<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
(X) ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended December 31, 1994
-----------------
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from to
--------------------------- -------------------
Commission File Number 1-5492-1
--------
NASHUA CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its Charter)
Delaware 02-0170100
- ------------------------------------ ---------------------------------------
(State of incorporation) (I.R.S. Employer Identification Number)
44 Franklin Street
P.O. Box 2002
Nashua, New Hampshire 03061-2002
- ------------------------------------ ---------------------------------------
(Address of principal executive (Zip Code)
offices)
Registrant's telephone number,
including area code (603) 880-2323
---------------------------------------
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
------------------- ---------------------------------------
<TABLE>
<S> <C>
Common Stock, par value $1.00 New York Stock Exchange
Preferred Stock Purchase Rights New York Stock Exchange
</TABLE>
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K ( ).
Continued
<PAGE> 2
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
The aggregate market value of voting stock held by non-affiliates of
the registrant as of March 15, 1995 was approximately $124,287,150. The number
of shares outstanding of the registrant's Common Stock as of March 15, 1995 was
6,373,700 (excluding 23,870 shares held in treasury).
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's Proxy Statement dated March 24, 1995 for
the annual meeting of stockholders to be held on April 28, 1995 are
incorporated by reference into Part III of this report.
<PAGE> 3
PART I
ITEM 1. BUSINESS
- -----------------
GENERAL
- -------
Nashua Corporation conducts business in three segments: Commercial
Products, Photofinishing and Precision Technologies. Foreign sales and export
sales from the United States totaled $102.4 million and represented 21 percent
of the Company's total sales in fiscal 1994.
Nashua was incorporated in Massachusetts in 1904 and changed its state
of incorporation to Delaware in 1957. The Company has its principal executive
offices at 44 Franklin Street, P.O. Box 2002, Nashua, New Hampshire 03061-2002
(Telephone: (603) 880- 2323). References to the "Company" or to "Nashua" refer
to Nashua Corporation and its consolidated subsidiaries, unless the context
otherwise requires.
In the fourth quarter of 1993, the Company recorded restructuring and
other unusual charges totaling $48.5 million. Approximately $36.7 million of
this amount related to management's decision to sell or otherwise liquidate the
thin-film, oxide and diskette manufacturing operations of the Computer Products
Group. The 1993 charge also included approximately $11.8 million related to
the integration and streamlining of the Commercial Products Group, including
workforce reductions, as well as consolidation of facilities and the write-down
of certain assets. As part of the restructuring plan, the Company offered
certain of its employees an early retirement program and recorded an additional
pretax charge in the first quarter of 1994 of $5.7 million, of which $2.6
million related to the Company's continuing operations and $3.1 million related
to discontinued operations.
During the second quarter of 1994, the Company sold substantially all
of its Computer Products businesses for total cash proceeds of $11.1 million,
subordinated notes of $4.9 million and future royalty payments based on sales
of the oxide disk and head- disk assembly operations. In addition, the Company
will receive cash proceeds of approximately $2.0 million based on the 1994
operating results of the thin-film disk operation. The amounts received were
not materially different from the estimates included in the 1993 charge. As a
result of the sale of the businesses, the related results of operations were
reclassified as discontinued operations.
On January 13, 1995, the Company acquired certain photofinishing
operations from Nexus Photo Ltd. The acquisition includes mail-order
photofinishing operations in France, Belgium, the Netherlands and Spain, and a
wholesale film-processing business in Northern Ireland. The annual sales of
the acquired businesses are approximately $43 million. The total purchase
price was approximately $25.6 million, plus an additional payment based on
certain future sales volume in the Northern Ireland operation. Management
estimates that the additional payment will not exceed $1.3 million.
Approximately $20.7 million of the purchase price was provided by a new $75
million revolving credit agreement dated January 5, 1995.
The Note entitled "Information About Operations" to the Company's Consolidated
Financial Statements, which appears on page 33 of this Form 10-K, contains
financial information concerning Nashua's business segments.
COMMERCIAL PRODUCTS
- -------------------
In 1994, the Company consolidated the Office Supplies and Coated
Products Groups into the Commercial Products Group. The objective of the
reorganization was to improve service levels, leverage
-2-
<PAGE> 4
selling capabilities and reduce costs by offering the full breadth of products
to all customers through available distribution channels. The Commercial
Products Group manufactures and sells office and industrial imaging supplies
and industrial and commercial tape products to several customer types,
including: resellers (dealers, distributors and paper merchants), merchant
retailers, industrial end-users, third-party converters, original equipment
manufacturers and private label distributors.
Imaging Supplies. The Company's imaging supplies consist of a variety
of consumable products used in the process of reproducing readable images on
plain or specially treated papers and labels. Nashua's imaging supplies are
comprised of toners, developers, remanufactured laser printer cartridges,
facsimile paper, copy paper, labels and label papers, carbonless papers and
thermal papers. Imaging supply sales were $259.5 million for 1994, $264.8
million for 1993 and $261.1 million for 1992.
Nashua markets its toners, developers, facsimile paper, copy paper and
remanufactured laser printer cartridges to its national and government accounts
through a network of approximately 150 dealers located throughout the United
States. These dealers also purchase Nashua's imaging supplies for resale
directly to end-users. The Company also sells certain of these products
through its own sales force to office supply distributors, and to original
equipment manufacturers and private label distributors.
Nashua's competitors for toners and developers include Xerox
Corporation, Canon, Inc., Ricoh Corporation and Eastman Kodak Company, which
sell supplies for use in machines manufactured by them. The Company also
competes with other smaller independent manufacturers of toner and developer
products. This market segment is competitive, with more sophisticated toner
formulas and shorter product life cycles requiring timely product development
and marketing.
The Company's primary competitor for its remanufactured laser printer
cartridges is Canon, Inc. which manufactures both new and remanufactured laser
printer cartridges principally for sale to large original equipment
manufacturers, including Hewlett Packard Company, for resale under their brand
names. In addition, there are several thousand small laser printer cartridge
rechargers who provide low volumes to small customers. In order to reduce
manufacturing costs and maintain competitive pricing, the Company announced in
January, 1995 its intention to relocate remanufactured laser printer cartridge
production from its leased facility in Exeter, New Hampshire to Mexico.
The Company's label and label paper products consist of
thermosensitive label papers, dry-gummed label papers and pressure- sensitive
labels and label roll stock.
Nashua's thermosensitive label papers are coated with an adhesive
which is activated when heat is applied. These products are usually sold
through fine paper merchants who, in turn, resell these products to printers
who convert the papers into labels for use primarily in the pharmaceutical
industry. Nashua's thermosensitive label papers are also used in the bakery
industry and the meat packaging industry.
DavacR dry-gummed label paper is a paper which is coated with a
moisture-activated adhesive. DavacR dry-gummed label paper is sold primarily
to fine paper merchants and business forms manufacturers. It is ultimately
converted into various types of labels and stamps.
Nashua's competitors in the thermosensitive and dry-gummed label
industries include Brown- Bridge Company (a division of Spinnaker Industries,
Inc.) and Ivex Corporation.
-3-
<PAGE> 5
Nashua manufactures pressure-sensitive labels and roll stock using
both plain and thermal imaging papers. Nashua sells labels through
distributors and directly to end-users and sells roll stock to the label
converting industry. Significant uses of such labels include grocery scale
marking, inventory control and address labels. Nashua is a major supplier of
labels to the supermarket industry and labels for use in the distribution and
transportation of products. Nashua's label business is price sensitive and
competitive, and includes competitors such as Avery/Dennison Corporation and
Uarco, Inc., plus numerous small regional competitors.
Nashua's carbonless paper is a coated paper used in the production of
multi-part business forms which produce multiple copies without carbon paper.
The product is sold in sheet form through fine paper merchants and in roll form
directly to the printing industry, where it is converted into multi-part
business forms. Within the carbonless paper market, Nashua generally competes
with large integrated manufacturers including Appleton Papers, Inc., The Mead
Corporation and 3M.
Nashua's thermal papers develop an image upon contact with either a
heated stylus or a thermal print head. A major application for these papers is
for use in thermal facsimile machines. This application is expected to be
adversely affected in the future by the increased use of plain paper facsimile
machines. Thermal papers are also used in point of sale printers, airline and
package identification systems, gaming and ticketing systems, medical and
industrial recording charts and for conversion to labels. Nashua markets
facsimile paper primarily to dealers and distributors for resale. Other
thermal papers are sold to printers, office equipment dealers, small-roll
converters, original equipment manufacturers and converted into
pressure-sensitive thermal labels. The thermal paper industry is competitive
and price sensitive. Nashua's competitors include major integrated companies
such as Appleton Papers, Inc., Kanzaki Paper Mfg. Co., Ltd., Jujo Paper Co.,
Ltd., Ricoh Corporation, as well as several other manufacturers in Japan and
Europe.
Tape. Nashua's tape products include duct tape and masking tape for
various industrial and consumer uses. Additionally, Nashua sells foil and
strapping tape which it acquires from other manufacturers.
Nashua sells both duct and foil tapes through distributors for use in
a variety of applications in many different markets. The heating, ventilating
and air conditioning and asbestos remediation markets are large consumers of
Nashua duct and foil tapes. Nashua has a prominent market position in the sale
of duct tapes. The masking tape market is highly competitive and Nashua sells
its products through distributors for resale in many applications and markets.
Duct and masking tapes are also sold to large retail chains for resale to
consumers and general industrial users. Nashua's key competitors are Anchor,
Tesa/Tuck, American Tape, Polyken Technologies, 3M and Shuford Mills, Inc.
Supplies and Materials. Nashua depends on outside suppliers for most
of the raw materials used to produce toners and developers, labels and label
papers, carbonless papers, thermal papers and tapes, including paper to be
converted and chemicals to be used in producing the various coatings Nashua
applies. The Company purchases these materials from several suppliers and
believes that adequate supplies are available. The Company experienced
significantly higher raw material prices across many product lines in the
latter half of 1994, and management anticipates this trend will continue into
the first half of 1995. Products purchased in finished form (including certain
toners and developers, papers and foil and strapping tapes) are readily
available from a variety of sources.
-4-
<PAGE> 6
PHOTOFINISHING
Nashua traditionally has provided mail-order photofinishing services
to amateur photographers under the tradenames York Photo Labs in the United
States, Truprint and York Photo Labs in the United Kingdom and Scot Foto and
York Photo in Canada. Nashua develops and prints films received by mail at its
processing facilities in the United States, the United Kingdom and Canada, and
also sells film, cameras and associated products to its base of customers.
Nashua is the market leader in the mail-order photofinishing business in all
three countries.
The January 1995 acquisition of certain Continental European and
Northern Ireland photofinishing operations will allow the Company to leverage
its existing marketing, processing and system capabilities to expand into the
mail-order photofinishing markets in France, Belgium, the Netherlands and
Spain, and the wholesale market in Northern Ireland. Nashua will continue to
operate the businesses under the tradenames Maxicolor and Trifica in France,
Belgium and the Netherlands, Labopost in Spain and Belmont in Northern Ireland.
Nashua expects to continue to be the market leader in the France, Belgium and
the Netherlands mail-order businesses, and the Northern Ireland wholesale
photofinishing business.
In both the mail-order and wholesale businesses, demand is generally
strongest during the third quarter due to increased picture taking by amateur
photographers during the summer months.
SUPPLIES AND MATERIALS. The principal materials used by Nashua's
photofinishing business include color print paper, photo developing chemicals
and color print films, all of which are available from several manufacturers.
COMPETITION. The Company's major mail-order photofinishing
competitors include District Photo, Inc., Mystic Color Labs Inc. and Seattle
Film Works, Inc. in the United States, Grunwick Processing Laboratories Limited
in the United Kingdom, Chas Abel Photo Services, Ltd. in Canada, Extra Film in
France and Colorado in the Netherlands, as well as numerous other national,
regional and local processors in countries in which the Company operates. The
proliferation of minilabs and retail stores offering reduced price processing
could adversely impact the mail-order segment of the photofinishing market,
which has typically relied on its lower prices as a competitive advantage over
retail services.
PRECISION TECHNOLOGIES
Precision Technologies primarily manufactures precision machined parts
used as substrates in the manufacture of magnetic computer disks. Precision
Technologies had previously been a captive supplier to the Company's Computer
Products Group.
Aluminum substrates are sold to computer disk manufacturers who supply
a limited number of large disk-drive manufacturers. Sales in 1994 were
primarily to the company which acquired Nashua's thin-film disk operation in
the second quarter of 1994, though by year end the dependence on this customer
had dropped to approximately 50%. The physical differences among product types
of substrates are dictated by the different disk manufacturers. The Company
works closely with disk manufacturers to improve compatibility and to meet
evolving product specifications. Significant efforts are often required to
become qualified as an approved supplier; at the same time product life cycles
are becoming increasingly shorter. Precision Technologies' competitors include
Kobe Precision, Inc. and International Components Technology Corporation.
-5-
<PAGE> 7
The Company has expended considerable effort to extend its
precision-machining capabilities to applications involving a variety of
materials with the objective of entering new markets with additional products.
