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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) October 15, 1998
WICKLUND HOLDING COMPANY - Small business issuer under Rule 12b-2
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 0-10299 73-1029950
(State or other jurisdiction Commission File Number (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
117 West Hampton
Lexington, Kentucky 40511
(Address of principal executive offices)
(Former name or former address, if changed since last report)
Registrant's telephone number, including area code: 606-388-9116
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ITEM 2. ACQUISITION OR DEPOSITION OF ASSETS
As reported in the last 8K, on October 15, 1998, Wicklund Holding Company
("WHC") acquired all of the outstanding capital stock of Laser Engineering,
Inc., a Florida corporation ("Laser"), based in Pompano Beach, Florida. The
$2,000.00 portion of the purchase price payable in cash on a deferred basis has
been paid.
On April 1, 1999 WHC acquired all of the outstanding capital stock of
Florida Curbing, Inc., a Florida corporation, based in Pompano Beach, Florida in
consideration for 1,000,000 shares of WHC's restricted common stock and $500,000
in cash, payable on a note due on June 1, 1999.
For its most recent fiscal year ending, on December 31, 1998, Florida
Curbings' Inc.'s annual revenues were approximately $2,500,000 and its net
income was $400,000 on an unaudited basis. Its backlog in construction contacts
was approximately $ $14,000,000 on April 1, 1999.
Mr. Rudulph T. Polselli, Jr., president of Florida Curbing, Inc. prior to
the merger, remains as Florida Curbing's Vice President and Director; James N.
Turek succeeded Mr. Polselli, Jr., as President, Treasurer, and Director; and
Gary G. Bal acts as Secretary and Director of Florida Curbing.
ITEM 5: OTHER EVENTS
WHC made an agreement with Dow Credit Corporation and The Dow Chemical
Corporation effective March 23, 1999 to acquire the debt of WHC's subsidiary
thereto in the amount of $ 800,000, including interest, which was secured by
four of the subsiduary's United States and Canadian patents which pertain to
plastic parts used in commerical cement construction.
The term of the agreement involved WHC paying Dow Credit Corporation
$600,000.00 down over a period of approximately four months commencing on May
23, 1999, a $200,000 premium note to be payable over three years, and 5% of the
gross income from products utitlizing the patents capped at $400,000. In
exchange, Dow Credit Corporation and The Dow Chemical Corporation agreed to
release Wicklund's patents as collateral. The terms for payment of the
$600,000.00 down include installment payments of $125,000 on March 23, 1999 with
three equal payments of $125,000 in each of the next three succeeding months,
plus a final payment of $100,000 in July of 1999.
The released liens were on Patent No. 4,942,714 Rebar and Beam Bolster,
Slab and Beam Upper; Patent No. 7,401,024 Road
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Signs and Method of Production; Patent No. 7,441,441 Rebar and Beam Highchair;
Patent No. 7,441,835 Modular Concrete Form; and Patent No. 7,556,266 Apparatus
for Supporting Reinforcing Steel in Concrete.
ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS
(a)(1) Filing of required financial information for Florida Curbing is
impractical at this time. It will be filed by the 60th day
following the acquisition.
(a)(2) Agreement and Plan of Reorganization whereby the company acquired
all of the outstanding capital stock of Florida Curbing, Inc.
(a)(3) Agreement with Dow Credit Corporation and Dow Chemical
Corporation acquiring debt of WHC's subsidiary.
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 hereunto duly authorized.
WICKLUND HOLDING COMPANY
Registrant
Dated: April 13, 1999 By:/s/ James N. Turek
---------------------
Name: James N. Turek
Title: President
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EXHIBIT 99.2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Agreement") is entered into this
4th day of January, 1999 between Florida Curbing, Inc., a Florida corporation,
(the "Acquiror"), Wazooski Express, Inc.,a Michigan corporation (the "Merging
Company") and Wicklund Holding Company, a Delaware corporation ("WHC"), which is
the parent of the Merging Company.
The parties to this Agreement agree as follows:
ARTICLE I
MERGER
Section 1.1 The Merger. At the Effective Time (as hereinafter defined),
the Merging Company shall be merged with and into Acquiror pursuant to the terms
and conditions set forth in this Agreement (the "Merger") under (S)(S) 607.1101,
607.1103, 607.1105, 607.1106 and 607.1107 of the Florida Statutes Annotated and
(S)(S) 450.1701, 450.1703a, 450.1707, 450.1712, 450.1724 and 450.1735 of the
Michigan Compiled Laws Annotated. Acquiror shall continue as the surviving
corporation (the "Surviving Corporation"), and the separate corporate existence
of the Merging Company shall cease. Acquiror and the Merging Company are
sometimes referred to in this Agreement as the "Constituent Corporations" of the
Merger.
Section 1.2 Effective Time. As soon as practicable after satisfaction or
waiver of all conditions to the Merger, a certificate of merger and all other
requisite filings with respect to the Merger shall be filed and recorded in
accordance with the laws of the States of Michigan and Florida. The Merger
shall be effective at such time as the certificate of merger is duly and
properly endorsed by the Department of Commerce, Corporation, Securities and
Land Development Bureau, Corporation Division, of the State of Michigan and the
Department of State of the State of Florida or at such later time as is
specified in the certificate of merger (the "effective time").
