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): May 29, 1997
Hein-Werner Corporation
(Exact name of registrant as specified in its charter)
Wisconsin 1-2725 39-0340430
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
2120 Pewaukee Road
Waukesha, WI 53188
(Address of principal executive office, including zip code)
(414) 542-6611
(Registrant's telephone number)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On May 29, 1997, Hein-Werner Corporation (the "Company") sold
substantially all of the business, assets and certain liabilities of its
Great Bend Industries Division (the "Division") to Kaydon Corporation, a
Delaware corporation ("Kaydon"), and Kaydon Acquisition VIII, Inc., a
Delaware corporation and a wholly-owned subsidiary of Kaydon ("Buyer"),
pursuant to an Asset Purchase Agreement, dated as of April 9, 1997 (the
"Asset Agreement" ). The Company's sale of the business, assets and
certain liabilities of the Division, as well as the consummation of the
transactions related thereto, is referred to as the "Disposition."
Pursuant to the Asset Agreement: (i) the Company sold the Division to
Buyer for (a) $22,755,532 in cash at the closing of the Disposition (with
$2 million thereof being paid into an escrow), subject to a potential
adjustment based on the net asset value of the Division as finally
determined, and (b) the assumption by Buyer of certain contractual and
other liabilities of the Division; (ii) the Company agreed to a ten-year
covenant not to compete in the hydraulic cylinder business (subject to
certain exceptions including, without limitation, allowing the Company to
continue to manufacture hydraulic cylinders for its collision repair
business); and (iii) the Company agreed to indemnify Buyer and Kaydon (a)
against any breach by the Company of the Company's representations and
warranties contained therein, (b) for accounts receivable not collected
within 120 days following the closing and (c) for liabilities not
specifically assumed by Buyer under the Asset Agreement. The Company's
obligations to indemnify Buyer and Kaydon under the Asset Agreement for
breaches of representations and warranties are subject to a two-year time
limitation and an aggregate minimum threshold of $50,000. The purchase
price paid by Buyer for the business, assets and certain liabilities of
the Division was determined on the basis of arm's length negotiations
between the parties. The Company has paid or accrued approximately $1.3
million of direct Disposition costs.
In connection with the Disposition, the Company, Buyer and Firstar
Trust Company, as escrow agent, entered into an Escrow Agreement, dated as
of May 29, 1997 (the "Escrow Agreement"), pursuant to which the Buyer will
initially have $2 million of the purchase price available to cover (a) any
Company obligation to refund a portion of the purchase price based on the
final determination of the Division's net asset value, (b) any
indemnification obligations of the Company under the Asset Agreement, and
(c) a specified sum for a certain Division disputed receivable and
reworking fund. The amount of the purchase price held in escrow
automatically reduces at various times and in various amounts over an
approximately two-year period following the closing and all remaining
amounts thereunder will be disbursed to the Company on April 30, 1999.
The Division designs, manufactures, and supplies high performance
single-acting, double-acting, and telescopic hydraulic cylinders and
related hydraulic components to original equipment manufacturers in the
construction, transportation, solid waste, utility, and energy industries.
Located in Great Bend, Kansas, the Division employs approximately 230
people and reported net sales of approximately $20 million in 1996.
The Asset Agreement and the Escrow Agreement are filed as exhibits to
this Current Report on Form 8-K and are incorporated herein by reference.
The brief summaries of certain of the material provisions of the Asset
Agreement and the Escrow Agreement, set forth above, are qualified in
their entirety by reference to each respective agreement filed as an
exhibit hereto.
Item 7. Financial Statements and Exhibits.
(a) Financial Statement of Business Acquired - Not applicable
(b) Pro Forma Financial Information
HEIN-WERNER CORPORATION
UNAUDITED PRO FORMA CONDENSED
CONSOLIDATED FINANCIAL INFORMATION
The following unaudited pro forma financial information relates to
the disposition (such disposition as well as the consummation of certain
related transactions is referred to herein as the "Disposition") by Hein-
Werner Corporation (the "Company") of substantially all of the business,
assets, and certain liabilities of its Great Bend Industries Division (the
"Division"). The Disposition was deemed to be effective as of the close
of business on May 29, 1997. The pro forma amounts have been prepared
based upon certain accounting and other pro forma adjustments as described
in the accompanying notes to the historical financial statements of the
Company including the Division.
The unaudited pro forma condensed consolidated statements of
operations reflect the historical results of operations of the Company
including the Division for the year ended December 31, 1996, and the three
months ended March 29, 1997, with pro forma adjustments as if the
Disposition had occurred as of the beginning of the respective periods.
The unaudited pro forma condensed consolidated balance sheet reflects the
historical financial position of the Company, including the Division, with
pro forma adjustments as if the disposition had occurred at March 29,
1997. The pro forma adjustments are described in the accompanying notes
and give effect to events that are (a) directly attributable to the
Disposition, (b) factually supportable, and (c) in the case of certain
income adjustments, expected to have a continuing impact.
The unaudited pro forma condensed consolidated financial statements
should be read in connection with the Company's Annual Report on Form 10-K
for the year ended December 31, 1996.
