSIBLE, IN ORDER TO ACHIEVE THE INTENT OF THE PARTIES TO THIS AGREEMENT TO
THE EXTENT POSSIBLE. IN ANY EVENT, ALL OTHER PROVISIONS OF THIS AGREEMENT SHALL
BE DEEMED VALID AND ENFORCEABLE TO THE FULLEST EXTENT POSSIBLE
8.8. WAIVER. WAIVER OF ANY TERMS OR CONDITION OF THIS AGREEMENT BY ANY
PARTY
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SHALL ONLY BE EFFECTIVE IF IN WRITING AND SHALL NOT BE CONSTRUED AS A WAIVER OF
ANY SUBSEQUENT BREACH OR FAILURE OF THE SAME TERM OR CONDITION, OR A WAIVER OF
ANY OTHER TERM OR CONDITION OF THIS AGREEMENT.
8.9. BINDING EFFECT; ASSIGNMENT. NO PARTY TO THIS AGREEMENT MAY ASSIGN
OR DELEGATE, BY OPERATION OF LAW OR OTHERWISE, ALL OR ANY PORTION OF ITS RIGHTS
OBLIGATIONS OR LIABILITIES UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN
CONSENT OF THE OTHER PARTY TO THIS AGREEMENT, WHICH IT MAY WITHHOLD IN ITS
ABSOLUTE DISCRETION; PROVIDED, HOWEVER, THAT, WITHOUT SUCH CONSENT, ASTROTECH
MAY ASSIGN ALL OR ANY PORTION OF ITS RIGHTS UNDER THIS AGREEMENT TO ANY
WHOLLY-OWNED SUBSIDIARY OF ASTROTECH, WHICH ASSIGNMENT SHALL NOT RELIEVE
ASTROTECH OF ITS OBLIGATIONS OR LIABILITIES HEREUNDER.
8.10. NO THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT SHALL
CONFER ANY RIGHTS UPON ANY PERSON OR ENTITY WHICH IS NOT A PARTY OR AN ASSIGNEE
OF A PARTY TO THIS AGREEMENT.
8.11. COUNTERPARTS. THIS AGREEMENT MAY BE SIGNED IN ANY NUMBER OF
COUNTERPARTS WITH THE SAME EFFECT AS IF THE SIGNATURES TO EACH COUNTERPART WERE
UPON A SINGLE INSTRUMENT, AND ALL SUCH COUNTERPARTS TOGETHER SHALL BE DEEMED AN
ORIGINAL OF THIS AGREEMENT.
8.12. PUBLIC ANNOUNCEMENTS. BUYER SHALL CONSULT WITH SELLERS BEFORE
ISSUING ANY PRESS RELEASE OR OTHERWISE MAKING ANY PUBLIC ANNOUNCEMENTS WITH
RESPECT TO THIS AGREEMENT, AND NEITHER SELLERS NOR BUYER SHALL ISSUE ANY SUCH
PRESS RELEASE OR MAKE ANY SUCH PUBLIC ANNOUNCEMENT PRIOR TO SUCH CONSULTATION;
PROVIDED, HOWEVER, THAT NOTHING CONTAINED HEREIN SHALL PROHIBIT BUYER FROM
MAKING ANY PUBLIC DISCLOSURE WHICH IT, WITH THE ADVICE OF COUNSEL, AND TO THE
EXTENT PRACTICABLE AFTER CONSULTATION WITH SELLERS, DEEMS NECESSARY OR
ADVISABLE IN
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ORDER TO COMPLY WITH FEDERAL AND STATE SECURITIES LAWS.
8.13. GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT
REGARD TO ITS CONFLICT OF LAW DOCTRINES.
8.14 CHOICE OF FORUM. ANY SUIT, ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT MAY BE BROUGHT IN THE SUPERIOR COURT OF SAN LUIS OBISPO COUNTY
OR IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
AND BUYER AND SELLERS HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH
COURTS FOR THE PURPOSE OF ANY SUCH SUIT, ACTION OR PROCEEDING. BUYER AND
SELLERS HEREBY IRREVOCABLY WAIVE ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT BROUGHT IN THE COURTS STATED ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVE ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
ARTICLE 9
DEFINITIONS
9.1 AS USED IN THIS AGREEMENT, THE FOLLOWING WORDS AND TERMS SHALL
HAVE THE MEANING SPECIFIED IN THIS SECTION 9.1.