Section 1.3 Articles of Incorporation. The Articles of Incorporation of
Acquiror in effect immediately prior to the Effective Time shall be the Articles
of Incorporation of the Surviving Corporation.
Section 1.4 Bylaws. The Bylaws of Acquiror in effect immediately prior to
the Effective Time shall be the Bylaws of the Surviving Corporation.
Section 1.5 Directors and Officers. From and after the Effective Time,
until successors are elected or appointed, the directors and officers of
Acquiror shall be:
James N. Turek, President, Treasurer and Director
Rudy T. Polselli, Vice President and Director
Gary G. Bal, Secretary and Director
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Section 1.6 Corporate Organization. As the Surviving Corporation,
Acquiror's separate corporate existence, with all its purposes, objects, rights,
privileges, powers, certificates and franchises, shall continue unimpaired by
the Merger. The Acquiror shall succeed to all the properties and assets of the
Constituent Corporations and to all the debts, choses in action and other
interests due or belonging to the Constituent Corporations and shall be subject
to, and responsible for, all the debts, liabilities and duties of the
Constituent Corporations with the effect set forth under the laws of the State
of Florida.
ARTICLE II
CONVERSION OF SHARES
Section 2.1 Conversion. At the Effective Time:
(a) Each of the 500 shares of common stock of the Acquiror (the
"Common Shares") that are outstanding immediately prior to the Effective
Time shall by virtue of the Merger be converted into the right to receive
one thousand dollars ($1,000) in cash for an aggregate for each of the 500
Common Shares or five hundred thousand dollars ($500,000.00), for all 500
Common Shares, due under 90-day promissory notes, without interest, which
90-day period shall commence to run at the Effective Time of the Merger,
plus 2000 shares of unregistered common stock of WHC, par value $.05 per
share, for each of the Common Shares, or one million (1,000,000) such
shares of WHC common stock after a .1448 for 1 reverse split, in exchange
for an aggregate of all 500 Common Shares, (the "Merger Consideration").
WHC is the sole owner of all of the outstanding capital stock of the
Merging Company, whose stock will be cancelled in the Merger. The
aforesaid 90-day promissory notes shall be secured by the Common Shares,
with the understanding that the sole remedy of the shareholders of the
Acquiror on enforcing said notes shall be for not less than all of them to
foreclose after giving WHC 45 days written notice of a default on paying
said notes, whereby it will reacquire all 500 Common Shares that are being
exchanged in the Merger with the simultaneous cancellation of both the
aforesaid 1,000,000 shares, of WHC's common stock and said notes that they
received in the exchange in the Merger, with no further claims on either
side with respect to the Merger, which shall become void as a result
thereof. Pending payment of the aforesaid promissory notes, the assets of
FCI shall remain under the control of Rudolph T. Polselli, Jr. and Gary G.
Bal.
(b) Each of the 1000 shares of common stock of the Merging
Company that are outstanding and owned by WHC immediately prior to the
Effective Time shall by virtue of the Merger be forthwith converted into
1/2 share or an aggregate of 500 Common Shares of the Acquiror, after
which, the 1000 shares shall be cancelled and cease to be outstanding
thereafter, without payment of any other consideration therefor.
Section 2.2 Surrender of Shares. Promptly after the Effective Time, the
Acquiror
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shall deliver to each holder of a certificate (a "Certificate") representing its
Common Shares that were converted into the right to receive the Merger
Consideration as set forth in Section 2.1(a) of this Agreement, a letter of
transmittal and/or instructions for use in surrendering Certificates for Common
Shares of Acquiror therefor. After the Effective Time, each such holder shall be
entitled, upon surrender of a Certificate (together with such letter of
transmittal duly executed and such other documents as may be required by such
letter) to WHC, to receive 90-day promissory notes for cash and shares of WHC
common stock in the amounts provided in Section 2.1(a) of this Agreement. Until
so surrendered, each Certificate shall, upon and after the Effective Time, be
deemed for all purposes to represent and evidence only the right to receive 90-
day promissory notes for cash and shares of WHC common stock in the amounts
provided in Section 2.1(a) of this Agreement. No interests shall accrue or be
payable with respect to any payment provided in this Section 2.2. If such cash
is to be paid to a person other than the person in whose name a Certificate is
registered, it shall be a condition of payment that the Certificate so
surrendered be properly endorsed or otherwise in proper form for transfer and
that the person requesting such payment either, (i) pay to the WHC any transfer
or other tax required by reason of the payment to a person other than the
registered holder of the certificate surrendered, or (ii) establish to the
satisfaction of WHC that such tax has been paid or is not payable. WHC shall be
authorized to pay the cash attributable to any Certificate theretofore issued
which has been lost or destroyed, upon receipt of satisfactory evidence of
ownership of the Common Shares formerly represented thereby and of appropriate
indemnification. From and after the Effective Time, the holders of Certificates
shall cease to have rights with respect to any Shares represented thereby except
as otherwise provided in this Agreement or by law.