SUPPLIES AND MATERIALS. Precision Technologies depends on outside
suppliers for the continued availability of materials, primarily aluminum. The
Company purchases these parts from several suppliers and believes adequate
future supplies are available.
RESEARCH AND DEVELOPMENT
- ------------------------
Nashua's research and development efforts have been instrumental in
the development of many of the products it markets. The increase in
expenditures in 1994 reflects increased focus on new product development.
Nashua's research and development expenditures were $9.6 million in 1994, $7.4
million in 1993 and $6.6 million in 1992.
During 1994, the Company acquired MicrosharpTM display technology and
is working to develop applications for the flat screen display market including
projection screens, televisions and computer monitors.
ENVIRONMENTAL MATTERS
- ---------------------
The Company (and its competitors) are subject to various environmental
laws and regulations. These include the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act ("CERCLA"), the Resource Conservation and Recovery Act
("RCRA"), the Clean Water Act and other state and local counterparts of these
statutes. The Company believes that its operations have been and continue to
be operating in compliance in all material respects with the applicable
environmental laws and regulations. (Violation of these laws and regulations
could result in substantial fines and penalties.) Nevertheless, in the past
and potentially in the future, the Company has and could receive notices of
alleged environmental violations. The Company has endeavored to promptly
remedy any such violations upon notification.
For the past three years the Company has spent approximately $1
million per year in order to keep its operations in compliance with pertinent
environmental laws and regulations. In addition, for those sites which the
Company has received notification of the need to remediate, the Company has
assessed its liability and accrued what it considers to be the most likely
amount within the estimated range of remediation costs. At December 31, 1993
the accrual for potential environmental liabilities was $.9 million. Liability
of "potentially responsible parties" (PRP) under CERCLA and RCRA, however, is
joint and several, and actual remediation expenses at sites where the Company
is a PRP may exceed current estimates. The Company believes that based on the
facts currently known, and the environmental accrual recorded, its remediation
expense with respect to those sites and on-going costs of compliance are not
likely to have a material adverse effect on its liquidity, consolidated
financial position or results of operations.
EMPLOYEES
- ---------
Nashua and its subsidiaries had approximately 3,100 full-time
employees at March 1, 1995. Most of the hourly employees of Nashua's
Commercial Products segment are members of one of several unions, principally
the United Paperworkers International Union.
-6-
<PAGE> 8
FOREIGN OPERATIONS
- ------------------
During 1994, Nashua had Photofinishing subsidiaries in Canada and the
United Kingdom. In connection with the 1995 acquisition of certain Continental
European and Northern Ireland photofinishing operations, the Company has
established subsidiaries in Northern Ireland, France and the Netherlands.
Nashua had export sales of approximately $41.0 million in 1994, $46.9 million
in 1993 and $50.2 million in 1992.
Nashua includes revenues and other financial data from its foreign
operations in its business segment reporting according to the nature of the
product sold. The Note to the Company's Consolidated Financial Statements
entitled "Information About Operations," which appears on page 33 of this Form
10-K, contains additional information regarding Nashua's foreign operations
during the last three years, including identifiable assets, net sales and
operating income by geographic area.
Nashua's international sales are subject to risks that generally do
not affect businesses operating wholly within a single country. These include
political risks associated with doing business in foreign countries, exchange
control and import limitations which may impede the free movement of goods and
funds from one country to another and currency exchange rate risks. Nashua's
foreign business generally is adversely affected as the United States dollar
strengthens against the foreign currencies of the countries in which it does
business. From time-to-time Nashua enters into various foreign exchange
contracts to mitigate the risk of foreign currency fluctuations with respect to
foreign currency denominated transactions.
ITEM 2. PROPERTIES
- -------------------
Nashua's manufacturing facilities are located in the United States,
Canada, United Kingdom and Northern Ireland. Nashua considers its properties
to be in good operating condition and suitable for the production of its
products.
The principal manufacturing facilities of the Company are listed by
industry segment, location and principal products produced. Except as
otherwise noted, each of these facilities is owned by the Company.
-7-
<PAGE> 9
PRINCIPAL PROPERTIES
<TABLE>
<CAPTION>
SQUARE PRINCIPAL
LOCATION FOOTAGE PRODUCTS PRODUCED
- -------- ------- -----------------
COMMERCIAL PRODUCTS
- -------------------
<S> <C> <C> <C>
Merrimack, New Hampshire 435,000 carbonless paper, facsimile paper,
thermosensitive and dry-gummed label
papers, chemicals
Omaha, Nebraska 170,000 pressure-sensitive labels and laminate
paper
Watervliet, New York 422,000 pressure-sensitive tapes
Nashua, New Hampshire 198,000 dry toners and developers, chemicals
Exeter, New Hampshire 77,000 (1)(3) remanufactured laser printer cartridges
Chelmsford, Massachusetts 35,000 (1) liquid toners
PHOTOFINISHING
- --------------
Parkersburg, West Virginia 81,000 (1) photofinishing
Newton Abbot, United Kingdom 46,000 (1) photofinishing
Telford, United Kingdom 38,000 (1) photofinishing
Saskatoon, Saskatchewan, Canada 15,000 photofinishing
Deal, United Kingdom 12,000 (1)(2) photofinishing
Belfast, Northern Ireland 24,000 (1)(2) photofinishing
PRECISION TECHNOLOGIES
- ----------------------
Champaign, Illinois 32,000 aluminum substrates for computer disks
_____________________
(1) Leased facilities
(2) Acquired by the Company on January 13, 1995.
(3) The Company has announced its intention to relocate remanufactured laser
printer cartridge production from its Exeter, New Hampshire facility to
Mexico.
</TABLE>
-8-
<PAGE> 10
ITEM 3. LEGAL PROCEEDINGS
- --------------------------
In April 1994, Ricoh Company, Ltd. and Ricoh Corporation ("Ricoh")
filed a Complaint with the United States District Court, District of New
Hampshire, alleging Nashua's infringement of U.S. patents 4,611,730 and
4,878,603 relating to certain toner cartridges for Ricoh copiers. The
Complaint seeks damages and injunctive relief. The products involved
constitute an insignificant amount of Nashua's sales. The Company believes it
has substantial defenses and intends to defend the action vigorously.
During 1994, the Internal Revenue Service (IRS) completed an
examination of the Company's corporate income tax returns for the years 1988
through 1991. As a result of the IRS' findings, the Company agreed to and paid
additional taxes and interest of $7.8 million in January 1995 in connection
with adjustments related mainly to the tax treatment of certain items
associated with the 1990 sale of the International Office Systems business. On
January 13, 1995, the IRS issued a Notice of Deficiency in the amount of $8.7
million in connection with the tax years 1990 and 1991. The tax deficiency
relates to the tax treatment of income recognized in connection with the 1990
sale of the Office Systems business. The major issues relate to foreign tax
credits, foreign earnings and profits computation, and the treatment of the
disposition of preferred stock of a foreign subsidiary. The Company disagrees
with the position taken by the IRS and filed a formal protest of the deficiency
on February 9, 1995. In management's opinion, the ultimate disposition of this
matter will not have a material adverse effect on the financial position or
results of operations of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- ------------------------------------------------------------
Not applicable.
EXECUTIVE OFFICERS OF THE REGISTRANT
- ------------------------------------
Set forth below are the present executive officers of the Company,
their ages and their positions held with the Company:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
William E. Mitchell 51 President and Chief Executive Officer
Francis J. Lunger 49 Vice President and Chief Administrative Officer
William Luke 47 Vice President-Finance and Chief Financial Officer
</TABLE>
Mr. Mitchell has been Chief Executive Officer of Nashua since July
1994 and President since September 1993. He was Chief Operating Officer of
Nashua from September 1993 to July 1994. Prior to September 1993, he was a
Senior Vice President of Raychem Corporation.
Mr. Lunger has been Vice President, Chief Administrative Officer of
Nashua since February 1994. Prior to February 1994, he was Vice President of
Raychem Corporation.
Mr. Luke has been Vice President-Finance and Chief Financial Officer
since prior to 1989.
Executive officers are generally elected to their offices each year by
the Board of Directors shortly after the Annual Meeting of Shareholders.
-9-
<PAGE> 11
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
- ------- --------------------------------------------------------------------
Reference is made to the Note entitled "Quarterly Operating Results
and Common Stock Information (Unaudited)" to the Company's Consolidated
Financial Statements, which appears on page 35 of this Form 10-K.
-10-
<PAGE> 12
ITEM 6. SELECTED FINANCIAL DATA
- ------- -----------------------
Nashua Corporation and Subsidiaries
FIVE YEAR FINANCIAL REVIEW
(In thousands, except per share data, price
range, number of employees and percentages)
<TABLE>
<CAPTION>
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
OPERATIONS
Net sales $478,571 $479,838 $491,738 $479,127 $502,754
Gross margin percentage 24.4% 25.2% 26.1% 26.0% 25.9%
Selling, distribution and administrative
expenses as a percentage of sales 19.9% 20.1% 20.7% 20.1% 19.3%
Income before interest expense and
taxes as a percentage of sales* 2.1% 1.2% 4.2% 5.0% 6.1%
Income before taxes as a percentage of sales* 1.6% 0.8% 3.6% 4.6% 5.7%
Income as a percentage of sales* 0.9% 0.5% 2.1% 2.7% 3.5%
Effective tax rate 40.5% 31.0% 41.5% 40.9% 39.5%
Income before income taxes* $7,467 $3,647 $17,836 $22,221 $28,678
Income after taxes* 4,442 2,516 10,434 13,133 17,350
Income (loss) from discontinued operations (2,295) (21,685) (5,126) (12,581) 3,445
Cumulative effect of accounting
principle changes - - (10,131) - -
Net income (loss) 2,147 (19,169) (4,823) 552 20,795
Earnings (loss) per share:
Income (loss)* $.70 $.40 $1.65 $2.07 $2.28
Discontinued operations (.36) (3.42) (.81) (1.98) .45
Cumulative effect of accounting
principle changes - - (1.60) - -
Net income (loss) .34 (3.02) (.76) .09 2.73
FINANCIAL POSITION
Working capital $46,789 $ 23,728 $ 40,630 $ 35,974 $ 17,207
Total assets 227,825 219,065 236,699 243,200 239,474
Long-term debt 49,166 20,342 27,865 25,386 10,404
Total debt 49,816 25,742 31,065 30,386 10,404
Total capital employed 142,512 118,865 148,217 160,098 144,330
Total debt as a percentage of capital employed 35.0% 21.7% 21.0% 19.0% 7.2%
Shareholders' equity $92,696 $ 93,123 $117,152 $129,712 $133,926
Shareholders' equity per common share 14.55 14.74 18.57 20.64 21.32
OTHER SELECTED DATA
Investment in plant and equipment $16,835 $ 15,050 $12,604 $12,720 $16,069
Depreciation and amortization 15,270 14,569 14,050 13,387 11,588
Dividends per common share .72 .72 .72 .72 .69
Return on average shareholders' equity 2.3% (18.2)% (3.9%) 0.4% 11.2%
Common stock price range:
High $30-3/4 $ 31-3/4 $ 31-1/4 $ 37 $ 44-7/8
Low 19-3/4 25-1/4 21 18-1/8 30-1/2
Year-end closing price 20-1/2 27-1/2 28-3/8 23-1/8 34-3/8
Number of employees 3,054 4,011 4,145 3,869 4,506
Average common and common
equivalent shares 6,360 6,343 6,325 6,332 7,617
</TABLE>
See Discontinued Operations and Restructuring Activities, Income Taxes and
Postretirement Benefits Notes to Consolidated Financial Statements for a
description of certain matters relevant to this data.
* Income is from continuing operations and before the cumulative effect of
accounting principle changes.
-11-
<PAGE> 13
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
- ------- ---------------------------------------------------------------
RESULTS OF OPERATIONS
---------------------
RESULTS OF CONTINUING OPERATIONS - 1994 COMPARED TO 1993
Net sales of $478.6 million declined slightly from 1993. The Company generated
after-tax income from continuing operations of $4.4 million which included a
pretax restructuring charge of $2.6 million. This compared to after-tax income
from continuing operations of $2.5 million in 1993 which included a pretax
restructuring charge of $11.8 million. Net sales for the year increased in the
Commercial Products Group, decreased in the Photofinishing Group, and were
substantially unchanged for Precision Technologies. Pretax income from
continuing operations, excluding restructuring charges, was $10.1 million
compared to $15.4 million in 1993 primarily due to the decline in operating
income in the Commercial Products Group and expenses related to the development
of the new Microsharp business.
In 1994, the Company created the Commercial Products Group by combining the
former Office Supplies and Coated Products Groups. The objective of this
reorganization was to improve service levels, leverage selling capabilities and
reduce costs by offering the full breadth of Nashua products to all customers.
In connection with these changes, the Company's office supplies catalog
business was merged with existing sales and marketing operations of the new
Commercial Products Group. In addition, the Company spent approximately $1
million in 1994 on professional fees associated with the development of
customer interface systems.
