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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Date of Report (date of earliest event reported) October 28, 1996.
CHAMPION INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
WEST VIRGINIA 0-21084 55-0717455
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(State or other juris- (Commission File No.) (IRS Employer Identi-
diction of corporation) fication No.)
2450 First Avenue
P. O. Box 2968
Huntington, West Virginia 25728
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (304) 528-2791
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NOT APPLICABLE
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(Former name or former address, if changes since last report)
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INFORMATION TO BE INCLUDED IN THE REPORT
Item 2. ACQUISITION OR DISPOSITION OF ASSETS
On October 28, 1996, Champion Industries, Inc. ("Champion"), a West
Virginia corporation, announced that it had executed a Stock Purchase Agreement
dated October 28, 1996 with IRM Services, Inc., a Florida corporation, providing
for the purchase of all the issued and outstanding capital stock of Interform
Corporation ("Interform"), a Pennsylvania corporation and wholly-owned
subsidiary of IRM Services, Inc., for a cash price of Two Million Five Hundred
Thousand Dollars ($2,500,000.00) and the assumption of a certain liability of
Interform to IRM Services, Inc. in the amount of One Hundred Thirty Thousand
Dollars ($130,000.00). Consummation of the acquisition is conditioned upon
satisfaction of the provisions of the Stock Purchase Agreement. Upon
consummation of such purchase, Interform will become a wholly-owned subsidiary
of Champion and will continue operations as such. Champion anticipates
utilizing a combination of working capital and bank borrowings to provide the
cash consideration required by the Stock Purchase Agreement.
Interform is one of the top fifteen independent business form manufacturers
in the United States. It sells through a distributor network concentrated in
Eastern Pennsylvania, New Jersey and metropolitan New York, New York. It also
engages in direct sales of business forms in the Pittsburgh, Pennsylvania area.
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Interform operates a manufacturing facility in Bridgeville, Pennsylvania
producing continuous and snap-out business forms, checks and envelopes, and
has advised of its plans to close a manufacturing facility in Lock Haven,
Pennsylvania.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
The exhibits listed on the Exhibit Index on page 4 of this Form 8-K are
filed herewith.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CHAMPION INDUSTRIES, INC.
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(Registrant)
/s/ JOSEPH C. WORTH, III
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Date: November 1, 1996 Joseph C. Worth, III, Vice President
and Chief Financial Officer
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EXHIBIT INDEX
2.1 Interform Corporation Stock Purchase Agreement between IRM Services,
Inc. and Champion Industries, Inc. dated October 28, 1996.
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Exhibit 2.1
INTERFORM CORPORATION
STOCK PURCHASE AGREEMENT
BETWEEN
IRM SERVICES, INC.
("Seller")
AND
CHAMPION INDUSTRIES, INC.
("Buyer")
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as of October 28,
1996, by and among Champion Industries, Inc., a West Virginia corporation
("Buyer"), and IRM SERVICES, INC., a Florida corporation ("Seller"), a wholly
owned subsidiary of Guaranty Reassurance Corporation, a Florida insurance
corporation.
FACTUAL BACKGROUND
A. Seller owns all of the outstanding capital stock of Interform
Corporation, a Pennsylvania corporation (the "Company"). The Company is
engaged in the printing business (the "Business").
B. Seller proposes to sell and assign to the Buyer, and the Buyer
proposes to purchase from the Seller, on the terms and conditions set forth
in this Agreement, all of the outstanding shares of the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth in this Agreement, the parties hereto agree as follows:
1. DUE DILIGENCE; ETC.
1.1 DEPOSIT. As provided in Section 3.2(a) below, upon execution of
this Agreement, Buyer shall pay Seller $25,000 as Earnest money, as
hereinafter defined.
1.2 DUE DILIGENCE. For a period of thirty (30) days after the date of
this Agreement, Buyer shall have the right to conduct such due diligence
examination of the Company and its assets and liabilities, including, without
limitation, environmental audits as Buyer desires, and Seller agrees to cause
the Company to cooperate with the Buyer and assist Buyer in its due diligence
examination of the Company and its books and records.
1.3 CLOSING OR TERMINATION. At any time prior to the expiration of the
thirty (30) day due diligence period, Buyer shall have the right to terminate
this Agreement, in the event Buyer is not satisfied with the results of its
due diligence examination of the Company by so notifying Seller in writing
and, provided such termination notice is received by Seller within such
thirty (30) day period, the Agreement shall be terminated and Seller shall
return the Earnest Money to Buyer. In the event Seller does not receive such
termination notice within such period, Buyer shall be deemed to be satisfied
with its due diligence examination of the Company, each of Buyer and Seller
shall file its HSR Act filing within two business days thereafter
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and, subject to the satisfaction of waiver of the closing conditions set forth
in this Agreement, the sale and purchase of the Shares shall be closed within
thirty-two (32) days after the expiration of the due diligence period.
2. PURCHASE AND SALE OF SHARES
Subject to the terms and conditions of this Agreement, at the Closing,
the Seller shall sell, assign, transfer and deliver to the Buyer and the
Buyer shall purchase from the Seller all of the issued and outstanding
shares of all classes of capital stock of the Company, (collectively, the
"Shares") free and clear of all pledges, liens, security interests, claims
and encumbrances of any nature whatsoever ("Liens"). The Seller shall cause
the delivery to the Buyer of all documents, certificates and instruments
reasonably requested by the Buyer to evidence the transfer and conveyance of
good and marketable title to the Shares to the Buyer free and clear of any
Liens.
3. PURCHASE PRICE -- PAYMENT
3.1 PURCHASE PRICE. The purchase price (the "Purchase Price") payable
for the Shares shall be $2,500,000. In addition, at closing the Buyer shall
purchase, or shall cause the Company to pay, that certain payable resulting
from an intercompany tax sharing agreement owing from the Company to Seller
in the amount of $130,000 (the "Intercompany Amount").
3.2 PAYMENT OF PURCHASE PRICE. The Purchase Price and the Intercompany
Amount shall be paid by the Buyer to the Seller as follows:
(a) EARNEST MONEY. Immediately upon execution of this Agreement,
the Buyer shall deliver Twenty-five Thousand Dollars ($25,000.00)
("Earnest Money") to Seller.
(b) AT THE CLOSING. The Buyer shall deliver (i) the Intercompany
Amount and (ii) the balance of the Purchase Price, which together with the
Earnest Money, shall constitute the Purchase Price.