Section 2.3 Payment. The amount to be paid hereunder shall be paid by
WHC under the 90-day promissory notes, upon compliance by the person entitled to
payment with all requirements set forth in this Agreement or otherwise required
to effect the payment.
Section 2.4 No Further Transfers. At the Effective Time, the stock
transfer books of the Constituent Corporations shall be closed for transfers of
any Common Shares, and no transfer shall thereafter be made.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF WHC AND
THE MERGING COMPANY
WHC and the Merging Company represent and warrant that:
Section 3.1 Organization and Good Standing. WHC is a duly incorporated
and validly existing corporation in good standing under the laws of the State of
Delaware and the Merging Company is a duly incorporated and validly existing
corporation under the laws of the State of Michigan. Both of these corporations
have all corporate powers, material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted, and
are duly qualified to do business and are in good standing in each jurisdiction
in
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which they conduct their respective businesses or own or lease property
requiring such qualification, except in those jurisdictions where the failure to
be so qualified would not a material adverse effect on the business, financial
condition or results of their operations (a "Material Adverse Effect").
Section 3.2 Authorization; Bonding Agreement. WHC and the Merging
Company have the corporate power and authority to execute and deliver this
Agreement. This Agreement has been duly authorized, executed and delivered by
them and constitutes their valid and binding agreement that is enforceable in
accordance with its terms, subject to consummation of the Merger once adoption
of the Agreement by the Acquiror's shareholders in accordance with applicable
law.
Section 3.3 Absence of Breach. The execution and delivery of this
Agreement does not, and the performance by WHC and the Merging Company of their
obligations under this Agreement and the consummation of the transactions
contemplated by this Agreement will not, contravene or constitute a default, or
an event that with notice or lapse of time or both would constitute a default,
under any provision of applicable law or regulation or of their Certificate or
Articles of Incorporation or by-laws or of any agreement, judgment, injunction,
order, decree or other instrument binding upon them or result in the creation or
imposition of any lien on any asset of theirs or cause a suspension or
revocation of any license, authorization, consent or approval that they
currently hold or cause or create any right of termination or acceleration of
any of their obligations which, singly or in the aggregate, could have a
Material Adverse Effect.
Section 3.4 Consent. The execution and delivery of this Agreement does
not, and the performance by WHC and the Merging Company of their obligations
under this Agreement and the consummation of the transactions contemplated by
this Agreement will not require any action by or in respect of, or filing with,
any governmental body, agency or official or any other person other than (a)
filing of the Certificate of Merger pursuant to applicable requirements under
the laws of the States of Delaware or Michigan, and (b) such other actions or
findings which have been taken or made or which, if not taken or made, will not
prohibit consummation of the transactions contemplated by this Agreement and
could not, singly or in the aggregate, have a Material Adverse Effect.
Section 3.5 Authorized and Outstanding Capital Stock of Merged Company and
WHC. The Merged Company has 60,000 shares of common stock authorized, of which
1000 are outstanding. It has no other class of capital stock authorized. WHC has
20,000,000 shares of its common stock authorized. It has no other shares of
capital stock authorized. All outstanding shares of common stock of the Merging
Company are entitled to vote on the Merger.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ACQUIROR
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The Acquiror represents and warrants that:
Section 4.1 Organization and Good Standing. The Acquiror is a duly
incorporated and validly existing corporation in good standing under the laws of
the State of Florida.
Section 4.2 Authorization; Binding Agreement. The Acquiror has the
corporate power and authority to execute and deliver this Agreement. This
Agreement has been duly authorized, executed and delivered by the Acquiror,
enforceable in accordance with its terms, subject with respect to consummation
of the Merger to the adoption of this Agreement by the Acquiror's shareholders.
Section 4.3 Absence of Breach. The execution and delivery of this
Agreement does not, and the performance by the Acquiror of its obligations under
this Agreement and the consummation of the transactions contemplated by this
Agreement will not, contravene, breach, violate, or constitute a default under
any provision of applicable law or regulation or of the Articles of
Incorporation or By-laws of the Acquiror or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Acquiror or
result in the creation or imposition of any lien on any asset of the Acquiror,
or cause or create any right of termination or acceleration of any obligation of
the Acquiror which, singly or in the aggregate, could have a Material Adverse
Effect on the Acquiror or the consummation of the transactions contemplated by
this Agreement.
Section 4.4 Consents. The execution and delivery of this Agreement
does not, and the performance by the Acquiror of its obligations under this
Agreement and the consummation of the transactions contemplated by this
Agreement will not, require any action by or in respect of, or filing with, any
governmental body, agency or official or any other person, other than (a) filing
of the Certificate of Merger pursuant to applicable requirements under the laws
of the States of Michigan and Florida and (b) such other actions and filings
which have been taken or made or which, if not taken or made, could not, singly
or in the aggregate, have a Material Adverse Effect on the Acquiror.
Section 4.5 No Prior Activities. Acquiror has not incurred, directly
or indirectly, any liability or obligations, except (I) those set forth on its
balance sheet as of December 31, 1998, (ii) those incurred in the ordinary
course of business since the date of such balance sheet or (iii) those set forth
on Schedule 4.5 hereto.
