SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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) December 29, 1993
CRANE CO.
(Exact name of registrant as specified in its Charter)
Delaware 1-1657 13-1952290
(State or other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification No.)
100 First Stamford Place, Stamford, CT 06902
(Address of principal executive offices) (Zip Code)
(203) 363-7300
Registrant's telephone number, including area code
(Not Applicable)
(Former name or former address, if changed since last report)
<PAGE>
<PAGE>
Item 2. Acquisition or Disposition of Assets
On December 29, 1993 the Registrant acquired all of the
outstanding stock of Burks Pumps, Inc., a Delaware
corporation ("Burks") from Harbour Group Investments, L.P.,
James C. Janning, Paul G. Baldetti, C. Wayne Gillespey and R.
Michael Koon for $69,807,239, of which
$23,706,910.38 was utilized to pay off outstanding warrants
and long-term debt. The source of the funds used to finance
the transaction was the working capital of the Registrant and
short-term borrowings under its uncommitted credit lines.
Burks has manufacturing operations in Piqua, Ohio and
Decatur, Illinois and provides engineered pumps for an array
of specialized commercial, industrial and municipal fluid
handling applications. These products are marketed under the
Barnes, Burks, Weinman, Crown and Prosser brand names. Also
included is the Sellers line of tank cleaning equipment for
the industrial clean-in-place market. This acquisition
substantially increases the Registrant's involvement in niche
markets in the pump industry and will become part of
Registrant's engineered industrial products business segment.
Item 7. Financial Statements and Exhibits
a. Financial Statements of business acquired
It has been determined that it is impracticable to
provide financial statements for Burks Pumps, Inc. in
the form required by Item 7 of Form 8-K within 15 days
of the acquisition. Such financial statements are
expected to be available and will be filed on or before
February 15, 1994.
b. Proforma Financial Information
It has been determined that it is impracticable to
provide proforma financial information relative to Burks
Pumps, Inc. in the form required by Item 7 of form 8-K
within 15 days of the acquisition. Such information is
expected to be available and will be filed on or before
February 15, 1994.
c. Exhibits
Exhibit 1. - Copy of the Stock Purchase Agreement dated
December 29, 1993 among the Registrant, Burks Pumps,
Inc. and the individuals listed in Item 2.
<PAGE>
SIGNATURES
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 thereunto duly authorized.
Crane Co.
Registrant
January 12, 1994
By:
P. R. Hundt
Vice President
By:
M. L. Raithel
Controller-Chief
Accounting Officer
<PAGE>
<PAGE>
EXHIBIT 1
TO REPORT ON FORM 8-K OF CRANE CO.
STOCK PURCHASE AGREEMENT
________________________________________________
AMONG
CRANE CO.
BURKS PUMPS, INC. ("BURKS")
AND THE
SEVERAL STOCKHOLDERS LISTED IN THE
SIGNATURE PAGES HERETO (COLLECTIVELY, "SELLERS")
________________________________________________
December 29, 1993
(EDGAR Filing Includes Handwritten Changes
in Executed Document)
<PAGE>
<PAGE>
TABLE OF CONTENTS
page no.
ARTICLE I PURCHASE AND SALE_
1.01 Definitions.............................._ 1
1.02 Stock Purchase and Sale.................. 8_
1.03 Purchase Price Determination............._ 8
1.04 Delivery of Stock........................ 11
1.05 Closing.................................._ 11
1.06 Payment of Purchase Price................_ 12
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLERS_
2.01 Ownership of Stock......................._ 14
2.02 Authority of Seller......................_ 14
2.03 No Violation............................. 15_
2.04 Consents and Approvals................... 15
2.05 Hazardous Substances..................... 16
ARTICLE III REPRESENTATIONS AND WARRANTIES CONCERNING
THE COMPANY
3.01 Corporate Organization; Etc.............. 16
3.02 Capitalization........................... 17
3.03 Subsidiaries............................. 17
3.04 No Violation............................. 18
3.05 Consents and Approvals of
Governmental Authorities................. 19
3.06 Financial Statements of the
Company.................................. 19
3.07 Absence of Certain Changes............... 20
3.08 Title to Properties; Encumbrances........ 22
3.09 Patents, Trademarks, Trade Names......... 24
3.10 Material Contracts....................... 25
3.11 Litigation; Compliance with Laws......... 26
3.12 Taxes.................................... 27
3.13 Benefit Plans............................ 31
3.14 Labor Disagreements...................... 33
3.15 Environmental Matters.................... 33
3.16 Brokers, Finders' Fees, Etc.............. 34
3.17 Subsidiaries; Investments................ 34
3.18 Absence of Undisclosed Liabilities....... 34
3.19 Employees................................ 35
3.20 Officers and Directors; Bank Accounts.... 35
3.21 Affiliate Transactions................... 36
3.22 Insurance Policies....................... 36
3.23 Absence of Certain Practices............. 36
3.24 Accounts Receivable...................... 37
3.25 Major Customers and Suppliers............ 37
3.26 Intentionally Deleted.................... 38
3.27 Inventory................................ 38
<PAGE>
3.28 Backlog.................................. 38
3.29 Occupational Safety and Health........... 39
3.30 Product Liability and Warranty........... 39
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER
4.01 Corporate Organization; Etc.............. 40
4.02 Authorization; Etc....................... 40
4.03 No Violation............................. 41
4.04 Consents and Approvals of
Governmental Authorities................. 41
4.05 Sophisticated Investor................... 42
4.06 Purchase of Stock........................ 42
4.07 Brokers, Finders Fees, etc............... 42
ARTICLE V CONDUCT OF BUSINESS PENDING CLOSING
5.01 Regular Course of Business............... 43
5.02 Amendments............................... 43
5.03 Capital Changes.......................... 43
5.04 Dividends; Redemptions................... 43
5.05 Organization............................. 44
5.06 Contracts................................ 44
5.07 Compensation............................. 44
5.08 Taxes.................................... 44
5.09 Insurance................................ 45
ARTICLE VI ADDITIONAL AGREEMENTS
6.01 Reasonable Access........................ 45
6.02 Confidentiality.......................... 46
6.03 Payments of Indebtedness................. 46
6.04 Company Tax Returns...................... 46
6.05 Schedule Updates; Notice of Breach....... 47
6.06 Employee Bonuses......................... 48
ARTICLE VII CONDITIONS PRECEDENT TO BUYERS'
OBLIGATIONS
7.01 Representations and Warranties........... 48
7.02 Performance.............................. 49
7.03 Approvals and Filings.................... 49
7.04 No Injunction............................ 49
7.05 Evidence of Cancellation of
Warrant.................................. 49
7.06 Resignations............................. 49
7.07 Closing Documents........................ 50
7.08 Assurance of Insurance................... 50
<PAGE>
ARTICLE VIII CONDITIONS PRECEDENT TO SELLERS'
OBLIGATIONS
8.01 Representations and Warranties........... 50
8.02 Performance.............................. 51
8.03 Approvals and Filings.................... 51
8.04 No Injunction............................ 51
8.05 Releases................................. 51
8.06 Buyer's Due Diligence.................... 52
8.07 Closing Documents........................ 53
ARTICLE IX TERMINATION AND ABANDONMENT
9.01 Methods of Termination................... 53
9.02 Procedure Upon Termination............... 54
ARTICLE X INDEMNIFICATION
10.01 Survival................................ 54
10.02 Time Limitations........................ 55
10.03 Indemnification by Sellers.............. 55
10.04 Indemnification of Buyer................ 57
10.05 Limitations as to Amount................ 57
10.06 Procedure for On-Site Environmental
Indemnification....................... 58
10.07 Additional Indemnity Provisions......... 63
10.08 Defense of Third Party Claims and
Extension of Statute of Limitations..... 66
ARTICLE XI MISCELLANEOUS PROVISIONS
11.01 Amendment and Modification.............. 68
11.02 Waiver of Compliance.................... 68
11.03 Notices................................. 68
11.04 Binding Nature; Assignment.............. 69
11.05 Individual Liability of Sellers......... 70
11.06 Entire Agreement........................ 71
11.07 Expenses................................ 71
11.08 Press Releases and Announcements........ 72
11.09 Agency.................................. 72
11.10 Governing Law; Jurisdiction;
Service of Process...................... 72
11.11 The Sellers............................. 73
11.12 Counterparts............................ 73
11.13 Headings................................ 73
11.14 Civil Liability Under RICO.............. 73
<PAGE>
<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made
and entered into as of the ______ day of December, 1993, by and
among the persons listed on Exhibit A hereto (collectively,
"Sellers"; each individually, a "Seller"), Burks Pumps, Inc., a
Delaware company (the "Company"), and Crane Co., a Delaware
company ("Buyer").
RECITALS
A. Sellers are the owners of all of the issued and
outstanding shares of the common stock, par value $.01 per share,
of the Company (the "Stock"); and
B. On the terms and subject to the conditions contained
herein, Sellers desire to sell and Buyer desires to purchase all
of Sellers' right, title and interest in and to the Stock.
NOW THEREFORE, in consideration of the premises and of the
mutual representations, warranties and covenants which are to be
made and performed by the respective parties, it is agreed as
follows:
ARTICLE I
PURCHASE AND SALE
1.01 Definitions. The following terms when used in this
Agreement have the meanings set forth below:
(i) "Affiliate" of a Person means (1) any Person who
controls, is controlled by, or is under common Control with, such
person; (2) any officer, director, trustee, employee, stockholder
owning ten percent (10%) or more of the voting stock, or partner
of such Person or any Person included in (1) above; and (3) if
applicable, any relative or spouse (or any relative of such
spouse) of any individual included in (1) or (2) above, any of
whom has the same home address as such individual.
(ii) "Backlog" has the meaning set forth in Section
3.28.
(iii) "Burks Group" or "B.G." means the Company and
its Subsidiaries collectively and individually.
(iv) "Closing Adjustment" means the arithmetic sum
(positive or negative) of the Working Capital Variance and the
Indebtedness Adjustment.
<PAGE>
(v) "Closing Certificate" means the certificate
delivered by the Chief Financial Officer of the Company pursuant
to Section 1.06(b).
(vi) "Closing Documents" has the meaning set forth
in Section 1.05.
(vii) "Contracts" has the meaning set forth in
Section 3.10.
(viii) "Escrow Agent" means the escrow agent selected
by the parties to act pursuant to the escrow agreement attached
hereto as Schedule 1 (the "Escrow Agreement").
(ix) "Escrow Account" means all funds held by the
Escrow Agent pursuant to the Escrow Agreement.
(x) "Estimated Indebtedness" means the Indebtedness
as set forth on the Closing Certificate.
(xi) "Estimated Working Capital" means the Working
Capital as set forth on the Closing Certificate.
(xii) "Estimated Working Capital Adjustment" means
the amount calculated by the formula set forth in Section
1.01(xxxiii) with Estimated Working Capital substituted for
Working Capital in the calculations of the Working Capital
Adjustment.
(xiii) "GAAP" means generally accepted accounting
principles in the United States applied in a manner consistent
with past practices of the Company.
(xiv) "Hart Scott" means the Anti-trust Improvements
Act of 1976 as amended.
(xv) "Hazardous Substances" means hazardous
substances, hazardous materials, hazardous wastes, toxic
substances, petroleum, petroleum fractures or petroleum
derivatives as those terms are defined in CERCLA, RCRA, TSCA,
FIFRA, and all regulations promulgated thereunder or any other
similar environmental law or regulation.
<PAGE>
- "CERCLA" means the Comprehensive Environmental
Response, Compensation and Liability Act, as amended.
- "RCRA" means the Resource Conservation and
Recovery Act of 1976, as amended.
- "TSCA" means the Toxic Substances Control Act,
as amended.
- "FIFRA" means the Federal Insecticide,
Fungicide and Rodenticide Act, as amended.
(xvi) "Indebtedness" means the sum of (1)_the
principal amount of any indebtedness of the Company for borrowed
money outstanding as of the Closing (excluding amounts outstanding
under capital lease obligations), together with all prepayment
premiums or penalties and other amounts becoming due as a result
of this transaction, including expenses and fees to be paid to
lenders in connection with such prepayments and (2)_any unpaid
interest owing on any interest-bearing indebtedness of the
Company.