The unaudited pro forma financial information presented is for
information purposes only and does not purport to represent what the
Company's financial position or results of operations as of the dates
presented would have been had the Disposition in fact occurred on such
date or at the beginning of the periods indicated, or to project the
Company's financial position or results of operations for any future date
or period.
<PAGE>
<TABLE>
Pro Forma Condensed Consolidated Balance Sheet
March 29, 1997
(unaudited)
<CAPTION>
Pro Forma Adjust-
Disposed ments (See
(In thousands) Hein-Werner Division Note 1) Pro Forma
ASSETS
<S> <C> <C> <C> <C>
Current assets:
Cash $ - $ - $ 8,223 $ 8,223
Accounts receivable, net 17,369 3,173 (59) 14,137
Inventories 16,397 3,081 - 13,316
Prepaid expenses and other 638 32 - 606
---------- --------- ---------- ----------
Total current assets 34,404 6,286 8,164 36,282
Restricted cash - - 2,000 2,000
Property, plants, and equipment, net 5,555 2,275 - 3,280
Other assets 2,823 - (177) 2,646
---------- -------- ---------- ----------
Total assets $ 42,782 $ 8,561 $ 9,987 $ 44,208
========== ======== ========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable $ 2,618 $ - $ - $ 2,618
Current installments of long-term
debt 1,780 100 (1,508) 172
Accounts payable 3,763 839 839 3,763
Income taxes payable 30 - 4,993 5,023
Other current liabilities 5,140 454 154 4,840
---------- -------- --------- ----------
Total current liabilities 13,331 1,393 4,478 16,416
Long-term debt, excluding current
installments 10,549 727 (9,434) 388
Other long-term liabilities 1,545 - - 1,545
---------- -------- --------- ----------
Total liabilities 25,425 2,120 (4,956) 18,349
Stockholders' equity 17,357 6,441 14,943 25,859
---------- -------- --------- ----------
Total liabilities and stockholders'
equity $ 42,782 $ 8,561 $ 9,987 $ 44,208
========== ======== ========= ==========
See accompanying notes to unaudited pro forma condensed consolidated
financial statements.
</TABLE>
<PAGE>
<TABLE>
Pro Forma Condensed Consolidated Statement of Operations
Year Ended December 31, 1996
(unaudited)
<CAPTION>
Pro Forma
Disposed Adjustments (See
(In thousands, except per share data) Hein-Werner Division Note 2) Pro Forma
<S> <C> <C> <C> <C>
Net sales $ 68,492 $ 20,049 $ - $ 48,443
Cost of sales 42,672 15,657 - 27,015
--------- -------- --------- ---------
Gross profit 25,820 4,392 - 21,428
Selling, engineering, and administrative
expenses 21,471 1,752 (153) 19,566
Bad debt expense 420 14 - 406
--------- -------- --------- ---------
Operating profit (loss) 3,929 2,626 153 1,456
Interest (income) expense-net 1,465 246 (1,172) 47
Other expense-net 164 515 515 164
--------- -------- --------- ---------
Income before income taxes 2,300 1865 810 1,245
Income tax expense 124 15 311 420
--------- --------- --------- ---------
Net income $ 2,176 $ 1,850 $ 499 $ 825
========= ========= ========= =========
Earnings per share-primary $ 0.78 $ 0.29
========= =========
Earnings per share-fully diluted $ 0.72 $ 0.29
========= =========
Weighted average common and common
equivalent shares outstanding-primary 2,804 2,874
========= =========
Weighted average common and common
equivalent shares outstanding-fully diluted 3,383 2,874
========= =========
See accompanying notes to unaudited pro forma condensed consolidated
financial statements.
</TABLE>
<PAGE>
<TABLE>
Pro Forma Condensed Consolidated Statement of Operations
Three Months Ended March 29, 1997
(unaudited)
<CAPTION>
Disposed Pro Forma Adjustments
(In thousands, except per share data) Hein-Werner Division (See Note 2) Pro Forma
<S> <C> <C>
Net sales $16,124 $ 4,305 $ - $ 11,819
Cost of sales 10,250 3,457 - 6,793
--------- -------- --------- ----------
Gross profit 5,874 848 - 5,026
Selling, engineering, and administrative
expenses 5,107 405 85 4,787
Bad debt expense 14 4 - 10
--------- --------- --------- ----------
Operating profit (loss) 753 439 (85) 229
Interest (income) expense-net 319 67 (263) (11)
Other expense-net 10 129 129 10
--------- --------- --------- ----------
Income before income taxes 424 243 49 230
Income tax expense 154 49 59 164
--------- --------- --------- ----------
Net income (loss) $ 270 $ 194 $ (10) $ 66
========= ========= ========= ==========
Earnings per share $ 0.10 $ 0.02
========= ==========
Weighted average common and common
equivalent shares outstanding 2,819 2,882
========= ==========
See accompanying notes to unaudited pro forma condensed consolidated
financial statements.