Net sales for the Commercial Products Group increased $2.2 million, or 1
percent, driven by strong volume gains for tape, thermal labels, heat seal and
copy paper, partially offset by reduced diskette and laser printer cartridge
volume. However, operating income before restructuring charges compares
unfavorably to 1993 by $3.0 million, primarily due to extremely competitive
toner pricing, a shift to lower margin toners and tapes, lower laser printer
cartridge volume, and significantly higher raw material prices across many
product lines. Realized selling price increases only partially offset the
impact of higher raw material costs. Management anticipates that the raw
material price trend evidenced in the second half of 1994 will continue into
the first half of 1995.
Net sales in the Photofinishing Group decreased $3.3 million, approximately 2
percent, from the prior year. Continued competitive pressure resulted in lower
volume in the U.S. compared to the prior year, partially offset by higher
volume in the U.K. operation. In addition, U.S. sales in 1994 were depressed
by lower prices in the first quarter compared to the comparable period of the
prior year, partially offset by improvements in price throughout the year,
especially the fourth quarter. While volume and pricing pressures adversely
impacted gross margin, operating income, excluding restructuring charges, was
substantially unchanged year over year due to lower administrative costs.
Precision Technologies transitioned in 1994 from a captive supplier of
substrates to an independent supplier. Net sales were substantially unchanged
year to year. Operating income declined $.8 million, primarily due to
manufacturing changeover costs and market introduction costs associated with
new products being offered to an expanded customer base.
Administrative expenses decreased approximately 8 percent, primarily as a
result of efficiencies resulting from the restructuring actions taken in 1994.
Selling and distribution expenses as a percentage of sales were essentially
unchanged. Research and development expenses increased $2.3 million as a
result of the Company's investment in MicrosharpTM display technology and new
product development for the Commercial Products Group.
-12-
<PAGE> 14
In the fourth quarter of 1993, the Company recorded restructuring and other
unusual charges totaling $48.5 million. Approximately $36.7 million of this
amount related to management's decision to sell or otherwise liquidate the
thin-film, oxide and diskette manufacturing operations of the Computer Products
Group. The 1993 charge also included approximately $11.8 million related to
the integration and streamlining of the operations of the Commercial Products
Group, including workforce reductions, as well as consolidation of facilities
and the write-down of certain assets. As part of the restructuring plan, the
Company offered certain of its employees an early retirement program and
recorded an additional pretax charge in the first quarter of 1994 of $5.7
million, of which $2.6 million related to the Company's continuing operations
and $3.1 million related to discontinued operations.
During the second quarter of 1994, the Company sold substantially all of its
Computer Products businesses for total cash proceeds of $11.1 million,
subordinated notes of $4.9 million and future royalty payments based on sales
of the oxide disk and head disk assembly operations. In addition, the Company
will receive cash proceeds of approximately $2.0 million based on the 1994
operating results of the thin-film disk operation. The amounts received were
not materially different from the estimates included in the 1993 charge. As a
result of the sale of these businesses, the related results of operations were
reclassified as discontinued operations.
The details of the Company's 1993 restructuring charge related to continuing
operations and the activity recorded during 1994, are as follows:
<TABLE>
<CAPTION>
Balance Balance
Dec. 31, 1994 1994 Dec. 31,
(In thousands) 1993 Provision Charges 1994
-------- --------- -------- ------
<S> <C> <C> <C> <C>
Provisions related to workforce reductions:
Severance costs $ 3,850 $ 700 $ 3,000 $1,550
Pension and OPEB costs 900 2,600 3,500 -
Provisions related to employees not terminated 1,100 - 950 150
Provisions for assets to be sold or discarded 5,100 (1,100) 2,750 1,250
Other 850 400 1,250 -
------- ------ ------- ------
Total $11,800 $2,600 $11,450 $2,950
======= ====== ======= ======
</TABLE>
The 1993 restructuring charge included provisions for salary and benefit
continuation costs for approximately 170 employees. The 1994 provision
represents a revision in the Company's original estimate of severance costs
primarily as a result of approximately 20 additional employee terminations from
the Company's Commercial Products Group rather than from discontinued
operations. As of December 31, 1994, substantially all planned employee
reductions have taken place, and the remaining accrual represents payments to
be made to these former employees in the first half of 1995. Pension and OPEB
costs recorded in 1993 relate to curtailment charges recognized in connection
with the planned workforce reductions. The provision recognized in 1994 was
recorded in connection with the Company's early retirement program based upon
the actual number of employee acceptances. Provisions for employees not
terminated relate primarily to relocation costs.
The provisions for assets to be sold or discarded included a charge of
approximately $1.8 million to write down certain corporate and manufacturing
facilities to their estimated net realizable value, as well as the costs
associated with holding certain vacated portions of these facilities during the
period until the property can be sold or otherwise disposed. During the year,
the Company commissioned an appraisal of its corporate
-13-
<PAGE> 15
and manufacturing facilities, and as a result of the appraisal revised upward
its estimate of proceeds to be realized upon disposal. Other than as described
above, there were no material changes during the year to the Company's original
estimate of the costs associated with the restructuring actions. Management
anticipates all remaining actions will be completed by the end of 1995. As a
result of these restructuring actions, the Company anticipates savings in
personnel and facility related costs of approximately $8 million in 1995.
The effective tax rate for continuing operations was 40.5 percent compared to
31.0 percent in 1993. The effective tax rate is higher than the U.S. statutory
rate in 1994 primarily due to the impact of non-deductible goodwill.
On January 13, 1995, the Company acquired certain photofinishing operations
from Nexus Photo Ltd. The acquisition includes mail- order photofinishing
operations in France, Belgium, the Netherlands and Spain, and a wholesale film
processing business in Northern Ireland. The annual sales of the acquired
businesses are approximately $43 million. The total purchase price was
approximately $25.6 million, plus an additional payment based on certain future
volume in the Northern Ireland operation. Approximately $20.7 million of the
purchase price was provided by a new $75 million revolving credit agreement
dated January 5, 1995.
RESULTS OF CONTINUING OPERATIONS - 1993 COMPARED TO 1992
Net sales were $479.8 million in 1993, a decrease of 2 percent from 1992, as a
result of reduced Photofinishing sales. The Company recorded after-tax income
from continuing operations of $2.5 million, which included pretax restructuring
charges of $11.8 million. Pretax income from continuing operations, excluding
restructuring charges, decreased 13 percent to $15.4 million, primarily due to
Commercial Products. In 1992, the Company adopted Statement of Financial
Accounting Standards (SFAS) No. 106, "Employers' Accounting for Postretirement
Benefits Other Than Pensions" and SFAS No. 109, "Accounting for Income Taxes"
which resulted in a net charge of $10.1 million.
Net sales for the Commercial Products Group increased 1 percent compared to
1992, as higher label and facsimile paper volumes more than offset the decline
in toner, developer and copier paper sales. Operating profit, before pretax
restructuring charges of $3.5 million, decreased 32 percent from 1992 as lower
margins on toner, developer and laser toner cartridges more than offset the
impact of higher facsimile paper volume, lower carbonless paper manufacturing
costs and reduced postretirement benefit expense resulting from changes to the
Company's postretirement benefit plans.
Net sales in the Photofinishing Group decreased 8 percent from 1992 due to a
decline in the value of the British pound, and lower prices and volume in the
United States. Operating income, before pretax restructuring charges of $.8
million, increased 8 percent as higher volume in the United Kingdom more than
offset the effect of lower sales in the United States and a weaker exchange
rate.
Precision Technologies experienced a decrease in sales of 15 percent, resulting
in a reduction of operating profit of 63 percent from 1992.
Administrative expenses increased moderately in 1993 compared to 1992 due
primarily to overall wage increases. Selling and distribution expense as a
percentage of sales was lower than 1992 due to lower marketing expense in the
United Kingdom and lower sales of toner products which generally have a higher
associated selling and distribution expense. Research and development expense
for 1993 increased 11 percent, primarily in the Commercial Products Group.
-14-
<PAGE> 16
The effective tax rate for continuing operations was 31.0 percent in 1993
versus 41.5 percent in 1992. The effective tax rate was less than the U.S.
statutory rate in 1993, primarily due to the benefit of state tax loss
carrybacks and the revaluation of tax assets caused by the increase in the U.S.
statutory rate.
In April 1990, the Company sold the international portion of its Office Systems
and Supplies Group to Gestetner Holdings PLC (Gestetner). Under the terms of
the Purchase Agreement, Gestetner raised certain objections to the purchase
price totaling $15.3 million, excluding interest, which were submitted to
arbitration. In January 1994, the arbitrator issued a final ruling which
resulted in a total payment by Nashua of $1.8 million, including interest, to
Gestetner. Resolution of the purchase price allowed the Company to recognize
an after-tax gain from discontinued operations of $2.5 million.
EFFECT OF INFLATION AND CHANGING PRICES
The Company believes that results of operations as reported in its historical
cost financial statements reasonably match current costs, except for
depreciation, with revenues generated in the period. Depreciation expense
based on the current costs of plant and equipment would be significantly higher
than depreciation expense reported in the historical financial statements;
however, such expense would not affect cash provided by operating activities.
LIQUIDITY, CAPITAL RESOURCES AND FINANCIAL CONDITION
Working capital increased approximately $23 million in 1994. This increase was
comprised primarily of reductions in accrued restructuring charges, increased
inventories and receivables in the Commercial Products Group, and increased
receivables in Precision Technologies as it transitioned to an independent
supplier. At year end the ratio of total debt to equity increased to 54
percent from 28 percent at December 31, 1993. The ratio of long-term debt to
equity increased to 53 percent from 22 percent a year ago. The Company
generated $7.1 million in cash from continuing operations before using cash of
$6.7 million to fund restructuring activities in 1994. For 1994, cash
dividends were $.72 per share reflecting an $.18 per share dividend each
quarter.
The Company relies primarily on cash provided by operating activities to fund
its normal additions to plant and equipment. Investments in plant and
equipment in 1994 were approximately $17 million. Borrowings of $28 million
against the Company's revolving credit agreement were primarily used to repay
the Company's senior notes, increase working capital and fund restructuring
activities. In January 1995, the Company replaced its existing $40 million
revolving credit facility with a similar $75 million facility. This new
agreement provided $20.5 million of the purchase price for the photofinishing
businesses acquired on January 13, 1995. Management believes that available
borrowing capacity will provide sufficient resources to meet liquidity needs.
The Company had $28.2 million of deferred tax assets and $4.4 million of
deferred tax liabilities at December 31, 1994. The deferred tax assets include
$10.7 million of loss and tax credit carryforwards which expire as follows:
$3.1 million in 1996, $.7 million in 1997, $.1 million in 1998, $.6 million in
1999, $.1 million in 2000, $2.4 million in 2001, $.2 million in 2002, and $3.5
million thereafter. These carryforwards relate primarily to the U.S. and will
require a minimum of approximately $31 million in cumulative U.S. taxable
income prior to the carryforwards' expiration in order to be fully utilized.
The remainder of the deferred tax assets pertain to net deductible temporary
differences between financial and taxable bases of assets and
-15-
<PAGE> 17
liabilities such as accruals not yet paid or reserves not yet deductible for
tax purposes. In the past, taxable income has generally been higher than
income for financial reporting purposes. The Company expects this relationship
to continue in the future. The Company had $7.2 million of tax receivables at
December 31, 1994, generated primarily from the carryback of the 1994 tax loss
of approximately $31 million.
During 1994, the Internal Revenue Service (IRS) completed an examination of the
Company's corporate income tax returns for the years 1988 through 1991. As a
result of the IRS' findings, the Company agreed to and paid additional taxes
and interest of $7.8 million in January 1995 in connection with adjustments
related mainly to the tax treatment of certain items associated with the 1990
sale of the International Office Systems business. On January 13, 1995, the
IRS issued a Notice of Deficiency in the amount of $8.7 million in connection
with the tax years 1990 and 1991. The tax deficiency relates to the tax
treatment of income recognized in connection with the 1990 sale of the Office
Systems business. The major issues relate to foreign tax credits, foreign
earnings and profits computation, and the treatment of the disposition of
preferred stock of a foreign subsidiary. The Company disagrees with the
position taken by the IRS and filed a formal protest of the deficiency on
February 9, 1995. In management's opinion, the ultimate disposition of this
matter will not have a material adverse effect on the financial position or
results of operations of the Company.
The Company (and its competitors) are subject to various environmental laws and
regulations. These include the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act (CERCLA), the Resource Conservation and Recovery Act
(RCRA), the Clean Water Act and other state and local counterparts of these
statutes. The Company believes that its operations have been and continue to
be operating in compliance in all material respects with the applicable
environmental laws and regulations. (Violation of these laws and regulations
could result in substantial fines and penalties.) Nevertheless, in the past
and potentially in the future, the Company has and could receive notices of
alleged environmental violations. The Company has endeavored to promptly
remedy any such violations upon notification.