Section 4.6 Capitalization. As of the date of this Agreement, the
Acquiror's authorized capital stock consists of 500 shares of common stock.
There are no other classes of equity securities of the Acquiror authorized, and
there are 500 common shares outstanding. All of such shares have been duly
authorized, validly issued and are fully paid and nonassessable. There are no
outstanding options, warrants, commitments or other agreements of any character
to which the Acquiror is a party or by which it is bound whereby the Acquiror is
obligated to issue any of its shares of capital stock or securities convertible
into capital stocks.
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Section 4.7 Financial Statements, Construction Contracts and Asset
Descriptions, Including Leased Properties. The financial statements and
construction contracts and orders furnished thereunder to WHC and the asset
descriptions of Acquiror are true and correct and comply with generally accepted
accounting principles.
Section 4.8 Lack of Litigation or Threats Thereof. There are no
pending threatened suits or arbitration proceedings, material breaches of
warranties or disputes, injunctions, outstanding liens or contracts, settlements
or outstanding court orders that exist, which pose material risks to the
business, finances and/or operations of Acquiror.
Section 4.9 Disclosure of Material Facts. Acquiror has delivered
copies of and disclosed in writing to WHC all risks regarding matters and facts
that may have a material adverse impact on its business and its prospects,
including all those matters required to be disclosed in a securities transaction
under Rule 10b-5 under the Securities Exchange Act of 1934, as amended.
Section 4.10 Securities Issuances, Liens, Restrictions and Lending
Agreements. Acquiror has disclosed and delivered copies to WHC of all of its
loans, securities, warrant and option issuances and promises and agreements with
respect to arrangements of that general type, as well as all liens, mortgages,
notes, financing statements, security agreements, positive and negative
restrictions and covenants imposed upon itself, directly or indirectly, as well
as all of its lending and financing agreements and note obligations.
Section 4.11 Collective Bargaining Agreements, Employment Agreements
and Employee Benefit Plans. Acquiror has delivered all employment agreements,
collective bargaining agreements and employee benefit plans and arrangements to
WHC.
Section 4.12 Outstanding Capital Stock of the Acquiror. The Acquiror
has 500 shares of common stock authorized and outstanding. It has no other
shares of capital stock authorized. All outstanding shares of common stock of
the Acquiror are entitled to vote on the Merger.
ARTICLE V
COVENANTS
Section 5.1 Best Efforts To Consummate Merger. Subject to the terms
and conditions of this Agreement, each of the parties to this Agreement shall
use its best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective, as soon as reasonably
practicable, the transactions contemplated by this Agreement.
Section 5.2 Operation in Ordinary Course. From the date of this
Agreement until the Effective Time, the Acquiror shall operate its business only
in the ordinary course and, without
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the prior written consent of WHC, shall not engage in any other businesses,
acquire any other businesses or any interest therein, or sell any assets (other
than in the ordinary course) or any shares of capital stock, nor make
commitments or enter agreements to do any of the foregoing.
ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party to this Agreement to effect
the Merger shall be subject, at or prior to the Effect Time, to approval of this
Agreement and the Merger by the Constituent Corporation's shareholders in
accordance with provisions of applicable law.
Section 6.2 Additional Conditions to Obligations of the Constituent
Corporation's Effect the Merger. The obligation of the Constituent Corporation's
effect the Merger shall be subject to the fulfillment at or prior to the
Effective Time of the following additional conditions:
(a) They shall have performed in all material respects it obligations
as set forth in this Agreement that are required to be performed at or
prior to the effective Time;
(b) Their representations and warranties set forth in this Agreement
shall be true and correct on and as of the Effective Time as if made on and
as of such date; and
(c) There shall not be any statute, rule or regulation promulgated,
enacted or deemed applicable making it illegal for them to consummate the
Merger or any order, judgment, decree or ruling by any foreign or domestic
court or governmental body enjoining either of them or WHC from
consummating the Merger.
(d) WHC shall have received, or arrangements shall have been made to
enable WHC to receive, sufficient monies, as of the Effective Time, to make
all payments due to be made by it pursuant to Section 2.1(a) and 2.2 of
this Agreement.
Section 6.3 Presence of Key Employment Agreements with Noncompetition
Arrangements in Acquiror. Acquiror shall have employment agreements with Rudolph
T. Polselli, Jr., Gary G. Bal and any other key people with non-competition
agreements in the event of employment termination on terms acceptable to WHC and
shall deliver copies of all such items to WHC no later than 30 days prior to the
Effective Time of the Merger. Shares of WHC common stock included in the
Consideration shall secure WHC against any losses of Acquiror's business as a
result of breach of these agreements, so long as they are uncancelled and unsold
by the aforesaid people, providing WHC all rights of a secured creditor under
the laws of the State of Florida after the Effective Time of the Merger .