(c) METHOD OF PAYMENT. All payments under Section 3.2(a) shall be
made in the form of certified or bank cashier's check payable to the order
of recipient. All payments under Section 3.2(b) shall be made by wire
transfer of immediately available funds to an account designated by the
recipient not less than twenty-four (24) hours prior to the time of the
payment specified herein.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer as follows:
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4.1 CORPORATE ORGANIZATION, POWER AND AUTHORIZATION. The Company is
duly organized, validly existing and in good standing under the laws of
Pennsylvania and is qualified as a foreign corporation in Ohio, West
Virginia, New Jersey and Indiana.
4.2 CORPORATE DOCUMENTS, ETC. The copies of the Articles of
Incorporation and By-Laws of the Company, including any amendments thereto,
which have been or will be made available for inspection by the Seller to the
Buyer are true, correct and complete copies of such instruments as presently
in effect. The corporate minute book and stock records of the Company which
have been or will be furnished to the Buyer for inspection are true, correct
and complete and accurately reflect all material corporate action taken by
the Board of Directors or Shareholders of the Company.
4.3 CAPITALIZATION OF THE COMPANY. The authorized capital stock of the
Company consists entirely of 20,000 shares of voting common stock, par value
$10.00 per share. 10,000 shares of such capital stock are issued or
outstanding and owned of record and beneficially by Seller, which is a
wholly-owned subsidiary of Guaranty Reassurance Corporation. All such shares
of capital stock of the Company are validly issued, fully paid and
nonassessable. There are no (a) securities or instruments convertible into
or exchangeable for any of the Company's capital stock or other securities,
(b) options, warrants or other rights to purchase or subscribe to capital
stock or other securities of the Company or securities which are convertible
into or exchangeable for capital stock or other securities of the Company, or
(c) contracts, commitments, agreements, understandings or arrangements of any
kind relating to the issuance, sale or transfer of any capital stock or other
equity securities of the Company. Except as set forth on Schedule 4.3, the
Company does not own, directly or indirectly, beneficially or otherwise, any
shares of stock or other securities and is not a party to a partnership,
joint venture or similar arrangement. None of the Shares have been issued in
violation of any preemptive rights of shareholders.
4.4 FINANCIAL STATEMENTS. The Seller has delivered to the Buyer a
complete and correct copy of the Company's audited financial statements for
the year ending 12/31/95 and the Company's unaudited financial statement for
six months ending 6/30/96. To the Seller's knowledge, except as set forth on
Schedule 4.4, the financial statements have been prepared in accordance with
the books and records of Company, and fairly present, in accordance with
generally accepted accounting principles (except as expressly set forth or
disclosed in the notes or comments) consistently applied with prior periods,
the assets, liabilities and financial position of the Company as of the dates
and for the periods indicated. To the best of Seller's knowledge, except as
set forth on Schedule 4.4 since 6/30/96, there has been no material adverse
change in the condition
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(financial or otherwise) of the Company and its assets, results of operations
or prospects other than changes generally impacting the industry and matters
set forth on Schedule 4.4.
4.5 TAX MATTERS. To the Seller's knowledge, except as set forth on
Schedule 4.5, the Company has filed all material federal, state, county and
local tax returns, both United States and foreign, which are required to be
filed by it for each of the taxable periods for which such returns are due.
To the Seller's knowledge, except as set forth on Schedule 4.5, no claims or
deficiencies have been asserted against the Company with respect to any taxes
or other governmental charges or levies which have been paid or otherwise
satisfied and the Company has not entered into any agreement for the
extension of time for assessment or payment of any federal, state, county or
local tax or the filing of any return, either United States or foreign.
4.6 NO LITIGATION. Except as set forth in Schedule 4.6, to the Seller's
knowledge there is no action, suit or proceeding pending or threatened/or
unasserted but evaluated by the Seller and considered probable of assertion
against Company, its business or any of its assets.
4.7 LICENSES AND PERMITS. To the Seller's knowledge, the Company has
all material licenses and permits required for the conduct of the Business as
presently conducted. To the Seller's knowledge, since 1/1/95 the Business
has not been operated under or subject to, or in default with respect to, any
order, writ, injunction or decree of any court or any government, agency or
institution.
4.8 INSURANCE. To the Seller's knowledge, the Company has in effect
policies of fire, liability, workers compensation, health and other forms of
insurance with respect to the Business and properties of Company, true and
correct copies of which are available to the Buyer for inspection.
4.9 BROKERAGE AND FINANCIAL ADVISORS. Except as set forth on Schedule
4.9, no broker, finder, or financial advisor is entitled to any fee or
compensation from the Buyer or the Company in connection with this Agreement
or the transactions contemplated hereby as a result of any action by the
Seller or Company and any such fee is payable by Seller and not the Company.
4.10 BANK ACCOUNTS. Schedule 4.10 sets forth the names and locations of
all banks and other financial institutions at which the Company maintains a
safe deposit box, lock box or checking, or other account of any nature.
4.11 AUTHORIZATION; ENFORCEABILITY. The execution and delivery of this
Agreement have been duly authorized by the Board of Directors and
shareholders of Seller and no other corporate act
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or proceeding on the part of Seller or its shareholders is necessary to
authorize this Agreement, or the other documents and instruments to be
executed and delivered by the Seller pursuant hereto, or the consummation of
the transactions contemplated hereby. This Agreement constitutes the legal,
valid and binding obligations of Seller, enforceable in accordance with their
respective terms, except to the extent that their enforcement is limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting
the enforcement of creditors' rights generally and by general principles of
equity.
4.12 NO VIOLATION OR CONFLICT. The execution, delivery and performance
of this Agreement by the Seller, and the consummation by such parties of the
transactions contemplated hereby: (a) do not and will not violate or conflict
with any material provision of law or regulation, or any material writ,
order, judgment or decree of any court or governmental or regulatory
authority applicable to Seller or the Company, or any provision of any such
party's organizational documents; and (b) to the Seller's knowledge do not
and will not, with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default, cause the acceleration of
performance or require any consent under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of any such party
pursuant to any instrument or agreement to which any such party or entity is
a party or by which any such party or entity or its respective properties may
be bound or affected, other than instruments or agreements as to which
consent the Seller believes can be obtained at or prior to the Closing, each
of which instruments or agreements to the Seller's knowledge is listed on
Schedule 4.12 hereto.
4.13 CONSENT OF GOVERNMENTAL AUTHORITIES. To the knowledge of Seller, no
material consent, approval or authorization of, or registration,
qualification or filing with any federal, state or local governmental or
regulatory authority, or any other person or entity, is required to be made
by any of the Seller, or the Company in connection with the execution,
delivery or performance of this Agreement by any such party or the
consummation by any such party of the transactions contemplated hereby except
for filings and consents obtained prior to closing.