(xvii) "Indebtedness Adjustment" means the
Estimated Indebtedness compared to the Indebtedness, as finally
determined in accordance with Section 1.03(b). If the Estimated
Indebtedness exceeds the Indebtedness, then the Indebtedness
Adjustment is a positive number equal to such excess. If
Indebtedness exceeds Estimated Indebtedness, then the Indebtedness
Adjustment is a negative number equal to such excess.
(xviii) "Inventory" has the meaning set forth in
Section 3.27.
(xix) "Knowledge" shall mean in the case of the
Company, the actual Knowledge of any Seller, and in the case of
each Seller, shall mean the actual Knowledge of such Seller, in
each case, after due inquiry with respect thereto.
(xx) "Loss" has the meaning set forth in Section
10.07(e).
(xxi) "Material Adverse Effect" shall mean a
material adverse effect on the financial condition, business or
results of operations of the Company.
(xxii) "Material Impact" shall mean a cost to the
Company of $75,000 or more.
<PAGE>
(xxiii) "OSHA Notice" has the meaning set forth in
Section 3.29.
(xxiv) "Partnership" shall mean Harbour Group
Investments, L.P., a Missouri limited partnership.
(xxv) "Person" means an individual, a partnership, a
company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
(xxvi) "Principles and Procedures" means the
principles and procedures set forth on Schedule 1.01.
(xxvii) "Seller's Fraction" is defined in Section
11.05.
(xxviii) "Subsidiaries" is defined in Section 3.03.
(xxix) "Warrant" shall mean the warrant to purchase
shares of common stock of the Company held by Phoenix Home Life
Mutual Insurance Company.
(xxx) "Warrant Cancellation Agreement" means the
agreement among the Company, Buyer, Sellers and Phoenix Home Life
Mutual Insurance Company pursuant to which the Warrant will be
surrendered and cancelled.
(xxxi) "Warrant Cancellation Payment" means the
payment to be made by Buyer to Phoenix Home Life Mutual Insurance
Company at the Closing pursuant to the Warrant Cancellation
Agreement.
(xxxii) "Working Capital" means the excess as of the
Closing Date of (1) the Company's current assets, over (2) the
Company's current liabilities excluding the current portion of
Indebtedness as determined in accordance with the Principles and
Procedures.
(xxxiii) "Working Capital Adjustment" means the
number (positive or negative) calculated on the basis of the
Working Capital, as determined in accordance with Section 1.03(b),
as follows:
(1) if the Working Capital exceeds $14,542,848;
then the Working Capital Adjustment is a positive number equal to
such excess;
<PAGE>
(2) if the Working Capital is $14,542,848 then
the Working Capital Adjustment is zero (0); and
(3) if the Working Capital is less than
$14,542,848, then the Working Capital Adjustment is a negative
number equal to such deficit.
(xxxiv) "Working Capital Variance" means the Working
Capital Adjustment, as finally determined pursuant to Section
1.03(b) compared to the Estimated Working Capital Adjustment. If
the Working Capital Adjustment is more positive or less negative
than the Estimated Working Capital Adjustment, then the Working
Capital Variance is a positive number equal to such excess. If
the Estimated Working Capital Adjustment is more positive or less
negative than the Working Capital Adjustment, then the Working
Capital Variance is a negative number equal to such excess.
1.02 Stock Purchase and Sale. Subject to the terms and
conditions set forth herein, at the Closing (as defined in Section
1.05) Sellers will sell and Buyer will purchase all of Sellers'
right, title and interest in and to the Stock.
1.03 Purchase Price Determination.
(a) Purchase Price. The total purchase price to be
paid to Sellers (the "Purchase Price") shall be the sum of
$70,000,000 (i) minus Indebtedness, (ii) plus the Working Capital
Adjustment and (iii) minus the Warrant Cancellation Payment. The
Purchase Price shall be allocated among the Stockholders in
accordance with the Sellers' Fractions.
(b) Determination of Indebtedness and Working
Capital Adjustment. The amount of the Indebtedness and Working
Capital Adjustment shall be determined in the following manner:
(i) Closing Statements. Promptly after the
Closing, the Company will prepare the following:
A. A consolidated balance sheet of the
Company at the Closing Date and the related statements of
operations, stockholders' equity and cash flows for the period
from December 31, 1992 to the Closing Date (the "Final Financial
Statements") accompanied by an audit report thereon by Price
Waterhouse, as independent accountants for the Company, to the
effect that the Final Financial Statements present fairly in all
material respects the financial position of the Company on that
date and the results of operations, changes in stockholders'
equity and cash flows of the Company for such period, in
conformity with GAAP ("Final Certified Financial Statements").
<PAGE>
B. Statements in accordance with the
Principles and Procedures which shall set forth the Closing
Adjustment, the Working Capital Adjustment, the Working Capital
and the Indebtedness (the "Closing Statements"). Price
Waterhouse, as independent accountants for the Company, at the
Company's expense, will examine and test the Closing Statements of
the Company in accordance with generally accepted auditing
standards and the Principles and Procedures and issue their
reports as to the results of such examination and testing (the
"Closing Reports"). The costs and fees of Price Waterhouse for
the reports contemplated herein and for the tax preparation of the
Company's tax returns for the period ending as of the Closing Date
shall be included in the Working Capital Adjustment to the extent
not accrued in the Financial Statements. Within sixty (60) days
after the Closing or as soon thereafter as reasonably practicable,
the Company will deliver the Final Certified Financial Statements,
Closing Statements and Closing Reports to Buyer and the Sellers.
The Company shall direct Price Waterhouse to deliver drafts of the
Final Certified Financial Statements, Closing Statements and
Closing Reports to Buyer for review and analysis at least ten
(10)_days prior to final issuance of the Final Certified Financial
Statements, Closing Statements and Closing Reports and delivery to
Buyer and the Sellers as noted above. Buyer shall have the
opportunity to review and evaluate all working papers, worksheets
and other documents utilized by the Company in the preparation of
the Final Certified Financial Statements and Closing Statements
and by Price Waterhouse in the examination, testing and/or
preparation of the Final Certified Financial Statements, the
Closing Statements and the Closing Reports.
(ii) Review by Buyer and Price Waterhouse.
Buyer and Price Waterhouse will attempt to resolve any disputed
items prior to the issuance of the Final Certified Financial
Statements, Closing Statements and Closing Reports. Failing such
resolution, Buyer and the Sellers will exchange within thirty (30)
days of receipt of the Final Certified Financial Statements,
Closing Statements and Closing Reports detailed written
explanations of those items in the Closing Reports which remain in
dispute. The amount of the Closing Adjustment not affected by the
disputed items will be deemed to be as set forth in the Closing
Statements and Closing Reports. Within a further period of thirty
(30) days from the end of the aforementioned review period, the
parties will attempt to resolve in good faith any disputed items.
<PAGE>
(iii) Arbitration. Failing resolution pursuant
to subparagraph (ii) above, the unresolved disputed items will be
referred for final binding resolution to the Cleveland office of
Ernst & Young or to such other nationally-recognized firm of
certified public accountants as the parties may hereafter jointly
select (the "Arbitrator"). If the Arbitrator determines that the
resolution of a given disputed item requires an interpretation of
law, then the Arbitrator may request a law firm of national
standing chosen by it to render a legal opinion as to such matter.
The amount of the Closing Adjustment affected by such unresolved
disputed items (if any) will be as determined by the Arbitrator.
The costs of such Arbitrator's review (including reasonably
attorneys fees, if any) shall be borne by the party or parties as
determined by the Arbitrator.
(c) Arbitrator. The Arbitrator shall be requested
with respect to all references to it to render its decision within
thirty (30) days of a reference or as soon as practicable
thereafter. The Arbitrator shall send copies of its decision to
Buyer and the Sellers.
1.04 Delivery of Stock. At the Closing each Seller shall
deliver to Buyer one or more stock certificates representing in
the aggregate the number of Shares of Stock set forth opposite the
name of such Seller on Exhibit A attached hereto, duly endorsed in
blank for transfer or accompanied by duly executed stock powers in
proper form.
1.05 Closing. The closing of the purchase and sale of
the Stock (the "Closing") shall take place at the offices of
Dickstein, Shapiro & Morin, 2101 L Street, N.W., Washington, D.C.
20037, or such other place as Buyer and the Partnership shall
agree, on the date (the "Closing Date") which is three Business
Days after the satisfaction or waiver (to the extent the same may
be waived) of all conditions set forth in Articles VII and VIII.
At the Closing, Buyer, Sellers and the other parties listed on
Schedule 1.05 shall take such actions and execute and deliver the
documents, agreements and certificates as may be required by other
sections of this Agreement or as may be listed on Schedule 1.05
hereto ("Closing Documents").
<PAGE>
1.06 Payment of Purchase Price. Buyer will pay the
Purchase Price as follows:
(a) Estimated Payments. At the Closing, Buyer shall
pay to the Sellers $64,000,000, (i)_minus the Estimated
Indebtedness, (ii)_plus the Estimated Working Capital Adjustment
(if any), and (iii) minus the Warrant Cancellation Payment. Buyer
shall also pay $6,000,000 to the Escrow Agent pursuant to the
terms of the Escrow Agreement, by wire transfer of immediately
available funds. Any other payments to be made to the individual
Sellers hereunder shall be paid to the Partnership as agent for
such Sellers.
(b) Closing Certificate. At the Closing, the Chief
Financial Officer of the Company shall deliver to Buyer the
Closing Certificate in the form annexed hereto as Schedule
1.06(b), which shall set forth his best estimate of the Estimated
Indebtedness, the Estimated Working Capital and the Estimated
Working Capital Adjustment.
(c) Closing Adjustment. The Closing Adjustment
shall be computed in accordance with the terms of this Agreement,
by the agreement of the parties or by the Arbitrator, as the case
may be, immediately after the final determination of the
Indebtedness, the Working Capital and the Working Capital
Adjustment pursuant to Section 1.03(b) and shall be paid within
ten (10) business days thereafter. If the Closing Adjustment is a
positive number, the Closing Adjustment shall be paid by Buyer to
the Partnership. If the Closing Adjustment is a negative number,
the Closing Adjustment shall be paid to Buyer.
(d) Interest Payments. Sums payable pursuant to
Section 1.06(c) shall bear interest from the date of Closing to
the date of payment at the base lending rate of CITICORP, N.A. in
effect during such period. Interest calculated in accordance with
this Section 1.06(d) shall be due and payable to the Buyer or the
Sellers, as the case may be, on the date on which the
corresponding payment is due.
(e) Distribution of Proceeds. Pending determination
of the Closing Adjustment, the Partnership shall hold and not
distribute to the individual Sellers or its partners $1,000,000 of
the proceeds payable to the Sellers at Closing. Such sum shall be
utilized to pay to Buyer any sums required to be paid by the
Sellers to Buyer pursuant to Section 1.06(c). After such payment
to Buyer, the Partnership shall distribute to each individual
Seller his Seller's Fraction of the remaining sum and any interest
earned thereon (less any deduction for expenses made pursuant to
Section 11.07).
<PAGE>
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS
Each Seller hereby represents and warrants to Buyer, as to
himself or itself and not as to any other Seller as follows:
2.01 Ownership of Stock. Such Seller is the owner,
beneficially and of record, of the shares of Stock set forth oppo-
site his or its name on Exhibit A hereto, free and clear of any
pledge, lien, security interest, encumbrance, claim or equity of
any kind, except as set forth on Schedule 2.01. At Closing such
Seller will transfer title to such shares of Stock free and clear
of any such pledge, lien, security interest, encumbrance, claim or
equity.
2.02 Authority of Seller. Such Seller has the full right,
capacity and power to enter into this Agreement and to consummate
the transactions contemplated herein. This Agreement has been
duly executed and delivered by such Seller and constitutes a valid
and binding obligation, enforceable against such Seller in
accordance with its terms, except (a)_as the same may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to creditors' rights
generally and (b)_that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
2.03 No Violation. Except as set forth in Schedule_2.03
hereto, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby by such
Seller will violate, or be in conflict with, or allow the
termination of, or constitute a default under, or cause the
acceleration of the maturity of, or create a lien under, any
material debt or obligation pursuant to any material agreement or
commitment to which such Seller is a party or by which such Seller
is bound, or, to the best Knowledge of such Seller, violate any
statute or law or any judgment, decree, order, regulation or rule
of any court or governmental authority to which such Seller is
subject.