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ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated and the
Merger abandoned (notwithstanding any approval of either Constituent Corporation
or their shareholders) prior to the Effective Time as set forth below:
(a) By mutual written consent of the respective Boards of Directors of
the Constituent Corporations;
(b) By either the Constituent Corporations, if the Effective Time
shall not have occurred on or before April 1,1999; provided, however, that
no party may terminate the Agreement under this Section 7.1(b) if the
untruth or material incorrectness or incompleteness of any representation
or warranty made by such party herein, or such party's failure to fulfill
any obligation under this Agreement, shall have been the cause of or
resulted in the failure of the Effective Time to occur on or before April
1, 1999;
(c) By either the Constituent Corporation if there shall be any
statute, rule or regulation promulgated, enacted or deemed applicable
making it illegal for either of them to consummate the Merger or any order,
judgment, decree or ruling by any domestic or foreign court or governmental
body enjoining or any affiliate of from consummating the Merger and such
order judgment, decree or ruling shall have become final and nonappealable.
Section 7.2 Effect of Termination. In the event of the termination of
this Agreement for reasons that are not attributable to the breach of this
Agreement by either party to this Agreement, this Agreement shall thereafter
become void and have no effect, and no party to this Agreement or any affiliate
of a party to this Agreement shall have any liability to any other party to this
Agreement or its shareholders, directors, officers or affiliates in respect of
this Agreement or the Merger contemplated by this Agreement, except for the
obligations of the parties hereto in Section 8.3 of this Agreement. Nothing
contained in Section 7.1 of this Agreement or this Section 7.2 shall be
construed to restrict the rights of the Constitute Corporations at law or equity
if the other party breaches this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Survival of Representations and Warranties. The
representations and warranties in this Agreement or in any instrument or
certificate delivered pursuant to this Agreement delivered at or prior to the
Effective Time shall survive the consummation of the
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Merger for a period of three (3) years.
Section 8.2 Affiliate. For purposes of this Agreement, an "affiliate"
of a person is any person who controls, is controlled by, or is under common
control with, such person.
Section 8.3 Expenses. Whether or not the Merger is consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated by this agreement shall be paid by the party incurring
such costs and expenses.
Section 8.4 Notices. All notices and other communications made pursuant
to this Agreement shall be in writing and shall be deemed to have been duly
given if, and when, delivered by messenger, transmitted by telex, telecopier or
telegram or mailed by registered or certified mail, postage prepaid, as follows
or to such other address as any party to this Agreement may specify to the other
party to this Agreement in writing (such change of address to be effective only
upon receipt of such notification in writing):
If to the Merging Company: If to Acquiror:
117 W. Hampton Corners 1011 NW 52nd
Lexington, Kentucky 40511 Ft. Lauderdale, FL 33309
Section 8.5 Amendment and Waiver. This Agreement may be amended or
modified at any time by an agreement in writing between the parties to this
Agreement, and any provision hereof may be waived in writing by the party
against whom enforcement of such waiver is sought; provided, however, that after
the adoption of this Agreement by the shareholder of the Merging Company, no
amendment or waiver shall be made which changes the proposed Articles of
incorporation or by-laws of the Acquiror, reduces the amount of consideration,
to be received pursuant to Section 2.1 of this Agreement or which materially
adversely affects the rights of the Acquiror's shareholders, without the
approval of such shareholders.
Section 8.6 Successors and Assigns. This Agreement may not be assigned
by any party to this Agreement without the prior written consent of the other
party.
Section 8.7 Counterparts. This Agreement may be executed in one or more
counterparts each of which shall be deemed to constitute an original and shall
become effective when one or more counterparts have been signed by each party to
this Agreement and delivered to the other party.
Section 8.8 Entire Agreement. Except for the terms of the Subscription
Agreements entered into between the shareholders of the Acquiror on the one hand
and WHC or the other, which are incorporated herein by reference, this Agreement
and the items represented hereunder by Acquiror sets forth the entire agreement
and understanding of the parties in respect of the transactions contemplated by
this Agreement and supersedes all prior agreements, arrangements, negotiations
and understandings relating to the subject matter of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized officers as of the date first above written.
Merging Company, a Michigan corporation
__________________________________
By: James N. Turek
Its: President
Acquiror, a Florida corporation
__________________________________
By: Rudolph T. Polselli, Jr.
Its: President
Wicklund Holding Company
__________________________________
By: James N. Turek
Its: Chairman
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ASSIGNMENT AND ROYALTY AGREEMENT
This Assignment and Royalty Agreement, effective as of March 23, 1999
(hereinafter referred to as the "Agreement"), is entered into among DOW CREDIT
CORPORATION, a Delaware corporation with offices located at 2020 Dow Center,
Midland, Michigan 48674 ("DCC"), THE DOW CHEMICAL COMPANY, a Delaware
corporation with offices located at 2030 Dow Center, Midland, Michigan 48674
("Dow"), WICKLUND HOLDING COMPANY, a Delaware corporation with offices located
at 117 West Hampton, Lexington, Kentucky 40511, and all of its subsidiaries and
affiliates (including, but not limited to INTERNATIONAL PLASTICS INC. ("IPI"), a
Kentucky corporation with offices located at 1300 New Circle Road, Lexington,
Kentucky 40505) and all of its successors and assigns (collectively
"Wicklund").
