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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) August 21, 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 August 21, 1996, Champion Industries, Inc. ("Champion"), a West
Virginia corporation, announced that its wholly owned subsidiary, CM
Acquisition Corp. ("Acquisition"), an Ohio corporation, had consummated an
Asset Purchase Agreement dated August 12, 1996 with The Merten Company
("Merten"), an Ohio corporation and commercial printer headquartered in
Cincinnati, Ohio, pursuant to which Acquisition purchased substantially all
the assets of Merten for a cash price of $1,000 and the assumption of certain
liabilities of Merten aggregating $2,535,295. Champion has guaranteed
Acquisition's performance of the Asset Purchase Agreement. Acquisition will
change its name to "The Merten Company" and operate from a leased facility in
Cincinnati, Ohio. Champion anticipates utilizing working capital and the
proceeds of a 3-year term, unsecured bank loan in amount of $2,000,000 for
the cash consideration and payment of assumed obligations as required by the
Asset Purchase Agreement.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial statements of businesses acquired.
(b) Pro forma financial information.
With respect to the information required by Items 7(a) and (b), pursuant
to Items 7(a)(4) and 7(b)(2) of Form 8-K, the registrant states that it is
impracticable to provide required financial statements or pro forma financial
statements for the
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acquired business at the time this report on Form 8-K is filed, but
undertakes to file same not later than 60 days after this report must be
filed.
(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
Date: August 21, 1996 ----------------------------------------
Joseph C. Worth, III, Vice President
and Chief Financial Officer
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EXHIBIT INDEX
2.1 Asset Purchase Agreement between The Merten Company, its
stockholders and CM Acquisition Corp. dated August 12, 1996. Filed
herewith. Copies of any omitted schedule will be furnished
supplementally to the Commission upon request.
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ASSET PURCHASE AGREEMENT
THE MERTEN COMPANY
A CORPORATION, SELLER
TO
CM ACQUISITION CORP.,
AN OHIO CORPORATION, BUYER
August 12, 1996
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TABLE OF CONTENTS
Section Page
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1. Sale of Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Closing Date and Place. . . . . . . . . . . . . . . . . . . . . . . . 4
4. Waiver of Compliance with Bulk Sales Act; Indemnification . . . . . . 4
5. Representations and Warranties of Company . . . . . . . . . . . . . . 4
6. Covenants of the Company. . . . . . . . . . . . . . . . . . . . . . . 14
7. Representations and Warranties of Buyer . . . . . . . . . . . . . . . 16
8. Company Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9. Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10. Conditions Precedent to Buyer's Obligations . . . . . . . . . . . . . 18
11. Conditions to Closing by Company. . . . . . . . . . . . . . . . . . . 21
12. Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . . 23
13. Additional Documents and Acts after Closing . . . . . . . . . . . . . 24
14. Non-Assumption of Liability . . . . . . . . . . . . . . . . . . . . . 24
15. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
16. Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
17. Brokerage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
18. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
19. Survival of Representations, Warranties and Agreements. . . . . . . . 29
20. Modification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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Page
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21. Nonwaiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
22. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
23. Descriptive Headings. . . . . . . . . . . . . . . . . . . . . . . . . 30
24. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
25. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
26. Binding Nature; Assignments . . . . . . . . . . . . . . . . . . . . . 31
27. Legal Fees and Expenses; Other Expenses . . . . . . . . . . . . . . . 31
28. Invalid Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . 32
Signatures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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EXHIBITS
A-1 Assets - Equipment
A-2 Assets - Inventory
A-3 Assets - Accounts Receivable
A-4 Assets - Motor Vehicles
A-5 Other Assets Sold
B Liens, Encumbrances, Mortgages and Security Interests
B-1 Property Not Owned by Company
C List of Trade Creditors
D Allocation of Purchase Price
E Opinion of Company Counsel
F Non-Competition Agreements
G Liabilities Assumed by Buyer
H Agreement of Lease
I Guaranty of Champion
J Litigation
K Labor Claims
L Employee Plans
M Financial Statements
N Excluded Assets
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ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of the 12th day of August,
1996, by and between THE MERTEN COMPANY, an Ohio corporation, hereinafter
called the "Company", CM ACQUISITION CORP., an Ohio corporation, hereinafter
called the "Buyer", and HAROLD A. MERTEN, JR., hereinafter referred to as
"Bud", MARION B. MERTEN, HAROLD A. MERTEN, III, and SUSAN M. ROBERTS, holders
of all issued and outstanding voting and non-voting common stock of the
Company (hereinafter, with Bud, collectively called the "Stockholders").
WHEREAS, the Company is engaged in the commercial printing business in
Ohio, Indiana and Kentucky; and
WHEREAS, the Buyer is a wholly owned subsidiary of Champion Industries,
Inc., a West Virginia corporation, hereinafter called "Champion"; and
WHEREAS, the parties have reached an understanding with respect to the
sale of all of the assets and business of the Company and the purchase by the
Buyer of such assets and business.
NOW, THEREFORE, in consideration of the premises, which are not mere
recitals but are an integral part hereof, and in further consideration of the
mutual covenants and promises herein contained, and for other good and
valuable consideration, the receipt and sufficiency of all of which are
hereby acknowledged, the parties hereto agree as follows:
1. SALE OF ASSETS. The Company agrees that, at the Closing, the
Company shall sell, transfer, and deliver to the Buyer for the consideration
hereinafter provided, all of the assets of the Company, including, but not
limited to those assets of the Company set forth in Exhibits A-1, A-2, A-3,
A-4 and A-5 attached hereto and incorporated herein by
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reference, constituting all the Company's furniture, machinery, equipment,
tools, drawings, plates, inventory, accounts receivable, cash on hand and in
banks, motor vehicles and deposit with Ohio Industrial Commission, together
with all records, trade names, customer lists, distributorship agreements,
work in process and work completed, licenses, rights, permits, the right to
the use of the names "The Merten Company" and "Page-makers", and any variants
thereof, and all rights to use the current telephone numbers of Company.