4.14 COMPLIANCE WITH LAWS. To the Seller's knowledge, the Company is in
compliance with all material federal, state, local and foreign laws,
ordinances, regulations, judgments, rulings, orders and other requirements
applicable to it.
4.15 OWNED AND LEASED PROPERTY. The Company has good and marketable
title to all real property and all material equipment and other personal
property, tangible and intangible, included as an asset in the Financial
Statements dated 12/31/95 (other than property disposed of in the ordinary
course of business consistent with past practices since that date) and to
each material item of
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equipment and other personal property, tangible and intangible, acquired
since 12/31/95, free and clear of any Liens, except as set forth in Schedule
4.15 hereto. To the Seller's knowledge, all material assets, tangible or
intangible, owned by any third party which are used in the operation of the
business of the Company as presently conducted are used pursuant to valid
leases and/or licenses.
4.16 TITLE TO SHARES. Upon closing and delivery of the certificate
evidencing the Shares, together with a stock power executed in blank, the
Buyer will acquire good and marketable title to the Shares, free and clear
of all Liens and/or proxies or agreements affecting voting or disposition of
the Shares, and such interests shall be owned by the Buyer, fully paid and
nonassessable.
4.17 INTANGIBLE PROPERTY. To Seller's knowledge, the Company owns or has
the right to use all foreign and domestic patents, patent rights, trademarks,
service marks, trade names, brands and material copyrights (whether or not
registered and, if applicable, including pending applications for
registration), used or by the Company (collectively, the "Rights"). Except
as set forth on Schedule 4.17, to the knowledge of the Seller: (a) the
Company has not received any notice that it is in conflict with or infringing
upon the asserted rights of others in connection with the Rights and neither
the use of the Rights by the Company or the operation of the Business in
infringing or has infringed upon any rights of others; and (b) the
consummation of the transactions contemplated hereby will not alter or impair
any of the Rights.
4.18 GOVERNMENTAL AUTHORIZATIONS. To the Seller's knowledge, the Company
has all material authorizations, consents, approvals, franchises, licenses
and permits required under applicable law or regulation for the operation of
the business of the Company as presently operated (the "Governmental
Authorizations"). To the Seller's knowledge, all the Governmental
Authorizations have been duly issued or obtained and are in full force and
effect, and the Company is in compliance with the terms of all the
Governmental Authorizations.
4.19 ABSENCE OF UNDISCLOSED LIABILITIES. To the Seller's knowledge,
except as reflected in the Schedules to this Agreement and except to the
extent reflected or reserved against in the Company's financial statements of
12/31/95 and 6/30/96, (a) the Company as of such dates had no liabilities or
obligations of any nature, whether accrued, absolute, contingent or
otherwise, including, without limitation, tax liabilities due or to become
due, and of a kind which is required to be reflected in a financial
statement, nor does there exist a set of circumstances resulting from
transactions effected or events occurring on or prior to 12/31/95 or 6/30/96,
or from any action omitted to be taken during such period that could
reasonably be expected to result in any such obligation or liability and (b)
there is no
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basis for the assertion against the Company of any such liability of any
nature or in any amount not fully reflected or reserved against in the
financial statements of 12/31/95 and 6/30/96, except changes incurred in the
regular course of business since that date.
4.20 CONTRACTS. To the Seller's knowledge, except as set forth on
Schedule 4.20, the Company is not a party or subject to any of the following
(whether written or oral, express or implied):
(i) any employment contract or understanding (including any
understandings or obligations with respect to severance or termination pay
liabilities or fringe benefits) with any present or former officer,
director, employee or consultant, other than those which are terminable at
will by the Company, or as otherwise required by applicable law.
(ii) any plan, contract or understanding providing for bonuses,
pensions, options, deferred compensation, retirement payments, profit
sharing or similar understandings, with respect to any present or former
officer, director or consultant; and
(iii) any contract not made in the ordinary course of business
containing covenants limiting the freedom of the Company to compete in any
line of business or with any person or involving any restriction of the
area in which, or method by which, the Company will carry on its business
(other than as may be required by law or applicable regulatory
authorities).
4.21 LABOR. To the Seller's knowledge, except as set forth on Schedule
4.21: (a) no strike, work stoppage or other labor dispute is pending or
threatened between the Company and any of its directors, officers, employees,
agents or consultants, or any labor union claiming to represent such
employees, and no application for a certification of a collective bargaining
agent is pending or threatened, (b) the Company has no agreement with any
labor union or collective bargaining group, (c) there are no unfair labor
practices, charges, grievances, arbitrations, claims, or demands pending or
in process or threatened by or on behalf of any employees of the Company, or
any written complaints received by the Company threatening, or, with respect
to unresolved complaints, on file with any federal, state or local
governmental agencies alleging age, employment or other discrimination and
(d) the Company is not in material violation of any applicable federal, state
or local law relating to the employment of labor.
4.22 EMPLOYMENT BENEFITS. To the Seller's knowledge, except as set forth
on Schedule 4.22, with respect to any plan or arrangement of Company which
constitutes an employee benefit plan within the meaning of Section 3(3) of
the Employees Retirement Income Security Act of 1974 ("ERISA"):
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(a) Except for liabilities to the Pension Benefit Guaranty
Corporation pursuant to Section 4007 of ERISA, or to the Internal Revenue
Service under Section 4971 of the Internal Revenue Code of 1954, the
Company has no liability to the Pension Benefit Guaranty Corporation or to
the Internal Revenue Service with respect to any pension plan qualified
under Section 401 of the Internal Revenue Code of 1954;
(b) All "employee benefit plans", as defined in Section 3(3) of
ERISA, which cover one or more employees employed by the Company (each
individually, a "Plan", and collectively, the "Plan") comply in all
material respects with ERISA and , where applicable for tax-qualified or
tax-favored treatment, with the Internal Revenue Code of 1986. As of
12/31/95, the Company had no material liability under any Plan that is not
reflected on the audited statements of financial condition of Company as of
such date, or in the notes thereto (other than such normally unrecorded
liabilities under the Plans for sick leave, holiday, education, bonus,
vacation, incentive compensation and anniversary awards, provided that such
liabilities are not in any event material). Neither the Plans nor any
trustee or administrator thereof has engaged in a "prohibited transaction"
within the meaning of Section 406 of ERISA or, where applicable, Section
4975 of the Internal Revenue Code of 1986 for which no exemption is
applicable, nor have there been any "reportable events" within the meaning
of Section 4043 of ERISA for which the thirty (30) day notice therefor has
not been waived; and
(c) No litigation is pending against any plan seeking the payment of
benefits or alleging a breach of trust or fiduciary duty by any plan
fiduciary.