</TABLE>
<PAGE>
HEIN-WERNER CORPORATION
NOTES TO PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
NOTE 1
The pro forma condensed consolidated balance sheet has been prepared
to reflect the sale by the Company of substantially all of the business,
assets, and certain liabilities of the Division. The pro forma
adjustments as of March 29, 1997, reflect the application of proceeds from
the sale of the Division to reduce outstanding short and long-term debt of
the Company and to establish remaining accrued liabilities. Pro forma
cash and restricted cash are comprised entirely of interest-bearing cash
equivalents.
NOTE 2
The pro forma condensed consolidated statements of operations for the
year ended December 31, 1996 and the three months ended March 29, 1997 are
based upon the financial statements of the Company for the year ended
December 31, 1996 and the three months ended March 29, 1997, respectively,
after giving effect to the following pro forma adjustments:
a) Reduction of interest expense from repayment of short and long-
term debt using proceeds from the sale of the Division, computed
using rates in effect during the respective periods. Also included
is assumed interest earned on the residual interest-bearing cash
equivalents.
b) Retention of certain central office selling, engineering, and
administrative expenses and other expenses previously allocated to
the Division, offset by a reduction of certain central office
expenses as a result of the sale of the Division.
c) Provision for income taxes needed so that income taxes on the
U.S. portion of consolidated pro forma income before income taxes
reflects U.S. statutory rates. For the three months ended March 29,
1997, losses in certain foreign countries for which no tax benefit
could be recorded due to an inability to carry those losses back
resulted in tax expense of $59 on foreign losses before income taxes
of $48. This results in consolidated pro forma income tax expense of
71% of consolidated income before income taxes, even though income
taxes have been provided at 38% on the U.S. portion thereof.
d) Pro forma weighted average common and common equivalent shares
reflect the issuance of 564,381 additional options in connection with
the repayment of the convertible subordinated notes.
(c) Exhibits.
The exhibits listed in the accompanying Exhibit Index are filed as
part of this Current Report on Form 8-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on behalf of the
undersigned hereunto duly authorized.
HEIN-WERNER CORPORATION
June 13, 1997 By: /s/ Mary L. Kielich
Mary L. Kielich
Corporate Controller, Assistant
Secretary and Assistant Treasurer
<PAGE>
HEIN-WERNER CORPORATION
EXHIBIT INDEX TO FORM 8-K
Report Dated May 29, 1997
Exhibit
(2.1) Asset Purchase Agreement, dated as of April 9, 1997, by and
among Hein-Werner Corporation, Kaydon Corporation and Kaydon Acquisition
VIII, Inc. [Incorporated by reference to Exhibit (2) to Hein-Werner
Corporation's Current Report on Form 8-K, dated April 9, 1997]
(2.2) Escrow Agreement, dated as of May 29, 1997, by and among Hein-
Werner Corporation, Kaydon Acquisition VIII, Inc. and Firstar Trust
Company, as escrow agent.
Exhibit (2.2)
ESCROW AGREEMENT
ESCROW AGREEMENT (the "Escrow Agreement"), dated as of the 29th
day of May, 1997, is by and among HEIN-WERNER CORPORATION, a Wisconsin
corporation (the "Company"), KAYDON ACQUISITION VIII, INC., a Delaware
corporation (the "Buyer') and FIRSTAR TRUST COMPANY (the "Escrow Agent").
R E C I T A L S:
A. Pursuant to that certain Asset Purchase Agreement (the
"Purchase Agreement"), dated as of April 9, 1997, by and among, inter
alia, the Kaydon Corporation, Buyer and the Company, the Buyer has agreed
to purchase from the Company the business and substantially all of the
assets of the Company's Great Bend Industries Division.
B. The amount that the Buyer has agreed to pay to the Company
as consideration pursuant to the Purchase Agreement was in part determined
and agreed to by the Buyer on the basis of the estimated Net Asset Value
of the Business, all as set out more fully in the Purchase Agreement.
C. Upon final determination of the Final Closing Business
Balance Sheet of the Company, the Purchase Agreement provides that certain
adjustments to the Purchase Price are to be made and payments made in
respect thereof (any such payment required to be made by the Company being
hereinafter referred to as the "Company Payable Adjustment").
D. The Company Payable Adjustment, if any, is first to be paid
from the Escrow Fund as hereinafter provided.
E. Pursuant to Section 7.8 of the Purchase Agreement, Company
has agreed to reimburse Buyer for "Buyer Schwing Reworking Costs" (as
defined in the Purchase Agreement), if any, and Company and Buyer have
agreed to set aside in a separate fund under this Escrow Agreement the
estimated Buyer Schwing Reworking Costs in the amount of Eleven Thousand
Seven Hundred Eighty Dollars ($11,780) (the "Schwing Rework Fund"). Also,
pursuant to Section 7.8 of the Purchase Agreement, Company has agreed at
the end of one (1) year following Closing, to pay Buyer the amount, if
any, of the Schwing Disputed Receivable in the amount of Eighty-Four
Thousand Four Hundred Twenty Dollars ($84,420) which is not actually
collected within one (1) year following Closing (any payment required to
be made by Company as a result of the Schwing Disputed Receivable not
being fully collected being hereinafter referred to as the "Schwing
Receivable Adjustment").