Such sale shall be made free and clear of all liabilities, mortgages, liens,
obligations, security interests, and encumbrances except such that are
expressly assumed in writing by Buyer. Stockholders shall have the right to
purchase the life insurance policies owned by the Company on their lives for
the cash surrender value of the policies at the time of purchase.
Stockholders' right shall be exercised within 30 days after the Closing. The
assets listed on Exhibit N are excluded from the sale of assets purchased by
Buyer.
2. PURCHASE PRICE. Subject to the terms of this agreement, the
Buyer shall purchase the assets and, in full consideration therefor, shall
pay the Company, subject to the adjustments provided for herein, a sum not to
exceed Two Million Four Hundred Ninety Five Thousand Two Hundred Ninety Five
and 14/100 Dollars ($2,495,295.14) (the "Preliminary Purchase Price").
A. PAYMENT OF PURCHASE PRICE. Purchase Price shall be paid as
follows:
(1) One Thousand Dollars ($1,000.00) cash upon execution of this
Agreement.
(2) The balance at Closing, by Buyer's execution and delivery of
an agreement to assume, pay, discharge and perform when lawfully due the
liabilities to taxing authorities, secured creditors, trade creditors
and obligees under operating
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leases, capital leases and maintenance agreements, all as fully set
forth in Exhibits B, C and G hereto; provided, however, that at the
Closing, the Company shall provide Buyer with an updated list, as of the
Closing Date, of the amount of each obligation listed in Exhibits B, C
and G hereto, which amount shall not exceed the Preliminary Purchase
Price by more than $40,000.00. If such amount does not exceed the
Preliminary Purchase Price by more than $40,000.00, such amount shall
constitute the Purchase Price. If such amount exceeds the Purchase
Price, Company shall reimburse Buyer for such excess at Closing.
Buyer's obligations shall be guaranteed by Champion pursuant to the
Guaranty (the "Guaranty") attached hereto as Exhibit I. The Company's
liabilities to Bud noted on Exhibit B as "to be paid at Closing" shall
be paid at Closing.
B. ALLOCATION.
(a) The Preliminary Purchase Price shall be allocated among the
assets hereby sold and purchased for all purposes, including all tax,
tax reporting and accounting purposes, as set forth on Exhibit D.
(b) In the event the Purchase Price differs from the Preliminary
Purchase Price, the allocation agreed to by the parties shall be
adjusted as agreed by Buyer and Company in accordance with federal
income tax principles.
The allocation of the Purchase Price to the assets hereby sold and
purchased shall be binding on Buyer and Company for all tax purposes.
Buyer and Company will execute Internal Revenue Service Form 8594 at the
Closing and shall attach same to their tax return covering the year in
which the Closing occurs.
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3. CLOSING DATE AND PLACE. The Closing under this agreement (the
"Closing") shall take place within thirty (30) days from the date of this
Agreement at such time (the "Closing Date") and place as to which the parties
may agree.
4. WAIVER OF COMPLIANCE WITH BULK SALES ACT; INDEMNIFICATION. In
order to induce Buyer to enter into and perform this Agreement, and to obtain
the waiver of bulk sales act compliance hereinafter granted, Company and
Stockholders (except for Susan M. Roberts), subject to the limitations set
forth in Sections 15 and 19 of this Agreement, hereby agree to jointly and
severally indemnify and hold harmless Buyer from any and all claims,
including legal fees and expenses, under any statutory provisions regulating
the transfer of goods in bulk, including the provisions of the Uniform
Commercial Code as adopted in the State of Ohio (hereinafter "UCC") with
respect to the assets hereby sold and conveyed or the purchase price
therefor, except for obligations expressly assumed by Buyer, and in
consideration of same, all parties hereto mutually agree to waive compliance
with any such law.
5. REPRESENTATIONS AND WARRANTIES OF COMPANY. The Company and
Stockholders (except for Susan M. Roberts) jointly and severally represent
and warrant to Buyer as a material inducement to Buyer to enter into and
perform its obligations under this Agreement, as follows:
(a) ORGANIZATION AND STANDING OF COMPANY. The Company is a
corporation duly organized, validly existing, and in good standing under
the laws of the State of Ohio. To the best knowledge of Company and
Stockholders, the Company is not qualified and is not required to be
qualified to do business as a foreign corporation in any other state due
to the character of the properties owned by the
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Company or the nature of the business transacted by it. The Company has
all requisite corporate power and authority to own and operate its
properties and to conduct its business in the manner and in the places
where it is now conducted.
(b) COMPANY'S AUTHORITY. The execution and delivery of this
Agreement and other documents herein contemplated to the Buyer and the
sale contemplated hereby will have been duly authorized by the Company's
Board of Directors and Stockholders, and the Company will at the Closing
deliver to the Buyer copies of the resolutions of its Board of Directors
and Stockholders granting such authority, such copies to be certified by
the Company's secretary. No other corporate action on the part of the
Company will be necessary to authorize execution and delivery of same
and of the sale. To the best knowledge of Company and Stockholders, the
execution and delivery of this Agreement to the Buyer and the sale
contemplated hereby do not violate any federal, state or local laws or
regulations. To the best knowledge of Company and Stockholders, the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not violate any provision of, or
result in the breach of or accelerate or permit the acceleration of the
performance required by the terms of, any applicable law, rule or
regulation of any governmental body having jurisdiction, the Articles of
Incorporation or Code of Regulations of the Company, or any agreement to
which the Company or any Stockholder is a party or by which any of them
may be bound (except for loan agreements, leases and other obligations
for which consent is required, as listed on Exhibit B), or of any order,
judgment or decree applicable to it, or result in the crea-
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tion of any claim, lien, charge or encumbrance upon any of the property
or assets of the Company or terminate or result in the termination of
any such agreement.
(c) TITLE OF PROPERTY. The Company has good, marketable and
indefeasible title to all the properties and assets to be sold
hereunder, including without limitation, those reflected on Exhibits
A-1, A-2, A-3, A-4 and A-5 hereto, free and clear of any mortgages,
security interests, liens, charges or encumbrances whatsoever, except as
otherwise specifically disclosed, including amounts, in Exhibit B to
this Agreement. The Company does not own, and this Agreement does not
affect the assets described in Exhibit B-1 to this Agreement or any
liabilities with respect to same, except that Buyer shall be entitled to
all interest of Company in any such property which is the subject of a
lease or bailment obligation assumed by Buyer.