4.23 ENVIRONMENTAL MATTERS. To the Seller's knowledge, except as set
forth on Schedule 4.23:
(a) The operations of the business of the Company and the buildings
in which it is conducted conform with all material respects with all
applicable federal, state and local laws, ordinances and regulations
(including those relating to zoning and environmental protection), and all
buildings or operations of the Company and the business that are subject to
the Occupational Safety and Health Act of 1970, as amended, comply in all
material respects with all employee working conditions as prescribed by
such Act;
(b) The Company has no underground storage tanks, either empty or
containing any liquid, including but without limitation solvents, fuel or
waste oil, on any premises used in its business;
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(c) The Company has obtained all material permits, licenses and
other authorizations and filed all material notices which are required to
be obtained or filed by Company for the operation of its business under
federal, state and local laws relating to pollution, protection of the
environment or waste disposal ("Environmental Laws"). The Company is in
compliance in all material respects (i) with all terms and conditions of
all required permits, licenses and authorizations; and (ii) all other
applicable limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in the
Environmental Laws or contained in any law, regulation, code, plan, order,
decree, judgment, notice or demand letter issued, entered, promulgated or
approved thereunder. There are no past or present events, conditions,
circumstances, activities, practices, incidents, actions or plans which may
interfere with or prevent continued compliance in all material respects, or
which may give rise to any material common law or statutory liability, or
otherwise form the basis of any material claim, action, suit, proceeding,
hearing or investigation, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, release or threatened release into
the environment, of any pollutant, contaminant, waste or hazardous or
toxic material with respect to the Company or its businesses, properties
or plants; and
(d) There are no actions, suits or proceedings, or demands, claims,
notices or investigations (including, without limitation, notices, demand
letters or requests for information from any environmental agency)
instituted or pending, or threatened relating to the liability of the
Company or any of its operations or buildings under any Environmental Law.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller as follows:
5.1 CORPORATE. The Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of West Virginia.
The Buyer has all requisite corporate power and authority to enter into this
Agreement and the other documents and instruments to be executed and
delivered by the Buyer and to carry out the transactions contemplated hereby
and thereby.
5.2 AUTHORITY. The execution and delivery of this Agreement have
been duly authorized by the Board of Directors of the Buyer. No other
corporate act or proceeding on the part of the Buyer or its shareholders is
necessary to authorize this Agreement or the other documents and instruments
to be executed and delivered by the Buyer pursuant hereto or the consummation
of the transactions contemplated hereby and thereby. This Agreement
constitutes the valid and binding agreement of the Buyer, enforceable in
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accordance with its terms, except as such may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights generally,
and by general equitable principles.
5.3 NO BROKERS OR FINDERS. No broker, finder or financial advisor is
entitled to any fee or compensation from the Seller in connection with this
Agreement or the transactions contemplated hereby as a result of any action
of the Buyer. Except as set forth on Schedule 5.3, the Buyer has not
promised or agreed to pay any fee or compensation for services as a broker,
finder, financial advisor or otherwise in connection with this transaction
(other than payment of the Buyer's attorneys and accountants at their
standard rates).
5.4 UNITED STATES SECURITIES LAW COMPLIANCE. The Buyer acknowledges
that the offering and sale of the Shares is intended to be exempt from
registration under the Securities Act of 1933, as amended (the "Securities
Act"). The Buyer understands and agrees that the Buyer will sell or
otherwise transfer the Shares or any portion thereof only in accordance with
the provisions of the Securities Act, pursuant to registration under the
Securities Act or pursuant to an available exemption from registration
thereunder and otherwise in a manner that does not violate the securities
laws of any state of the United States.
5.5 PURCHASE FOR OWN ACCOUNT. The Buyer is acquiring the Shares for the
Buyer's own account as principal, for investment and not with a view to, or
for the resale, distribution, or fractionalization thereof, in whole or in
part, and no other person has any direct or indirect beneficial interest in
the Shares.
5.6 ACCREDITED INVESTOR, ETC. The Buyer has such knowledge and
experience in financial, tax, and business matters that it is capable of
evaluating the merits and risks of its purchase of the Shares. The Buyer's
financial situation is such that the Buyer can afford to bear the economic
risk of holding the Shares for an indefinite period of time and suffer
complete loss of the Buyer's investment in the Shares.
5.7 BUYER'S BACKGROUND. The Buyer's management and controlling
shareholders have knowledge and experience in connection with the printing
industry, management and finance. In addition, the Buyer is familiar with
the Company and its business. Except as expressly provided herein, the
Seller has made no representations and warranties regarding the Company, its
business, its assets or, its prospects.
5.8 KNOWLEDGE OF BREACH. Buyer has not learned, by the Closing, of any
breach by Seller of any warranty, representation or covenant herein which has
not been disclosed in writing to Seller prior to the Closing.
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6. COVENANTS
6.1 HSR ACT FILINGS. Each party shall, in cooperation with the other
party, file or cause to be filed any reports or notifications that may be
required to be filed by it under the Hart-Scott-Rodino Antitrust Improvement
Act of 1976 (the "HSR Act"), with the Federal Trade Commission and the
Antitrust Division of the Department of Justice, and shall furnish to the
other all such information in its possession as may be necessary for the
completion of the reports or notifications to be filed by the other. Prior
to making any communication, written or oral, with the Federal Trade
Commission, the Antitrust Division of the federal Department of Justice or
any other governmental agency or authority or members of their respective
staffs with respect to this Agreement or the transactions contemplated
hereby, the Seller and the Company shall consult with the Buyer. The Buyer
shall bear the cost of any filing fees or similar expenses arising from the
HSR filing.
6.2 ACCESS TO INFORMATION AND RECORDS. During the period prior to the
Closing the Seller shall cause the Company to give the Buyer (and after the
Closing, the Buyer shall cause the Company to give to Seller, solely with
respect to matters arising on or prior to Closing), its counsel, accountants
and other representatives access during normal business hours to all of the
properties, books and records of the Company for the purpose of such
inspection, investigation and testing as the other party deems appropriate
and furnish or cause to be furnished to the other party and its
representatives all relevant information with respect to the business
experience, financial condition and background of the Company on or prior to
Closing as the other party may reasonably request. All such information
shall be kept confidential by Buyer (or Seller, as the case may be) and not
disclosed to any third person until the completion of the Closing (and
thereafter as to Seller). Seller shall have no right of access to any
records of the Company generated or created after Closing. Company is not
being compensated in any way for retaining possession of such records and
shall have no liability for any loss or destruction of any records.