<PAGE>
2.04 Consents and Approvals. Except for consents,
approvals or authorizations which if not received, or
declarations, filings or registrations which if not made, would
not have a Material Adverse Effect, no consent, approval or
authorization of, or declaration, filing or registration with, any
governmental or regulatory authority or third party is required to
be made or obtained by such Seller in connection with the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
2.05 Hazardous Substances. To each Sellers' knowledge,
except as disclosed on Schedule 3.15 or the documents referenced
therein, the Burks Group has not released any Hazardous Substances
out of or into or from the real properties owned or leased by the
Burks Group as of the date hereof in violation of applicable law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
CONCERNING THE COMPANY
The Company hereby represents and warrants to Buyer as
follows:
3.01 Corporate Organization; Etc. The Company and each of
its Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority
to own, lease and operate its properties and to carry on its
business as now being conducted. Each of the Company and its
Subsidiaries is duly qualified or licensed as a foreign
corporation to do business and is in good standing in each
jurisdiction in which the property owned, leased or operated by it
or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so duly
qualified or licensed would not have a Material Adverse Impact.
True and complete copies of the charter documents and Bylaws of
the Company and each of its Subsidiaries have been delivered to
Buyer. Schedule_3.01 hereto sets forth a true and complete list
of all jurisdictions in which the Company and each of its
Subsidiaries is qualified or licensed to do business as a foreign
company.
<PAGE>
3.02 Capitalization. Schedule 3.02 hereto sets forth the
authorized, issued and outstanding shares of capital stock of the
Company as of the date hereof. All issued and outstanding shares
of capital stock of the Company are validly issued, fully paid and
nonassessable. Except as set forth in Schedule 3.02, there are no
other shares of capital stock of the Company, or securities
convertible into or exchangeable or exercisable for shares of
capital stock, outstanding, and there are no outstanding options,
warrants, rights, contracts, commitments, understandings or
arrangements by which the Company is bound to issue, repurchase or
otherwise acquire or retire any additional shares of capital stock
or other securities of the Company.
3.03 Subsidiaries. The only direct or indirect
subsidiaries of the Company are Barnes Pumps, Inc., an Ohio
corporation, and Barnes Pumps Canada, Inc., a Canadian corporation
(the "Subsidiaries"). Except for directors' qualifying shares, if
any, the Company is, directly or indirectly, the record and
beneficial owner of all of the outstanding shares of capital stock
of each of the Subsidiaries; there are no irrevocable proxies with
respect to such shares, and no equity securities of any of the
Subsidiaries are or may become required to be issued for any
reason including, without limitation, by reason of any options,
warrants, script, rights to subscribe for, calls or commitments of
any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of any capital stock
of any Subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Subsidiary is bound to
issue additional shares of its capital stock or securities
convertible into or exchangeable for such shares. All of such
shares so owned by the Company or any of its Subsidiaries are
validly issued, fully paid and nonassessable and are owned by it
free and clear of any claim, lien, encumbrance or agreement with
respect thereto.
3.04 No Violation. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contem-
plated hereby will violate any provisions of the Certificate of
Incorporation or By-laws of the Company or, (a)_with or without
the giving of notice or the passage of time, or both, violate, or
be in conflict with, or constitute a default under, or permit the
termination of, or cause the acceleration of the maturity of, any
debt or obligation of the Company, which individually or in the
aggregate with all other such debts and obligations is material to
the Company, (b)_require the consent of any party to any agreement
or commitment to which the Company is a party, or by which the
Company is bound, the failure of which to obtain would,
individually or in the aggregate with all other failures to obtain
required consents, have a Material Adverse Effect, (c)_result in
<PAGE>
the creation or imposition of any security interest, lien, or
other encumbrance upon any material property or assets of the
Company (determined singly or in the aggregate), under any
agreement or commitment to which the Company is a party, or by
which the Company is bound, or (d)_violate any statute or law or
any judgment, decree, order, regulation or rule of any court or
governmental authority to which the Company is subject, which
violations individually or in the aggregate with all such other
violations would have a Material Adverse Effect.
3.05 Consents and Approvals of Governmental Authorities.
Except for (i) compliance with the applicable requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
(the "HSR Act") and (ii) any consents, approvals or authorizations
which if not received, or declarations, filings or registrations
which if not made, in any single case or in the aggregate, would
not have a Material Adverse Effect or impede the consummation of
the transaction in any material respect, no consent, approval or
authorization of, or declaration, filing or registration with, any
governmental or regulatory authority is required to be made or
obtained by the Company in connection with the execution, delivery
and performance of this Agreement or the consummation of the
transactions contemplated hereby.
3.06 Financial Statements of the Company. (a) The Company
has previously delivered to Buyer accurate and complete copies of
the consolidated balance sheet of the Company at December 31,
1992, and at December 31, 1991, and the related statements of
operations, stockholders' equity and cash flows for each of the
years then ended (the "Financial Statements"), in each case
accompanied by the audit report thereon of Price Waterhouse. All
such Financial Statements present fairly, in all material
respects, the financial position of the Company at the respective
dates thereof, and the results of operations, changes in
stockholders' equity and cash flows of the Company for the periods
indicated, in conformity with GAAP. The Financial Statements are
attached hereto as Schedule 3.06.
(b) The Company has delivered to the Buyer the
interim unaudited consolidated balance sheet of the Company at
October 31, 1993 and the related statements of operations,
stockholders' equity and cash flows for the ten months then ended
(the "Interim Financial Statements"). The Interim Financial
Statements present fairly, in all material respects, the financial
position of the Company at the date thereof, and the results of
operations, changes in stockholders' equity and cash flows for the
period indicated, and have been prepared in accordance with GAAP
consistent with the Financial Statements, subject to normal
<PAGE>
year-end adjustments, adoption of required, new accounting
principles and the absence of notes. The Interim Financial
Statements are attached hereto as Schedule 3.06.
3.07 Absence of Certain Changes. Except as set forth in
Schedules 3.06 and 3.08(b), since October 31, 1993 and through the
date hereof, the Burks Group has conducted its business only in
the ordinary course and there has not been:
(a) any adverse change which has a Material Adverse
Effect on the business, results of operations or financial
condition of the B.G., except for changes which adversely impact
the domestic or international pump industries generally ;
(b) any mortgage, pledge, lien, security interest,
encumbrance, restriction or charge of any kind permitted or
allowed with respect to any of the properties, business or assets
of the B.G.;
(c) except for (i)_increases in the ordinary course
of business and in accordance with past practice and
(ii)_increases pursuant to collective bargaining agreements, any
general increase in the compensation of officers or employees of
the B.G. (including any such increase pursuant to any bonus,
pension, profit-sharing or other plan or commitment) or any
bonuses or any increase in the compensation payable or to become
payable to any individual officer or employee of the B.G.;
(d) any declaration, payment or setting aside for
payment of any dividend or other distribution in respect of the
capital stock of the Company, or any redemption, purchase or other
acquisition of any shares of the capital stock or other securities
of the Company;
(e) any write-down of the value of any inventory or
write-off as uncollectible of any notes or accounts receivable of
the B.G. which has a Material Impact except for write-downs and
write-offs in the ordinary course of business and consistent with
past practice;
(f) any capital expenditure or commitment, or series
of related capital expenditures or commitments, by the B.G. for
any addition to property, plant or equipment greater than $50,000;
or
<PAGE>
(g) any sale, assignment, transfer or other
disposition of any of the B.G.'s material patents, trademarks,
trade names, copyrights, licenses or other intangible assets.
(h) Any change in reserves reflected in the balance
sheet included within the Interim Financial Statements except for
reductions in such reserves due to the payment of the related
obligations.
3.08 Title to Properties; Encumbrances. Schedule 3.08(a)
hereto lists all real properties and interests therein owned or
leased by the B.G. as of the date hereof, and Schedule_3.08(b)
hereto lists the mortgages, pledges, liens or security interests
affecting such real properties and interests therein. Except as
set forth in Schedule_3.08:
(a) the B.G. has good and marketable title to all of
the real properties listed in Schedule 3.08(a) and has good title
to all tangible personal properties and other assets shown as
owned by the B.G. on its books and records (except for properties
and assets acquired under installment purchase contracts or held
pursuant to capitalized leases as described on Schedule_3.10, or
not required to be disclosed on such Schedule), except for such
defects of title, if any, as do not in the aggregate materially
interfere with the present use of or materially impair the value
of such properties or assets;
(b) none of the properties or assets of the B.G. is
subject to any mortgage, pledge, lien, security interest,
encumbrance, claim or charge of any kind except (i)_statutory
liens not yet delinquent; (ii)_liens or encumbrances (other than
mortgages, pledges, liens or security interests securing
indebtedness) that do not in the aggregate materially interfere
with the present use of or materially impair the value of such
properties or assets; (iii)_mortgages, pledges, liens or security
interests securing indebtedness as listed on Schedule_3.08(b)
hereto; (iv)_liens for taxes not yet delinquent; or (v)_liens
accounted for as capitalized leases;
(c) with respect to each parcel of real property
owned by the B.G. as set forth in Schedule_3.08(a), (i)_there are
no leases, subleases, licenses, or other agreements granting to
any party or parties the right of use or occupancy of any portion
of the parcel of real property; (ii)_there are no pending and, to
the best of their Knowledge, threatened condemnation proceedings
affecting such parcel; (iii)_there are no outstanding options or
<PAGE>
rights of first refusal to purchase the parcel of real property,
or any portion thereof or interest therein; and (iv)_there are no
parties (other than the B.G.) in possession of any parcel of real
property; and
(d) with respect to real property leased or
subleased by the B.G. as set forth in Schedule 3.08(a), (i)_each
lease or sublease is in full force and effect as of the date
hereof; (ii)_the B.G. is not and, to the best of their Knowledge,
no other party to such leases or subleases is in breach or default
or has repudiated any provision thereof; (iii)_there are no
disputes, oral agreements, or forbearance programs in effect as to
such leases or subleases; and (iv)_except as may be set forth in
Schedule_3.08(b), the B.G. has not assigned, transferred,
conveyed, mortgaged, deeded in trust, or encumbered any interest
in such leaseholds or subleaseholds.
To the best of its Knowledge and except for ordinary,
routine or scheduled maintenance, the material buildings,
machinery, equipment, vehicles and other tangible assets of the
B.G. are in satisfactory operating condition and repair (ordinary
wear and tear excepted) and are usable in the ordinary course of
business. The B.G. owns or leases under valid leases all material
buildings, machinery, equipment and other tangible assets
necessary for the present conduct of its business.
3.09 Patents, Trademarks, Trade Names. Except as noted
thereon, Schedule_3.09 lists all material patents, trademarks,
service marks, trade names and copyrights and all registrations
and applications for registration for any of the foregoing owned
or used (pursuant to license agreements or otherwise) in the
conduct of the business of the B.G. as of the date hereof. Except
as set forth on Schedule_3.09 hereto, to the knowledge of the
Company, the use of such patents, trademarks, service marks, trade
names and copyrights and all trade secrets and other confidential
information (including, without limitation, ideas, know-how,
processes, plans and forecasts) and other intellectual property
rights used by the B.G. (collectively, the "Intellectual Property
Rights") does not conflict with or infringe on the rights of any
third person, except for such conflicts or infringements which in
the aggregate would not have a Material Impact. Except as set
forth on Schedule_3.09, the B.G. owns or possesses a valid license
to use the Intellectual Property Rights as necessary for the
present operation of its business, and the B.G. has no Knowledge
that (a)_any third party has infringed any of the B.G.'s rights in
the Intellectual Property Rights; or (b)_any claim has been made
<PAGE>
contesting the validity or enforceability of the Intellectual
Property Rights, except where the loss or expiration of the
Intellectual Property Rights would have no Material Impact. The
transactions contemplated by this Agreement would not adversely
affect the Intellectual Property Rights in any material respect.
3.10 Material Contracts. Schedule 3.10 lists all
agreements, contracts, non-real estate leases, guarantees of
performance or debt and other commitments (or groups of related
contractual obligations with the same party) ("Contracts") to
which the B.G. is a party as of the date hereof (i)_which
(including collective bargaining agreements) involve commitments
in excess of $20,000, and which may not be unilaterally terminated
by the B.G. without penalty or expense within 30 days; (ii)_with
any officer, director, seller or other insider of the B.G., (iii)
pursuant to which the B.G. subcontracts in excess of $30,000 of
work to third parties or (iv) with any sales agent of distributor.