F. Pursuant to Section 11.1(c) of the Purchase Agreement,
Company has agreed to indemnify Buyer for all accounts receivable
reflected on the Final Closing Business Balance Sheet which are not
actually collected within one hundred twenty (120) days following the
closing except for the Schwing Disputed Receivable which is the subject of
(E) above (any payment required to be made by Company being hereinafter
referred to as the "Accounts Receivable Adjustment").
G. Pursuant to Sections 11.1(a), (b) and (d) of the Purchase
Agreement, the Company has agreed to indemnify, defend and hold harmless
the Buyer from and against certain other Claims, if any, as defined and
set forth in the Purchase Agreement.
H. The Purchase Agreement contemplates execution and delivery
of this Escrow Agreement providing for the escrow of cash to be held for
the payment, under certain circumstances, of the Company Payable
Adjustment, if any, and of any claim or claims for indemnity, if any, by
the Buyer, in accordance with certain provisions of the Purchase
Agreement, and under certain circumstances, the costs of Response Actions.
I. The Company and the Buyer desire that the Escrow Agent act
as escrow agent, and the Escrow Agent is willing to so act, all upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the above and of the mutual
covenants and agreements herein contained, and of other good and valuable
consideration, the receipt and sufficiency of which the parties hereto
hereby acknowledge, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise specified herein, all
defined terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Purchase Agreement.
2. Deposits. Pursuant to Section 3.2(b) of the Purchase
Agreement, at the time of the Closing under the Purchase Agreement, the
Buyer shall deposit with the Escrow Agent the amount of Two Million
Dollars ($2,000,000) (referred to herein as the "Escrow Fund"), which
shall be held by the Escrow Agent as the object of, and in accordance
with, the escrow arrangement created hereby. Pursuant to Section 3.2 of
the Purchase Agreement, the deposit of the Escrow Fund shall be a credit
to the Purchase Price in the amount of the Escrow Fund.
3. Acknowledgement of Receipt. The Escrow Agent hereby
acknowledges receipt of the Escrow Fund and agrees to act as escrow agent
under this Escrow Agreement.
4. Account. The Escrow Agent shall record the amount
initially credited to such account and all subsequent transactions with
respect to such account pursuant to this Escrow Agreement.
5. Disbursement of Escrow Fund. (a) The Buyer shall be
entitled to payment from the Escrow Fund to the extent Buyer is entitled
to indemnity under Article 11 of the Purchase Agreement, to the extent the
Buyer is entitled to payment under Section 3.2(d) of the Purchase
Agreement, and to the extent the Buyer is entitled to payment under
Section 7.8 of the Purchase Agreement.
(b) On or before the expiration of five (5) days following
the final determination of the Final Closing Business Balance Sheet in
accordance with the Purchase Agreement, (i) if there is a Company Payable
Adjustment, then the Escrow Agent shall distribute to the Buyer an amount
equal to the lesser of (A) the Company Payable Adjustment, together with
interest thereon from the Closing Date to the date of distribution thereof
at a rate equal to the average interest rate paid on the Escrow Fund
during such period, or (B) the Escrow Fund and all Earnings (as
hereinafter defined) thereon, (ii) if there is no Company Payable
Adjustment, then the Escrow Agent shall distribute to the Company the
aggregate sum of Five Hundred Thousand Dollars ($500,000), together with
interest thereon from the Closing Date to the date of distribution thereof
at a rate equal to the average interest rate paid on the Escrow Fund
during such period, and (iii) if a Company Payable Adjustment exists but
is less than Five Hundred Thousand Dollars ($500,000), then the Escrow
Agent shall pay an amount equal to the Company Payable Adjustment,
together with interest thereon from the Closing Date to the date of
distribution thereof at a rate equal to the average interest rate paid on
the Escrow Fund during such period, to the Buyer and an amount equal to
the difference between the Company Payable Adjustment and Five Hundred
Thousand Dollars ($500,000), together with interest thereon from the
Closing Date to the date of distribution thereof at a rate equal to the
average interest rate paid on the Escrow Fund during such period, to the
Company. Amounts payable pursuant to this Section 5(b) shall be paid in
accordance with the terms of (i) a joint written notice of the Buyer and
the Company providing instructions therein or (ii) the issuance of a
judgment, order or decree by any court of competent jurisdiction sitting
in the County of Milwaukee in the State of Wisconsin or the United States
District Court for the Eastern District of Wisconsin.