6.3 CONDUCT OF BUSINESS PENDING THE CLOSING. From the date hereof until
the Closing, except as contemplated by this Agreement, unless otherwise
approved by the Buyer, the Seller shall cause each of the following to occur:
(a) NO CHANGES. The Company will carry on its business in the same
manner as heretofore conducted and shall not make any change outside of
the ordinary course of its business.
(b) NO CORPORATE CHANGES. The Company shall not amend its Articles
of Incorporation or By-Laws or make any changes in authorized or issued
capital stock or issue or grant any
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options, warrants or other rights to purchase shares of its authorize
stock.
(c) MAINTENANCE OF INSURANCE. The Company shall maintain all of the
insurance in effect as of the date hereof.
(d) MAINTENANCE OF PROPERTY. The Company shall use and operate all
property of the Company in a normal business manner.
(e) BENEFIT PLANS. The Company shall not enter into or amend any
employment, retirement, deferred compensation, consultant, group insurance
or similar plan in respect of any of its directors, officers or employees,
or increase the current level of contributions to any such plan now in
effect.
(f) ADDITIONAL MATTERS. The Company shall not (i) incur any material
obligation or enter into any material contract or transaction or amend or
terminate any Material Agreement, (ii) declare, set aside or pay any
dividend or other distribution, (iii) guarantee the obligation of any
person or entity, (iv) incur any lien, debt, liability or obligation, or
dispose of any assets, other than in the ordinary course of business
consistent with past practices or (v) acquire, or merge with, any other
entity.
6.4 CONSENTS. The Buyer and the Seller will use their reasonable best
efforts, in good faith, prior to Closing to obtain all consents necessary for
the consummation of the transactions contemplated hereby.
6.5 OTHER ACTION. The Buyer and the Seller shall use their reasonable
best efforts, in good faith, to cause the fulfillment at the earliest
practicable date of all of the conditions to the parties' obligations to
consummate the transactions contemplated in this Agreement.
6.6 FURTHER ASSURANCES. The parties shall deliver any and all other
instruments or documents required to be delivered pursuant to, or necessary
or proper in order to give effect to, the provisions of this Agreement,
including without limitation all necessary stock powers and such other
instruments of transfer as may be necessary or desirable to transfer
ownership of the Shares and to consummate the transactions contemplated by
this Agreement.
7. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS
The obligations of the Buyer to consummate the transaction shall be
subject to the satisfaction prior to or at the Closing of each of the
following conditions:
7.1 REPRESENTATIONS AND WARRANTIES TRUE OF THE CLOSING DATE. The
representations and warranties made by the Seller in this
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Agreement shall be true and correct in all material respects.
7.2 COMPLIANCE. The Seller shall have performed and complied with all
of its agreements and obligations under this Agreement which are to be
performed or complied with prior to or on the Closing Date.
7.3 ABSENCE OF LITIGATION. No action, suit or proceeding shall have
been commenced or threatened, to restrain, modify or prevent the carrying out
of the transactions contemplated hereby, or to seek damages in connection
with such transactions.
7.4 HART-SCOTT-RODINO WAITING PERIOD. All applicable waiting periods
related to the HSR Act shall have expired or terminated.
7.5 MATERIAL ADVERSE CHANGE. There shall not have occurred a material
adverse change between the date of this Agreement and the Closing in the
Business, operations or financial performance, condition (financial or
otherwise) or prospects of the Company.
7.6 CASUALTY. No material portion of the property of the Company shall
have been adversely affected in any material way (whether or not covered by
insurance) as a result of any fire, accident, flood or other casualty or act
of God or the public enemy, nor shall any material portion thereof have been
taken by eminent domain or become subject to condemnation.
7.7 CONSENTS OF THIRD PARTIES. All approvals and consents required to
effectuate this transaction shall have been obtained without any conditions
that Buyer reasonably determines would be materially burdensome to the
operation of the Company's business or that would require Buyer to divest or
cease to operate any significant part of its current operations.
7.8 OPINION OF COUNSEL. Buyer shall have received the opinion of
counsel for the Seller and Company dated the Closing Date substantially in
the form attached hereto as Exhibit 7.8.
8. CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS
The obligations of the Seller to consummate the transactions contemplated
in this Agreement shall be subject to the satisfaction prior to or at the
Closing of the following conditions:
8.1 REPRESENTATIONS AND WARRANTIES TRUE ON THE CLOSING DATE. Each of
the representations and warranties made by the Buyer in this Agreement shall
be true and correct in all material respects as though such representations
and warranties were made or given on and as of the Closing Date.
8.2 COMPLIANCE WITH AGREEMENT. The Buyer shall have
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performed and complied with all of the Buyer's obligations under this
Agreement which are to be performed or complied with by the Buyer prior to or
on the Closing Date including, without limitation, payment of the Purchase
Price.
8.3 ABSENCE OF LITIGATION. No action, suit or proceedings shall have
been instituted, commenced or threatened to restrain, modify or prevent the
carrying out of the transactions contemplated hereby, or seek damages in
connection with such transactions.
8.4 HART-SCOTT-RODINO WAITING PERIOD. All applicable waiting periods
related to the HSR Act shall have expired or terminated.
9. INDEMNIFICATION
9.1 INDEMNIFICATION OF THE BUYER. From and after the Closing Date, the
Seller shall indemnify and hold the Buyer, and its directors, officers,
employees, agents and affiliates harmless against any and all damages,
losses, deficiencies, liabilities, obligations, commitments, costs or
expenses (including legal and other expenses reasonably incurred in
investigating and defending against the same) ("Reimbursable Amounts")
incurred by the Buyer resulting from or in any way relating to (i) any untrue
statement contained in or any breach of any of the representations or
warranties made by Seller in this Agreement as and when made or (ii) any
failure by the Seller to comply with any of its covenants or agreements set
forth in this Agreement; provided, however, that the Seller shall not be
obligated to make indemnification payments under this Section 9.1 in excess
of the Purchase Price in the aggregate; provided, however, that any claim
under this section is made in writing no later than one year following the
closing and this indemnity shall no longer be of any effect as to claims
first made thereafter.