Except as set forth on Schedule_3.10 and excluding matters which
will not in the aggregate result in a Material Impact, (a)_each of
the Contracts is in full force and effect and enforceable in
accordance with its terms; the B.G. has not given or received
notice of cancellation of or intent to cancel any of the
Contracts; there exists no event of default or occurrence,
condition or act on the part of the B.G. or, to the B.G.'s
Knowledge, on the part of the other party to such Contracts which
constitutes or would constitute (with notice or lapse of time or
both) a material default thereunder; and except as set forth on
Schedule 3.10, no consent of any other party to the Contracts is
required in connection with the execution, delivery and
performance of this Agreement; and (b) except as set forth on
Schedule 3.10, the B.G. is not a party to any agreement which
restricts its ability to compete in any line of business or with
any person.
3.11 Litigation; Compliance with Laws.
(a) Except as set forth on Schedule_3.11, there is
no action, proceeding or investigation pending or threatened
against the B.G., which, if adversely determined, would result,
directly or indirectly, in a liability of the B.G. which would
have a Material Impact. The B.G. is not in violation of any
judgment, order or decree entered against it in any lawsuit or
proceeding, except for violations which would not have a Material
Adverse Effect.
(b) The B.G. is not in violation of any laws, rules,
regulations, ordinances, orders, judgments and decrees applicable
to its business, properties, employment or compensation practices,
or operations as presently conducted, except as set forth on
<PAGE>
Schedule 3.11, except for matters which are the subject of Section
3.15 and Section 3.11(c) and except for violations which would not
have a Material Adverse Effect.
(c) The B.G. possesses, is presently in substantial
compliance with and in the previous two years has received no
notice of material violations of any license, permit, consent,
authorization or approval of or from any governmental body having
jurisdiction over it necessary to conduct its business as
presently conducted except where the failure to hold any such
license or the failure to be in compliance would not have a
Material Impact.
3.12 Taxes. (a) All federal, state and local tax returns
required to be filed by or with respect to the B.G. have been
accurately prepared in all material respects, and have been duly
filed, and all taxes (including taxes withheld from employees'
salaries and other withholding taxes and obligations and all
deposits required to be made by or with respect to the B.G. with
respect to such withholding taxes or otherwise), interest,
penalties, assessments and/or deficiencies due with respect to
such tax returns have been paid or adequate provision for the
payment thereof has been made on the Financial Statements or the
books of account of the Company.
(b) Except as set forth in Schedule 3.12(b) attached
hereto:
(i) No material deficiencies for taxes have
been claimed, proposed or assessed by any taxing or other
governmental authority;
(ii) There are no pending or, to the best of
the Company's or its Subsidiaries knowledge, threatened audits,
investigations or claims for or relating to any material liability
in respect of taxes, and there are no matters under discussion
with any governmental authorities with respect to taxes that in
the reasonable judgment of the Company or its Subsidiaries, is
likely to result in a material additional amount of taxes;
(iii) Audits of federal and state returns for
taxes by the relevant taxing authorities have been completed for
each period set forth in Schedule 3.12(b), and neither the Company
nor its Subsidiaries has been notified that any taxing authority
intends to audit a return for any other period; and
(iv) Neither the Company nor its Subsidiaries
has waived any statute of limitations relating to taxes or agreed
to any extension of time with respect to a tax assessment or
deficiency.
<PAGE>
(c) Neither the Company, nor its Subsidiaries has:
(i) Consented at any time under Section
341(f)(1) of the Code, to have the provisions of Section 341(f)(2)
of the Code apply to any disposition of the Company's or its
Subsidiaries' assets;
(ii) Agreed, or is required, to make any
adjustment under Section 481(a) of the Code by reason of a change
in accounting method or otherwise;
(iii) Made an election, or been required, to
treat any asset of the Company or its Subsidiaries as owned by
another person pursuant to the provisions of Section 168(f)(8) of
the Internal Revenue Code of 1954, as amended, and in effect
immediately prior to the enactment of the Tax Reform Act of 1986
or as tax-exempt bond financed property or tax-exempt use property
within the meaning of Section 168(h) of the Code; or
(iv) Made any of the foregoing elections or
been required to apply any of the foregoing rules under any
comparable state or local income tax provision.
(d) Prior Affiliated Groups/Tax Sharing Agreements.
(i) Except as set forth in Schedule 3.12(d),
the Company and its Subsidiaries are not and have never been
includable corporations in an affiliated group of corporations,
within the meaning of Section 1504 of the Code, other than in the
affiliated group of which the Company is now the common parent
corporation.
(ii) Except as set forth in Schedule 3.12(d),
the Company is not a party to or bound by any tax allocation or
similar tax sharing agreement, and has no contractual obligation
to indemnify any other person with respect to taxes.
(e) FIRPTA / Existing Partnerships.
(i) No Seller is a "foreign person" as defined
in Section 1445(f)(3) of the Code.
(ii) Neither the Company nor its Subsidiaries
is subject to any joint venture, partnership, or other arrangement
or contract which is treated as a partnership for federal income
tax purposes.
(f) Parachute Payments. Neither the Company nor its
Subsidiaries has made or become obligated to make, or will, as a
result of any event connected with the acquisition of the Company
and its Subsidiaries by Buyer or any other transaction
contemplated herein, make or become obligated to make any "excess
parachute payment" as defined in Section 280G of the Code.
<PAGE>
(g) Deferred Intercompany Items. Schedule 3.12(g)
describes the material deferred intercompany transactions between
the Company and its Subsidiaries.
(h) Basis and Excess Loss Accounts in Subsidiaries.
Schedule 3.12(h) describes the Company's purchase price for and
the date of its acquisition of the stock of its Subsidiaries. The
Company does not have an excess loss account with respect to the
stock of such Subsidiaries.
3.13 Benefit Plans. (a)__Schedule_3.13 contains an
accurate and complete list of all Benefit Plans, as defined below,
maintained or sponsored by the B.G., contributed to by the B.G.,
covering any employees of the B.G., to which the B.G. is obligated
to contribute or with respect to which the B.G. has any liability.
For purposes of this Agreement, the term "Benefit Plans" shall
mean: (i)_employee benefit plans as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), whether or not terminated (ii)_employment agreements,
and (iii)_fringe benefit plans, policies, programs and
arrangements, whether or not subject to ERISA, whether or not
funded and whether or not terminated.
(b) Except as set forth in Schedule 3.13(b), the
B.G. does not contribute to or have any liability with respect to
any Benefit Plan which provides health, life insurance, accident
or other "welfare-type" benefits to current or future retirees or
current or future former employees, their spouses or dependents,
other than in accordance with Section 4980B of the Code or
applicable state continuation coverage law.
(c) Each Benefit Plan and all related trusts,
insurance contracts and funds have been maintained, funded and
administered in compliance in all material respects with all
reporting and disclosure requirements and applicable laws and
regulations, including but not limited to ERISA and the Code. No
actions, suits, claims (other than routine claims for benefits),
taxes, penalties or liens with respect or relating to the Benefit
Plans are pending or, to their Knowledge, threatened, or have been
assessed or incurred. No liability to the PBGC (except for
routine payment of premiums which are not delinquent) has been or,
to their Knowledge, is expected to be incurred with respect to any
Benefit Plan that is subject to Title_IV of ERISA.
(d) With respect to each Benefit Plan, the Sellers
have provided Buyer with true, complete and correct copies, to the
extent applicable of (i)_all documents pursuant to which the
Benefit Plans are maintained, funded and administered, including
<PAGE>
all amendments thereto, (ii)_the most recent annual report (Form
5500 series) filed with the IRS (with attachments), (iii)_the most
recent actuarial report, (iv)_the most recent financial
statements, and (v)_all governmental rulings and determinations
relating to such Benefit Plans.
(e) Except as set forth on Schedule 3.13(e), the
B.G. does not contribute to, nor does it have any liability for
complete or partial withdrawal from, any Multi-employer Plan as
defined in Section 3(37) of ERISA; and
(f) To the Knowledge of the Company, neither the
B.G. nor any Pension Plan sponsored by or contributed to by the
B.G. has engaged in a Prohibited Transaction as described in
Section 406(a) of ERISA or in Section 4975 of the Code.
(g) Schedule 3.13(g) includes the top twenty (20)
medical and dental cases by cost for the Burks Group in the last
12 months. To the Company's knowledge except as stated on
Schedule 3.13 there are no pre-existing medical conditions of the
employees of the Burks Group or their covered dependents which
would be expected in the normal course to substantially increase
the B.G.'s medical costs over the B.G.'s experience.
3.14 Labor Disagreements. Since January 1, 1992, the B.G.
has not experienced any labor disputes or any work stoppages due
to labor disagreements, and, to their Knowledge, there is no such
dispute or work stoppage threatened against the Company. The
Company has no Knowledge of any effort made or threatened by or on
behalf of any labor union since January 1, 1990 to organize any
employees of the B.G.
3.15 Environmental Matters.
(a) Except as indicated on Schedule 3.15, to the
best Knowledge of the Company, the B.G. is in compliance in all
material respects with all laws, rules, regulations, orders,
ordinances, judgments, decrees and other legal requirements
relating to pollution, or protection of the environment
("Environmental Laws").
(b) The B.G. possesses and is in compliance in all
material respects with all permits, licenses, certificates,
franchises and other authorizations relating to Environmental Law
necessary to conduct its business.
<PAGE>
(c) Except as disclosed on Schedule 3.15 or the
documents referenced therein, to the Company's Knowledge, the
Burks Group has not released any Hazardous Substances out of or
into or from the real properties owned or leased by the Burks
Group as of the date hereof in violation of applicable law.
3.16 Brokers, Finders' Fees, Etc. Except for B.T.
Securities Corporation, whose fees are the responsibility of the
Sellers, none of the Sellers or the Company has employed any
broker, finder, investment banker or financial advisor as to whom
the Company or Buyer may have any obligation to pay any brokerage
or finders' fees, commission or similar compensation in connection
with the transactions contemplated hereby.
3.17 Subsidiaries; Investments. Except as set forth in
Schedule 3.17, the Company does not have any subsidiaries other
than the Subsidiaries and does not own or hold the right to
acquire any stock of stock or any other security or interest in
any other Person.
3.18 Absence of Undisclosed Liabilities. Except as set
forth in Schedule 3.18, to its Knowledge, the B.G. has no
obligations or liabilities (whether accrued, absolute, contingent,
unliquidated or otherwise, whether due or to become due and
regardless of when asserted) which would have a Material Impact
arising out of transactions entered into at or prior to the date
hereof, or any action or inaction at or prior to the date hereof,
except (i)_obligations under contracts or commitments described in
Schedule_3.10 or under contracts and commitments which are not
required to be disclosed thereon (but not liabilities for breaches
thereof), (ii)_liabilities reflected on the Financial Statements
or the Interim Financial Statements, (iii)_liabilities which have
arisen after the date of the Interim Financial Statements in the
ordinary course of business or otherwise in accordance with the
terms and conditions of this Agreement (none of which is a
liability for breach of contract, breach of warranty, tort or
infringement, or a claim or lawsuit, or an environmental
liability), and (iv)_liabilities otherwise expressly disclosed in
this Agreement or the Schedules attached hereto.
3.19 Employees. To its Knowledge, no key executive
employee and no group of employees or independent contractors of
the B.G. has advised the B.G. of any plans as of the date hereof
to terminate his, her or its employment or relationship as an
independent contractor with the B.G. Schedule_3.19 sets forth the
names and annual compensation (including salary, bonuses and
commissions) as of October 31, 1993, of all salaried employees of
the B.G. having total annual compensation in excess of $50,000.
<PAGE>
3.20 Officers and Directors; Bank Accounts. Schedule 3.20
attached hereto lists all officers and directors of the Company
and each of the Subsidiaries and all of the B.G.'s bank accounts,
deposit boxes and safe deposit boxes (designating each authorized
signatory and the level of each signatory's authorization).