R E C I T A L S:
WHEREAS, DCC has a security interest in certain patents and patent
applications (hereinafter referred to collectively as the "Patents") and
drawings, specifications and other technology, know-how, trade secrets and
techniques and trademarks (hereinafter referred to collectively as the
"Technology") with respect to the manufacture of Rebar and Beam High Chair, and
the Rebar and Beam Bolster, Slab and Beam Bolster Upper further described and
specified on Schedule A to this Agreement, attached hereto (hereinafter the
Rebar and Beam High Chair
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and the Rebar and Beam Bolster, Slab and Beam Bolster Upper are referred to
collectively as "Beam Bolsters"); and
WHEREAS, Dow has a security interest in certain assets of IPI as specified
on Schedule B to this Agreement, attached hereto (hereinafter referred to as the
"Other Assets"); and
WHEREAS, DCC's rights in the Patents and Technology are set forth in an
Agreed Order entered April 27, 1994 in the IPI Chapter 11 Bankruptcy proceeding
in Case No. 92-52264, Eastern District of Kentucky, Lexington Division ("Agreed
Order 1"), a copy of which is attached hereto as Ex. "1" and made a part hereof;
and
WHEREAS, Dow's rights in the Other Assets are set forth in an Agreed Order
entered May 3, 1995 in the IPI Chapter 11 Bankruptcy proceeding in Case No. 92-
52264, Eastern District of Kentucky, Lexington Division ("Agreed Order 2"), a
copy of which is attached hereto as Ex. "2" and made a part hereof (Agreed Order
1 and Agreed Order 2 may collectively hereinafter referred to as"Agreed
Orders"); and
WHEREAS, IPI is in default under the terms of the Agreed Orders and,
pursuant to the terms of the Agreed Orders, DCC and Dow are entitled to
immediate possession of the Patents and Technology and the Other Assets; and
WHEREAS, IPI is currently manufacturing Beam Bolsters using the Patents and
Technology and the Other Assets and is in possession of certain engineering,
manufacturing, marketing, distribution, and service facilities, personnel and
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expertise, and any necessary molds, related to and required to produce and
market the Beam Bolsters; and
WHEREAS, pursuant to this document related to this transaction, DCC and Dow
are assigning their respective rights under the Agreed Orders and all of their
rights in the Patents and Technology and Other Assets, as well as a Term Loan
Promissory Note from IPI to DCC dated December 14, 1990 in the original
principal amount of $1,245,000.00 and a Revolver Promissory Note from IPI to DCC
dated December 14, 1990 in the original principal amount of $595,000.00 (copies
of which are attached hereto as Ex. "3", collectively, the "Notes"), to Wicklund
in consideration of and exchange for the receipt of the following: (1) a cash
payment in the amount of $625,000.00, in the manner described in paragraph 1
(a), below; (2) a Promissory Note in the amount of $175,000.00 in the manner
described in paragraph 1(b), below; and (3) the payments required under this
Agreement.
W I T N E S S E T H:
-------------------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties to this
Agreement, the parties agree as follows:
1. General Undertakings. Subject to the terms and conditions of this
Agreement, DCC and Dow will transfer and assign to Wicklund, all of their
respective right, title and interest in their claims, notes and collateral as
documented in the Agreed Orders against IPI, the collateral consisting of all of
the collateral described in paragraphs 6(a) through 6(j) of the April 27, 1994
Agreed
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Order and in paragraph 1 of the May 3, 1995 Agreed Order (collectively,the
"Collateral"), as well as the Notes, subject to the following terms and
conditions:
(a) Wicklund will pay DCC the sum of $625,000.00, to be paid in five
equal monthly installments of $125,000.00 each, commencing March 23, 1999 and
continuing on or before the 1st day of the months of May, June, July and August
1999. Upon receipt of the final installment of the $625,000.00 cash payment, DCC
and Dow will provide Wicklund with a complete set of originals of the documents
(or copies of court documents) evidencing DCC's and Dow's rights in the claims,
notes and collateral being assigned and transferred hereunder, along with the
original letters patent comprising part of the Collateral (which are currently
being held by the Clerk of the Bankruptcy Court) and the original Notes.
(b) Wicklund shall execute a Promissory Note in the amount of
$175,000.00 payable to DCC, in the form attached hereto as Exhibit "4".
(c) This Agreement shall not determine ownership of the Collateral as
between Wicklund and IPI.
(d) Upon receipt of the final installment of the $625,000.00 cash
payment, DCC will dismiss the Fayette County Civil Action No. 92-CI-3602 against
IPI and James N. Turek (the "Lawsuit"), with prejudice, and the personal
guarantee of James N. Turek in the amount of $1,840,000.00 (the "Guarantee")
will be discharged in writing.
(e) Upon the transfer of DCC's and Dow's rights in the Collateral to
Wicklund, DCC's and Dow's rights under this Agreement, and DCC's rights under
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the $175,000.00 Promissory Note executed concurrently herewith, shall be
unsecured.
(f) Provided, however, DCC will retain and not assign to Wicklund its
rights under the Guaranty and will retain and not assign to Wicklund its rights
in the Lawsuit. These rights will be retained and not assigned so that DCC may
dismiss the Lawsuit and discharge the Guaranty as required by subparagraph (d),
above.