For the past three years the Company has spent approximately $1 million per
year in order to keep its operations in compliance with pertinent environmental
laws and regulations. In addition, for those sites which the Company has
received notification of the need to remediate, the Company has assessed its
liability and accrued what it considers to be the most likely amount within the
estimated range of remediation costs. At December 31, 1994 the accrual for
potential environmental liability was $.9 million. Liability of "potentially
responsible parties" (PRP) under CERCLA and RCRA, however, is joint and
several, and actual remediation expenses at sites where the Company is a PRP
may exceed current estimates. The Company believes that based on the facts
currently known, and the environmental accrual recorded, its remediation
expense with respect to those sites and on-going costs of compliance are not
likely to have a material adverse effect on its liquidity, consolidated
financial position or results of operations.
-16-
<PAGE> 18
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
- ------- -------------------------------------------
CONSOLIDATED STATEMENT OF OPERATIONS AND RETAINED EARNINGS
<TABLE>
<CAPTION>
Year Ended December 31,
1994 1993 1992
(In thousands, except per share data) -------- -------- -------
<S> <C> <C> <C>
Net sales $478,571 $479,838 $491,738
Cost of products sold 361,933 358,954 363,531
Selling, distribution and administrative expenses 95,101 96,221 101,888
Research and development expense 9,604 7,351 6,625
Restructuring charges 2,600 11,800 -
Interest expense 2,451 2,179 2,811
Interest income (585) (314) (953)
-------- -------- --------
Total costs and expenses 471,104 476,191 473,902
Income from continuing operations before income taxes
and cumulative effect of accounting principle changes 7,467 3,647 17,836
Income taxes 3,025 1,131 7,402
-------- -------- --------
Income from continuing operations before cumulative
effect of accounting principle changes 4,442 2,516 10,434
-------- -------- --------
Loss from discontinued operations (2,295) (21,685) (5,126)
-------- -------- --------
Cumulative effect on prior years of changes in
accounting principles for:
Postretirement health care and other benefits, net - - (9,367)
Income taxes - - (764)
-------- -------- --------
Net income (loss) 2,147 (19,169) (4,823)
Retained earnings, beginning of year 82,166 105,880 129,055
Dividends (4,569) (4,545) (4,537)
Retirement of treasury shares - - (13,815)
-------- -------- --------
Retained earnings, end of year $ 79,744 $ 82,166 $105,880
======== ======== ========
Earnings (loss) per common and common equivalent share:
Income from continuing operations before cumulative
effect of accounting principle changes $ .70 $ .40 $ 1.65
Loss from discontinued operations (.36) (3.42) (.81)
Cumulative effect on prior years of changes in
accounting principles for:
Postretirement health care and other benefits, net - - (1.48)
Income taxes - - (.12)
-------- -------- --------
Net income (loss) $ .34 $ (3.02) $ (.76)
======== ======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
-17-
<PAGE> 19
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
December 31,
(In thousands, except share data) 1994 1993
---- ----
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $ 10,219 $ 5,883
Accounts receivable 40,811 47,657
Inventories
Materials and supplies 15,713 11,793
Work in process 4,942 4,875
Finished goods 13,506 17,000
-------- --------
34,161 33,668
Other current assets 22,971 22,573
-------- --------
108,162 109,781
-------- --------
Plant and Equipment
Land 1,441 1,447
Buildings and improvements 36,638 39,492
Machinery and equipment 84,827 110,439
Construction in progress 6,684 13,364
-------- --------
129,590 164,742
Accumulated depreciation (58,733) (93,509)
-------- --------
70,857 71,233
-------- --------
Other Assets 48,806 38,051
-------- --------
Total Assets $227,825 $219,065
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Notes and loans payable $ 200 $ 2,900
Current maturities of long-term debt 450 2,500
Accounts payable 27,374 29,951
Accrued expenses 22,107 48,669
Income taxes payable 11,242 2,033
-------- --------
61,373 86,053
-------- --------
Long-Term Debt
Borrowings under revolving credit agreement 33,000 5,000
Senior notes 15,000 15,000
Other long-term debt 1,166 342
-------- --------
49,166 20,342
-------- --------
Other Long-Term Liabilities 24,590 19,547
Shareholders' Equity
Preferred stock, par value $1.00: 2,000,000 shares authorized and unissued - -
Common stock, par value $1.00: Authorized 40,000,000 shares
Issued 6,396,570 shares in 1994 and 6,340,430 shares in 1993 6,397 6,340
Additional capital 12,270 11,246
Retained earnings 79,744 82,166
Cumulative translation adjustment (4,928) (5,844)
Treasury stock, at cost (787) (785)
-------- --------
92,696 93,123
-------- --------
Commitments and Contingencies
Total Liabilities and Shareholders' Equity $227,825 $219,065
======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
-18-
<PAGE> 20
CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
Year Ended December 31,
(In thousands) 1994 1993 1992
---- ---- ----
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES OF CONTINUING OPERATIONS:
Net income (loss) $ 2,147 $(19,169) $(4,823)
Adjustments to reconcile net income to cash provided by
continuing operating activities:
Depreciation and amortization 15,270 14,569 14,050
Deferred income taxes (293) (3,790) (8)
Write-down of fixed assets to net realizable value - 2,000 -
Loss from discontinued operations 2,295 21,685 5,126
Cumulative effect on prior years of changes in
accounting principles - - 10,131
Change in operating assets and liabilities, net of effects
from acquisition and disposal of businesses:
Accounts receivable (6,707) 3,561 (4,344)
Inventories (6,270) (92) 567
Other assets (3,939) 6,173 511
Accounts payable 215 (2,398) (1,441)
Accrued expenses (13,526) 11,108 (3,228)
Other long-term liabilities 2,144 (1,289) (1,444)
Income taxes payable 9,029 (149) (218)
-------- ------- ------
Cash provided by operating activities 365 32,209 14,879
CASH FLOWS FROM INVESTING ACTIVITIES OF CONTINUING OPERATIONS
Investment in plant and equipment (16,835) (15,050) (12,604)
Acquisition of business - (4,286) -
------- ------- ------
Cash used in investing activities (16,835) (19,336) (12,604)
CASH FLOWS FROM FINANCING ACTIVITIES OF CONTINUING OPERATIONS
Proceeds from borrowings 52,900 9,900 15,910
Repayment of borrowings (28,826) (15,223) (15,231)
Dividends paid (4,569) (4,545) (4,537)
Proceeds and tax benefits from shares issued under stock option plans 1,081 122 487
Purchase and reissuance of treasury stock (2) 14 13
------- ------ ------
Cash provided by (used in) financing activities 20,584 (9,732) (3,358)
Proceeds from sale of discontinued operations 11,115 - -
Cash applied to activities of discontinued operations (11,108) (9,405) (16,148)
Effect of exchange rate changes on cash 215 (65) (572)
------- ------- --------
Increase (decrease) in cash and cash equivalents 4,336 (6,329) (17,803)
Cash and cash equivalents at beginning of year 5,883 12,212 30,015
------- ------- --------
Cash and cash equivalents at end of year $ 10,219 $ 5,883 $ 12,212
======== ======= ========
Interest paid $ 2,457 $ 2,051 $ 2,891
======== ======= ========
Income taxes paid $ 1,171 $ 5,355 $ 3,560
========= ======= ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
-19-
<PAGE> 21
NOTES TO CONSOLIATED FINANCIAL STATEMENTS
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF CONSOLIDATION: The accompanying consolidated financial statements
include the accounts of Nashua Corporation and its subsidiaries (the Company),
all of which are wholly-owned.
CASH EQUIVALENTS: The Company considers all highly liquid investment
instruments purchased with a maturity of three months or less to be cash
equivalents. At December 31, 1994 and 1993, the Company held $5.9 million and
$1.9 million, respectively, of various money market instruments carried at
cost, which approximated market. .
ACCOUNTS RECEIVABLE: The consolidated balance is net of allowance for doubtful
accounts of $2.6 million and $1.9 million, at December 31, 1994 and 1993,
respectively.
INVENTORIES: Inventories are carried at the lower of cost or market. Cost is
determined by the first-in, first-out (FIFO) method for 80 percent of the
inventories at December 31, 1994 and 1993, and by the last-in, first-out (LIFO)
method for the balance. Had the FIFO method been used to cost all inventories,
the inventory balances would have been approximately $2.7 and $2.5 million
higher at December 31, 1994 and 1993, respectively.
PLANT AND EQUIPMENT: Plant and equipment are stated at cost. Expenditures for
maintenance and repairs are charged to operations as incurred, while additions,
renewals and betterments of plant and equipment are capitalized. Items which
are fully depreciated, sold, retired, or otherwise disposed of, together with
the related accumulated depreciation, are removed from the accounts and, where
applicable, the related gain or loss is recognized.
For financial reporting purposes, depreciation is computed using the
straight-line method over the following estimated useful lives of the assets:
Buildings and improvements 5-40 years
Machinery and equipment 3-20 years
During 1993, the Company recorded charges of $21.2 million related to the
write-down of fixed assets in connection with discontinued operations. See the
Discontinued Operations and Restructuring Activities note.
GOODWILL: Included in "Other Assets" is the excess of cost over the fair value
of net assets acquired (goodwill), which is being amortized on a straight-line
basis over periods ranging from 5 to 20 years. Goodwill amounted to $14.5
million and $14.7 million at December 31, 1994 and 1993, respectively, which is
net of accumulated amortization of $5.2 million and $4.5 million, respectively.
During 1993, the Company wrote-off goodwill of $6.3 million associated with
discontinued operations, and $.4 million associated with continuing operations.
See the Discontinued Operations and Restructuring Activities note.
INCOME TAXES: Prepaid or deferred income taxes result principally from the use
of different methods of depreciation and amortization for income tax purposes,
the recognition of expenses for financial reporting purposes in years different
from those in which the expenses are deductible for income tax purposes and the
recognition of the tax benefit of net operating losses.
-20-
<PAGE> 22
FOREIGN CURRENCY TRANSLATION: The functional currency of the Company's foreign
subsidiaries is the local currency. Accordingly, assets and liabilities of
these subsidiaries have been translated using exchange rates prevailing at the
appropriate balance sheet date, and income statement items have been translated
using average monthly exchange rates.
FINANCIAL INSTRUMENTS: The Company enters into foreign exchange contracts as
hedges against exposure to fluctuations in exchange rates associated with
certain transactions denominated in foreign currencies, principally
receivables. Market value gains or losses on these contracts are included in
the results of operations and generally offset gains or losses on the related
transactions. The Company also utilizes forward sales contracts to hedge
market price exposure on anticipated sales of silver alloy, a by-product of its
photofinishing process. The terms of the Company's forward contracts are
generally less than one year. Gains and losses on these contracts are deferred
and recognized as adjustments of carrying amounts when the hedged transaction
occurs. Deferred gains or losses at December 31, 1994 are not significant.
The Company does not hold derivative financial instruments for trading
purposes.
ENVIRONMENTAL EXPENDITURES: Environmental expenditures relating to on-going
operations are expensed when incurred unless the expenditures extend the life,
increase the capacity or improve the safety or efficiency of the property;
mitigate or prevent environmental contamination that has yet to occur and
improve the property compared with its original condition; or are incurred in
preparing for sale that property currently held for sale.
Expenditures relating to site assessment, remediation and monitoring are
accrued and expensed when the costs are both probable and the amount can be
reasonably estimated. These estimates are based on in-house or third party
studies considering current technologies, remediation alternatives and current
environmental standards. In addition, if there are other participants and the
liability is joint and several, the financial stability of the other
participants is considered in determining the Company's accrual. Insurance and
other recoveries relating to these expenditures are recorded separately once
recovery is probable.
EARNINGS PER COMMON AND COMMON EQUIVALENT SHARE: Earnings per common and
common equivalent share are computed based on the total of the weighted average
number of common shares and the weighted average number of common equivalent
shares outstanding during the period presented.
DISCONTINUED OPERATIONS AND RESTRUCTURING ACTIVITIES
In the fourth quarter of 1993, the Company recorded restructuring and other
unusual charges totaling $48.5 million. Approximately $36.7 million of this
amount related to management's decision to sell or otherwise liquidate the
thin-film, oxide and diskette manufacturing operations of the Computer Products
Group. The 1993 charge also included approximately $11.8 million related to
the integration and streamlining of the operations of the Commercial Products
Group, including workforce reductions, as well as consolidation of facilities
and the write-down of certain assets.
Discontinued Operations
During the second quarter of 1994, the Company sold substantially all of its
Computer Products businesses for total cash proceeds of $11.1 million,
subordinated notes of $4.9 million and future royalty payments based on sales
of the oxide disk and head disk assembly operations. In addition, the Company
will receive cash proceeds of approximately $2.0 million based on the 1994
operating results of the thin-film disk operation.
-21-
<PAGE> 23
The amounts received were not materially different from the estimates included
in the 1993 charge. As a result of the sale of these businesses, the related
results of operations were reclassified as discontinued operations.
During the first quarter of 1994, the Company offered its employees an early
retirement program, and recorded an additional pretax charge of $3.1 million to
discontinued operations related to the program.