(d) TAX RETURNS. All required federal, state and local tax
returns of the Company have been accurately prepared and duly and timely
filed, and all federal, state and local taxes required to be paid with
respect to the periods covered by such returns have been paid or accrued
on the balance sheets. The Company is not delinquent in the payment of
any tax, assessment or governmental charge, and there is no tax
deficiency outstanding, proposed in writing or assessed against it. The
Company has not executed any outstanding waiver of any statute of
limitations on the assessment or collection of any tax.
(e) INSURANCE. All inventories, equipment and fixed assets owned
by or leased by the Company are and will be insured against fire and
other casualty to the Closing date in accordance with past practices and
valid policies therefor are and will be outstanding and duly in force at
closing.
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(f) PATENTS, ETC. Company has adequate rights in all
copyrights, trademarks, service marks, service names, trade names or
patents necessary to conduct the Company's business operation as it is
presently operated, and Buyer will be able to continue same after the
assignment of such copyrights, trademarks, service marks, service names,
trade names or patents. To the best knowledge of Company and
Stockholders, the Company is not infringing upon or otherwise acting
adversely to any copyrights, trademarks, trademark rights, service
marks, service names, trade names, patents, patent rights, licenses,
trade secrets or other proprietary rights owned by any other person or
persons, and there is no written claim or action by any such person
pending, or to the knowledge of Company threatened, with respect thereto.
(g) COMPLIANCE WITH LAWS. To the best knowledge of Company and
Stockholders, the Company has complied in all material respects with all
applicable laws, rules, regulations, ordinances, and franchises with
respect to its operations, and neither the ownership nor use of the
Company's properties nor the conduct of its business conflicts with the
rights of any other person, firm or corporation.
(h) NO LITIGATION. There is no claim, legal action, suit,
arbitration, governmental investigation or other legal, administrative
or tax proceeding for which Company has received written notice, nor any
order, decree or judgment, in progress, pending, or threatened against
or relating to the Company which involves or affects its properties,
assets or business or the transactions contemplated by this Agreement,
except as disclosed on Exhibit J to this Agreement.
(i) LABOR. To the knowledge of Company and Stockholders, no
strike is pending or threatened against the Company by its employees or
any labor
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union claiming to represent such employees. The Company has no
agreement with any labor union or collective bargaining group. There is
no unfair labor practice complaint against Company pending before the
National Labor Relations Board or any similar state agency except as
described in Exhibit K to this Agreement.
(j) EMPLOYMENT BENEFITS. There are no commitments to past or
present officers, directors or employees of the Company for expenses,
profit sharing, pension, bonus, retirement plans, or compensation in
addition to regular salary arrangements. Except for commission
arrangements with salespersons, there are no written or oral agreements
of employment between Company and any officer or other employee which
are not terminable by Company at will.
(k) EMPLOYEES. Company expects to terminate the employment of
all its employees on the Closing Date. Company and Buyer will make a
joint announcement regarding Buyer's employment plans at least one (1)
week prior to Closing. Except as expressly listed on Exhibit G to this
Agreement, Company will retain all liability, if any, for any benefits
of its employees attributable to their employment by Company and the
termination of such employment by Company, including specifically
severance, hospitalization, or retirement benefits, if any, and
liability for any other claim by an employee or former employee of
Company attributable to his employment or termination of employment by
Company.
(i) Company has paid in full (to the extent required by the
Company's current practices but consistent with the Company's legal
obligations) to all its employees, all wages, salaries,
commissions, bonuses, vacation pay (except as
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listed on Exhibit G to this Agreement), and other direct
compensation for all services performed by them to the date hereof
and will pay after the Closing as and when due such obligations
through the day preceding Closing Date;
(ii) Except for potential liability under the notice or pay
policy described in the Company's employee handbook "The Merten
Company and You" revised June, 1993, at page 7 under heading
"Layoff and Termination", upon termination of the employment of any
such employees, Company will not, by reason of anything done prior
to the Closing, be liable to any of such employees for any specific
"severance pay" or any other payments, except for liabilities
accrued on the Financial Statements or other of Company's books and
records (all of which have been made available for Buyer's
inspection) or as may be required under state unemployment
insurance or other laws;
(iii) To the best knowledge of Company and Stockholders, the
Company has complied in all material respects and is in compliance
with all Federal, state and local laws and regulations respecting
employment and employment practices (including, without limitation,
to the best of Company's knowledge, OSHA), terms and conditions of
employment, wages and hours, collective bargaining and the payment
of social security and similar taxes.
(l) EMPLOYEE BENEFIT PLANS. Except for the Company's
participation in the "Ohio Graphic Arts Health Fund", Company is not a
party to any pension plan or profit sharing plan or other employee
benefit plan which would constitute a "Multiemployer Plan" as defined in
Section 3(37) of ERISA (a "Multiemployer Plan"). Company has not
incurred nor will Company incur, directly or indirectly, any
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material withdrawal liability with respect to a Multiemployer Plan nor
does Company expect to incur such liability. The Company maintains the
Employee Benefit Plans listed on Exhibit L.
(m) NO BANKRUPTCY. There has not been filed any petition
application, or any proceedings commenced, by or against, or with
respect to any assets of, Company under Title 11 of the United States
Code or any other law, domestic or foreign, relating to bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of
debt or creditors' rights which is currently being adjudicated, and
Company has not made any assignment for the benefit of creditors that is
currently effective, except that during the fiscal year ended August 31,
1995, Company converted certain accounts payable into notes payable,
which conversion is disclosed in Company financial statements.
(n) ENVIRONMENTAL MATTERS.
To the knowledge of the Company and the Stockholders:
(i) The operations of the business of Company and the
buildings in which it is conducted conform with all applicable
restrictive covenants, deeds and restrictions and all applicable
Federal, state and local laws, ordinances and regulations
(including those relating to zoning and environmental protection),
and all buildings or operations of Company and the business that
are subject to the Occupational Safety and Health Act of 1970, as
amended, comply with employee working conditions as prescribed by
such Act.