(c) On 121st day following the closing, (i) if there is an
Accounts Receivable Adjustment, then the Escrow Agent shall distribute to
the Buyer an amount equal to the lesser of (A) the Accounts Receivable
Adjustment, together with interest thereon from the Closing Date to the
date of distribution thereof at a rate equal to the average interest rate
paid on the Escrow Fund during such period, or (B) the Escrow Fund and all
Earnings thereon, (ii) if there is no Accounts Receivable Adjustment, then
the Escrow Agent shall distribute to the Company the aggregate sum of Nine
Hundred Three Thousand Eight Hundred Dollars ($903,800), together with
interest thereon from the Closing Date to the date of distribution thereof
at a rate equal to the average interest rate paid on the Escrow Fund
during such period, and (iii) if an Accounts Receivable Adjustment exists
but is less than Nine Hundred Three Thousand Eight Hundred Dollars
($903,800), then the Escrow Agent shall pay an amount equal to the
Accounts Receivable Adjustment, together with interest thereon from the
Closing Date to the date of distribution thereof at a rate equal to the
average interest rate paid on the Escrow Fund during such period, to the
Buyer and an amount equal to the difference between the Accounts
Receivable Adjustment and Nine Hundred Three Thousand Eight Hundred
Dollars ($903,800), together with interest thereon from the Closing Date
to the date of distribution thereof at a rate equal to the average
interred rate paid on the Escrow Fund during such period, to the Company.
Amounts payable pursuant to this Section 5(c) shall be paid in accordance
with the terms of (i) a joint written notice of the Buyer and the Company
providing instructions therein or (ii) the issuance of a judgment, order
or decree by any court of competent jurisdiction sitting in the County of
Milwaukee in the State of Wisconsin or the United States District Court
for the Eastern District of Wisconsin.
(d) On 365th day following the closing, (i) if there is
an Schwing Receivable Adjustment, then the Escrow Agent shall distribute
to the Buyer an amount equal to the lesser of (A) the Schwing Receivable
Adjustment, together with interest thereon from the Closing Date to the
date of distribution thereof at a rate equal to the average interest rate
paid on the Escrow Fund during such period, or (B) the Escrow Fund and all
Earnings thereon, (ii) if there is no Schwing Receivable Adjustment, then
the Escrow Agent shall distribute to the Company the aggregate sum of
Eighty-Four Thousand Four Hundred Twenty Dollars ($84,420), together with
interest thereon from the Closing Date to the date of distribution thereof
at a rate equal to the average interest rate paid on the Escrow Fund
during such period, and (iii) if an Schwing Receivable Adjustment exists
but is less than Eighty-Four Thousand Four Hundred Twenty Dollars
($84,420), then the Escrow Agent shall pay an amount equal to the Schwing
Receivable Adjustment, together with interest thereon from the Closing
Date to the date of distribution thereof at a rate equal to the average
interest rate paid on the Escrow Fund during such period, to the Buyer and
an amount equal to the difference between the Schwing Receivable
Adjustment and Eighty-Four Thousand Four Hundred Twenty Dollars ($84,420),
together with interest thereon from the Closing Date to the date of
distribution thereof at a rate equal to the average interred rate paid on
the Escrow Fund during such period, to the Company. Amounts payable
pursuant to this Section 5(d) shall be paid in accordance with the terms
of (i) a joint written notice of the Buyer and the Company providing
instructions therein or (ii) the issuance of a judgment, order or decree
by any court of competent jurisdiction sitting in the County of Milwaukee
in the State of Wisconsin or the United States District Court for the
Eastern District of Wisconsin.
(e) If the Buyer shall determine prior to April 30, 1999
that it has a Claim against the Company pursuant to the provisions of
Article 11(a), (b) or (d) of the Purchase Agreement, the Buyer shall so
notify the Escrow Agent and the Company. The Company shall give notice of
objection or consent to such Claim to each of the Buyer and the Escrow
Agent within thirty (30) days after their receipt of the Buyer's notice,
which notice of objection shall consent to or dispute the matters set
forth in the notice of the Claim and shall specify the amount in dispute,
if any. Promptly following delivery by the Company of a notice of
objection or consent or, in the absence of the delivery by the Company of
a notice of objection or consent within such 30-day period, then the
Escrow Agent shall satisfy the undisputed amount of such Claim promptly
following such 30-day period by delivery to the Buyer, out of the Escrow
Fund of an amount equal to either (i) the amount of such Claim if either
(x) a consent is delivered by the Company or (y) the Company fails to
deliver a notice of objection or consent during such 30-day period or (ii)
that portion of the Buyer's Claim that is not in dispute, if any, in the
case a notice of objection is delivered by the Company. Failure of the
Company to deliver a notice of objection within such 30-day period shall
constitute an irrevocable waiver on the part of the Company of its right
to dispute the Claim made by the Buyer.
(f) If the Escrow Agent receives a notice of objection
within such thirty-day period, then, concurrently with the payment to the
Buyer of any undisputed amount of such Claim, if any, in accordance with
Section 5(e) hereof, the Escrow Agent shall account for the amount in
dispute as a separate fund (a "Disputed Fund"). If a notice of objection
is timely given and the Company and the Buyer fail to reach agreement as
to the disposition of any Claim within thirty (30) days after receipt by
the Buyer and the Escrow Agent of the notice of objection, the Company and
the Buyer, may proceed to enforce their respective rights through
proceedings in accordance with the Purchase Agreement. The Escrow Agent
shall distribute the amounts accounted for as a Disputed Fund promptly
upon delivery of and in accordance with the terms of (i) a joint written
notice of the Buyer and the Company providing instructions therein and
certifying that the dispute with respect to any amount deposited in such
Disputed Fund has been finally resolved or (ii) any judgment, order or
decree issued by any court of competent jurisdiction sitting in the County
of Milwaukee in the State of Wisconsin or the United States District Court
for the Eastern District of Wisconsin directing the Escrow Agent as to the
proper distribution of any amount so held. The Company or the Buyer shall
deliver to the Escrow Agent a certified copy of any judgment, order or
decree in any such legal proceedings. The Escrow Agent shall act upon
such judgment, order or decree which has become final in like manner as
though it constituted the joint instructions of the Company and of the
Buyer.