The results of operations of the discontinued thin-film disk, oxide disk and
head disk assembly operations, are reported as discontinued operations in the
accompanying consolidated statement of operations, and are summarized as
follows:
<TABLE>
<CAPTION>
Year Ended
---------------------------------------------------
December 31, December 31, December 31,
(In thousands) 1994 1993 1992
----------- ------------ ------------
<S> <C> <C> <C>
Net sales $19,243 $ 88,704 $73,409
Loss before income taxes (3,279) (35,049) (7,384)
Income tax benefit (984) (10,852) (2,258)
Loss from discontinued operations $(2,295) $(24,197) $(5,126)
======= ======== =======
</TABLE>
In April 1990, the Company sold the international portion of its Office Systems
and Supplies Group to Gestetner Holdings PLC (Gestetner). Under the terms of
the Purchase Agreement, Gestetner raised certain objections to the purchase
price totaling $15.3 million, excluding interest, which were submitted to
arbitration. In January 1994, the arbitrator issued a final ruling which
resulted in a total payment by Nashua of $1.8 million, including interest, to
Gestetner. Resolution of the purchase price allowed the Company to recognize
an after-tax gain from discontinued operations of $2.5 million in 1993.
Restructuring Activities
The details of the Company's 1993 restructuring charge related to continuing
operations and the activity recorded during 1994, are as follows:
<TABLE>
<CAPTION>
Balance Balance
Dec. 31, 1994 1994 Dec. 31,
(In thousands) 1993 Provision Charges 1994
-------- ----------- ------- --------
<S> <C> <C> <C> <C>
Provisions related to workforce reductions:
Severance costs $ 3,850 $ 700 $ 3,000 $1,550
Pension and OPEB costs 900 2,600 3,500 -
Provisions related to employees not terminated 1,100 - 950 150
Provisions for assets to be sold or discarded 5,100 (1,100) 2,750 1,250
Other 850 400 1,250 -
------- ------ ------- ------
Total $11,800 $2,600 $11,450 $2,950
======= ====== ======= ======
</TABLE>
The 1993 restructuring charge included provisions for salary and benefit
continuation costs for approximately 170 employees. The 1994 provision
represents a revision in the Company's original estimate of severance costs
primarily as a result of approximately 20 additional employee terminations from
the Company's Commercial Products Group rather than from discontinued
operations. As of December 31, 1994, substantially all planned employee
reductions have taken place, and the remaining accrual represents payments to
be made to these former employees in the first half of 1995. Pension and OPEB
costs recorded
-22-
<PAGE> 24
in 1993 relate to curtailment charges recognized in connection with the planned
workforce reductions. The provision recognized in 1994 was recorded in
connection with the Company's early retirement program based upon the actual
number of employee acceptances. Provisions for employees not terminated relate
primarily to relocation costs.
The provisions for assets to be sold or discarded included a charge of $1.8
million to write-down certain corporate and manufacturing facilities to their
estimated net realizable value, as well as the costs associated with holding
certain vacated portions of these facilities during the period until the
property can be sold, or otherwise disposed. During the year, the Company
commissioned an appraisal of its corporate and manufacturing facilities, and as
a result of the appraisal revised upward its estimate of proceeds to be
realized upon disposal. Other than as described above, there were no material
changes during the year to the Company's original estimate of the costs
associated with the restructuring actions. Management anticipates all the
remaining actions will be completed by the end of 1995. As a result of these
restructuring actions, the Company anticipates savings in personnel and
facility related costs of approximately $8 million in 1995.
INDEBTEDNESS
At December 31, 1994, the Company maintained an unsecured $40 million revolving
credit facility under an agreement dated July 29, 1994. Borrowings of $33
million were outstanding under the terms of this facility at December 31, 1994,
compared with $5 million outstanding under a similar facility at December 31,
1993.
On January 5, 1995, the Company replaced the $40 million revolving credit
facility with a similar $75 million revolving credit facility. The facility
expires on December 31, 1997 unless otherwise extended. Interest on amounts
outstanding is payable at either LIBOR plus .75 to 1.125 percent, based on
amounts outstanding, or at the agent bank's "Reference Rate" at the Company's
election, or, if amounts outstanding are borrowed under competitive bid,
interest is payable at the quoted rate. The Company is required to pay an
annual commitment fee of .3125 percent on the unused portion of the facility
and .25 percent on any loans advanced under competitive bids. The agreement
contains restrictive covenants which relate primarily to interest coverage,
leverage and tangible net worth. The Company is in compliance with these
covenants.
On September 13, 1991, the Company entered into a senior note agreement, as
amended, with an insurance company under which the Company borrowed $20 million
at a fixed rate of 9.17 percent. In connection with the Company's
renegotiation of its revolving credit facility, the interest rate applicable to
the senior notes was increased to 9.67 percent as of January 1, 1995.
Mandatory payments of $2.5 million were made in 1993 and 1994. The remaining
balance of the notes will become due beginning in 1997 with the final payment
due in 2001. The senior notes contain restrictive covenants which relate
principally to additional debt, tangible net worth and fixed charges coverage.
The Company is in compliance with these covenants.
The Company maintains short term money market lines with commercial banks on an
"as offered" basis. The borrowings and repayments occur daily and contain no
specific terms other than due dates and interest rates. The due dates are
generally overnight and interest rates are based on current market rates.
There were no borrowings outstanding under these lines at December 31, 1994,
and approximately $2.5 million at December 31, 1993.
The fair value of the Company's total debt was approximately $.4 and $2.5
million higher than the carrying amount at December 31, 1994 and 1993,
respectively. The fair value is based on management's estimate of current
rates available to the Company for similar debt with the same remaining
maturity.
-23-
<PAGE> 25
Following is the combined aggregate amount of minimum principal payments for
each of the five years subsequent to December 31, 1994, for all long-term
indebtedness: 1995 - $.5 million; 1996 - $.6 million; 1997 - $36.3 million;
1998 - $3.0 million; 1999 - $3.0 million; thereafter - $6.2 million.
INCOME TAXES
The domestic and foreign components of income from continuing operations before
income taxes and cumulative effect of accounting principle changes are as
follows:
<TABLE>
<CAPTION>
(In thousands) 1994 1993 1992
---- ---- ----
<S> <C> <C> <C>
Domestic $1,661 $(2,933) $12,951
Foreign 5,806 6,580 4,885
------ ------- -------
Consolidated $7,467 $ 3,647 $17,836
====== ======= =======
</TABLE>
Income tax expense (benefit) charged to continuing operations consists of the
following:
<TABLE>
<CAPTION>
(In thousands) 1994 1993 1992
---- ---- ----
<S> <C> <C> <C>
Current
United States $ - $ 2,424 $6,002
Foreign 3,303 2,640 1,055
State and local 15 82 353
------- -------- ------
Total current 3,318 5,146 7,410
Deferred:
United States 592 (3,873) (1,137)
Foreign (885) 83 1,129
------- -------- ------
Total deferred (293) (3,790) (8)
------- -------- ------
Changes in statutory rates - (225) -
Income tax expense $ 3,025 $ 1,131 $7,402
======= ======== ======
</TABLE>
Deferred tax liabilities (assets) are comprised of the following:
<TABLE>
<CAPTION>
Dec. 31,
(In thousands) 1994 1993
---- ----
<S> <C> <C>
Depreciation $ 4,393 $ 5,468
Other - 85
--------- ---------
Gross deferred tax liabilities 4,393 5,553
--------- ---------
Restructuring (1,033) (16,783)
Pension and postretirement benefits (11,505) (7,531)
Loss and credit carryforwards (10,675) (3,349)
Workers compensation accrual (1,372) (1,536)
Inventory reserve (875) (1,526)
Bad debt reserve (1,261) (1,183)
Other (1,460) (2,379)
--------- ---------
Gross deferred tax assets (28,181) (34,287)
Deferred tax assets valuation allowance - -
--------- ---------
$(23,788) $(28,734)
========= =========
</TABLE>
-24-
<PAGE> 26
Reconciliations between income taxes from continuing operations computed using
the United States statutory income tax rate and the Company's effective tax
rate are as follows:
<TABLE>
<CAPTION>
1994 1993 1992
---- ---- ----
<S> <C> <C> <C>
United States statutory rate (benefit) 35.0% 35.0% 34.0%
Goodwill 4.4 13.7 2.3
Dividend income - 6.4 4.1
State and local income taxes, net of
federal tax benefit .1 (13.3) .9
Rate revaluation - (8.1) -
Rate difference-foreign subsidiaries (1.7) (3.2) .8
Other, net 2.7 .5 (.6)
---- ---- ----
Effective tax rate (benefit) 40.5% 31.0% 41.5%
==== ==== ====
</TABLE>
The Company adopted Statement of Financial Accounting Standards No. 109,
"Accounting for Income Taxes," in 1992 which changed the Company's method of
accounting for income taxes from the deferred method to an asset and liability
approach. The asset and liability approach requires the recognition of
deferred tax liabilities and assets for the expected future tax consequences of
temporary differences between the carrying amounts and the tax bases of assets
and liabilities and of tax carryforwards. The Company adopted this statement
prospectively on January 1, 1992, and the adjustments to the balance sheet
resulted in a net charge of $.8 million. This amount is reflected in net
income for 1992 as the cumulative effect of a change in accounting principle.
It primarily represents the impact of adjusting prepaid and deferred taxes to
reflect the 1992 statutory tax rate as opposed to the tax rates that were in
effect when the prepaid and deferred taxes originated. The adoption of this
statement had no effect on pretax operating income for 1992.
At December 31, 1994, $6.3 million and $17.5 million of tax assets were
included in "Other current assets" and "Other Assets," respectively. At
December 31, 1993, $14.0 million and $14.7 million of tax assets were included
in "Other current assets" and "Other Assets," respectively.
At December 31, 1994, the Company had $10.7 million of net operating loss and
tax credit carryforwards, which are primarily limited to offset certain future
domestic taxable earnings. The carryforwards expire as follows: $3.1 million
in 1996, $.7 million in 1997, $.1 million in 1998, $.6 million in 1999, $.1
million in 2000, $2.4 million in 2001, $.2 million in 2002 and $3.5 million
thereafter.
During 1994 the Internal Revenue Service (IRS) completed an examination of the
Company's corporate income tax returns for the years 1988 through 1991. As a
result of the IRS' findings, the Company agreed to and paid additional taxes
and interest of $7.8 million in January 1995 in connection with adjustments
related mainly to the tax treatment of certain items associated with the 1990
sale of the International Office Systems business. On January 13, 1995, the
IRS issued a Notice of Deficiency in the amount of $8.7 million in connection
with the tax years 1990 and 1991. The tax deficiency relates to the tax
treatment of income recognized in connection with the 1990 sale of the Office
Systems business. The major issues relate to foreign tax credits, foreign
earnings and profits computation, and the treatment of the disposition of
preferred stock of a foreign subsidiary. The Company disagrees with the
position taken by the IRS and filed a formal protest of the deficiency on
February 9, 1995. In management's opinion, the ultimate disposition of this
matter will not have a material adverse effect on the financial position or
results of operations of the Company.
-25-
<PAGE> 27
It is management's intention to reinvest undistributed earnings of foreign
subsidiaries which aggregate approximately $25 million, based on exchange rates
at December 31, 1994. These earnings could become subject to additional tax if
they were remitted as dividends, if foreign earnings were lent to the Company
or if the Company should sell its stock in the subsidiaries. It is not
practicable to estimate the amount of additional tax that might be payable on
undistributed foreign earnings.
SHAREHOLDERS' EQUITY
The Company is authorized to issue up to 200,000 shares of Series A
Participating Preferred Stock in connection with its Rights Agreement under
which holders of the Company's common stock received a dividend of one
preferred stock purchase right for each outstanding share of common stock.
Each Right entitles the registered holder to purchase from the Company one
one-hundredth share of the Company's Series A Participating Preferred Stock, at
a price of $90.00. The Rights do not detach or become exercisable until the
tenth business day following the public announcement that a person has
acquired, or obtained the right to acquire, 10 percent or more of the
outstanding common stock of the Company, or the commencement of a tender or
exchange offer which would result in the acquisition of beneficial ownership of
10 percent or more of the Company's common stock. The Rights Agreement
provides that if any person or group were to acquire 10 percent or more of the
Company's common stock, then shareholders other than the acquiring person would
be entitled to purchase, at the Rights' then-current exercise price, a number
of additional Company shares having a market value of twice the Rights'
exercise price, unless the acquiring person purchases at least 85 percent of
Nashua's common stock in a cash tender offer for all shares. The Company's
Board of Directors may, at their option, exchange one Company share of common
stock for each Right (other than the Rights held by the acquiring person) if
the acquiring person has acquired more than 10 percent but less than 50 percent
of the Company's common stock. The Rights Agreement further provides that,
upon the occurrence of certain events including transactions in which the
Company is acquired and certain self-dealing transactions with the Company by
an acquirer, each Right entitles the holder thereof (other than the acquirer)
to purchase shares of capital stock of either the Company or of the acquirer
having a value equal to twice the then-current exercise price of the Rights.