3.21 Affiliate Transactions. Except as disclosed on
Schedule 3.21 attached hereto, to the Knowledge of the Company, no
officer or director of the B.G., Seller or any person related by
blood or marriage to any such person or any entity in which any
such person owns any beneficial interest, is a party to any
agreement, contract, commitment or transaction with the B.G. or
which is pertaining to the business of the B.G. or has any
interest in any property, real or personal or mixed, tangible or
intangible, used in or pertaining to the business of the B.G.
3.22 Insurance Policies. Schedule 3.22 contains a list of
all insurance policies in effect since December 31, 1986 which may
provide coverage in favor of the B.G., specifying the insurer and
certain other information concerning such policies. Each such
policy which is marked as currently in effect on Schedule 3.22 is
in full force and effect and all premiums are currently paid or
accruals provided for and no notice of cancellation or termination
has been received with respect to any such policy. The Company
has not been refused any insurance which has been applied for
during the last two years with respect to the assets and
operations of the B.G.
3.23 Absence of Certain Practices. To its Knowledge, no
director, officer, employee, agent or other person acting on
behalf of the B.G. has given or agreed to give any gift or similar
benefit of more than nominal value to any customer, supplier or
U.S. or foreign governmental employee or official or any other
person who is or may be in a position to help or hinder the
Company or assist the B.G. in connection with any proposed
transaction involving the B.G., which gift or similar benefit, if
not given in the past, would result in a Material Impact. To its
Knowledge, neither the B.G. nor any director, officer, agent,
employee, or other person acting on behalf of the B.G. has (i)
used any corporate or other funds for unlawful contributions,
payments, gifts, or entertainment, or made any unlawful
expenditures relating to political activity to, or on behalf of
U.S. or foreign government officials or others or (ii) accepted or
received any unlawful contributions, payments, gifts or
expenditures or (iii) committed any violations of the Foreign
Corrupt Practices Act.
<PAGE>
3.24 Accounts Receivable. All accounts receivable whether
reflected in the Interim Financial Statements or recorded after
October 31, 1993 represent sales or services actually made or
rendered in the ordinary course of business. The accounts
receivable shown on the Interim Financial Statements are net of
reserves for discounts and allowances determined on a consistent
basis with the Financial Statements.
3.25 Major Customers and Suppliers. Schedule 3.25 sets
forth a list of (i) the names of the 10 largest customers (by
revenues generated) for the B.G. in the year ended December 31,
1992 and the amount of revenues generated by each of such
customers year-to-date through October 31, 1993 and (ii) the names
of the 10 largest suppliers from whom the B.G. purchased supplies
in the year ended December 31, 1992 and the approximate total
purchases by the Company from each such supplier in that year and
year-to-date through October 31, 1993. There have been no changes
in the relationships between the Company and the customers and
suppliers of the Company listed on Schedule 3.25, which would have
a Material Adverse Effect. Since December 31, 1992, except for
changes resulting from matters affecting the pump industry
generally, no such customer or supplier has threatened to
discontinue doing business with the B.G.
3.26 History of the B.G. [Intentionally Deleted].
3.27 Inventory. The values of the inventory of the B.G.
as shown on the Interim Financial Statements and on the books of
the Company on the Closing Date (the "Inventory") have been and
will be determined in accordance with the B.G.'s inventory costing
policies consistently applied and such policy is in accordance
with GAAP. To the Company's Knowledge, there is no adverse
condition substantially impairing the supply of raw materials
available to the B.G.
3.28 Backlog. Schedule 3.28 sets forth a list of all
contracts with and purchase orders from the B.G.'s customers with
remaining contract payments of $25,000 or more ("Backlog") as of
close of business December 22, 1993. Except as set forth on
Schedule 3.28 and excluding matters which will not result in a
Material Impact, none of the customer contracts in the Backlog
will be subject under existing agreements with the B.G. to
cancellation by reason of the acquisition of the Shares by Buyer
and since January 1, 1993 no customer has notified the B.G. that
it intends to cancel or materially reduce quantities to be
purchased under any customer contract in the Backlog (for this
purpose, statements concerning general economic conditions and
matters affecting the pump industry generally are not notice of an
intention to cancel or reduce quantities).
<PAGE>
3.29 Occupational Safety and Health. Except as disclosed
in Schedule 3.29, the B.G. has not received in the previous two
(2) years any notice, citation, claim, assessment or proposed
assessment from any governmental authority (collectively "OSHA
Notice"), nor to the Company's Knowledge does any OSHA Notice
exist, as to or alleging that any of the activities of the B.G.
are in violation in any material respect of any federal, state, or
local occupational safety or health laws, and to the Company's
Knowledge no such violation presently exists which would have a
Material Impact on the business or operations of the B.G. The
B.G. is not a party to any pending dispute with respect to its
compliance with any federal, state or local occupational safety
and health laws as such laws apply to the activities of the B.G.
3.30 Product Liability and Warranty. Schedule 3.30 sets
forth a list of all product liability or product warranty claims
made by customers or third parties against the B.G. having, in any
instance, a value in excess of $25,000 since January 1, 1991.
Schedule 3.30 sets forth the standard written warranties utilized
by the B.G.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF BUYER
Buyer hereby represents and warrants to the Corpora-
tion and each of the Sellers as follows:
4.01 Corporate Organization; Etc. Buyer is a company duly
organized, validly existing and in good standing under the laws of
the State of Delaware.
4.02 Authorization; Etc. Buyer has full corporate power
and authority to enter into this Agreement and to carry out the
transactions contemplated hereby. The Board of Directors of Buyer
has taken all action required to authorize the execution and
delivery of this Agreement, the performance of Buyer's obligations
hereunder and the consummation of the transactions contemplated
hereby. No other corporate proceedings on the part of Buyer are
necessary to authorize the execution, delivery and performance by
Buyer of this Agreement. This Agreement is a valid and binding
agreement of Buyer, enforceable against it in accordance with its
terms except (a)_as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and
(b)_that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
<PAGE>
4.03 No Violation. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contem-
plated hereby by Buyer will violate any provisions of the
Certificate of Incorporation or By-laws of Buyer, or violate, or
be in conflict with, or allow the termination of, or constitute a
default under, or cause the acceleration of the maturity of, any
material debt or obligation pursuant to any material agreement or
commitment to which Buyer is a party or by which Buyer is bound,
or, to the best knowledge of Buyer, violate any statute or law or
any judgment, decree, order, regulation or rule of any court or
governmental authority to which Buyer is subject.
4.04 Consents and Approvals of Governmental Authorities.
Except for (i) compliance with the applicable provisions of the
HSR Act, and (ii) consents, approvals or authorizations which if
not received or declarations, filings or registrations which if
not made, would not have a material adverse effect on the
business, results of operations or financial condition of the
Buyer, to the knowledge of Buyer, no consent, approval or
authorization of, or declaration, filing or registration with, any
governmental or regulatory authority is required to be made or
obtained by Buyer in connection with the execution, delivery and
performance of this Agreement.
4.05 Sophisticated Investor. Buyer is a sophisticated
investor, represented by corporate officers with experience in the
acquisition and valuation of ongoing businesses and acknowledges
that it has received, or has had access to, all information which
it considers necessary or advisable to enable it to make an
informed investment decision concerning its purchase of the Stock.
Buyer is acquiring the Stock for investment purposes only, and not
with a view to, or for, any public resale or other distribution
thereof.
4.06 Purchase of Stock. Buyer is acquiring the Stock
solely in order to acquire the assets and business of the Company;
the form of transaction (e.g., the purchase and sale of the Stock)
is solely for the convenience of the parties and does not create
in Buyer any rights or remedies except as and to the extent
expressly provided in this Agreement.
4.07 Brokers, Finders Fees, Etc. Buyer has not employed
any broker, finder, investment banker or financial advisor or
incurred any liability for any brokerage or finders' fees,
commissions or similar compensation in connection with the
transactions contemplated hereby.
<PAGE>
ARTICLE V
CONDUCT OF BUSINESS PENDING CLOSING
From the date hereof to the Closing, and except as
otherwise specifically contemplated in this Agreement, contained
in disclosures relating hereto or consented to or approved by
Buyer in writing, the Company shall conform to the following:
5.01 Regular Course of Business. Except for transactions,
activities, agreements or commitments which would not, in the
aggregate be material to the business, results of operations or
financial condition of the Company, the B.G. shall carry on its
business substantially in the same manner as heretofore conducted
and shall not engage in any transaction or activity, enter into
any agreement or make any commitment except in the ordinary course
of business.
5.02 Amendments. No change or amendment shall be made in
the Certificate of Incorporation, By-laws or other governing
instruments of the Company or of the Subsidiaries.
5.03 Capital Changes. Except as contemplated under
Section 7.05 and the Schedules hereto, the Company and the
Subsidiaries shall not issue or sell or issue options, warrants to
purchase or rights to subscribe to, or enter into any arrangement
or contract with respect to, any stock of its capital stock or any
of its other securities, or make any other changes in its capital
structure.
5.04 Dividends; Redemptions. Except as contemplated under
Section 7.05 and Schedule 5.04, the Company shall not declare, pay
or set aside for payment any dividend or other distribution with
respect to its capital stock or directly or indirectly redeem,
purchase or otherwise acquire any stock of its capital stock.
5.05 Organization. The Company and the Subsidiaries shall
use reasonable efforts to preserve their corporate existence and
business organization intact and to preserve their properties,
tangible and intangible assets, books and records, and
relationships with their employees, suppliers, customers and
others with whom they have business relations.
<PAGE>
5.06 Contracts. Except for contracts or commitments made
in the ordinary course of business, and contracts or commitments
which, in the aggregate, would not have a Material Impact on the
business of the B.G., no contracts or commitments shall be entered
into by or on behalf of the B.G.
5.07 Compensation. Except as set forth on Schedule 5.07
hereto or as required by law, the B.G. will not (a) pay any bonus
or make any special payment or_grant any increase in compensation
other than normal merit and cost-of-living increases required by
collective bargaining agreements to any officer, employee or agent
earning in excess of $50,000 per annum, or (b)_enter into, or
amend in any material respect, any Benefit Plan, employment
contract or consulting agreement.
5.08 Taxes. Except for taxes contested in good faith and
for which adequate reserves have been established, the B.G. will
pay all taxes upon its properties and business as they become due
and prepare and duly file all tax and other returns and reports
which are required to be filed in respect of taxes. No new
elections with respect to Taxes, or any changes in current
elections with respect to Taxes, affecting the Company and the
Subsidiaries shall be made after the date of this Agreement
without the prior written consent of Buyer.
5.09 Insurance. The B.G. will maintain insurance upon its
properties and insurance in respect of the kinds of risks
(including, without limitation, product liability claims)
currently insured against, in accordance with its current
practice.
<PAGE>
ARTICLE VI
ADDITIONAL AGREEMENTS
The Company hereby covenants and agrees with Buyer, and
Buyer hereby covenants and agrees with the Company, as follows:
6.01 Reasonable Access. The Company shall afford to Buyer
and to its authorized representatives, during reasonable business
hours, access to the plants, properties, personnel, books and
records of the B.G. in order that Buyer may have an opportunity to
make such additional investigation as it shall reasonably desire
to make of the affairs of the B.G. For the purpose of
facilitating such investigation, the Company shall promptly
designate an individual or individuals, each of whom shall be
empowered to receive and act upon such requests, and Buyer agrees
that no communication shall be made by Buyer or its authorized
representatives with any employee, officer or agent of the B.G.
who has not been so designated in writing without the prior
written consent of the designee.
6.02 Confidentiality. Buyer and Harbour Group Industries,
Inc. have previously entered into a Confidentiality Agreement
dated as of September 1, 1993 (the "Confidentiality Agreement").
Buyer shall, and shall cause its officers, employees and
authorized representatives to, comply fully with all terms and
conditions of the Confidentiality Agreement.
6.03 Payments of Indebtedness. At the Closing, the Buyer
shall cause the Company to pay to the holders thereof the
outstanding principal amount, together with all accrued and unpaid
interest through the Closing Date, under (i) that certain Junior
Subordinated Promissory Note in the principal amount of
$1,500,000, by the Company as maker and the Partnership as payee
(the "Junior Subordinated Note"), (ii) that certain Amended and
Restated Revolving Credit and Term Loan Agreement dated April 2,
1990, as amended, between the Company and The First National Bank
of Boston; and (iii) that certain Senior Subordinated Note by the
Company as maker and Phoenix Home Life Mutual Insurance Company as
payee with a principal balance of $12,000,000. At the Closing,
the Buyer shall also make the Warrant Cancellation Payment.