(g) With respect to the Schwing Rework Fund, Buyer shall
be entitled to reimbursement from such fund for Buyer Schwing Reworking
Costs. Buyer may from time to time notify the Escrow Agent and the
Company that it has a claim for reimbursement for Buyer Schwing Reworking
Costs ("Buyer Swing Reworking Costs Claim").
(h) The Company shall give notice of objection or consent
to such claim for Buyer Schwing Reworking Costs Claim to each of the Buyer
and the Escrow Agent within thirty (30) days after their receipt of the
Buyer's notice, which notice of objection shall consent to or dispute the
matters set forth in the notice of a Buyer Schwing Reworking Costs Claim
and shall specify the amount in dispute, if any. Promptly following
delivery by the Company of a notice of objection or consent or, in the
absence of the delivery by the Company of a notice of objection or consent
within such 30-day period, then the Escrow Agent shall satisfy the
undisputed amount of such Buyer Schwing Reworking Costs Claim promptly
following such 30-day period by delivery to the Buyer, out of the Schwing
Rework Fund of an amount equal to either (i) the amount of such Buyer
Schwing Reworking Costs Claim if either (x) a consent is delivered by the
Company or (y) the Company fails to deliver a notice of objection or
consent during such 30-day period or (ii) that portion of the Buyer
Schwing Reworking Costs Claim that is not in dispute, if any, in the case
a notice objection is delivered by the Company. Failure of the Company to
deliver a notice of objection within such 30-day period shall constitute
an irrevocable waiver on the part of the Company of its right to dispute
Buyer Schwing Reworking Costs Claim made by the Buyer.
(i) If the Escrow Agent receives a notice of objection
within such thirty-day period, then, concurrently with the payment to the
Buyer of any undisputed amount of such Claim, if any, in accordance with
Section 5(h) hereof, the Escrow Agent shall account for the amount in
dispute as a separate fund (a "Disputed Fund"). If a notice of objection
is timely given and the Company and the Buyer fail to reach agreement as
to the disposition of any Claim within thirty (30) days after receipt by
the Buyer and the Escrow Agent of the notice of objection, the Company and
the Buyer, may proceed to enforce their respective rights through
proceedings in accordance with the Purchase Agreement. The Escrow Agent
shall distribute the amounts accounted for as a Disputed Fund promptly
upon delivery of and in accordance with the terms of (i) a joint written
notice of the Buyer and the Company providing instructions therein and
certifying that the dispute with respect to any amount deposited in such
Disputed Fund has been finally resolved or (ii) any judgment, order or
decree issued by any court of competent jurisdiction sitting in the County
of Milwaukee in the State of Wisconsin or the United States District Court
for the Eastern District of Wisconsin directing the Escrow Agent as to the
proper distribution of any amount so held. The Company or the Buyer shall
deliver to the Escrow Agent a certified copy of any judgment, order or
decree in any such legal proceedings. The Escrow Agent shall act upon
such judgment, order or decree which has become final in like manner as
though it constituted the joint instructions of the Company and of the
Buyer.
(j) The Escrow Agent shall deliver all money's remaining
in the Escrow Fund together with all earnings at any time accruing on the
Escrow Fund ("Earnings"), less any amounts held as Disputed Funds, less
any amount in the Schwing Rework Fund and less the amount of Two Hundred
Fifty Thousand Dollars ($250,000), to Company at the close of business on
December 31, 1997.
(k) The Escrow Agent shall deliver all moneys remaining in
the Escrow Fund, together with all earnings or other income at any time
accruing on the Escrow Fund ("Earnings"), less any amounts held as
Disputed Funds, to the Company at the close of business on April 30, 1999;
provided, however, that if the Buyer makes a notice of Claim on or after
April 1, 1999 and the Company have neither objected nor consented to the
payment of such Claim by April 30, 1999, then the amount of such Claim
shall be held as Disputed Funds if the Company gives notice of objection
within thirty (30) days after the date of the Claim.
(l) Upon the release of any Disputed Funds to the Buyer or
the Company, the Buyer or the Company (as applicable) also shall be
entitled to receive all Earnings thereon.