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"AGREEMENT" MEANS THIS STOCK PURCHASE AGREEMENT.
"BALANCE SHEET DATE" MEANS DECEMBER 31, 1996.
"BEST KNOWLEDGE OF THE SELLERS" SHALL MEAN, SUBJECT THE FIRST
PARAGRAPH OF ARTICLE 2 HEREOF, "TO THE CURRENT ACTUAL KNOWLEDGE OF THE SELLERS
BASED UPON THE INFORMATION THAT HAS COME TO THEIR ATTENTION IN THE COURSE OF
OWNING, OPERATING, AND SERVING AS DIRECTORS AND SENIOR EXECUTIVE OFFICERS OF
THE COMPANY OR OTHERWISE."
"BUSINESS" MEANS THE BUSINESS CONDUCTED BY TRUSCO OF DESIGNING,
FABRICATING, MANUFACTURING AND ERECTING STEEL STRUCTURES, INCLUDING STORAGE
TANKS, PRESSURE VESSELS AND SHOP-BUILT TANKS (BOTH ABOVEGROUND AND UNDER
GROUND).
"BUYER" MEANS ASTROTECH INTERNATIONAL CORPORATION, A DELAWARE
CORPORATION.
"CLOSING" HAS THE MEANING GIVEN THAT TERM IN SECTION 1.3.
"CLOSING DATE" MEANS THE DATE ON WHICH THE CLOSING UNDER THIS
AGREEMENT OCCURS.
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
"COMPANY" MEANS TRUSCO TANK, INC., A CALIFORNIA CORPORATION.
"ENVIRONMENTAL LAWS" MEANS ALL APPLICABLE FEDERAL, STATE OR LOCAL
STATUTES, LAWS,
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ORDINANCES, CODES, RULES, REGULATIONS AND GUIDELINES (INCLUDING CONSENT DECREES
AND ADMINISTRATIVE ORDERS) RELATING TO PUBLIC HEALTH AND SAFETY AND PROTECTION
OF THE ENVIRONMENT AND FEDERAL, STATE, LOCAL OR COMMON LAW NUISANCE, PROPERTY
DAMAGE AND SIMILAR COMMON LAW THEORIES. THE TERM "ENVIRONMENTAL LAWS" INCLUDES,
BUT IS NOT LIMITED TO, (a) THE CLEAN AIR ACT, 42 U.S.C. SECTIONS 7401 ET SEQ.,
AS AMENDED, (b) THE CLEAN WATER ACT, 33 U.S.C. SECTIONS 1251 ET SEQ., AS
AMENDED, (c) THE RIVERS AND HARBORS ACTS OF 1899, 33 U.S.C. SECTIONS 401 ET
SEQ., AS AMENDED, (d) THE RESOURCE CONSERVATION AND RECOVERY ACT, 42 U.S.C.
SECTIONS 6901 ET SEQ., AS AMENDED, (e) THE COMPREHENSIVE ENVIRONMENTAL RESPONSE
COMPENSATION AND LIABILITY ACT OF 1980, 42 U.S.C. SECTION 9601 ET SEQ., AS
AMENDED, (f) THE TOXIC SUBSTANCES CONTROL ACT, 15 U.S.C. SECTIONS 2601 ET SEQ.,
AS AMENDED, AND (g) THE OCCUPATIONAL SAFETY AND HEALTH ACT, 29 U.S.C. SECTIONS
651 ET SEQ., AS AMENDED, AND IN EACH CASE THE IMPLEMENTATION REGULATIONS AND
INTERPRETATIONS OF SUCH ACTS AND REGULATIONS.
"ERISA" MEANS THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED.