At any time prior to a person's acquiring beneficial ownership of 10 percent or
more of the Company's common stock, the Continuing Directors, by a two-thirds
vote, may authorize the Company to redeem the Rights at any time at a
redemption price of five cents per Right. The Rights will expire on September
2, 1996, unless earlier redeemed by the Company. In addition to the Rights
attaching to the common stock outstanding, Rights will be issued with each
common share that is issued prior to the time the Rights become exercisable or
expire.
In 1989, the Board of Directors authorized the Company to repurchase up to
1,000,000 shares of its common stock. As of December 31, 1994, the Company had
purchased approximately 435,000 shares under this program.
-26-
<PAGE> 28
The following summarizes the changes in selected shareholders' equity accounts
for each of the three years in the period ended December 31, 1994:
<TABLE>
<CAPTION>
Common Stock Cumulative
Par Additional Translation Treasury Stock
(In thousands, except share data) Shares Value Capital Adjustment Shares Cost
------ ----- ---------- ----------- ------ ----
<S> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1991 6,681,763 $6,682 $10,668 $(1,693) (398,149) $(15,000)
Stock options exercised and related tax benefit 24,610 25 462 - - -
Translation adjustments and gains and losses
from certain inter-company balances - - - (3,700) - -
Purchase of treasury shares - - - - (44) (1)
Reissuance of treasury shares - - - - 510 14
Retirement of treasury shares (372,683) (373) - - 372,683 14,188
--------- ------ ------- ------- -------- --------
BALANCE, DECEMBER 31, 1992 6,333,690 6,334 11,130 (5,393) (25,000) (799)
Stock options exercised and related tax benefit 6,740 6 116 - - -
Translation adjustments and gains and losses
from certain inter-company balances - - - (451) - -
Purchase of treasury shares - - - - (120) (3)
Reissuance of treasury shares - - - - 530 17
--------- ------ ------- ------- -------- --------
BALANCE, DECEMBER 31, 1993 6,340,430 6,340 11,246 (5,844) (24,590) (785)
Stock options exercised and related tax benefit 56,140 57 1,024 - - -
Translation adjustments and gains and losses
from certain inter-company balances - - - 916 - -
Purchase of treasury shares - - - - (60) (2)
--------- ------ ------- ------- -------- --------
BALANCE, DECEMBER 31, 1994 6,396,570 $6,397 $12,270 $(4,928) (24,650) $ (787)
========= ====== ======= ======= ======= ========
</TABLE>
STOCK OPTION AND STOCK AWARD PLANS
The Company has three stock compensation plans at December 31, 1994: the 1980
Stock Award Plan (1980 plan), the 1987 Stock Option Plan (1987 plan) and the
1993 Stock Incentive Plan (1993 plan). Awards can no longer be granted under
the 1980 plan. Awards under the 1987 plan and 1993 plan are made at the
discretion of the Executive Salary Committee of the Board of Directors.
Stock options awarded under the 1980 plan which are outstanding at December 31,
1994, are currently exercisable and expire on the tenth anniversary of the date
of grant.
Under the 1987 plan, nonqualified stock options and incentive stock options may
be awarded. Stock options under the 1987 plan become exercisable either (a) 50
percent on the first anniversary of grant, and the remainder on the second
anniversary of grant, (b) 100 percent at six months from the date of grant, or
(c) 100 percent at one year from the date of grant. Nonqualified stock options
expire 10 years and one day from the date of grant, and incentive stock options
expire 10 years from the date of grant.
Under the 1993 plan, non-statutory stock options and incentive stock options
may be awarded. Stock options under the 1993 plan become exercisable either
(a) 50 percent on the first anniversary of grant and the remainder on the
second anniversary of grant, or (b) 100 percent at one year from the date of
grant. Non-statutory stock options expire 10 years and one day from the date
of grant, and incentive stock options expire 10 years from the date of grant.
-27-
<PAGE> 29
In the event of a change of control, as defined in the 1987 plan and the 1993
plan, the option holder may, with respect to stock option agreements which so
provide, have a limited right with respect to options under the plans to elect
to surrender the options and receive cash or shares equal in value to the
difference between the option price and the larger of either the highest
reported price per share on the New York Stock Exchange during the sixty-day
period before the change in control or, if the change in control is the result
of certain defined transactions, the highest price per share paid in such
defined transactions.
Because the exercise price of all stock options awarded under these plans has
been equal to the quoted market price of the Company's common stock at date of
grant, no compensation expense has been recorded for these awards.
A summary of the status of the Company's stock option plans follows:
<TABLE>
<CAPTION>
Outstanding Option Price Exercisable
Options Per Share Options
----------- ------------ -----------
<S> <C> <C> <C>
December 31, 1991 429,170 $ 5.13-38.38 381,920
Options granted 43,600 28.13 -
Options that became exercisable - 25.50-34.63 45,850
Options exercised (24,646) 5.13-19.38 (24,646)
Options lapsed and cancelled (52,734) 25.50-34.63 (45,134)
-------- ------------ -------
December 31, 1992 395,390 $11.81-38.38 357,990
Options granted 113,800 25.75-30.25 -
Options that became exercisable - 25.50-34.63 25,350
Options exercised (6,740) 11.81-25.50 (6,740)
Options lapsed and cancelled (6,380) 25.75-34.63 (2,900)
-------- ------------ -------
December 31, 1993 496,070 $11.81-38.38 373,700
Options granted 103,950 22.63-29.50 -
Options that became exercisable - 25.75-28.13 62,406
Options exercised (56,140) 11.81-28.13 (56,140)
Options lapsed and cancelled (158,046) 25.75-38.38 (151,981)
-------- ------------ -------
December 31, 1994 385,834 $13.75-34.63 227,985
======== ============ =======
</TABLE>
COMMITMENTS AND CONTINGENCIES
Rent expense for office equipment, facilities and vehicles was $2.1 million,
$1.8 million and $2.0 million for 1994, 1993 and 1992, respectively. At
December 31, 1994, the Company was committed, under non-cancelable operating
leases, to minimum annual rentals as follows: 1995 - $1.8 million; 1996 - $1.7
million; 1997 - $1.6 million; 1998 - $1.3 million; 1999 - $1.3 million;
thereafter - $9.5 million.
At December 31, 1994, the Company was obligated under approximately $6.0
million in standby letters of credit.
The Company is involved in certain environmental matters and has been
designated by the Environmental Protection Agency (EPA) as a "potentially
responsible party" (PRP) for certain hazardous waste sites. In addition, the
Company has been notified by certain state environmental agencies that some of
the Company sites not addressed by the EPA require remedial action. These
sites are in various stages of investigation and remediation. Due to the
unique physical characteristics of each site, the technology employed, the
extended timeframes of each remediation, the interpretation of applicable laws
and regulations and the financial viability
-28-
<PAGE> 30
of other potential participants, the ultimate cost to the Company of
remediation for each site is difficult to determine. At December 31, 1994,
based on the facts currently known and the Company's prior experience with
these matters, the Company has concluded that there is at least a reasonable
possibility that site assessment, remediation and monitoring costs will be
incurred by the Company with respect to those sites which can be reasonably
estimated in the aggregate range of $.8 million to $1.0 million. This range is
based, in part, on an allocation of certain sites' costs which, due to the
joint and several nature of the liability, could increase if the other PRP's
are unable to bear their allocated share. At December 31, 1994, the Company
has accrued $.9 million which represents, in management's view, the most likely
amount within the range stated above. Based on information currently available
to the Company, management believes that it is probable that the major
responsible parties will fully pay the costs apportioned to them. Management
believes that, based on its financial position and the estimated environmental
accrual recorded, its remediation expense with respect to those sites is not
likely to have a material adverse effect on its consolidated financial position
or results of operations.
POSTRETIREMENT BENEFITS
PENSION PLANS: The Company and its subsidiaries have several pension plans
which cover substantially all of its regular full-time employees. Benefits
under these plans are generally based on years of service and the levels of
compensation during those years. The Company's policy is to fund amounts
deductible for income tax purposes. Assets of the plans are invested in
interest-bearing cash equivalent instruments, fixed-income securities and
common stocks.
Net periodic pension cost from continuing operations for the plans, exclusive
of enhanced early retirement and curtailment pension costs, includes the
following components:
<TABLE>
<CAPTION>
(In thousands) 1994 1993 1992
---- ---- ----
<S> <C> <C> <C>
Service cost-benefits earned during the period $ 2,771 $ 2,884 $ 2,929
Interest cost on projected benefit obligation 7,916 7,196 6,749
Actual return on plan assets 1,826 (17,554) (10,814)
Net amortization and deferral (9,491) 10,839 4,754
------- -------- -------
Net periodic pension cost $ 3,022 $ 3,365 $ 3,618
======= ======== =======
</TABLE>
In February 1994, the Company offered certain of its United States employee
groups an enhanced early retirement pension benefit. The cost of the enhanced
pension benefit was $4.2 million, $2.2 million of which was attributable to
discontinued operations. In 1993, the Company recognized a curtailment expense
of $1.2 million, approximately $.6 million of which related to discontinued
operations.
-29-
<PAGE> 31
The following sets forth the funded status of the plans and the amounts
recognized in the Company's consolidated balance sheet at December 31, 1994:
<TABLE>
<CAPTION>
Accumulated
Benefit Obligation
-------------------------
Less Than Exceeds
(In thousands) Assets Assets
--------- -------
<S> <C> <C>
Actuarial present value of:
Vested benefit obligation $41,052 $ 58,035
------- --------
Accumulated benefit obligation $41,863 $ 58,158
------- --------
Projected benefit obligation $42,189 $ 62,046
------- --------
Market value of plan assets $47,117 $ 53,137
------- --------
Plan assets in excess of (less than) projected benefit obligation $ 4,928 $ (8,909)
Unrecognized transition (asset) obligation (2,196) 2,363
Unrecognized prior service costs 1,452 5,568
Unrecognized net gain (1,390) (7,731)
Additional liability - (143)
------- --------
Prepaid (accrued) pension cost $ 2,794 $ (8,852)
======= ========
</TABLE>
The following sets forth the funded status of the plans and the amounts
recognized in the Company's consolidated balance sheet at December 31, 1993:
<TABLE>
<CAPTION>
Accumulated
Benefit Obligation
-------------------------
(In thousands) Less Than Exceeds
Assets Assets
--------- -------
<S> <C> <C>
Actuarial present value of:
Vested benefit obligation $41,286 $ 58,490
------- --------
Accumulated benefit obligation $41,519 $ 58,686
------- --------
Projected benefit obligation $41,837 $ 60,759
------- --------
Market value of plan assets $47,992 $ 55,695
------- --------
Plan assets in excess of (less than) projected benefit obligation $ 6,155 $ (5,064)
Unrecognized transition (asset) obligation (2,389) 3,324
Unrecognized prior service costs 448 3,712
Unrecognized net gain (1,199) (7,029)
Additional liability - (1,027)
------- --------
Prepaid (accrued) pension cost $ 3,015 $ (6,084)
======= ========
</TABLE>
During 1994, the Company updated the definition of average annual compensation,
the effect of which increased the unrecognized prior service liability by $1.8
million. Approximately $7.5 million and $4.2 million of the accrued pension
cost for 1994 and 1993, respectively, are included in "Other Long-Term
Liabilities" in the accompanying consolidated balance sheet.
The significant actuarial assumptions used for the plans' valuations were:
<TABLE>
<CAPTION>
1994 1993
---- ----
<S> <C> <C>
Weighted-average discount rate 8.2% 7.3%
Expected long-term rate of return on plan assets 9.7% 9.1%
Rate of increase in future compensation levels 5.0% 4.7%
</TABLE>
-30-
<PAGE> 32
RETIREE HEALTH CARE AND OTHER BENEFITS: The Company provides certain health
care and other benefits to eligible retired employees and spouses. Salaried
participants generally become eligible for retiree health care benefits after
reaching age 60 with ten years of service. Benefits, eligibility and
cost-sharing provisions for hourly employees vary by location or bargaining
unit. Generally, the medical plans pay a stated percentage of most medical
expenses, reduced for any deductibles and payments made by government programs
and other group coverage.
In 1992, the cost of providing most of these benefits was shared with retirees,
except for a group of retirees at one manufacturing facility. In 1993, the
plan was changed to share the cost of these benefits with all retirees,
resulting in an unrecognized benefit which is being amortized over the future
service period of the active employees.
The following table sets forth the funded status of the plans, reconciled to
the accrued postretirement benefit cost recognized in the Company's balance
sheet:
<TABLE>
<CAPTION>
(In thousands) 1994 1993
---- ----
<S> <C> <C>
Accumulated postretirement benefit obligation:
Retirees $ 7,264 $ 5,864
Fully eligible active plan participants 1,668 2,400
Other active participants 2,453 2,918
--------- --------
Market value of plan assets - -
Accumulated postretirement benefit obligation in excess of plan assets (11,385) (11,182)
Unrecognized prior service benefit (5,221) (4,821)
Unrecognized net (gain) loss (1,232) 70
--------- --------
Accrued postretirement benefit cost $ (17,838) $(15,933)
========= ========
</TABLE>
Approximately $17.1 million and $15.1 million of accrued postretirement
benefits for 1994 and 1993, respectively, are included in "Other Long-Term
Liabilities" in the accompanying consolidated balance sheet.