9.2 INDEMNIFICATION OF THE SELLER. From and after the Closing Date, the
Buyer shall indemnify and hold the Seller and its directors, officers,
employees, agents and affiliates harmless against any and all Reimbursable
Amounts incurred by the Seller resulting from or in any way relating to (i)
any untrue statement contained in or any breach of any of the representations
or warranties made by the Buyer in this Agreement as and when made, or (ii)
any failure by the Buyer to comply with any of its material covenants or
agreements set forth in this Agreement, or (iii) the failure by Buyer to pay,
or to cause the Company to pay, all disclosed liabilities of Company;
provided, however, that any claim under this section is made in writing no
later than one year following the closing and this indemnity shall no longer
be of any effect as to claims first made thereafter.
9.3 INDEMNIFICATION OF THIRD-PARTY CLAIMS. The obligations and
liabilities of any party to indemnify any other under this Article 9 with
respect to a Reimbursable Amount relating to or
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<PAGE>
arising from a claim relating to third parties (a "Third Party Claim") shall be
subject to the following terms and conditions:
(a) NOTICE AND DEFENSE. The party to be indemnified ("Indemnified
Party") shall give the party from whom indemnification is sought (the
"Indemnifying Party") prompt written notice of any such Third Party Claim
(and in any event within thirty (30) business days), including a brief
description of the Third Party Claim, the facts giving rise to the Third
Party Claim and a reasonable estimate of the amount of the Third Party
Claim, to the extent known at the time such notice is delivered. In the
event that the Indemnified Party fails promptly to provide such written
notice, the Indemnified Party shall lose any right it may have to be
indemnified under this Agreement for such Third Party Claim only to the
extent that the defense of such claim has been materially prejudiced by
such delay. The Indemnifying Party may undertake the defense thereof by
representatives chosen by it, provided that counsel selected by the
Indemnifying Party shall be reasonably acceptable to Indemnified Party. If
the Indemnifying Party undertakes the defense of a Third Party Claim, then
the Indemnifying Party shall be deemed to accept that it has an
indemnification obligation under this Section 9.3 with respect to such
Third Party Claim. So long as the Indemnifying Party is defending any such
Third Party Claim actively and in good faith, the Indemnified Party shall
not settle such Third Party Claim. The Indemnified Party shall make
available to the Indemnifying Party or its representatives all records and
other materials reasonably required by them and in the possession or under
the control of the Indemnified Party, for the use of the Indemnifying Party
and its representatives in defending any such Third Party Claim, and shall
in other respects give reasonable cooperation in such defense.
(b) FAILURE TO DEFEND. If the Indemnifying Party, within a
reasonable time after notice of any such Third Party Claim, fails to defend
such Third Party Claim actively and in good faith, then the Indemnified
Party will (upon further notice) have the right to undertake the defense,
compromise or settlement of such Third Party Claim or consent to the entry
of a judgment with respect to such Third Party Claim, on behalf of and for
the account and risk of the Indemnifying Party, and the Indemnifying Party
shall thereafter have no right to challenge the Indemnified Party's
defense, compromise, settlement or consent to judgment therein.
(c) INDEMNIFIED PARTY'S RIGHTS. Anything in this Section 9.3 to the
contrary notwithstanding, (i) if there is a reasonable probability that a
Third Party Claim may materially adversely affect the Indemnified Party
other than as a result of money damages or other money payments, the
Indemnified Party shall have the right to defend, compromise or settle such
Third Party Claim, and (ii) the Indemnifying Party shall not, without
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<PAGE>
the written consent of the Indemnified Party, settle or compromise any
Third Party Claim or consent to the entry of any judgment which does
not include as an unconditional term thereof the giving by the claimant
or the plaintiff to the Indemnified Party of a release from all
liability in respect of such Third Party Claim.
9.4 SURVIVAL OF THE REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. All representations, warranties, covenants and agreements of
either the Buyer or the Seller contained in this Agreement shall survive the
Closing Date.
10. CLOSING
10.1 DOCUMENTS TO BE DELIVERED BY THE SELLER. At the Closing, the
Seller shall deliver to the Buyer the following documents, in each case duly
executed or otherwise in proper form:
(a) COMPLIANCE CERTIFICATE. A certificate by the Seller that each of
the representations and warranties made by it in this Agreement are true
and correct in all material respects on and as of the Closing Date with the
same effect as though such representations and warranties had been made or
given on and as of the Closing Date (except for any changes permitted by
the terms of this Agreement or consented to in writing by the Buyer), and
that the Seller has performed and complied with all of its obligations
under or pursuant to this Agreement which are to be performed or complied
with on or prior to the Closing Date.
(b) STOCK CERTIFICATES. Certificates representing the Shares being
sold, together with accompanying stock powers or instruments of
assignment, duly endorsed for transfer.
(c) RESOLUTIONS. Resolutions of the Board of Directors of the Seller
authorizing the transactions contemplated by this Agreement, duly certified
as of the Closing Date by a corporate officer.
(d) INCUMBENCY CERTIFICATES. Certificates relating to each person
executing (as a corporate officer or otherwise on behalf of another
person) any document executed and delivered by the Seller to the Buyer.
(e) OTHER DOCUMENTS. All other documents, instruments or writings
required to be delivered to the Buyer at or prior to the Closing pursuant
to this Agreement and such other certificates of authority and documents as
the Buyer may reasonably request.
10.2 Documents to be Delivered by the Buyer. At the Closing, the Buyer
shall deliver to the Seller the following documents, in each case duly
executed or otherwise in proper form:
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<PAGE>
(a) COMPLIANCE CERTIFICATE. A certificate signed by the Buyer that
the representations and warranties made by the Buyer in this Agreement are
true and correct in all material respects on and as of the Closing Date
with the same effect as though such representations and warranties had been
made or given on and as of the Closing Date (except for any changes
permitted by the terms of this Agreement or consented to in writing by the
Seller), and that the Buyer has performed and complied with all of its
obligations under this Agreement which are to be performed or complied with
on or prior to the Closing Date.
(b) CERTIFIED RESOLUTIONS. A certified copy of the resolutions of
the Board of Directors of the Buyer authorizing and approving this
Agreement and the consummation of the transactions contemplated by this
Agreement.
(c) INCUMBENCY CERTIFICATE. Incumbency certificates relating to each
person executing (as a corporate officer or otherwise on behalf of another
person) any document executed and delivered to the Seller.
(d) FUNDS. Immediately available funds contemplated by Section
3.2(b).