2. Royalty Fees.
(a) Commencing July 1, 2001, DCC shall receive a royalty equal to 5% of
the gross dollars resulting from sales of the Beam Bolsters (after deducting
sales returns and any sales taxes), whether such sale is made by Wicklund (or
any successor or assign) or any licensee of the Patents or Technology, subject
to the minimum royalty payment provided for in subsection (b), below.
(b) The royalty payment will be calculated on a quarterly basis and the
payment will be due on or before the last day of the month following the end of
each calendar quarter. The first royalty payment for the calendar quarter ending
September 30, 2001 will be due on or before October 31, 2001. The minimum
quarterly royalty payment shall be in the amount of $12,500.00, regardless of
the actual dollar amount of the gross sales in any calendar quarter.
(c) Accompanying each royalty payment shall be a statement showing gross
sales, deductions for returns and sales taxes. Wicklund agrees that DCC shall be
entitled at any time, on reasonable notice, to inspect its books and records
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to confirm that the royalty payments being remitted are correct. Wicklund
agrees that any licensing agreement that it enters into with respect to the
Patents and/or Technology shall include a provision enabling DCC to inspect the
books and records of the licensee to confirm that the royalty payments being
remitted are correct.
(d) Royalty payments shall continue on a quarterly basis until such time
as DCC has received a total of $400,000.00. Upon receipt of such an amount in
royalty payments, the obligation for royalty payments to DCC under this
Agreement shall cease, although all other obligations hereunder shall remain in
effect.
(e) If any royalty payment is not received or accounted for in a timely
manner, DCC, in its sole discretion, may give a written notice of default to
Wicklund, by regular mail at the addresses set forth below. If payment is not
received or an accounting not provided within 30 (thirty) days of the date on
which DCC gives written notice of default to Wicklund, DCC may, at its option,
accelerate the remaining unpaid balance of the royalty payments ($400,000.00
minus payments previously received). The accelerated balance shall then
commence to bear interest at the rate of 8.5% per annum and DCC may immediately
bring suit thereon. A default hereunder shall also constitute an event of
default under the $175,000.00 Promissory Note being executed contemporaneously
herewith. Provided, that if Wicklund has reduced the principal balance of the
Promissory Note at the time of such default, the accelerated balance owed on the
Promissory Note shall be the then existing balance of principal and accrued
interest, credit having been given for all payments received.
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3. DCC's and Dow's Representations and Warranties. DCC and Dow
represent and warrant to Wicklund as of the date of this Agreement, as follows:
(a) DCC and Dow are corporations validly existing and in good standing
under the laws of Delaware.
(b) DCC and Dow have full corporate power and authority to execute and
deliver this Agreement and to perform their respective obligations under this
Agreement. The execution, delivery and performance of this Agreement by DCC and
Dow has been duly authorized by all necessary corporate actions.
(c) The execution, delivery and performance of this Agreement by DCC and
Dow does not conflict with any provision of the Articles of Incorporation or
Bylaws of DCC or Dow or any contract, agreement, or commitment to which DCC or
Dow is a party.
4. Disclaimers: Limitation of Liability.
(A) WICKLUND HEREBY ACKNOWLEDGES THAT DCC AND DOW MAKE NO REPRESENTATIONS
OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PATENTS AND TECHNOLOGY OR THE BEAM
BOLSTERS, THE OTHER ASSETS OR THE NOTES EXCEPT FOR THE WARRANTIES SET FORTH IN
PARAGRAPH 3, ABOVE. DCC AND DOW EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES,
EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, DCC AND DOW
MAKE NO REPRESENTATION OR WARRANTY REGARDING THEIR RESPECTIVE RIGHT, TITLE OR
INTEREST IN OR TO ANY OF THE PATENTS,
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TECHNOLOGY OR BEAM BOLSTERS, THE OTHER ASSETS, THE NOTES OR TO ANY OF THE
COLLATERAL SET OUT IN THE AGREED ORDERS.
(b) DCC and/or Dow shall not liable to Wicklund, or any party claiming
through Wicklund, or any third party customer, for any direct damages, or
indirect, special or consequential damages, including lost profits, or any
exemplary or punitive damages, allegedly incurred in connection with a Beam
Bolsters or the Patents or the Technology, the Other Assets or the Notes.
6. Wicklund's Representations and Warranties. Wicklund represents and
warrants to DCC and Dow as of the date of this Agreement as follows:
(a) Wicklund is a corporation validly existing, and in good standing
under the laws of Delaware.
(b) Wicklund has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by Wicklund does not
conflict with any provision of the Articles of Incorporation or Bylaws of
Wicklund or any contract, agreement, or commitment to which Wicklund is a party.
7. Successors and Assigns. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and their respective heirs, legal
representatives, successors and assigns.
8. Schedules. The Schedules and Exhibits attached hereto constitute a
part of this Agreement and are incorporated herein by referenced in their
entirety as if fully set forth herein at the point where first mentioned.