Net periodic postretirement benefit cost of continuing operations, exclusive of
enhanced early retirement and curtailment costs, included the following
components:
<TABLE>
<CAPTION>
(In thousands) 1994 1993 1992
---- ---- ----
<S> <C> <C> <C>
Service cost of benefits earned $ 133 $ 162 $ 284
Interest cost on accumulated postretirement
benefit obligation 942 791 1,208
Amortization of prior service benefit (554) (554) -
----- ----- ------
Net periodic postretirement benefit cost $ 521 $ 399 $1,492
===== ===== ======
</TABLE>
As part of the 1994 early retirement program, the Company offered certain of
its United States employee groups an enhanced early retirement health care
benefit. The cost of the enhanced health care benefit was $1.5 million, $.9
million of which was attributable to discontinued operations. At December 31,
1994, the postretirement benefit plans were amended to transfer the cost of
health supplement benefit payments to the Company's pension plan. In 1993, the
Company recognized a curtailment expense of $.8 million, approximately half of
which related to discontinued operations, in connection with its decision to
dispose of certain operations and reduce personnel in the remaining businesses.
-31-
<PAGE> 33
For measurement purposes, an 8.0 percent annual rate of increase in the per
capita claims cost of medical benefits was assumed for the various plans in
1995. These rates were assumed to decrease gradually to 5.5 percent in 1999
and remain at that level thereafter. The discount rate used in determining the
accumulated postretirement benefit obligation was 8.25 percent.
If the health care cost trend rate were increased 1 percent in each future
year, the accumulated postretirement benefit obligation as of December 31, 1994
would have increased by 2 percent. The effect of this assumed change on the
aggregate of service and interest cost for 1994 would have been an increase of
4 percent.
The Company adopted Financial Accounting Standard No. 106, "Employers'
Accounting for Postretirement Benefits Other Than Pensions," in 1992 which
requires the accrual of the cost of providing non-pension postretirement
benefits ("postretirement benefits"), primarily medical coverage, during the
employee's active service period. The Company elected to immediately recognize
the accumulated liability, measured as of January 1, 1992. This resulted in a
one-time charge of $9.4 million, after reduction for income taxes of $6.3
million. The pro forma effect of the change on years prior to 1992 was not
determinable. Prior to 1992, the Company recognized expense in the year the
benefits were provided.
-32-
<PAGE> 34
INFORMATION ABOUT OPERATIONS
The Company conducts business in three segments: Commercial Products,
Photofinishing and Precision Technologies. In 1994, the Company combined its
Coated Products and Office Supplies business segments to form Commercial
Products. Commercial Products produces and sells facsimile and thermal papers,
pressure sensitive labels, specialty papers and tapes, and copier and laser
printer supplies. Photofinishing provides mail-order photofinishing services.
Precision Technologies manufactures precision metallic parts primarily for the
computer industry, and was previously included in the discontinued Computer
Products segment. Net sales, operating income and identifiable assets of the
Company's three business segments and the geographic areas in which they
operate are set forth below:
<TABLE>
<CAPTION>
Net Sales From Income From
Continuing Operations Continuing Operations Identifiable Assets
(In millions) 1994 1993 1992 1994 1993(b) 1992(c) 1994 1993 1992
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BY BUSINESS
Commercial Products $319.2 $317.0 $313.3 $(.6)(a) $ 1.5 $ 7.4 $121.5 $106.7 $106.7
Photofinishing 145.4 148.7 161.9 16.4 15.9 15.4 58.1 47.5 54.3
Precision Technologies 14.0 14.1 16.5 (.2) .6 1.6 7.4 4.3 3.0
Corporate expenses,
including interest and assets - - - (8.1) (14.4) (6.6) 40.8 33.4 19.6
Discontinued Operations - - - - - - - 27.2 53.1
------ ------ ------ ---- ------ ----- ------ ------ ------
Consolidated $478.6 $479.8 $491.7 $7.5 $ 3.6 $17.8 $227.8 $219.1 $236.7
====== ====== ====== ==== ====== ===== ====== ====== ======
BY GEOGRAPHIC AREA
United States $417.2 $418.5 $420.7 $9.7 $ 7.5 $19.5 $150.1 $125.8 $130.0
Europe 53.6 52.3 60.8 5.0 8.6 2.4 33.3 26.7 29.2
Other 7.8 9.0 10.2 .9 1.9 2.5 3.6 6.0 4.8
Eliminations, corporate
expenses, including interest
and assets - - - (8.1) (14.4) (6.6) 40.8 33.4 19.6
Discontinued Operations - - - - - - - 27.2 53.1
------ ------ ------ ---- ------ ----- ------ ------ ------
Consolidated $478.6 $479.8 $491.7 $7.5 $ 3.6 $17.8 $227.8 $219.1 $236.7
====== ====== ====== ==== ====== ===== ====== ====== ======
<FN>
Sales between business segments are insignificant. Intrasegment sales between geographic areas are generally priced at the lowest
price offered to unaffiliated customers.
(a) Includes restructuring charges of $2.6 million.
(b) Includes restructuring charges of $3.5 million, $.8 million, and $7.5 million, for Commercial Products, Photofinishing and
Corporate, respectively.
(c) Before the cumulative effect of changes in accounting principles.
</TABLE>
-33-
<PAGE> 35
Capital expenditures and depreciation and amortization by business segment are
set forth below:
<TABLE>
<CAPTION>
Depreciation and
Capital Expenditures Amortization
1994 1993 1992 1994 1993 1992
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Commercial Products $12.0 $10.4 $ 8.9 $ 9.1 $ 8.0 $ 7.2
Photofinishing 3.8 2.9 3.2 5.4 5.9 6.0
Precision Technologies 1.0 1.8 .5 .8 .7 .8
----- ----- ----- ----- ----- -----
Consolidated $16.8 $15.1 $12.6 $15.3 $14.6 $14.0
===== ===== ===== ===== ===== =====
</TABLE>
SUBSEQUENT EVENTS
On January 13, 1995, the Company acquired certain photofinishing operations
from Nexus Photo Ltd. The acquisition includes mail- order photofinishing
operations in France, Belgium, the Netherlands and Spain, and a wholesale film
processing business in Northern Ireland. The total purchase price was
approximately $25.6 million, plus an additional payment based on certain volume
in the Northern Ireland operation. The acquisition will be accounted for as a
purchase business combination and, accordingly, operating results of this
business subsequent to the date of acquisition will be included in the
Company's Consolidated Statement of Income.
The unaudited pro forma combined condensed balance sheet of the Company and the
acquired businesses as of December 31, 1994, after giving effect to certain pro
forma adjustments, is as follows:
<TABLE>
<CAPTION>
(In thousands)
<S> <C>
Current assets $109,136
Property and equipment, net 79,474
Other assets 66,312
--------
$254,922
========
Current liabilities $ 67,788
Non-current liabilities 94,438
Shareholder's equity 92,696
--------
$254,922
========
</TABLE>
The unaudited combined condensed pro forma results listed below reflect
purchase price accounting adjustments assuming the acquisition occurred
at the beginning of 1994.
(In thousands, except per share data)
<TABLE>
<S> <C>
Net sales $521,769
========
Income from continuing operations $ 5,322
========
Earnings per common and common equivalent share $ .84
========
</TABLE>
-34-
<PAGE> 36
<TABLE>
<CAPTION>
QUARTERLY OPERATING RESULTS AND COMMON STOCK INFORMATION (UNAUDITED)
(IN MILLIONS, EXCEPT PER SHARE DATA) 1st 2nd 3rd 4th
Quarter Quarter Quarter Quarter Year
------- ------- ------- ------- ------
<S> <C> <C> <C> <C> <C>
1994
Net sales $112.8 $122.7 $127.9 $115.2 $478.6
Gross profit 26.2 31.9 33.3 25.2 116.6
Income (loss) from continuing operations(1) (1.2) 2.9 2.4 .3 4.4
Income (loss) from discontinued operations (2.3) - - - (2.3)
Net income (loss)(1) (3.5) 2.9 2.4 .3 2.1
Earnings (loss) per common and common
equivalent share:
Continuing operations(1) (.18) .46 .37 .05 .70
Discontinued operations (.36) - - - (.36)
Net income (loss)(1) (.54) .46 .37 .05 .34
Dividends .18 .18 .18 .18 .72
Market price:
High 30 3/4 27 3/8 29 1/4 23 1/8 30 3/4
Low 26 1/4 24 3/8 22 7/8 19 3/4 19 3/4
1993
Net sales $116.2 $120.3 $133.3 $110.0 $479.8
Gross profit 28.3 31.8 36.0 24.8 120.9
Income (loss) from continuing operations(2) 1.0 2.5 4.9 (5.9) 2.5
Income (loss) from discontinued operations 1.6 1.4 (.5) (24.2) (21.7)
Net income (loss)(2) 2.6 3.9 4.4 (30.1) (19.2)
Earnings (loss) per common and common
equivalent share:
Continuing operations(2) .17 .40 .76 (.93) .40
Discontinued operations .25 .21 (.07) (3.81) (3.42)
Net income (loss)(2) .42 .61 .69 (4.74) (3.02)
Dividends .18 .18 .18 .18 .72
Market price:
High 29 7/8 29 5/8 31 3/4 31 3/4 31 3/4
Low 25 1/4 25 3/8 27 3/8 25 3/8 25 1/4
------ ------ ------ ------ ------
<FN>
(1)The first quarter includes restructuring charges of $2.6 million.
(2)The fourth quarter includes restructuring charges of $11.8 million.
</TABLE>
The Company's stock is traded on the New York Stock Exchange. At December 31,
1994, there were 1,599 record holders of Nashua's common stock.
-35-
<PAGE> 37
Report of Independent Accountants
To the Board of Directors and Shareholders of Nashua Corporation
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of operations and retained earnings and of cash flows
present fairly, in all material respects, the financial position of Nashua
Corporation and its subsidiaries at December 31, 1994 and 1993 and the results
of their operations and their cash flows for each of the three years in the
period ended December 31, 1994, in conformity with generally accepted
accounting principles. These financial statements are the responsibility of
the Company's management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with generally accepted auditing standards which
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
As discussed in the Income Taxes and Postretirement Benefits notes to the
financial statements, the Company changed its method of accounting for income
taxes by adopting Financial Accounting Standards Board ("FASB") Statement No.
109, "Accounting for Income Taxes," and its accounting for non-pension benefit
plans by adopting FASB Statement No. 106, "Employers' Accounting for
Postretirement Benefits Other Than Pensions," in 1992.
Price Waterhouse LLP
Boston, Massachusetts
February 1, 1995
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The section entitled "Nominees for Election as Directors", which
appears on pages 2 through 3 of the Company's Proxy Statement dated March 24,
1995, is incorporated by reference in this Form 10-K. See also the section
entitled "Executive Officers of the Registrant" appearing in Part I hereof.
-36-
<PAGE> 38
ITEM 11. EXECUTIVE COMPENSATION
The section entitled "Compensation of Directors" and "Compensation of
Executive Officers," which appears on pages 4 through 9 of the Company's Proxy
Statement dated March 24, 1995, is incorporated by reference in this Form 10-K.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The sections entitled "Security Ownership of Management" and
"Security Ownership of Certain Beneficial Owners," which appear on pages 11
through 12 of the Company's Proxy Statement dated March 24, 1995, are
incorporated by reference in this Form 10- K.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The section entitled "Certain Transactions and Indebtedness,"
which appears on page 8 of the Company's Proxy Statement dated March 24, 1995,
is incorporated by reference in this Form 10-K.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this report:
(1) Consolidated Financial Statements
Report of Independent Accountants (See page 36)
Consolidated Balance Sheet at December 31, 1994 and 1993 (See page 18)
Consolidated Statement of Operations and Retained Earnings for
each of the three years in the period ended December 31, 1994
(See page 17)
Consolidated Statement of Cash Flows for each of the three years in
the period ended December 31, 1994 (See page 19).
Notes to Consolidated Financial Statements (See pages 20 through 35)
(2) Financial Statement Schedules:
Report of Independent Accountants on Financial Statement Schedule
For the three years ended December 31, 1994:
Schedule II - Valuation and Qualifying Accounts
-37-
<PAGE> 39
All other schedules are omitted because they are not applicable or the
required information is shown in the Consolidated Financial Statements or the
Notes thereto.
(3) Exhibits:
2.01 Purchase and Sale Agreement, by and among Nashua
Corporation and subsidiaries and Nexus Photo Limited and
subsidiaries. Exhibit to the Company's Form 8-K dated
January 13, 1995, and incorporated herein by reference.
3.01 Composite Certificate of Incorporation of the Company, as
amended. Exhibit to the Company Annual Report on Form 10-K
for the year ended December 31, 1989, and incorporated
herein by reference.
3.02 By-laws of the Company, as amended. Exhibit to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1989, and incorporated herein by reference.
4.01 Note Agreement dated as of September 13, 1991. Exhibit to
the Company's Form 10-K for the year ended December 31,
1991, and incorporated herein by reference.