(e) OTHER DOCUMENTS. All other documents, instruments or writings
required to be delivered to the Seller at or prior to the Closing pursuant
to this Agreement and such other certificates of authority and documents as
the Seller may reasonably request.
10.3 CLOSING DATE. The Closing of the transactions contemplated by this
Agreement shall occur within 2 days after the satisfaction or waiver of the
conditions contained in this Agreement at the offices of Seller or any other
place mutually acceptable to Buyer and Seller.
11. TERMINATION
11.1 RIGHT OF TERMINATION. This Agreement may be terminated at any time
prior to the Closing:
(a) by mutual written agreement of the Buyer and the Seller;
(b) by Buyer as provided in Section 1.3 hereof, in which event Seller
shall return to Buyer the Earnest Money;
(c) by Seller if the Closing has not occurred within 64 days after
the date hereof, in which event Seller shall retain the Earnest Money
unless the HRS Act waiting period has not expired or terminated at the time
of termination by Seller; or
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(d) by either Seller or Buyer upon the bankruptcy or assignment for
the benefit of creditors by the other party.
12. MISCELLANEOUS
12.1 AMENDMENT; EXTENSION; AND WAIVER.
(a) This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
(b) At any time on or prior to the Closing Date, the parties hereto
may (i) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, provided that any such extension
shall be granted or withheld in a party's absolute discretion, (ii) waive
any inaccuracies in the representations and warranties contained herein or
in any document delivered pursuant hereto, and (iii) waive compliance with
any of the covenants and agreements contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid if
set forth in any instrument in writing signed on behalf of such party. No
action taken pursuant to this Agreement, including any investigation by or
on behalf of any party hereto, shall be deemed to constitute a waiver by
the party taking such action of compliance with any agreement or covenant
contained herein. The waiver by any party hereto of any condition or of a
breach of any other provision of this Agreement shall not operate or be
construed as a waiver of any other condition or any other provision or
subsequent breach. The waiver by any party of any of the conditions
precedent to its obligations under this Agreement shall not preclude it
from seeking redress for breach of this Agreement other than with respect
to the condition so waived.
12.2 PUBLICITY. Except as may otherwise be required by law, no
publicity, release or announcement concerning this Agreement or the
transactions contemplated hereby shall be made without advance approval
thereof by the Buyer and the Seller.
12.3 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and bind the Seller and the Buyer, and their successors and assigns.
Neither this Agreement nor any right hereunder nor any part hereof may be
assigned by any party hereto without the prior written consent of the other
parties hereto; provided, however, that the Seller shall not unreasonably
withhold consent to the Buyer's assignment of a majority of its interest to
another entity which is directly or indirectly owned by the Buyer or its
affiliates and the balance to the other parties. Prior to any such
assignment, the consent of all necessary regulatory authorities must be
obtained.
12.4 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement
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<PAGE>
will be governed by and construed in accordance with the laws of the State of
Florida (without giving effect to principles of conflicts of laws) applicable
to a contract executed and to be performed in such state. Each of the
parties hereto agrees that any suit, action or proceeding with respect to
this Agreement may be brought against it in any state or Federal court of
competent jurisdiction in the Middle District of the State of Florida
(Jacksonville Division) or Duval County, and irrevocably waives any (i) right
of immunity that such party may now have or hereafter acquire from service of
process or the jurisdiction of the aforesaid courts and (ii) any objection
that such party may now have or hereafter acquire to the laying of venue of
any such suit, action or proceeding in any such court. The parties hereby
irrevocably accept and submit themselves to the jurisdiction of such courts
in any such suit, action or proceeding, and agree that final judgment (with
the exhaustion of all appeals) shall be conclusive and binding in any
jurisdiction in which such party resides or owns property.
12.5 ENTIRE AGREEMENT. This Agreement supersedes all prior discussions
and agreements between, and contains the sole and entire agreement between
the parties with respect to the subject matter hereof.
12.6 NO THIRD PARTY BENEFICIARIES. This Agreement is only for the benefit
of the parties hereto and does not confer any right, benefit, or privilege
upon any person or entity not a party to this Agreement.
12.7 SCHEDULES. The Schedules to this Agreement are a part of this
Agreement as if fully set forth herein. All references herein to Articles,
Sections, and Schedules shall be deemed references to such parts of this
Agreement, unless the context shall otherwise require.
12.8 EXPENSES. Except as otherwise specifically provided herein, the
parties to this Agreement shall bear their respective expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including, without limitation, all fees
and expenses of agents, representatives, counsel and accountants.
12.9 HEADINGS. The headings used in this Agreement have been inserted for
convenience and do not constitute matter to be construed or interpreted in
connection with this Agreement.
12.10 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under any present or future law, and if
the rights or obligations of any party under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part
20
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hereof, (c) the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid, or
unenforceable provision or by its severance purchase, and (d) in lieu of such
illegal, invalid, or unenforceable provision, there will be added
automatically as a part of this Agreement, a legal, valid, and enforceable
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible.
12.11 NOTICES. Any notice or communication given pursuant to this
Agreement must be in writing and will be deemed to have been duly given if
mailed (by registered or certified mail, postage prepaid, return receipt
requested), or if transmitted by facsimile, or if delivered by courier, as
follows:
To the Seller:
IRM Services, Inc.
ATTN: Mr. John M. Ericson, Jr., President
7800 Belfort Parkway, Suite 200
Jacksonville, FL 32256
Facsimile: 296-2906
With copies to:
Mr. Barry Ridings
1290 Avenue of the Amercias, 10th Floor
New York, NY 10104
Facsimile: (212) 237-2232
and
Gayle Petrie, Esquire
One Independent Drive, Suite 3104A
Jacksonville, FL 32202
Facsimile: (904) 791-9333
To the Buyer:
Champion Industries, Inc.
Attn: Joe Worth
2450 First Avenue
P.O. Box 2968
Huntington, WV 25728
Facsimile: (304) 528-2765
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With a copy to:
Thomas J. Murray, Esquire
Huddleston, Bolen, Beatty, Porter & Copen
611 Third Avenue
Huntington, WV 25722
Facsimile: (304) 522-4312
All notices and other communications required or permitted under this
Agreement that are addressed as provided in this Section will, whether sent
by mail, facsimile, or courier, be deemed given upon the first business day
after actual delivery to the party to whom such notice or other communication
is sent (as evidenced by the return receipt or shipping invoice signed by a
representative of such party or by the facsimile confirmation). Any party
from time to time may change its address for the purpose of notices to that
party by giving a similar notice specifying a new address, but no such notice
will be deemed to have been given until it is actually received by the party
sought to be charged with the contents thereof.