(m) Upon the release of any amount held in a Disputed Fund
that is not paid over to the Buyer, in respect of the Claim for which such
amount was originally deposited in such Disputed Fund, such amount shall
be paid in the following manner and order of priority:
(A) First, to the Buyer in respect of indemnification for
any other Claim paid or payable to the Buyer pursuant to Section
5 hereof with respect to which written notice was given by the
Buyer to the Escrow Agent prior to the close of business on
April 30, 1999, and for which the amount, if any, previously
paid to the Buyer was less than the amount to which the Buyer
was entitled with respect to such Claim;
(B) Second, to the Disputed Fund in respect of
indemnification of any other disputed Claim for which the Buyer
gave written notice to the Escrow Agent pursuant to Section 5
hereof prior to the close of business on April 30, 1999, and for
which the amount, if any, previously set aside in a Disputed
Fund was less than the amount of the disputed Claim;
(C) Third, prior to the close of business on April 30,
1999, to the Escrow Agent to be held or paid in accordance with
the provisions hereof;
(D) Fourth, following the close of business on April 30,
1999, pursuant to the provisions of Section 5(k) hereof.
6. Investments. (a) The Escrow Fund and Earnings and the full
amount of any Disputed Funds shall be invested by the Escrow Agent in
short-term government securities, government repurchase agreements,
commercial paper rated the highest grade by Moody's Investors Service,
Inc. or by Standard & Poor's Corporation with a maturity date not later
than March 31, 1998, money market funds invested in the foregoing, short-
term certificates of deposit issued by commercial banks having a combined
capital surplus and undivided profits of not less than One Hundred Million
Dollars ($100,000,000) or other similar short-term highly-liquid
investments of equal or greater security as the foregoing, or in U.S.
Treasury Notes having a maturity of date not later than April 30, 1999, as
shall be directed in writing by the Company, with interest thereon to be
accumulated and reinvested until disbursed. In the absence of
instructions from the Company, the Escrow Agent shall invest the Escrow
Fund and Earnings and any Disputed Funds in any of the foregoing
instruments. Any interest or profit realized on any investment of the
Escrow Fund and Earnings and any Disputed Fund, respectively, shall be
made part of the Escrow Fund and Earnings and of such Disputed Fund,
respectively, and shall be held and disbursed in accordance with the
provisions of Section 5 of this Escrow Agreement. Except as otherwise
specifically noted herein, the Escrow Agent is not obligated to render any
statements or notices of nonperformance hereunder to any party hereto, but
in its discretion may inform any party hereto, or its authorized
representative, of any matters pertaining to this Escrow Agreement.
(b) Receipt or investment of the Escrow Fund shall be
confirmed by the Escrow Agent as soon as practicable by account statements
unless otherwise indicated any discrepancies shall be noted to the Escrow
Agent within a reasonable time prior to the next account statement.
Failure to inform the Escrow Agent in writing of any discrepancies shall
be deemed confirmation of the description of the Escrow Fund listed on the
report, regardless of any variations from that described herein. Unless
otherwise directed, the Escrow Agent may use a broker-dealer of its own
selection, including a broker-dealer owned by or affiliated with the
Escrow Agent or with any of its affiliates. All brokerage costs and
expenses shall be for the account of the parties hereto. The Escrow Agent
shall not be liable for losses on any investments, market risk due to
premature liquidation, or other actions taken in compliance with this
Escrow Agreement or appropriate written instructions. The parties shall
provide the Escrow Agent with written certification of their respective
taxpayer identification numbers or appropriate foreign taxpayer exemptions
prior to any investment. Failure to provide such information may subject
the non-providing party to a penalty and may cause the Escrow Agent to be
required to withhold tax on any interest payable hereunder. All payments
of income shall be subject to applicable United States withholding
regulations as then in force. Notwithstanding the foregoing, the Escrow
Agent may, in its discretion, accept directions or instruction whether
given orally (in person or by telephone), or by telegraph, cable, radio or
facsimile transmission, which in each case the Escrow Agent reasonably
believes to be genuine, but the Escrow Agent shall not be liable for
executing, for failing to execute, or for any mistake in the execution of,
any such order except in case of willful misconduct or gross negligence.
7. Escrow Agent Not a Party. The parties to this Escrow
Agreement understand and agree that the Escrow Agent is not, and shall in
no event be deemed, (a) a principal, participant or beneficiary of the
underlying transactions giving rise to this Escrow Agreement or (b) a
party to, or bound by, any other agreement out of which this escrow may
arise.
8. Obligations of Escrow Agent; Reliance. The Escrow Agent
shall be obligated only for the performance of such duties as are
specifically set forth herein. The Escrow Agent may rely on, and shall be
protected in acting or in refraining from acting based upon, any written
notice, request, waiver, consent, certificate, receipt, authorization, or
other paper, document or instrument that the Escrow Agent reasonably
believes to be genuine and to have been signed or presented by the proper
party or parties hereto or their respective officers, representatives or
agents.
9. Interpleader. If the Escrow Agent becomes a party to any
litigation or dispute by reason hereof, it is hereby authorized to deposit
with the clerk of a court of competent jurisdiction any and all cash,
securities or other property held by it pursuant hereto and, thereupon,
shall stand fully relieved and discharged of any further duties hereunder.
If the Escrow Agent is threatened to be made a party to litigation by
reason hereof, it is authorized to interplead all interested parties in
any court of competent jurisdiction and to deposit with the clerk of such
court any and all cash, securities or other property held by it pursuant
hereto and, thereupon, shall stand fully relieved and discharged of any
further duties hereunder.