<PAGE>
6.04 Company Tax Returns. The federal and state income
tax returns for the Company's fiscal year ending as of the close
of business on the Closing Date shall be prepared by Price
Waterhouse on behalf of the Company and filed on its behalf. The
Sellers and Buyer shall have the opportunity to review the returns
and shall reasonably agree as to its contents. The cost of
preparing the returns shall be an expense of the Company in the
ordinary course of its business.
6.05 Schedule Updates; Notice of Breach.
(a) The Company shall with reasonable promptness,
and in any event at least one (1) business day prior to the
Closing Date, notify Buyer in writing of any changes or amendments
to the Schedules to this Agreement required as a result of any
fact or event occurring after the date hereof, or discovered after
the date hereof, which is required in order to make the
representations and warranties in this Agreement true. The
Schedules to this Agreement shall be deemed amended by the content
of such notices, and the final amended set of Schedules with
changes from the Schedules attached hereto adequately highlighted
shall be prepared as of the Closing Date. Sellers shall, despite
such disclosure, include the content of any such notices and/or
the amendments to the Schedules in determining whether or not a
change which has a Material Adverse Effect has occurred for the
purpose of its delivery of the certificate required under Section
7.01.
(b) Buyer and Sellers shall with reasonable
promptness and in any event at least one (1) business day prior to
the Closing Date notify the other party in writing of any breach
by that other party of any representations, warranties or
covenants herein of which the notifying party is then aware.
6.06. Employee Bonuses. On or before April 1, 1994,
Buyer shall cause to be paid to the employees of the B.G. bonuses
pursuant to the Company's executive bonus and non-executive annual
bonus plans, in an aggregate amount not less than the amount
included as a liability therefor in Working Capital.
<PAGE>
ARTICLE VII
CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
The obligations of Buyer under this Agreement shall be
subject to the satisfaction, on or before the Closing, of each of
the following conditions:
7.01 Representations and Warranties. The representations
and warranties of the Sellers and the Company contained herein
shall be true and accurate in all material respects as of the date
made and as of the Closing as though such representations and
warranties were made at and as of the Closing, except for changes
permitted or contemplated by this Agreement; and there shall not
have occurred a change which has a Material Adverse Effect between
the date hereof and the Closing Date; and Buyer shall have
received at the Closing a certificate, dated the Closing Date,
signed by the Sellers to such effect.
7.02 Performance. The Sellers and the Company shall have
performed and complied, in all material respects, with all
agreements, obligations and conditions required to be performed or
complied with by them on or prior to the Closing; and Buyer shall
have received at the Closing a certificate, dated the Closing
Date, signed by the Sellers to such effect.
7.03 Approvals and Filings. All material consents,
authorizations and approvals from, and all material declarations,
filings and registrations with, government agencies or third
parties required to consummate the transactions contemplated
hereby shall have been obtained or made. All Hart Scott waiting
periods shall have expired or been properly terminated.
7.04 No Injunction. There shall not be in effect any
preliminary or permanent injunction or other order issued by any
state or federal court which prevents the consummation of the
transactions contemplated hereby, and no such proceedings with
respect to any such injunction or order shall be pending or
threatened in writing.
7.05 Evidence of Cancellation of Warrant. Buyer shall
have received a true and correct copy of the Warrant Cancellation
Agreement duly executed and delivered by the holder of the Warrant
and the Company, in form reasonably satisfactory to Buyer.
7.06 Resignations. Buyer shall have received
resignations of all directors of the Company and its Subsidiaries.
<PAGE>
7.07 Closing Documents. Buyer shall have received all
Closing Documents to be received by Buyer pursuant to this
Agreement.
7.08 Assurance of Insurance. Buyer shall have received a
letter satisfactory to counsel to the Buyer interpreting the
Insurance Agreement dated May 3, 1993 between Harbour Group Ltd.
and the Company with respect to continued coverage under
pre-Closing insurance policies, i.e. those listed on Schedule
3.22, for claims made after the Closing Date with respect to
occurrences prior to the Closing Date.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATIONS
The obligations of the Sellers under this Agreement shall
be subject to the satisfaction, on or before the Closing, of each
of the following conditions:
8.01 Representations and Warranties. The representations
and warranties of Buyer contained herein shall be true and
accurate in all material respects as of the date when made and as
of the Closing as though such representations and warranties were
made at and as of the Closing, except for changes permitted or
contemplated by this Agreement; and the Sellers shall have
received at the Closing a certificate, dated the Closing Date,
signed by the president or a vice president of Buyer to such
effect.
8.02 Performance. Buyer shall have performed and complied
with, in all material respects, all agreements, obligations and
conditions required by this Agreement to be performed or complied
with by it on or prior to the Closing, except where the failure to
so perform or comply does not have a Material Adverse Effect on
the ability of Buyer to satisfy its obligations to the Sellers
hereunder; and the Sellers shall have received at the Closing a
certificate, dated the Closing Date, signed by the president or a
vice president of Buyer to such effect.
8.03 Approvals and Filings. All material consents,
authorizations and approvals from, and all material declarations,
filings and registrations with, government agencies or third
parties required to consummate the transactions contemplated
hereby without a Material Adverse Effect shall have been obtained
or made. All Hart Scott waiting periods shall have expired or
been properly terminated.
<PAGE>
8.04 No Injunction. There shall not be in effect any
preliminary or permanent injunction or other order issued by any
state or federal court which prevents the consummation of the
transactions contemplated hereby, and no such proceedings with
respect to any such injunction or order shall be pending or
threatened in writing.
8.05 Releases. Buyer shall have delivered to each Seller
a general release by the Company, effective as of the Closing, of
all claims the Company may have, exclusive of any claim (i) under
this Agreement, (ii) for repayment of advanced sums or other
loans, (iii) under the Purchase and Stockholder Agreement between
the Company and each individual Seller, or (iv) in the case of
individual Sellers, arising with respect to criminal offenses,
based on or arising out of any events occurring on or prior to the
Closing, against such Seller and any director, officer, employee
or agent of such Seller and in the case of the Partnership, its
Affiliates.
8.06 Buyer's Due Diligence. At the Closing, Buyer shall
have delivered to the Sellers a certificate (which certificate
shall survive the Closing) to the effect that: (i)_Buyer and its
employees, agents and accounting and legal representatives have
been afforded reasonable access to the books, records, key
personnel, facilities and other things reasonably related to the
Stock and the business and affairs of the Company; (ii)_Buyer and
its employees, agents and accounting and legal representatives
have been given a reasonable opportunity to ask questions relating
to the Stock and the business and affairs of the Company and to
receive answers thereto; (iii)_Buyer has diligently conducted and
is satisfied with the results of its business, accounting and
legal due diligence review of the Stock and the business and
affairs of the Company; and (iv)_in completing the transactions
contemplated in accordance with this Agreement, Buyer has not and
is not relying on any representation or warranty of any Seller or
the Company which is not expressly stated in this Agreement.
8.07 Closing Documents. Sellers shall have received all
Closing Documents to be received by Sellers pursuant to this
Agreement.
<PAGE>
ARTICLE IX
TERMINATION AND ABANDONMENT
9.01 Methods of Termination. This Agreement may be
terminated and the transactions herein contemplated may be
abandoned at any time but not later than the Closing:
(a) by mutual consent of the Sellers and Buyer; or
(b) by Buyer at any time after January 15, 1994 if
any of the conditions provided for in Article VII of this
Agreement shall not have been met or waived in writing by Buyer
prior to such date; or
(c) by the Sellers at any time after January 15,
1994 if any of the conditions provided for in Article VIII of this
Agreement shall not have been met or waived in writing by the
Sellers prior to such date; or
(d) by either party at any time after January 15,
1994 if the Closing shall not have occurred; or
(e) by either party if there has been a material
violation or breach by the other of its agreements,
representations or warranties contained in this Agreement and the
party seeking termination is not in material violation or breach
of its agreements, representations or warranties contained in this
Agreement.
9.02 Procedure Upon Termination. In the event of
termination and abandonment by the Sellers, or Buyer, or both,
pursuant to this Article IX, written notice thereof shall forth-
with be given to the other parties and this Agreement shall termi-
nate and be abandoned without further action by Buyer, the Company
or the Sellers. If this Agreement is terminated as provided
herein:
(a) each party will redeliver all documents, work
papers and other material of any other party relating to the
transactions contemplated hereby, whether obtained before or after
the execution hereof, to the parties furnishing the same; and
(b) no party hereto shall have any liability or
further obligation to any other party to this Agreement, except as
provided in Section_6.02 with respect to the Confidentiality
Agreement described in Section 6.02 (which shall survive the
termination of this Agreement), and except for such legal and
equitable rights and remedies which any party may have by reason
of any breach or violation of this Agreement by any other party.
<PAGE>
ARTICLE X
INDEMNIFICATION
10.01 Survival. All representations and warranties
(except those set forth in Section 3.24 and 3.27) and agreements
contained in this Agreement shall survive the Closing,
notwithstanding any investigation or certificate given pursuant to
Section 8.06 with respect thereto.
10.02 Time Limitations. If the Closing occurs, Sellers
shall have no liability (for indemnification or otherwise) with
respect to any representation, warranty or covenant or any matter
described in Section 10.03 unless on or before the date that is
one year (two years in the case of any matter described in Section
10.03(b) or in case of a breach of the tax representation
contained in Section 3.12) after the Closing Date, Sellers are
given notice asserting a claim with respect thereto and specifying
the factual basis of that claim in reasonable detail to the extent
then known by Buyer. If the Closing occurs, Buyer shall have no
liability (for indemnification or otherwise) with respect to any
representation or warranty unless on or before the date that is
one year after the Closing Date, Buyer is given notice of a claim
with respect thereto and specifying the factual basis of that
claim in reasonable detail to the extent then known by Sellers.
10.03 Indemnification by Sellers. (a) Subject to the
limitations of this Article X and those set forth in Section 11.05
on the liability of each individual Seller, Sellers shall
indemnify and hold harmless Buyer, and shall reimburse Buyer for
any and all Losses arising from or in connection with (i) any
inaccuracy in any of the representations and warranties of Sellers
or the Company in this Agreement and (ii) any failure by Sellers
or the Company to perform or comply with any agreement contained
in this Agreement, except that after the Closing no claim shall be
made with respect to the failure to perform or comply prior to the
Closing Date with any agreement contained in this Agreement to be
performed or complied with prior to the Closing Date (other than
agreements contained in Article V). Sellers shall have no
liability to Buyer in the event Closing does not occur, and
Buyer's sole recourse for indemnification shall be against the
Company.
(b) In addition, subject to the limitations set
forth in this Article X and those set forth in Section 11.05 on
the liability of each individual Seller, Sellers shall indemnify
and hold harmless Buyer, and shall reimburse Buyer for, any and
all Losses arising from the remediation (including but not limited
to preliminary steps such as investigation, remedial plan
<PAGE>
preparation and compliance with agency approval procedures)
required of B.G. or any successor of B.G. or Buyer by applicable
environmental law or regulation of any Hazardous Substance (i)
present on the Closing Date on any facility presently or
previously owned or operated by the B.G. or their predecessors (or
present on any other property, but only if such Hazardous
Substance emanated from and originated on any facility owned or
operated by the B.G. or their predecessors through discharge,
seepage or other natural flow under circumstances such that the
B.G. is legally obligated for the remediation thereof) ("on-site")
or (ii) disposed of or abandoned (other than on-site) by the B.G.
or their predecessors prior to the Closing Date ("off-site"), but
excluding any Loss to the extent arising from any change or
increase after the Closing Date in the types or quantities of
Hazardous Substances present on such facilities (or such other
property) or any disposition or abandonment by the B.G. of
Hazardous Substances after the Closing Date, in which event
Sellers' responsibility for the Loss shall be limited to the
percentage of the total Losses attributable to such Hazardous
Substances as the quantity of such Hazardous Substances that were
present on the facility (or such other property) at the Closing
Date or that were disposed of or abandoned by the B.G. or its
predecessors prior to the Closing Date and remain present when the
required remediation is effected bear to the total quantity of
such Hazardous Substances that were disposed of or abandoned by
the B.G. and so present when the required remediation is effected.