(ii) The Company has no underground storage tanks, either
empty or containing any liquid, including but without limitation
solvents, fuel or waste
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oil, on any premises used in its business. Company has obtained
all permits, licenses and other authorizations and filed all
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"), except for the pending permit to
install and permit to operate. Except as otherwise disclosed in
this Agreement, the Company is in material compliance in all
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 common law or statutory liability, or otherwise form
the basis of any 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 Company or its
business, properties or plants; and (ii) the properties and plants
of Company do not contain asbestos or PCBs in any form.
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(o) LIST OF SECURED CREDITORS, TAXES, AND OBLIGATIONS. The
Company has delivered to Buyer a true and complete list of the Company's
obligations, including but not limited to obligations owed to secured
creditors, taxing authorities, and other creditors, whether secured or
unsecured, as of 12:01 a.m. June 1, 1996, together with copies of all
documents evidencing or relating to such obligations. The Company and
Stockholders (except for Susan M. Roberts) jointly and severally warrant
that said list, attached hereto as Exhibit B, is accurate and complete.
(p) LIST OF ACCOUNTS PAYABLE. The Company has delivered to the
Buyer a true and complete list of the Company's trade accounts payable
as of 12:01 a.m. June 1, 1996, together with copies of all documents
evidencing or relating to such obligations. The Company and
Stockholders (except Susan M. Roberts) jointly and severally warrant
that said list of trade accounts payable, attached hereto as Exhibit C,
is accurate and complete.
(q) ACCOUNTS RECEIVABLE. To the best knowledge of Company and
Stockholders, at least ninety-five percent (95%) of the dollar amount of
all notes and accounts receivable of the Company shown on the May 31,
1996 Financial Statements or thereafter acquired have been collected or
are current and collectible subject to returns and allowances in the
ordinary course of business (in the case of each note in accordance with
its terms, and in the case of each account within the customary period
after billing the customer in accordance with Company's past practice)
at the aggregate recorded amounts thereof on the books of the Company
and are subject to no counterclaims or set-offs. On _______________,
1996, the aggregate amount of all such receivables is $__________ of
which $_________ has not been paid on the
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date due, and the aggregate amount of all such accounts receivable which
have not been paid for 60 days or more does not exceed $_________. In
the event Company or Stockholders (excluding Susan M. Roberts) are
required to indemnify and do indemnify Buyer for a breach of these
warranties with respect to accounts receivable, Buyer shall assign such
uncollectible receivables to the indemnifying party at the time of such
payment by Company or Stockholders.
(r) BOOKS AND RECORDS; ARTICLES AND BY-LAWS. The Company has
maintained its books, accounts and records in the usual, regular and
ordinary manner, on a basis consistent with the years beginning after
August 31, 1992, and since August 31, 1992, no changes have been made in
its accounting practices or procedures which have not been disclosed in
Company financial statements.
(s) FINANCIAL STATEMENTS. The Company has delivered to Buyer
copies of the following financial statements, all of which to the best
knowledge of Company and Stockholders in reliance upon the Company's
auditors, Deloitte & Touche, are complete and correct in all material
respects, have been prepared from the books and records of the Company
in accordance with generally accepted accounting principles consistently
applied and maintained throughout the periods indicated except as
indicated therein and present fairly the financial condition of the
Company as at their respective dates and the results of operations for
the periods covered thereby:
Annual Statements from September 1, 1992 to August 31, 1995.
Interim Statements through May 31, 1996.
The statements referenced above are attached as Exhibit M.
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6. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Buyer that it will perform the
following between the date of this Agreement and the Closing Date:
(a) ACCESS. The Company shall give Buyer and its lenders,
counsel, accountants, and other representatives full access during
normal business hours to all of the properties, books, contracts and
records of the Company, and the Company will furnish Buyer with all such
documents, copies of documents (certified if required) and information
concerning the affairs of the Company as Buyer may from time to time
reasonably request. Buyer and its representatives will conduct their
investigation so as not to disrupt the operations of Company.
(b) CONDUCT OF BUSINESS PENDING CLOSING. The Company covenants
that pending the Closing:
(i) The Company will conduct its business and affairs only in
the ordinary course and consistent with its prior practices and
shall maintain, keep and preserve its assets and properties in good
condition and repair, normal wear and tear excepted, and maintain
insurance thereon in accordance with present practices.
(ii) The Company will not sell or dispose of any of its
properties or assets subject to this Agreement except in the
ordinary course of business, or permit the creation of any
mortgage, pledge, lien or other encumbrances, security interest, or
imperfection of title thereon or with respect thereto, without
prior written consent of Buyer. Without limiting the foregoing,
the Company shall not transfer any assets to or incur any liability
to any
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corporation, partnership, company, joint venture or any individual
related to (whether by virtue of common ownership or agreement) or
controlled by the Company or any of its Stockholders, and any such
transfer or incurrence of liability shall be deemed not to be in
the ordinary course of Company's business.
(iii) No contract or commitment will be entered into by or on
behalf of the Company extending beyond Closing Date except in the
ordinary course of business and, except normal commitments for the
purchase of inventory and supplies which in any single case, will
not involve payment by the Company of more than Ten Thousand
Dollars ($10,000.00) except as consented to by Buyer in writing.
(iv) Except as otherwise requested by the Buyer and without
making any commitment on its behalf, the Company will use its best
efforts to preserve its business organization intact and to
preserve for the Buyer the goodwill of the Company's suppliers,
customers, and others having business relations with it.
(v) Except as otherwise specifically provided in this
Agreement, possession and control of the assets covered by this
Agreement shall remain with Company.
(c) OBLIGATIONS OF COMPANY AFTER THE CLOSING. The Company
covenants and agrees that:
(i) Change of Name. On or immediately after the Closing
Date, Company will amend its articles of incorporation so as to
change its corporate
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<PAGE>
name, and will thereafter take such action as may reasonably be
requested by Buyer to make its present corporate name available to
Buyer.