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9. Recitals. The recitals to this Agreement are substantive and
represent binding obligations, commitments, warranties and covenants of the
parties.
10. Notices. All notices, mailings and communications relative to this
Agreement shall be in writing and shall be personally delivered or delivered by
registered U.S. mail, postage prepaid, return receipt requested, or delivered by
telecopy and regular mail, in any event delivered and addressed to the parties
as follows:
If to DCC and Dow:
Dow Credit Corporation
Senior Credit Manager
2020 Dow Center
Midland, MI 48674
(Telecopy No. 517-638-9852)
The Dow Chemical Company
Customer Financial Services Manager
2020 Dow Center
Midland, MI 48674
(Telecopy No. 517-638-9852)
With copy to:
Brown, Todd & Heyburn, PLLC
Attn: Randy D. Shaw
2700 Lexington Financial Center
Lexington, KY 40507
(Telecopy No. 606-231-0011)
If to Wicklund:
Wicklund Holding Company
1300 New Circle Road, Suite 111
Lexington, Kentucky 40505
Attn: James N. Turek
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(Telecopy No. 606-225-1042)
With copy to:
Laura Day DelCotto
Stoll, Keenon & Park
201 East Main Street, Suite 1000
Lexington, Kentucky 40507
(Telecopy No. 606-253-1027)
and to:
Frederick Hoops, Sr.
Kitsch, Drutchas, Wagner & Kenney, P.C.
One Woodward Avenue
Detroit, Michigan 48226
(Telecopy No. (248) 932-2994)
Any party may change its address for receiving notices and communications
by giving the other appropriate written notice thereof.
11. Entire Agreement. This Agreement, and the letter from DCC to Fred
Hoops dated April 29, 1998 and attached hereto as Exhibit "5", along with all
schedules and attachments thereto (except where modified herein) constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, representations, and understandings
of the parties and their principals and affiliates with respect thereto.
Provided, however, in the event that any conflict exists between the terms of
this Agreement and the April 29, 1998 letter agreement, the terms of this
Agreement shall be controlling. No amendment to or modification of this
Agreement shall be valid or effective unless agreed to in writing by all of the
parties hereto. No waiver of any
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of the provisions of this Agreement shall be deemed, or shall constitute, a
waiver of any other provision, nor shall any waiver constitute a continuing
waiver.
12. Execution in Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
13. Expenses. All parties agree that, in all events, each will pay all
of their own expenses incurred in connection with the negotiation and
preparation of this Agreement and the performance of their obligations
undertaken pursuant to this Agreement.
14. Further Assurances. Each party hereby agrees to execute and deliver
such additional instruments and documents and to take such additional actions as
may reasonably be required from time to time in order to effectuate the
transactions contemplated by this Agreement whether prior to, at or after the
closing.
15. Captions. The captions appearing in this Agreement are inserted only
as a matter of convenience and in no way define, limit or describe the scope and
intent of this Agreement or any of the provisions thereof.
16. Severability of Provisions. If any one or more of the provisions of
this Agreement shall be held invalid or unenforceable by a court of competent
jurisdiction, such provision shall be modified to the minimum extent necessary
to make it enforceable, and the enforceability of the remaining terms of this
Agreement shall not be affected thereby. In the event such provision(s) cannot
be
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modified to make it enforceable, this Agreement shall be continued in all
respects as if such invalid or unenforceable provision(s) was omitted.
17. Facsimile Signatures. Facsimile signatures shall be considered
original signatures for the purpose of execution and enforcement of the rights
delineated in this Agreement.
18. Term. The term of this Agreement shall be until such time as the
maximum amount owed DCC hereunder shall have been paid in full. However, once
DCC has been paid in full, the remaining provisions of this Agreement shall
remain in full force and effect as long as the Patents and Technology remain in
use by any person or entity.
IN WITNESS WHEREOF, the parties have executed the foregoing instrument on
the date first above written.
DOW CREDIT CORPORATION
BY:______________________________
TITLE:___________________________
THE DOW CHEMICAL COMPANY
BY:______________________________
TITLE:___________________________
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WICKLUND HOLDING COMPANY
BY:_____________________________
JAMES N. TUREK, PRESIDENT
STATE OF MICHIGAN
COUNTY OF __________________
Subscribed, sworn to and acknowledged before me on this the __ day of
_________, 1999, by ______________________, ____________________ of Dow Credit
Corporation, on behalf of the corporation.
My Commission Expires:____________________________________
______________________________________
NOTARY PUBLIC
STATE OF MICHIGAN
COUNTY OF __________________
Subscribed, sworn to and acknowledged before me on this the __ day of
_________, 1999, by ______________________, ____________________ of Dow Credit
Corporation, on behalf of the corporation.
My Commission Expires:____________________________________
______________________________________
NOTARY PUBLIC
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COMMONWEALTH OF KENTUCKY
COUNTY OF FAYETTE
Subscribed, sworn to and acknowledged before me on this the 31st.day of
March, 1999, by James N. Turek, President of Wicklund Holding Company, on
behalf of the corporation.
My Commission Expires: 7/28/2002
-----------------------------
/s/ Gena N. Price
______________________________________
NOTARY PUBLIC
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