"FINANCIAL STATEMENTS" MEANS THE AUDITED BALANCE SHEETS OF THE COMPANY
AS OF DECEMBER 31, 1994, 1995 AND 1996 AND RELATED AUDITED STATEMENTS OF
OPERATIONS, STOCKHOLDER'S EQUITY AND CASH FLOWS FOR THE THREE-YEAR PERIOD ENDED
DECEMBER 31, 1996 (TOGETHER WITH RELATED NOTES AND SCHEDULES).
"HSR ACT" MEANS THE HART-SCOTT-RODINO ANTI-TRUST IMPROVEMENT ACT OF
1976, AS AMENDED.
"IRS" MEANS THE INTERNAL REVENUE SERVICE.
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"NET LOSS" MEANS NET LOSS ATTRIBUTABLE TO THE OPERATIONS OF THE
COMPANY CALCULATED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
"1996 BALANCE SHEET" MEANS THE BALANCE SHEET OF THE COMPANY AS OF
DECEMBER 31, 1996.
"MULTIEMPLOYER PLAN" MEANS A "MULTIEMPLOYER PLAN" AS THAT TERM IS
DEFINED IN SECTION 3(37) OF ERISA.
"PETROWEST" MEANS PETROWEST EQUIPMENT, A CALIFORNIA CORPORATION.
"PLAN" MEANS ANY EMPLOYEE BENEFIT PLAN, (AS THAT TERM IS DEFINED IN
SECTION 3(3) OF "ERISA") OTHER THAN A MULTIEMPLOYER PLAN AS WELL AS ANY OTHER
WRITTEN OR FORMAL PLAN OR CONTRACT INVOLVING DIRECT OR INDIRECT COMPENSATION,
UNDER WHICH COMPANY OR ANY SUBSIDIARY HAS ANY PRESENT OR ANY FUTURE OBLIGATIONS
OR LIABILITY ON BEHALF OF THE EMPLOYEES OR FORMER EMPLOYEES OF THE COMPANY OR
ANY SUBSIDIARY, OR THEIR DEPENDENTS OR BENEFICIARIES, INCLUDING BUT NOT LIMITED
TO, EACH RETIREMENT, PENSION, PROFIT SHARING, THRIFT, SAVINGS, EMPLOYEE STOCK
OWNERSHIP, CASH OR DEFERRED, MULTIPLE EMPLOYER OR OTHER SIMILAR PLAN OR
PROGRAM.
"PURCHASE PRICE" HAS THE MEANING GIVEN THAT TERM IN SECTION 1.2.
"SELLERS" MEANS JARED A. TRUSSLER A RESIDENT OF NEW ZEALAND, RAY
CROSNO AND LESLIE SCOTT, NATURAL PERSONS RESIDING IN CALIFORNIA.
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"TAXES" MEANS FEDERAL, STATE, FOREIGN, COUNTY, LOCAL, AND OTHER INCOME
OR FRANCHISE TAXES, AD VALOREM, PERSONAL PROPERTY, REAL ESTATE, PROPERTY,
EXCISE, PROFITS, OCCUPATION, SALES, USE, GROSS RECEIPTS, PAYROLL, WITHHOLDING,
USE AND OCCUPANCY, BUSINESS AND OCCUPATION, MERCANTILE, CAPITAL STOCK AND
FRANCHISE, OR OTHER TAXES, LEVY, IMPOST, DUTY OR GOVERNMENTAL CHARGE (AND ANY
INTEREST AN PENALTIES), ESTIMATED TAXES, ASSESSMENTS, WHETHER OR NOT DISPUTED,
WHETHER BASED UPON INCOME, PROFITS, ASSETS OR OTHERWISE.
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IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT ON
THE DATE FIRST ABOVE WRITTEN.
ASTROTECH INTERNATIONAL CORPORATION
By /s/ T. RICHARD MATHEWS
---------------------------------
TITLE: President
/s/ JARED A. TRUSSLER
---------------------------------
Jared A. Trussler
/s/ LESLIE SCOTT
---------------------------------
Leslie Scott
/s/ RAY CROSNO
---------------------------------
Ray Crosno
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