10.04 Indemnification by Buyer. Buyer shall indemnify
and hold harmless Sellers and shall reimburse Sellers for, any and
all Losses arising from or in connection with (a) any inaccuracy
in any of the representations and warranties of Buyer in this
Agreement, and (b) any failure by Buyer to perform or comply with
any agreement contained in the Agreement, except that after the
Closing no claim shall be made with respect to the failure to
perform or comply prior to the Closing Date with any agreement
contained in this Agreement to be performed or complied with prior
to the Closing Date.
10.05 Limitations as to Amount. Except as otherwise
provided in Section 10.06(e), Sellers shall have no liability (for
indemnification or otherwise) with respect to the matters
described in Section 10.03 until the total of all Losses with
respect thereto exceeds $200,000, (the "Basket") and then only to
the extent such Losses exceed the Basket. Sellers' aggregate
liability (for indemnification or otherwise) with respect to
matters described in Article X shall be limited to $6,000,000 (the
"Cap") which amount shall be placed in Escrow and administered
<PAGE>
pursuant to the Escrow Agreement and as provided herein. Buyer
shall have no liability (for indemnification or otherwise) with
respect to the matters described in Section 10.04 until the total
of all Losses with respect thereto exceeds $200,000 and then only
to the extent such Losses exceed $200,000 and Buyer's aggregate
liability with respect to matters designated in Section 10.04
shall be limited to $1,000,000.
Section 10.06. Procedure for On-Site Environmental
Indemnification.
(a) Buyer has informed Sellers that it presently
intends to conduct on-site air, soil and groundwater testing
("Site Testing") at certain of the various real properties owned
or leased by the B.G. as of the date hereof ("Facilities"). If
Site Testing is performed, Buyer shall provide to Sellers a
written report (the "Site Test Report") of the results of each
such Site Testing and Buyer's conclusions and recommendations with
respect thereto. If the Site Test Report indicates that any
Hazardous Substance is present at a Facility (or present on other
property if such Hazardous Substance emanated from and originated
on a Facility through discharge, seepage or other natural flow
under circumstances such that the B.G. is legally obligated for
the remediation thereof), it shall also state whether such
Hazardous Substance was so present at the Facility (or such other
property) on the Closing Date. If after reviewing the data
obtained from Site Testing, Buyer determines that remediation of
Hazardous Substances at the Facility (or such other property) is
required by applicable law or regulation, Buyer shall concurrently
give notice to Sellers as to whether it is asserting a claim under
Section 10.03 by reason of the matters disclosed in the Site
Report and shall also prepare within a reasonable time after
asserting a claim a remedial plan describing procedures to effect
such remediation (the "Site Remedial Plan"). The Site Remedial
Plan also shall include a detailed analysis of the aggregate costs
and fees constituting the claim to implement the proposed
remediation (the "Site Remediation Proposal"). Such cost analysis
shall be certified by an environmental consultant retained by
Buyer as its best estimate of the aggregate costs for the Site
Remediation Proposal. Such consultant shall be advised to avoid
the use of cost ranges; if, nevertheless, such ranges are
utilized, the claim shall be deemed to be the average of the low
and high end of the range. A copy of the Site Remedial Plan and
Site Remediation Proposal shall be provided promptly to Sellers by
Buyer.
<PAGE>
(b) If an officer or other management employee of
Buyer or the Company subsequently becomes aware of other facts
which may give rise to a claim under Section 10.03 relating to
other environmental matters at the Facilities, Buyer shall, if a
claim in respect thereof is to be made against Sellers under this
Agreement, give notice to Sellers thereof and follow the
procedures in this Section 10.06.
(c) If Buyer gives notice to Sellers asserting a
claim pursuant to Section 10.03 with respect to a Site Remediation
Proposal, it shall also provide Sellers with all information
reasonably available to it with respect to the subject matter of
such claim. During the 60 day period following receipt of such
notice and information, Sellers may investigate the matters
described therein. Buyer shall provide Sellers and their
representatives with access to the relevant Facility for the
purpose of conducting such investigation. At or prior to the
conclusion of the investigation, Sellers shall give notice to
Buyer as to whether or not they dispute the claim made in Buyer's
notice and if relevant, stating in detail the particulars of
Sellers' objections to the Site Remediation Proposal ("Sellers
Dispute Notice") and within 30 days thereafter, the parties shall
meet to attempt to resolve their differences by negotiation. If
the parties have not resolved their differences within 45 days of
the issuance of Sellers' Dispute Notice, Buyer and Sellers shall
submit the Site Remediation Proposal and Sellers' Dispute Notice
to an independent environmental consultant (the "Arbiter")
selected by Buyer and Seller, provided however, if Sellers and
Buyer cannot agree on an Arbiter within 60 days after the issuance
of Sellers' Dispute Notice, an Arbiter shall be selected by two
environmental consultants, one each selected by Buyer and Sellers
within 75 days of the issuance of Sellers' Dispute Notice. The
Arbiter shall have 60 days from the date of his selection to
review the Site Remediation Plan, Sellers' Dispute Notice and all
information in the possession of Sellers and Buyer, to consult
with Buyer and Sellers in the presence of each other, to conduct
such additional investigation as he may determine to be reasonable
and appropriate, including the retention of qualified counsel for
advice with respect to legal matters to be resolved by the
Arbiter, within the time permitted and to reach a determination as
to (a) whether the Burks Group is legally obligated to remediate
the Facility in question; (b) whether the Site Remedial Plan
constitutes a reasonable approach to bringing the Facility into
compliance with all applicable environmental laws and regulations,
and (c) whether the costs projected in the Site Remediation
Proposal for the implementation thereof are reasonable under the
circumstances. It is understood in this regard that any
<PAGE>
remediation is to be accomplished in a cost effective manner,
involving the expenditures required only to achieve regulatory
compliance in a manner prescribed or approved by appropriate
regulatory authorities (i.e., a "Chevrolet" rather than a
"Cadillac" solution). If the Arbiter so determines, Buyer shall
then implement the remediation contemplated by the Site Remedial
Plan and, subject to the Loss limitations in Section 10.05 and
10.06(e), shall be entitled to be paid from the Escrow Account,
upon presentation of bills and expenses certified by Buyer's
Secretary, the amounts actually expended by Buyer in implementing
the Site Remedial Plan, up to the aggregate amount of costs found
by the Arbiter to be reasonable without any concurrent approval by
Sellers. Any amounts paid in excess of such sums to implement the
Site Remedial Plan shall require the concurrent agreement of
Sellers. The fees and expenses of the Arbiter shall be shared
equally by Buyer and Sellers.
(d) $2,000,000 of the Escrow Account ("Special
On-Site Escrow Amount") is intended to be available as funding for
any Site Remedial Plan as to which Buyer has given Sellers notice
of a claim pursuant to this Section 10.06 on or before the date
which is nine months after the Closing Date. If the aggregate
amount of such claims is less than the Special On-Site Escrow
Amount on that date, the Escrow Agent shall pay the difference to
Sellers as provided for in the Escrow Agreement. If the aggregate
of such claims exceeds the Special On-Site Escrow Amount, no
amount shall be paid to Sellers from the Escrow Account on that
date.
(e) With respect to any Site Clean Up Proposal
applicable to the Company's property at "West Memphis", Arkansas,
the Basket shall not apply. Rather, Buyer shall be responsible
for the first $100,000 of Losses arising out of any Site Remedial
Plan approved in accordance with the procedures set forth in
Section 10.06(c) and any Losses in excess of $100,000 shall be
paid out of the Escrow Account in accordance with the procedures
established in the Escrow Agreement and in Section 10.06(c).
(f) Sellers shall have the right to proceed, at
Sellers' own expense and in the name of the Company or any
successor of the Company, to recover from any third party any and
all Losses arising from the remediation of any facility for which
Seller has indemnified the Company under Section 10.03(b). Buyer
agrees to cooperate fully with Sellers in any such third party
cost recovery action. In exchange for Buyer's full cooperation in
such action, Buyer shall be entitled to fifteen percent (15%) of
the excess, if any, of the total amount paid to the Company or any
successor of the Company in connection with any such claim and the
total costs expended by Sellers in pursuing such claim. Sellers
shall be entitled to the remainder of such amount paid.
<PAGE>
10.07 Additional Indemnity Provisions. The
indemnification obligations of Buyer and the Sellers hereunder
shall be subject to the following terms and conditions:
(a) Except for claims against the Sellers (i)
arising under this Agreement, (ii) based on alleged fraudulent or
criminal conduct or (iii) relating to financial obligations for
sums advanced or loaned, Buyer shall not assert and shall cause
the B.G. not to assert any claim against any present or former
director, officer, employee or agent of the Partnership or any of
its Affiliates, or against any individual Seller, for or with
respect to any matter arising prior to Closing.
(b) The liability of each of the Sellers for any
indemnity hereunder shall be in proportion to the Seller's
Fraction.
(c) No claims for indemnification shall be made by
Buyer with respect to (i) any amounts which are reflected in
Working Capital as liabilities, allowances or contra-asset
accounts, or (ii) accumulated post-retirement medical and life
insurance benefit obligations of the Burks Group for the Benefit
Plans described in Schedule 3.13(b).
(d) The sole recourse and exclusive remedy of Buyer,
the Sellers and the Company against each other arising out of this
Agreement or any certificate delivered in connection with this
Agreement, or otherwise arising from Buyer's acquisition of the
Stock, shall be to assert a claim for indemnification under the
indemnification provisions of Article X. Recovery by Buyer and
any other Persons for Losses pursuant to Article X shall be
limited solely to payment of funds from the Escrow Account held by
the Escrow Agent pursuant to the Escrow Agreement.
(e) The term "Loss" or "Losses" shall mean any and
all damages, judgments, penalties, fines, liabilities, losses,
reasonable costs and expenses, including but not limited to,
attorneys fees, accounting fees, consulting fees and related
disbursements of Buyer and/or the B.G. For purposes of
determining the amount of Loss and whether or not a Loss or Losses
individually or in the aggregate exceed the limitation amounts set
forth in Sections 10.05 hereof, Losses shall be determined after
giving effect to any federal, state, foreign or local tax benefit
obtained or received by the Person incurring the Loss, and after
giving effect to any other third party reimbursements or other
payments received with respect to any such Losses but not
including any proceeds from the indemnified party's insurers.
(f) In the event that any party to this Agreement
proposes to make any claim for indemnification pursuant to this
Article X, or would have the right to make a claim for
indemnification but for the minimum or maximum limitations on
<PAGE>
indemnification contained in Section 10.05, the party making the
claim (or with such right) shall promptly deliver on or prior to
the date upon which the applicable representations and warranties
or covenants expire pursuant to the terms of this Agreement and
within a reasonable time of discovery of the breach of or
nonperformance of any covenant or obligation to be performed under
this Agreement or of a matter described in Section 10.03(b), a
certificate signed by the party making the claim or an officer of
the party making the claim ("Claim Certificate") to the Company,
the Sellers or Buyer, whichever is applicable, and if to the
Sellers, to the Escrow Agent, which Claim Certificate shall (i)
state the occurrence giving rise to the claim and that the Loss or
liability has been properly accrued or is anticipated; (ii)
specify the Articles of this Agreement or any agreement related
hereto under which such claim is made; and (iii) specify in
reasonable detail each individual item of Loss or other claim,
including the amount thereof if reasonably ascertainable, the date
such Loss or liability was incurred, properly accrued or is
anticipated, the basis for any anticipated Loss or liability and
the nature of the misrepresentation, breach of warranty or the
claim to which such Loss or liability is related. The party
making the claim shall state only which is required in subsections
(i) - (iii) above and shall not admit or deny the validity of the
facts or circumstances out of which such claim arose.
(g) Any payments made as indemnification under
Article X of this Agreement shall be considered adjustments to the
Purchase Price.
(h) The Basket shall not apply with respect to
claims for breach of the warranties in Section 3.07 with respect
to the Company's property at West Memphis, Arkansas. Any claim
with respect thereto shall not exceed the book value of such
property as of the Closing Date.
10.08 Defense of Third Party Claims and Extension of
Statute of Limitations.