(ii) On or immediately after the Closing Date, Company will
change all its bank accounts, utility accounts and all other
accounts payable to reflect its name change as required by
subsection (i) above.
(iii) Company's Corporate Records. Company will make
available for inspection and copying all books and records to Buyer
upon reasonable request for access thereto, and if at any time
Company proposes to discard or destroy the books and records, they
will first offer to transfer them without charge to Buyer.
(iv) Company's 401(k) Plan. As soon as practicable after the
Closing, the Company shall obtain an appropriate determination
letter from the Internal Revenue Service with respect to the
Prototype Cash or Deferred Profit-Sharing Plan and Trust/Custodial
Account, originally effective September 1, 1984, amended September
1, 1995, maintained pursuant to Amended and Restated Adoption
Agreement for Star Bank, NA plan, and shall thereafter distribute
the assets of the plan to participants in accordance with their
interests in such plan as soon as administratively feasible, and
take all such further steps to terminate such plan.
7. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Company as follows:
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<PAGE>
(a) Buyer is a corporation duly organized and validly existing
under the laws of Ohio, and has the full corporate power and authority
to enter into this Agreement and to carry out the transactions
contemplated thereby.
(b) Neither the execution, delivery nor performance of this
Agreement by Buyer will, with or without the giving of notice of the
passage of time, or both, conflict with, result in a default or loss or
rights under, or result in the creation of any lien, charge or
encumbrance pursuant to any provision of its Articles of Incorporation
or Code of Regulations, or any mortgage, deed of trust, lease, license,
agreement, understanding, law, order, or judgment, franchise, ordinance
or decree to which Buyer is a party or by which it is bound. Buyer has
the full power and authority to enter into this Agreement and to carry
out the transactions contemplated hereby and this Agreement and Buyer's
performance hereunder have been duly and validly authorized by all
necessary corporate actions on the part of the Buyer and constitutes the
valid and binding obligation of the Buyer enforceable in accordance with
its terms.
8. COMPANY NAME. The Company and Stockholders jointly and severally
represent, warrant and covenant that neither the Company nor any Stockholder
shall transfer, assign, convey or otherwise cause to be vested in any person,
partnership, corporation, joint venture or otherwise other than Buyer any
right or right to use the name "The Merten Company" or any variant thereof.
Company will execute and file with the Office of the Secretary of State of
Ohio, and such other offices of government as may be required, such documents
as may be necessary to permit the use by Buyer of the name "The Merten
Company" or any variant thereof. At no time subsequent to the Closing shall
the Company
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<PAGE>
use a name the same as, or similar to, "The Merten Company", except as may be
necessary or incident to the process of Company's liquidation and dissolution.
9. NON-COMPETITION. The Company, Bud and Harold A. Merten, III will
execute the Non-Competition Agreements attached hereto as Exhibit F.
10. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. All obligations of
Buyer under this Agreement are subject, at the option of Buyer, to the
satisfaction and fulfillment of each of the following conditions at or prior
to Closing. Buyer may waive any or all of these conditions in whole or in
part without prior notice; PROVIDED, HOWEVER, that no such waiver of a
condition shall constitute a waiver by Buyer of any of their other rights or
remedies at law or in equity, if the Company shall be in default of any of
its representations, warranties or covenants under this Agreement. Each of
the Company and the Stockholders agrees to use his or its best efforts to
fulfill each such condition:
(a) The representations and warranties of the Company and its
Stockholders contained herein and in any document or certificate
delivered pursuant to this Agreement shall be true and correct as of the
date of this Agreement, and shall be true and correct on and as of the
Closing Date with the same force and effect as though made on and as of
the Closing Date.
(b) The Company shall have performed all of its obligations and
agreements and complied with all covenants and conditions contained in
this Agreement to be performed or complied with on or before the Closing
Date.
(c) The Company shall have obtained all necessary consents or
approvals, of other persons or parties, to the assignment of all
contracts to be assigned to Buyer pursuant hereto, except the assignment
of leases for vehicles.
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<PAGE>
(d) Buyer shall have obtained all necessary consents of taxing
authorities and secured creditors to Buyer's assumption of the
obligations set forth in Exhibits B, C and G hereto, and Buyer shall
have executed and delivered to such entities and to Company instruments
of assumption of same, all on terms reasonably acceptable to all such
parties.
(e) Company shall deliver to Buyer bills of sale, endorsements,
certificates of title, assignments and other good and sufficient
instruments of conveyance, transfer and assignment as shall be effective
to vest in Buyer good and marketable title in and to the assets
transferred pursuant to this agreement, free and clear of all security
interests, liens, charges and encumbrances of any nature whatsoever
except as set forth in Exhibits B, C and G hereto.
(f) Between the date of this agreement and the date of Closing,
there shall have been no material adverse change in the assets or
operations of the Company and the Company shall not have suffered any
material losses by fire, windstorm or other casualty. Buyer agrees that
Company's current financial trends shall not be deemed a material
adverse change.
(g) The Company, Bud and Harold A. Merten, III shall have
delivered to Buyer duly and properly executed non-competition agreements
in the form annexed hereto as Exhibit F.
(h) Company and Buyer shall deliver to each other copies of
resolutions of their respective Board of Directors and shareholders
authorizing and approving the execution and consummation of the
transactions contemplated hereby, certified by their secretaries.
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<PAGE>
(i) There shall not be any pending or threatened arbitration,
litigation or administrative proceeding against or affecting the
Company, Buyer or any shareholder, director, officer, agent, employee or
affiliate of any of the foregoing or to which any properties or rights
of the Company or Buyer is subject, which (a) is likely to have a
material adverse effect on the assets to be sold hereunder or the Buyer
or (b) would prohibit or set aside the transactions contemplated by this
Agreement.
(j) The approval of and consent to the transactions contemplated
hereby shall have been given prior to the Closing Date by the regulatory
agencies, federal and state, whose approval or consent is required, and
all notice periods, waiting periods, delay periods and all periods for
review, objection or appeal of or to any of the consents, approvals, or
permissions required by law with respect to the consummation of this
Agreement shall have expired. Such approvals shall not be conditioned
or restricted in a manner which, in the judgment of Buyer, materially
adversely affects the economic assumptions of the transactions
contemplated hereby so as to render inadvisable consummation of the
Agreement.