10. Resignation of Escrow Agent. The Escrow Agent may resign
for any reason upon ten (10) days' written notice to the Buyer and to the
Company. Upon the expiration of such ten (10) days' notice, the Escrow
Agent may deliver all cash or property in its possession under this Escrow
Agreement to any successor escrow agent appointed by the other parties
hereto or, if no successor escrow agent has been appointed, to any court
of competent jurisdiction in the County of Milwaukee, State of Wisconsin.
Upon such delivery in either case, the Escrow Agent's obligations
hereunder shall cease and terminate. The Escrow Agent's sole
responsibility from the time of the expiration of the ten (10) days'
notice set forth above in this paragraph until such termination shall be
to keep safely the Escrow Fund and Earnings and Disputed Funds, if any,
and to deliver the same to a person designated by the appropriate parties
executing this Escrow Agreement or in accordance with the directions of a
final order or judgment of a court of competent jurisdiction.
11. Escrow Agent.
(a) The Escrow Agent shall be entitled to receive
compensation for its regular services as Escrow Agent in accordance with
the fee schedule attached, and shall be reimbursed for all reasonable
expenses it incurs in fulfilling its obligations under this Agreement,
including fees and disbursements of legal counsel. Such compensation and
any reimbursement for expenses shall be paid from time to time as incurred
equally by Buyer and Company. Accounts of disbursements made hereunder
shall be promptly made to Buyer and the Company
(b) In taking any action hereunder, the Escrow Agent shall
be protected in relying upon any notice, paper or other document believed
by it to be genuine or upon any evidence deemed by it to be sufficient,
and in no event shall be liable for any act performed or omitted to be
performed by it hereunder in the absence of gross negligence or willful
misconduct. The Escrow Agent may consult with counsel in connection with
its duties hereunder and shall be fully protected by any act taken,
suffered or permitted by it in good faith in accordance with the advice of
such counsel. The Escrow Agent shall not be bound in any way by any
agreement or contract (other than this Escrow Agreement and the relevant
provisions of the Agreement) between any of the parties hereto or thereto
(whether or not it has knowledge thereof) and its only duties or
responsibilities shall be to hold the Escrow Fund and to dispose of it in
accordance with the terms of this Escrow Agreement and the Agreement.
(c) The Escrow Agent hereby accepts its appointment and
agrees to act as Escrow Agent under the terms and conditions of this
Escrow Agreement.
12. Notices. All claims, notices, objections and other
communications hereunder shall be in writing and shall be deemed to have
been duly given on the date delivered or mailed, certified mail, as
follows:
If to the Company, to:
Hein-Werner Corporation
2120 Pewaukee Road
Waukesha, Wisconsin 53188
Attention: Joseph L. Dindorf
With a copy to:
Maurice J. McSweeney
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-5367
If to Buyer, to:
Kaydon Acquisition VIII, Inc.
Arbor Shoreline Office Park
19345 US 19 North, Suite 500
Clearwater, Florida 34624-3148
Attention: John F. Brocci, Secretary
Facsimile: 813/524-3629
With a copy to:
Lague, Newman & Irish
600 Terrace Plaza
P.O. Box 389
Muskegon, Michigan 49443-0389
Facsimile: 616/726-3404
If to Escrow Agent, to:
Firstar Trust Company
Corporate Trust Department
615 East Michigan Street, 4th Floor
Milwaukee, Wisconsin 53202
Attention: William R. Caruso
Facsimile: (414) 276-4226
or to such other or additional persons or addresses as the respective
Company, Buyer or Escrow Agent shall furnish to each of the other parties
in writing.
13. Binding Effect. This Escrow Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
heirs, executors, successors and assigns.
14. Amendments. This Escrow Agreement may be amended or
modified at any time or from time to time in a writing executed by each of
the Company, Buyer and the Escrow Agent.
15. Governing Law. This Escrow Agreement shall be construed
and enforced in accordance with the laws applicable to the construction
and enforcement of the Agreement as set forth in Section 15 thereof.
16. Counterparts. This Escrow Agreement may be executed 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. It shall
not be necessary for every party hereto to sign each counterpart but only
that each party shall sign at least one counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
HEIN-WERNER CORPORATION
(the "Company")
By: /s/ Joseph L. Dindorf
Joseph L. Dindorf, President
KAYDON ACQUISITION VIII, INC.
(the "Buyer")
By: /s/ John F. Brocci
John F. Brocci, Secretary
FIRSTAR TRUST COMPANY
(the "Escrow Agent")
By: /s/ William Caruso
Attest: /s/ Yvonne Siira
<PAGE>
SCHEDULE OF ESCROW AGENT'S CUSTOMARY FEES
ACCEPTANCE FEE:
Flat fee payable upon execution of Escrow Agreement. $1,000.00
ADMINISTRATION FEE:
Annual Administration Fee with the first year paid up front. $1,000.00
SPECIAL OR EXTRAORDINARY SERVICES:
Reimbursement of agent fees incurred by the Escrow Agent, including but
not limited to attorney's fees and expenses incurred with outside counsel
if required.
MISCELLANEOUS:
Out-of-pocket expenses, i.e., postage, stationery, travel expenses, etc.