(a) The party to this Agreement against which a
claim for a particular item (or group or related items) of Loss or
other liability is asserted (the "Indemnifying Party") shall have
the right in its discretion and at its expense to participate in
and control (i) the defense or settlement of any claim, suit,
action or proceeding (including appeals) (a "Third Party Claim")
in respect of such item (or items) by any other person other than
party hereto insofar as such party (the "Indemnified Party") shall
claim indemnification hereunder in respect thereof, subject to the
prior written consent of the Indemnified Party with respect to any
<PAGE>
non-monetary provisions of any settlement (which consents shall
not be unreasonably withheld or delayed), (ii) any and all
negotiations with respect thereof, and (iii) the assertion of any
claim against any insurer (other than the indemnified party's
insurer) with respect thereto, and the Indemnified Party shall not
settle any such Third Party Claim or agree to extend any
applicable statute of limitation without the prior written
approval of the Indemnifying Party. The Indemnified Party will
provide the Indemnifying Party with all reasonably available
information, assistance and authority to enable the Indemnifying
Party to effect such defense or settlement and upon the
Indemnifying Party's payment of any amounts due in respect of such
Third Party Claim, the Indemnified Party will, to the extent of
such payment, assign or cause to be assigned to the Indemnifying
Party the claims of the Indemnified Party, if any, against such
third parties in respect of which such payment is made. The
Indemnifying Party shall keep the Indemnified Party fully informed
as to the status of any such Third Party Claim. The rights of the
Sellers under this Section 10.08 to participate in and control the
defense or settlement of any claim, suit, action or proceeding
shall be exercised only by the Partnership as agent for all the
Sellers or its designee.
(b) Notwithstanding anything to the contrary in this
Section 10.08, should any claim hereunder involve a situation
where the Indemnified Party reasonably anticipates that part of
the claim will be borne by it and part of the claim will be borne
by the Indemnifying Party due to the existence of the limitations
in Section 10.05 and/or (in the event that the Sellers are the
Indemnifying Party) the lack of funds in the Escrow Account, the
parties shall jointly consult and proceed as to any such claim.
(c) In the event that the Sellers are the
Indemnifying Party, any reasonable expenses of the Sellers in
connection with the defense of Third Party Claims not exceeding
$250,000 in the aggregate shall be paid from the Escrow Account in
accordance with the Escrow Agreement and Buyer shall execute any
joint written notice to the Escrow Agent and otherwise cooperate
with the Sellers in obtaining such advance or advances of funds.
<PAGE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01 Amendment and Modification. This Agreement may be
amended, modified and supplemented only by written agreement of
each of the parties hereto.
11.02 Waiver of Compliance. Any failure of any party to
comply with any obligation, covenant, agreement or condition
contained herein may be expressly waived in writing by the party
to whom such obligation is owed, but such waiver or failure to
insist upon strict compliance shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
11.03 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing
and shall be deemed to have been duly given if delivered by hand
or mailed, certified or registered mail with postage prepaid:
(a) If to the Sellers to:
Harbour Group Investments, L.P.
c/o Harbour Group Management Co.,
Managing General Partner
Attention: Chief Executive Officer
7701 Forsyth Boulevard
Suite 600
Clayton, Missouri 63105
with a copy to:
Ira H. Polon, Esq.
Dickstein, Shapiro & Morin
2101 L Street, N.W.
Washington, D.C. 20037
<PAGE>
or to such other person or address as the Sellers shall designate
to Buyer in writing.
(b) If to the Company to:
Paul G. Baldetti, President
Burks Pumps, Inc.
420 E. Third Street
Piqua, Ohio 45356
(c) If to Buyer to:
Crane Co.
100 First Stamford Place
Stamford, Connecticut 06902
Attention: Secretary
or to such other person or address as Buyer shall designate to the
Sellers in writing.
11.04 Binding Nature; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto without
prior written consent of the other parties except as otherwise
provided in this Section. Nothing contained herein, express or
implied, is intended to confer on any person other than the
parties hereto or their successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement. Except as otherwise expressly provided herein, nothing
contained herein shall be deemed to give rise to any personal
obligation of any of the directors, officers, stockholders or
principals of any of the parties hereto, by reason of any breach
or violation of any of the provisions hereof or otherwise, and no
party hereto shall have any rights against, or be entitled to sue
or seek any recovery from, any such persons.
11.05 Individual Liability of Sellers. The liability of
each Seller by reason of any breach or violation of any of the
provisions of this Agreement or otherwise shall in no event exceed
the portion of the aggregate liability of all the Sellers on
account of such breach or violation which corresponds to the
<PAGE>
Seller's Fraction, which is defined as to any Seller as the
fraction, the numerator of which is the number of shares of Stock
held by such Seller and the denominator of which is the total
number of shares of Stock issued and outstanding. The Sellers'
Fractions are set forth on Exhibit A hereto. To enforce such
liability, Buyer may proceed against one, more than one or all
Sellers in a single action or in several actions to recover from
the Escrow Account each Seller's Fraction of the particular
liability from the responsible Seller. Recovery of, or failure to
recover a Seller's Fraction from any Seller shall not relieve the
other Sellers of their obligations, if any, with respect to the
particular claim. With respect to the Seller's representations
and warranties in Article II, each Seller shall only be liable for
Losses resulting from that Seller's breach of such warranties or
representations and not for the breach thereof by any other
Seller.
11.06 Entire Agreement. This Agreement, including the
other documents referred to herein, embodies the entire agreement
and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties, covenants or undertakings, other than those expressly
set forth or referred to herein. Except for the Confidentiality
Agreement (as defined in Section 6.02), this Agreement supersedes
all prior agreements and understandings between the parties with
respect to such subject matter. Without limiting the generality
of the foregoing, the Company makes no other representations or
warranties with respect to the Stock or the Company other than as
specifically provided in this Agreement, and all warranties
(except as so provided), including of merchantability and of
fitness, whether express or implied, are specifically excluded.
11.07 Expenses. Except as otherwise expressly provided
herein, each party to this Agreement will pay its own expenses in
connection with the negotiation of this Agreement, the performance
of its obligations hereunder, and the consummation of the
transactions contemplated herein; provided that all sales taxes,
transfer and notarial fees and taxes and the like arising from the
purchase of the Stock shall be paid one-half by the Sellers and
one-half by Buyer. Each Seller shall pay such Seller's Fraction
of the aggregate expenses of the Sellers hereunder, and the
Partnership shall deduct such Seller's share of such expenses from
any amount otherwise payable to such individual Seller hereunder
or pursuant to the Escrow Agreement.
<PAGE>
11.08 Press Releases and Announcements. No press release
related to this Agreement or the transactions contemplated herein,
or other announcement to the employees, customers, or suppliers of
the Company, will be issued without the joint approval of Buyer
and the Seller, except as otherwise required by law.
11.09 Agency. The individual Sellers hereby irrevocably
and unconditionally appoint the Partnership as their agent and
attorney-in-fact to take any and all action on their behalf in
connection with this Agreement and the transactions contemplated
hereby (including without limitation, the matters set forth in
Article I and Article X), which appointment is irrevocable and
coupled with an interest, and the decision of the Partnership with
respect to any matter shall be binding on all the Sellers. With
respect to all matters relating to the Sellers arising hereunder,
Buyer and the Escrow Agent shall be required only to deal with the
Partnership.
11.10 Governing Law; Jurisdiction; Service of Process.
(a) Governing Law; Jurisdiction. This Agreement and
(unless otherwise provided) all amendments hereof and waivers and
consents hereunder shall be governed by the internal law of the
State of Ohio, without regard to the conflicts of law principles
thereof. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement
may be brought against any of the parties in the federal or state
courts of the State of Ohio, and each of the parties hereby
consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein.
(b) Service of Process. Process in any action or
proceeding referred to in Section 11.10 may be served on any party
anywhere in the world, whether within or without the State of
Ohio.
11.11 The Sellers. Reference in this Agreement to the
Sellers shall mean the Sellers or any one or more the Sellers.
11.12 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument.
11.13 Headings. The headings contained in this Agree-
ment are inserted for convenience only and shall not constitute a
part hereof.
<PAGE>
11.14 Civil Liability Under RICO. The Sellers and Buyer
hereby waive all rights to pursue civil remedies to which they may
be entitled or may become entitled with respect to this Agreement
and the transactions contemplated hereby against the other under
the Racketeer Influenced and Corrupt Organizations Act of 1970, as
amended, 18 U.S.C. Section 1961-68, including specifically any
rights to treble damages which may be available to them pursuant
to 18 U.S.C. Section 1964(c).
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed the day and year first above
written.
BURKS PUMPS, INC.
By:/s/ Paul G. Baldetti
Paul G. Baldetti
President
THE SELLERS:
HARBOUR GROUP INVESTMENTS, L.P.
By: Harbour Group Management
Co., Managing General Partner
By:/s/ Robert W. Hull
Name: Robert W. Hull
Title:Vice President
/s/ Paul G. Baldetti
Paul G. Baldetti
/s/ James C. Janning
James C. Janning
/s/ C. Wayne Gillespey
C. Wayne Gillespey
/s/ Michael Koon
Michael Koon
BUYER:
CRANE CO.
By:/s/ David S. Smith
Name:David S. Smith
Title: Vice President
<PAGE>
<PAGE>
CONFIDENTIAL
DISCLOSURE SCHEDULES
Delivered in connection with the
Stock Purchase Agreement
among
Burks Pumps, Inc. ("Burks Pumps")
the holder of all of the issued and outstanding
capital stock of Burks Pumps (the "Sellers") and
Crane Co.
dated as of
December 29, 1993
<PAGE>
<PAGE>
The following Schedules contain the disclosures required
to be made by Burks Pumps and the Sellers pursuant to that certain
stock Purchase Agreement, dated as of December , 1993 by and
among Burks Pumps, the Sellers and Crane Co. In an effort to
provide Crane Co. with comprehensive information, Burks Pumps and
the Sellers have set forth in the attached Schedules some
information which may not be required by the terms of the
representations and warranties of the Sellers and Burks Pumps.
Inclusion of any such information should not be interpreted to
mean that the facts disclosed in such information or similar facts
are material or would constitute a breach of the representations
and warranties of the Sellers and Burks Pumps.
Many of the representations and warranties require
disclosure of the same information required under other
representations and warranties. In order to avoid unnecessary
duplication, items required to be disclosed have generally been
disclosed in only one Schedule, and have not been repeated in
Schedules pertaining to other representations and warranties.
Disclosure under any Schedule or part of a Schedule shall be
sufficient disclosure and shall be effective disclosure under any
other Schedule or part of the same Schedule.
Except for the items listed on Schedule 3.09 and any
agreements which are not evidenced by a writing, all agreements
referred to in the following Schedules have been delivered or made
available to Crane Co., and the terms thereof shall be considered
disclosed under the attached Schedules.
<PAGE>
<PAGE>
List of Schedules
Schedule No. Description
I Escrow Agreement
1.01 Principles and Procedures
1.05 List of Closing Documents
1.06(b) Closing Certificate (Certificate of Chief
Financial Officer)
2.01 Ownership of Stock
2.03 No Violation by Sellers
3.01 Foreign Qualification
3.02 Capitalization
3.06 Financial Statements and Interim Financial
Statements of the Company
3.07 Capital Expenditures in Excess of $50,000 Since
October 31, 1993
3.08 Title to Properties; Encumbrances
3.09 Patents, Trademarks, Trade Names
3.10 Material Contracts (Open Purchase orders in
Excess of $20,000)
3.11 Litigation; Compliance with Laws
3.12(b) Taxing Authority;Tax Years
3.12(d) Prior Affiliated Groups/Tax Sharing Agreements
3.12(e) FIRPTA/Existing Partnership
3.12(g) Deferred Intercompany Items
3.12(h) Basis and Excess Loss Accounts in Subsidiaries
3.13 Benefit Plans
3.13(g) Claims in Excess of $10,000
3.13(b) Retiree Medical Benefits
3.13(e) Multiemployer Pension Plan
3.15 Environmental Matters
3.17 Subsidiaries; Investments
3.18 Absence of Undisclosed Liabilities
3.19 Employees
3.20 Officers and Directors; Bank Accounts
3.21 Affiliate Transactions
3.22 Insurance Policies
3.25 Major Customers and Suppliers
3.28 Backlog
3.29 Occupational Safety and Health
3.30 Product Liability and Warranty
5.04 Dividends; Redemptions
5.07 Compensation
Registrant will furnish a copy of any omitted
Schedule to the Commission upon Request