(k) The approvals, consents and permissions referred to in
subparagraph (l) hereof shall not have required the divestiture or
cessation of any significant part of the present operations conducted by
Buyer or the Company, and shall not have imposed any other condition,
which divestiture, cessation or condition Buyer reasonably deem to be
materially disadvantageous or burdensome.
(l) The Company shall have delivered to Buyer an opinion of
counsel dated the Closing Date, in the form and substance of Exhibit D
attached hereto.
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<PAGE>
(m) Buyer and Bud and Marion B. Merten shall have executed and
delivered to each other the Agreement of Lease attached hereto as
Exhibit H providing for Buyer's lease of the premises at 1515 Central
Parkway, Cincinnati, Ohio on the terms therein set forth.
11. CONDITIONS TO CLOSING BY COMPANY. The obligations of Company under
this Agreement are, at the option of Company, subject to the satisfaction, at
or prior to the Closing Date, of each of the conditions set forth below in
this Section 11. Company may waive any or all of these conditions in whole
or in part without prior notice; PROVIDED, HOWEVER, that no such waiver of a
condition shall constitute a waiver by Company of any of its other rights or
remedies at law or in equity if Buyer shall be in default of any of its
representations, warranties or covenants under this Agreement.
(a) All proceedings taken in connection with the transactions
contemplated hereby, and all instruments and documents incident thereto
shall be reasonably satisfactory in form and substance to counsel for
Company.
(b) The representations and warranties of Buyer made in this
Agreement and in any document or certificate delivered pursuant to this
Agreement shall be true and correct as of the date of this Agreement and
shall be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made on
and as of the Closing Date.
(c) Buyer shall have fully performed and complied with all
covenants and agreements to be performed and complied with by Buyer on
or before the Closing Date.
21
<PAGE>
(d) Buyer shall have obtained all necessary consents of taxing
authorities and secured creditors to Buyer's assumption of the
obligations set forth in Exhibits B, C and G hereto, and Buyer shall
have executed and delivered to such entities and to Company instruments
of assumption of same, all on terms reasonably acceptable to all such
parties.
(e) Company and Buyer shall deliver to each other copies of
resolutions of their respective Board of Directors and shareholders
authorizing and approving the execution and consummation of the
transactions contemplated hereby, certified by their secretaries.
(f) There shall not be any pending or threatened arbitration,
litigation or administrative proceeding against or affecting the
Company, Buyer or any shareholder, director, officer, agent, employee or
affiliate of any of the foregoing or to which any properties or rights
of the Company or Buyer is subject, which (a) is likely to have a
material adverse effect on the assets to be sold hereunder or the Buyer
or (b) would prohibit or set aside the transactions contemplated by this
Agreement.
(g) Buyer and Bud and Marion B. Merten shall have executed and
delivered to each other the Agreement of Lease attached hereto as
Exhibit H providing for Buyer's lease of the premises at 1515 Central
Parkway, Cincinnati, Ohio on the terms therein set forth.
(h) Champion shall have executed and delivered the Guaranty
attached hereto as Exhibit I.
(i) Either (i) the obligees of the Company's obligations set forth
in Exhibits B, C and G hereto shall have released Stockholders'
guaranties of same, or (ii) Buyer shall have executed a written
undertaking to indemnify and hold harmless
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<PAGE>
Stockholders for such guaranties and Champion shall have guaranteed such
undertaking.
12. TERMINATION OF AGREEMENT.
(a) GROUNDS FOR TERMINATION. This Agreement and the transactions
contemplated hereby may be terminated at any time prior to the Closing
Date:
(i) By mutual consent in writing of all parties hereto; or
(ii) By Buyer if there has been a material misrepresentation
or breach of warranty in the representations and warranties of
Company or Stockholders set forth herein not materially cured by
Company or Stockholders within thirty (30) days after written
notice of same from Buyer, or by Company if there has been a
material misrepresentation or breach of warranty in the
representations and warranties of Buyer set forth herein not
materially cured by Buyer within thirty (30) days after written
notice of same from Company; or
(iii) By either Company or Buyer upon written notice to
the other if any regulatory agency whose approval of the
transactions contemplated by this Agreement is required denies such
application for approval by final order or ruling (which order or
ruling shall not be considered final until expiration or waiver of
all periods for review or appeal) or if any condition precedent to
any party's performance hereunder is not satisfied or waived; or
(iv) By either Company or Buyer if the transactions
contemplated by the Agreement shall violate any non-appealable
final order, decree or judgment of any court or governmental body
having competent jurisdiction;
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<PAGE>
(v) By either Company or Buyer upon the bankruptcy or
assignment for the benefit of creditors of any of the Company, the
Buyer or Champion; or
(vi) By Buyer if the obligations set forth in Exhibits B, C
and G hereto to be assumed, paid and discharged by Buyer and
guaranteed by Champion at Closing pursuant to Section 2A.(2) of
this Agreement exceed the Purchase Price and Company does not
reimburse Buyer.
(b) EFFECT OF TERMINATION. In the event of termination of this
Agreement, no party hereto shall have any liability to any of the other
parties of any nature whatsoever, including any liability for loss,
damages, or expenses suffered or claimed to be suffered by reason
thereof.
13. ADDITIONAL DOCUMENTS AND ACTS AFTER CLOSING. From time to time, at
the Buyer's or Company's request, whether at or after closing, and without
further consideration, the Company or Buyer, as the case may be, will at
their own expense execute and deliver such further instruments of conveyance
and transfer and take such other action as may be reasonably requested to
more effectively convey and transfer to the Buyer any of the property to be
sold hereunder, and will assist the Buyer in the collection or reduction to
possession of such property.
14. NON-ASSUMPTION OF LIABILITY. It is understood and agreed that the
Buyer is not assuming in any way whatsoever any liability of Company of any
kind whatsoever, except for the liabilities set forth in Exhibit G.