12.12 COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which will be deemed an original, but all
of which will constitute one and the same instrument.
12.13 KNOWLEDGE OF THE SELLER. Where any representation or warranty
contained in this Agreement is expressly qualified by reference to the
"knowledge of the Seller," or any similar phrase, it shall mean matters
which, in good faith, are in the current memory of senior management of
Seller or of the Company as to the matters that are the subject of such
representation or warranty, provided however, a representation or warranty of
Seller that is limited to "knowledge of the Seller" will not be breached if
(i) the matters that are the subject of such representation or warranty are
not in the current memory of senior management of Seller and (ii) such
matters were disclosed to Buyer by senior management of the Company or the
Buyer otherwise discovered such matters during its due diligence
investigation of the Company.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
IRM SERVICES, INC.
By:
Its
(SELLER)
CHAMPION INDUSTRIES, INC.
By:
Its
(BUYER)
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SCHEDULE 4.3 CAPITALIZATION OF THE COMPANY
Interform Corporation is the owner of record of 1162 shares of stock in
Phar-Mor, Inc.
24
<PAGE>
SCHEDULE 4.4 FINANCIAL STATEMENTS
The books of Interform are maintained on a GAAP basis; LIFO adjustments, if
any, are made at year end.
25
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SCHEDULE 4.5 TAX MATTERS
The Company was purchased by its former parent, Transmark USA, in 1988 and
included in its consolidated federal income tax return. Transmark and its
affiliates, including Interform, filed consolidated income tax returns
through 1990. The Transmark group has not filed a federal income tax return
since 1990. However, the 1991 and 1992 tax returns were prepared and
presented to the IRS in conjunction with the audit of an affiliate.
The Transmark and affiliates 1993 consolidated tax return has also been
prepared but not filed. The consolidated return includes the operations of
Interform for the period January 1 through April 12, 1993. The Company was
transferred to another consolidated group on April 13, 1993.
Since April 13, 1993, Interform has been included in the consolidated federal
income tax return of IRM and its subsidiaries. IRM has timely filed its
1993, 1994 and 1995 income tax returns.
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SCHEDULE 4.6 LITIGATION
- - Two age discrimination cases were filed with the Pennsylvania Human
Relations Commission after the close down of the Commercial Division.
- - A wrongful discharge allegation has been filed with the Pennsylvania Human
Relations Commission by a union employee.
- - Ronald T. Anthony claim.
- - Rishel v Interform Corporation, filed September 1993. The suit relates to
alleged injuries sustained by Mr. Rishel. The matter is being defended by
Interform's insurance carrier.
- - The potential exists for Interform to file suit against Globe-Tek, a
supplier of software, if negotiations are not successful for the return of
software which failed to perform. This software was installed in 1996.
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SCHEDULE 4.9 BROKERAGE AND FINANCIAL ADVISORS
Except for Alex. Brown & Sons who has been engaged by Guaranty Reassurance
Corporation to consult on the company's subsidiary portfolio, no broker,
finder, or financial advisor is entitled to any fee or compensation from the
Buyer or the Company in connection with this Agreement or the transactions
contemplated hereby as a result of any action by the Seller or Company.
Guaranty Reassurance Corporation is the ultimate parent of Interform
Corporation.
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SCHEDULE 4.10 BANK ACCOUNTS
Interform Corporation maintains the following bank accounts:
Bank Name Location Account # Account Type
- ------------ ------------------ ------------ -------------------
Mellon Bank Pittsburgh, Pa. 2-946-846 Operating Account
Mellon Bank Pittsburgh, Pa. 093-6319 Payroll Account
Mellon Bank Pittsburgh, Pa. 093-6271 Cash Collateral
Mellon Bank Philadelphia, Pa. 2-702-975 Cash Collateral
Mellon Bank Pittsburgh, Pa. 2-702-975 Lock Box-360081
Mellon Bank Philadelphia, Pa. 2-702-975 Lock Box-7777-W0545
Mellon Bank Philadelphia, Pa. 2-702-975 Lock Box 7777-W6720
Mellon Bank Lock Haven, Pa. 27-090228 Petty Cash Fund
29
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SCHEDULE 4.12 NO VIOLATION OR CONFLICT
Loan and Security Agreement By and Between Interform and Mellon Bank, N.A.
dated February 15, 1995, as amended.
30
<PAGE>
SCHEDULE 4.15 OWNED AND LEASED PROPERTY
Substantially all real property and all material equipment are pledged to
Mellon Bank with the following exceptions:
i) Didde press financed through American Capital
ii) Lock Haven telephone system financed through Keystone Financial
iii) Building modifications (heating, air-conditioning, etc.) at the
Lockhaven facility -- City of Lockhaven and Clinton County.
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SCHEDULE 4.17 INTANGIBLE PROPERTY
None.
32
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SCHEDULE 4.20 CONTRACTS
The following officers are covered by employment contracts that have
severance clauses, as mentioned in paragraph 4.20, sub-paragraph (i):
- - David G. Pilcher
- - Clifford J. Bright
- - Linda K. Starke
- - Cecil F. Hazlett
- - Theodore J. Nowlen
- - Richard L. Layman
- - James A. Rhodes
There is a Management Services Contract with The Sidney Company that provides
compensation for services rendered. This contract expires March 6, 1997.
The following officers are covered by deferred compensation, profit sharing
or similar understandings, as mentioned in paragraph 4.20, sub-paragraph (ii):
- - David G. Pilcher
- - Clifford J. Bright
- - Linda K. Starke
- - Cecil F. Hazlett
- - Theodore J. Nowlen
- - Richard L. Layman
- - James A. Rhodes
4.20(iii) -- None.
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SCHEDULE 4.21 LABOR
Company response to paragraph 4.21 Labor:
(a) None.
(b) The Company has labor agreements with the United Steelworkers of America,
AFL-CIO-CLC, Locals 8263 and Local 8263-1.
(c) There are two cases filed with the Pennsylvania Human Relations Commission
dealing with age discrimination originating with the closing of the
Commercial Division on July 28, 1995. There is also a case filed with the
Pennsylvania Human Relations Commission by a union employee claiming
unlawful discharge.
(d) None
34
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SCHEDULE 4.22 EMPLOYMENT BENEFITS
None.
35
<PAGE>
SCHEDULE 4.23 ENVIRONMENTAL MATTERS
None.
36
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SCHEDULE 7.8 LEGAL OPINION
Legal Opinion.
37