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<PAGE>
15. INDEMNIFICATION.
(a) COMPANY. Without limiting any other right of indemnification
or any other cause of action, Company and Stockholders (except for Susan
M. Roberts) shall jointly and severally defend, indemnify and hold Buyer
harmless from and against any and all losses, liabilities, damages,
costs, claims, judgments and expenses (including attorney's fees)
whatsoever arising out of or resulting from:
(i) Any breach of warranty or misrepresentation by Company
or any Stockholder contained herein, or the nonperformance of any
covenant or obligation to be performed by Company or from any
misrepresentation, omission or inaccuracy in any schedule, exhibit,
certificate, instrument or paper delivered or to be delivered by
Company or any Stockholder hereunder in connection with the
transactions herein contemplated;
(ii) Any liability or matter not disclosed in writing to
Buyer prior to Closing arising out of the conduct of Company's
business prior to the Closing Date, including product or service
warranty claims arising after the Closing Date for services
rendered or products sold before the Closing Date (other than
liabilities accruing after the Closing Date with respect to
agreements, leases or obligations specifically assumed by Buyer and
product or service warranty claims arising in the ordinary course
of business), as well as any claim by any creditor of Company based
upon any Bulk Sales Law or any similar statute or otherwise;
(iii) Any claim which may be asserted against Buyer or any of
the assets being sold hereunder, by any of Company's employees,
independent
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<PAGE>
contractors or agents with respect to liabilities incurred by or on
Company's behalf prior to their termination by Company whether
covered by a collective bargaining agreement or not, including
labor costs, severance pay, pension benefits, employee benefits,
vacation and holiday benefits, sick pay (except for any obligation
expressly listed on Exhibit G to this Agreement), multiemployer
withdrawal liability, any and all employee benefits, and any other
costs associated therewith;
(iv) Any attempt (whether or not successful) by any person
to cause or require Buyer to pay or discharge any debt, obligation
or liability relating to the Company other than any liability
specifically assumed by Buyer hereunder;
(v) Any liability arising out of or in connection with
Company's termination of its employees, including but not limited
to alleged violations of any collective bargaining agreement, any
charges or complaints against Buyer or Company, by or with the
National Labor Relations Board or any body judicial, administrative
or otherwise, with jurisdiction over the parties to any collective
bargaining agreement or otherwise or any such charges, complaints,
lawsuits or administrative proceedings with regard to the
termination of employees, the payment of wages or benefits or
related costs associated with the termination of Company's
employees; and
(vi) Any and all claims and expenses related to or arising
under any of the Company's employee benefit plans, including, but
not limited to, claims related to health care continuation coverage
under Internal Revenue Code Section 4980B and ERISA Sections
601-608, and claims related to the
26
<PAGE>
Company's participation in and withdrawal from the Ohio Graphic
Arts Health Fund Print Care Plus Plan.
(b) BUYER'S INDEMNITY. Without limiting any other right of
indemnification or any other cause of action, Buyer shall indemnify and
hold Company and Stockholders (except Susan M. Roberts) forever harmless
from and against any and all losses, liability, damages, costs, claims,
judgments and expenses (including attorney's fees) whatsoever arising
out of or resulting from:
(i) Any breach of warranty or misrepresentation by Buyer
contained herein, or the non-performance of any covenant or
obligation to be performed by Buyer or from any misrepresentation,
omission or inaccuracy in any Schedule, exhibit, certificate,
instrument or paper delivered or to be delivered by Buyer hereunder
in connection with the transactions herein contemplated;
(ii) the conduct of the business from and after the Closing
Date; or
(iii) failure to pay all liabilities expressly assumed by
Buyer.
(c) INDEMNIFICATION LIMITATIONS. Notwithstanding any other
provision in this Agreement:
(i) The Indemnifying Party hereunder shall have the right to
control the defense of any claim or proceeding by any third party
as to which it shall have acknowledged its obligation to indemnify
the other party, and the Indemnified Party hereunder shall not
settle or compromise any such claim or proceeding without the
written consent of the Indemnifying Party, which consent shall not
unreasonably be withheld or delayed. The Indemnified Party
27
<PAGE>
may in any event participate in any such defense, with its own
counsel and at its own expense;
(ii) Nothing herein shall be construed as granting a right of
indemnification in any party hereto in respect of any (A) losses
any party may have arising out of the allocation of the purchase
price or (B) in respect of any consequential damages; and
(iii) The aggregate amount of liability of Company and
Stockholders for claims of indemnity shall not exceed the sum of
One Million Dollars ($1,000,000.00).
16. RISK OF LOSS. Company shall assume all risk of loss to the assets
covered by this Agreement until the closing date and the transfer of assets
contemplated hereunder except either the Buyer or the Company shall have the
option to determine whether to cancel this contract or adjust the sales price
in the event of losses in excess of $10,000.00. Buyer has the risk of loss
after the Closing Date.
17. BROKERAGE. The Company and Stockholders jointly and severally
represent and warrant to Buyer, and Buyer represents and warrants to the
Company and Stockholders, that all negotiations relative to this Agreement
have been carried on by the parties hereto directly without the intervention
of any person, that they have not incurred any liability for finder's, agents
or brokerage fees, commissions or compensation in connection with this
Agreement or the transactions contemplated hereby.
18. CONFIDENTIALITY. It is hereby agreed that, except (i) as otherwise
required in the performance by the parties of their respective obligations
hereunder and (ii) as otherwise required by law, any non-public information
received from the other party during the course
28
<PAGE>
of the investigation contemplated pursuant hereto shall remain and be kept as
confidential information by it and all copies thereof will be returned
promptly at the request of the party furnishing such information in the event
of the termination of this Agreement. Each of the parties may disclose such
information to its respective employees, affiliates, counsel, accountants,
representatives, professional advisors and consultants, and shall require
each of them to agree to keep all such information confidential. So long as
this Agreement is in effect, neither Champion, Buyer nor the Company shall
issue any press release or otherwise make any public statement with respect
to the transactions contemplated by this Agreement without the consent of the
other, which consent shall not be unreasonably withheld, unless such press
release or public statement is required by law or the applicable rules of any
securities market, in which case such press release or public statement may
be made after providing the other parties hereto a reasonable opportunity to
comment thereon.
19. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
statements contained in any certificate or other instrument delivered by or
on behalf of the Company and Stockholders pursuant hereto, or in connection
with the transactions contemplated hereby, shall be deemed representations
and warranties by the Company and Stockholders hereunder. All
representations, warranties, agreements and indemnities made by the Company,
Stockholders (excluding Susan M. Roberts) and Buyer in this Agreement, or
pursuant hereto, shall survive the Closing Date and any investigation at any
time made by or on behalf of the Buyer or Company for a period of two (2)
years, except that the assumption of obligations by Buyer and the Guaranty of
Champion shall survive until all assumed obligations are fully paid,
satisfied and discharged.
29
<PAGE>
20. MODIFICATION. This agreement cannot be modified, changed,
discharged, or terminated, except by a writing signed by the parties hereto.
21. NONWAIVER. No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach
of default of the same or similar nature.
22. ENTIRE AGREEMENT. This Agreement and the agreements specifically
referred to herein constitute the entire agreement among the parties hereto
and supersede all prior agreements and understandings, oral and written,
among the parties hereto or their assignors with respect to the subject
matter hereof.
23. DESCRIPTIVE HEADINGS. Descriptive headings used in this Agreement
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement.
24. NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and shall be sufficient if delivered
or mailed by registered or certified mail, postage prepaid, sent by telex or
telegram, or delivered by hand, and shall be effective upon delivery to the
following addresses or such other address as the appropriate party may advise
each other party hereto.
If to the Company: The Merten Company
1515 Central Parkway
Cincinnati, Ohio 45214
Attention:
Copy to: Thomas H. Clark, Esquire
Clark & Clark
1136 Carew Tower, 441 Vine Street
Cincinnati, Ohio 45202
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<PAGE>
If to the Buyer: CM Acquisition Corp.
c/o Joanne M. Schreiner
Dinsmore & Shohl
1900 Chemed Center
255 E. Fifth Street
Cincinnati, Ohio 45202
Attention: President
Copy to: Huddleston, Bolen, Beatty,
Porter & Copen
Post Office Box 2185
Huntington, West Virginia 25722
Attention: Thomas J. Murray, Esquire
25. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
26. BINDING NATURE; ASSIGNMENTS. This Agreement is binding upon, and
inures to the benefit of, the parties hereto and their respective heirs,
successors and assigns. This Agreement may not be assigned by any party
hereto without the prior written consent of the other parties to be bound
thereby, except that Buyer may assign this Agreement to any affiliate of
Buyer, but no such assignment shall affect the obligations of Champion under
the Guaranty. Except as otherwise expressly stated in this Agreement, nothing
contained herein shall be construed to confer any right or cause of action on
any person other than the parties hereto, and their respective successors and
permitted assigns.
27. LEGAL FEES AND EXPENSES; OTHER EXPENSES. Each of the parties
hereto will pay its own fees and expenses incurred in connection with review
of this Agreement and related documents and the consummation of the
transactions therein contemplated, including, without limitation, all legal
fees.
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<PAGE>
28. INVALID PROVISIONS. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted.
IN WITNESS WHEREOF, The Merten Company has executed this Agreement at
_______________, _______________, on this _____ day of August, 1996.
THE MERTEN COMPANY,
an Ohio corporation
By _______________________________________
Its: President
IN WITNESS WHEREOF, CM Acquisition Corp. has executed this Agreement at
_______________, _______________, on this _____ day of August, 1996.
CM ACQUISITION CORP.,
an Ohio corporation
By _______________________________________
Its: President
IN WITNESS WHEREOF, Stockholder Harold A. Merten, Jr. has executed this
Agreement at _______________, _______________, on this _____ day of August,
1996.
__________________________________________
HAROLD A. MERTEN, JR.
32
<PAGE>
IN WITNESS WHEREOF, Stockholder Marion B. Merten has executed this
Agreement at _______________, _______________, on this _____ day of August,
1996.
__________________________________________
MARION B. MERTEN
IN WITNESS WHEREOF, Stockholder Harold A. Merten, III has executed this
Agreement at _______________, _______________, on this _____ day of August,
1996.
__________________________________________
HAROLD A. MERTEN, III
IN WITNESS WHEREOF, Stockholder Susan M. Roberts has executed this
Agreement at _______________, _______________, on this _____ day of August,
1996.
__________________________________________
SUSAN M. ROBERTS
33
<PAGE>
STATE OF _______________,
COUNTY OF _______________, TO-WIT:
The foregoing instrument was acknowledged before me this _____ day of
August, 1996 by _______________, President of The Merten Company, an Ohio
corporation, on behalf of the corporation.
My commission expires __________________________________________________.
__________________________________________
NOTARY PUBLIC
STATE OF _______________,
COUNTY OF _______________, TO-WIT:
The foregoing instrument was acknowledged before me this _____ day of
August, 1996 by _______________, President of CM Acquisition Corp., an Ohio
corporation, on behalf of the corporation.
My commission expires __________________________________________________.
__________________________________________
NOTARY PUBLIC
34
<PAGE>
STATE OF _______________,
COUNTY OF _______________, TO-WIT:
The foregoing instrument was acknowledged before me this _____ day of
August, 1996 by Harold A. Merten, Jr.
My commission expires __________________________________________________.
__________________________________________
NOTARY PUBLIC
STATE OF _______________,
COUNTY OF _______________, TO-WIT:
The foregoing instrument was acknowledged before me this _____ day of
August, 1996 by Marion B. Merten.
My commission expires __________________________________________________.
__________________________________________
NOTARY PUBLIC
35
<PAGE>
STATE OF _______________,
COUNTY OF _______________, TO-WIT:
The foregoing instrument was acknowledged before me this _____ day of
August, 1996 by Harold A. Merten, III.
My commission expires __________________________________________________.
__________________________________________
NOTARY PUBLIC
STATE OF _______________,
COUNTY OF _______________, TO-WIT:
The foregoing instrument was acknowledged before me this _____ day of
August, 1996 by Susan M. Roberts.
My commission expires __________________________________________________.
__________________________________________
NOTARY PUBLIC
36