4.02 Amendment No. 1 dated as of December 31, 1991 to the Note
Agreement dated September 13, 1991. Exhibit to the
Company's Form 10-K for the year ended December 31, 1993,
and incorporated herein by reference.
4.03 Amendment No. 2 dated as of January 27, 1994 to the Note
Agreement dated September 13, 1991. Exhibit to the
Company's Form 10-K for the year ended December 31, 1993,
and incorporated herein by reference.
4.04 Amendment No. 3 dated as of May 12, 1994 to the Note
Agreement dated September 13, 1991.
4.05 Amendment No. 4 dated as of December 31, 1994 to the Note
Agreement dated September 13, 1991.
4.06 Allonge dated December 31, 1994 to the Note Agreement dated
September 13, 1991.
4.07 Credit Agreement dated July 29, 1994. Exhibit to the
Company's Form 10-Q dated July 1, 1994, and incorporated
herein by reference.
4.08 Credit Agreement dated as of January 5, 1995.
4.09 Rights Agreement dated as of August 22, 1986 between the
Company and The First National Bank of Boston. Exhibit to
the Company's Form 8-K dated August 22, 1986, and
incorporated herein by reference.
4.10 Amendment No. 1, dated April 22, 1988 to the Rights
Agreement dated as of August 22, 1986 between the Company
and The First National Bank of Boston. Exhibit to the
Company's Form 8-K dated May 3, 1988, and incorporated
herein by reference.
-38-
<PAGE> 40
4.11 Amendment No. 2, dated May 17, 1989 to the Rights Agreement
dated as of August 22, 1986 between the Company and the
First National Bank of Boston. Exhibit to the Company's
Form 8-K dated May 17, 1989 and incorporated herein by
reference.
4.12 Amendment No. 3, dated October 27, 1989 to the Rights
Agreement dated as of August 22, 1986 between the Company
and the First National Bank of Boston. Exhibit to the
Company's Form 8-K dated October 31, 1989 and incorporated
herein by reference.
4.13 Amendment No. 4, dated March 22, 1993 to the Rights
Agreement dated as of August 22, 1986 between the Company
and the First National Bank of Boston. Exhibit to the
Company's Form 8-K dated March 22, 1993 and incorporated
herein by reference.
10.01 Management Incentive Compensation Program of the Company, as
amended 1993. Exhibit to the Company's Form 10-K for the
year ended December 31, 1992 and incorporated herein by
reference.
10.02 Nashua Corporation Supplemental Compensation Plan (as
amended February 24, 1994). Exhibit to the Company's Form
10-K for the year ended December 31, 1994 and
incorporated herein by reference.
10.03 1980 Stock Award Plan of the Company, as amended. Exhibit
to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1981, and incorporated
herein by reference.
10.04 1987 Stock Option Plan of the Company. Exhibit to the
Company's Proxy Statement dated March 24, 1987, and
incorporated herein by reference.
10.05 Amendments to Nashua Corporation 1987 Stock Option Plan
effective as of April 28, 1989. Exhibit to the Company's
Form 10-Q for the quarterly period ended June 30, 1989, and
incorporated herein by reference.
10.06 1993 Stock Option Plan of the Company. Exhibit to the
Company's Proxy Statement dated March 19, 1993, and
incorporated herein by reference.
10.07 Severance Agreement dated March 8, 1988 between the Company
and William Luke. Exhibit to the Company's Annual Report
on Form 10-K for the year ended December 31, 1987, and
incorporated herein by reference.
10.08 Employment Agreement dated as of April 28, 1989 between the
Company and William Luke. Exhibit to the Company's Form
10-Q for the quarterly period ended June 30, 1989, and
incorporated herein by reference.
10.09 Employment Agreement dated as of February 6, 1994 between
the Company and Francis J. Lunger. Exhibit to the
Company's Form 10-K for the year ended December 31, 1993,
and incorporated herein by reference.
10.10 Letter agreement dated July 21, 1993 between the Company
and William E. Mitchell. Exhibit to the Company's Form
10-Q for the quarterly period ended October 1, 1993, and
incorporated by reference.
-39-
<PAGE> 41
10.11 Employment Agreement dated as of September 1, 1993 between
the Company and William E. Mitchell. Exhibit to the
Company's Form 10-Q for the quarterly period ended October
1, 1993, and incorporated by reference.
10.12 Promissory Note dated January 31, 1995 from William E.
Mitchell to Nashua Corporation.
10.13 Continuing Corporate Guarantee dated January 20, 1995 by
Nashua Corporation of residential loan to William E.
Mitchell by Boston Safe Deposit and Trust Company.
10.14 Stock Appreciation Right Agreement dated March 20, 1992
between the Company and Charles E. Clough with respect
to 15,000 shares of the Company. Exhibit to the Company's
Form 10-K for the year ended December 31, 1991, and
incorporated herein by reference.
10.15 Consulting Agreement dated August 12, 1994 between the
Company and Charles E. Clough.
11.01 Statement regarding Computation of Earnings Per Share and
Common Equivalent Share.
21.01 Subsidiaries of the Registrant.
23.01 Consent of Independent Accountants.
24.01 Powers of Attorney.
27.01 Financial Data Schedule.
(b) Reports on Form 8-K:
No reports on Form 8-K were filed or required to be filed by the
Company during the fourth quarter of the fiscal year ended December
31, 1994.
-40-
<PAGE> 42
SIGNATURES
Pursuant to the requirements of Section 13 of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
NASHUA CORPORATION
Date: March 28, 1995 By William Luke
---------------------------
William Luke
Vice President-Finance
and Chief Financial Officer
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
William E. Mitchell President and March 28, 1995
- --------------------
William E. Mitchell Chief Executive Officer
William Luke Vice President-Finance March 28, 1995
- --------------------
William Luke and Chief Financial Officer
Joseph R. Matson Corporate Controller and March 28, 1995
- --------------------
Joseph R. Matson Chief Accounting Officer
Joseph A. Baute* Director
- --------------------
Joseph A. Baute
Sheldon A. Buckler* Director
- --------------------
Sheldon A. Buckler
Richard E. Carter* Director
- --------------------
Richard E. Carter
Charles E. Clough* Director
- --------------------
Charles E. Clough
Thomas W. Eagar* Director
- --------------------
Thomas W. Eagar
John M. Kucharski* Director
- --------------------
John M. Kucharski
*By /s/ William Luke March 28, 1995
------------------
William Luke
Attorney-In-Fact
</TABLE>
-41-
<PAGE> 43
REPORT OF INDEPENDENT ACCOUNTANTS
ON FINANCIAL STATEMENT SCHEDULE
TO THE BOARD OF DIRECTORS OF
NASHUA CORPORATION
Our audits of the consolidated financial statements referred to in our report
dated February 1, 1995, appearing on page 36 of this Annual Report on Form
10-K also included an audit of the Financial Statement Schedule listed in Item
14(a) of this Form 10-K. In our opinion, the Financial Statement Schedule
presents fairly, in all material respects, the information set forth therein
when read in conjunction with the related consolidated financial statements.
Price Waterhouse LLP
Boston, Massachusetts
February 1, 1995
-42-
<PAGE> 44
SCHEDULE II
===========
<TABLE>
<CAPTION>
NASHUA CORPORATION AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
ALLOWANCE FOR DOUBTFUL ACCOUNTS
(In Thousands)
Deductions-
Additions Uncollectible
Balance at Charged to Accounts Balance at
Beginning Costs and Charged to End of
of Period Expenses Reserves Period
--------- ---------- ------------- ----------
<S> <C> <C> <C>
Year ended December 31, 1994 $1,883 $1,374 $ (629) $2,628
====== ====== ======= ======
Year ended December 31, 1993 $2,433 $ 836 $(1,386) $1,883
====== ====== ======= ======
Year ended December 31, 1992 $2,634 $ 654 $ (855) $2,433
====== ====== ======= ======
</TABLE>
<PAGE> 1
EXHIBIT 4.04
------------
AMENDMENT NO. 3 TO NOTE AGREEMENT
---------------------------------
THIS AGREEMENT, entered into as of May 12, 1994 by and between THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA ("Prudential") and NASHUA
CORPORATION (the "Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties hereto have executed and delivered that certain
Note Agreement, dated as of September 13, 1991 (the "Note Agreement");
WHEREAS, Prudential is the holder of 100% of the Notes issued under
the Note Agreement; and
WHEREAS, the parties hereto wish to amend certain terms of the Note
Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO THE NOTE AGREEMENT.
1.1 Paragraph 6H of the Note Agreement is hereby amended:
(a) to delete the word "and" at the end of clause (vii) thereof:
(b) to insert the following new clause (viii) immediately after
clause (vii) thereof:
"(vii) an Investment in a subordinated note with an
aggregate principal amount of up to $5,000,000 made in
connection with, and as a part of the consideration for, the
Transfer of the Property associated with the Company's 'computer
products segment' (such Investment referred to herein as the
'Transfer Investment'); and";
(c) to amend and renumber the existing clause (viii) to be
clause (ix) and to read in its entirety as follows:
"(ix) Investments not otherwise permitted by the
provisions of this paragraph 6H if, on the date of the making of
any such
1
<PAGE> 2
Investment, and after giving effect thereto,
(a) the aggregate cost of all Investments outstanding
on such date made pursuant to this paragraph 6H(ix), minus
(b) the net return of capital received by the Company
and the Subsidiaries on or prior to such date from all
Investments made pursuant to this paragraph 6H(ix) during
the period commencing on the Closing Date and ending on
such date,
would not exceed (X) 3% of Consolidated Tangible Net Worth
during any period in which the Company holds any amount of the
Transfer Investment and (Y) 5% of Consolidated Tangible Net
Worth at any time thereafter, in each case determined as of the
end of the fiscal quarter of the Company most recently ended as
of such date."
2. EFFECTIVE DATE. The terms of Section 1 of this Agreement shall be
effective as of March 31, 1994.
3. MISCELLANEOUS.
3.1 Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Note Agreement.
3.2 On and after the date hereof, each reference in the Note Agreement
and the Notes issued thereunder shall mean and be a reference to the Note
Agreement as amended by this Agreement.
3.3 The Note Agreement, as amended by this Agreement, is and shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed.
3.4 This Agreement may be executed in any number of counterparts and by
any combination of the parties hereto in separate counterparts, each of which
counterparts shall be an original and all of which taken together shall
constitute one and the same Agreement.
2
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to set their hands below as of the day and year first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Kevin Kraska
--------------------------
Title: Vice President
NASHUA CORPORATION
By: /s/ Daniel M. Junius
--------------------------
Title: Treasurer
3
<PAGE> 1
EXHIBIT 4.05
------------
AMENDMENT NO. 4 TO NOTE AGREEMENT
---------------------------------
THIS AGREEMENT, entered into as of December 31, 1994 by and between
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA ("Prudential") and NASHUA
CORPORATION (the "Company").
W I T N E S S E T H:
-------------------
WHEREAS, the parties hereto have executed and delivered that certain
Note Agreement, dated as of September 13, 1991 (the "Note Agreement");
WHEREAS, Prudential is the holder of 100% of the Notes issued under
the Note Agreement; and
WHEREAS, the parties hereto wish to amend certain terms of the Note
Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO THE NOTE AGREEMENT.
1.1 Paragraph 6B of the Note Agreement is hereby amended to read in
its entirety as follows:
"6B. FIXED-CHARGE COVERAGE RATIO. The Company will not
permit (i) sixty-six and two-thirds percent (66-/ /%) of
Consolidated Trailing Adjusted Cash Flow for any period of six
(6) consecutive fiscal quarters of the Company ending on any
date to be less than (ii) (a) one hundred forty percent (140%)
of Consolidated Fixed Charges for the period of four (4)
consecutive fiscal quarters of the Company ending on any such
date through and including March 31, 1995 or (b) two hundred
percent (200%) of Consolidated Fixed Charges for the period of
four (4) consecutive fiscal quarters of the Company ending on
any such date after March 31, 1995."
1
<PAGE> 2
1.2 Clause (i) of paragraph 6C of the Note Agreement is hereby amended
to read in its entirety as follows:
"(i) Consolidated Debt to be greater than (a) sixty percent (60%)
of Consolidated Tangible Gross Worth through December 31, 1995,
(b) fifty-five (55%) of Consolidated Tangible Gross Worth for the
period commencing January 1, 1996 through December 31, 1996
and (c) fifty percent (50%) thereafter;"
1.3 A new paragraph 6P is hereby added to the end of paragraph 6 of the
Note Agreement, which shall read in its entirety as follows:
"6P. CONSOLIDATED TANGIBLE NET WORTH. The Company will not
permit Consolidated Tangible Net Worth at any time to be less
than an amount equal to $51,000,000 plus the sum of (i) fifty
percent (50%) of Consolidated Net Income arising after December
31, 1994 and computed on a cumulative basis (without any
deduction, however, for any fiscal quarter for which
Consolidated Net Income is negative) through the end of the
fiscal quarter immediately preceding the date of determination
and (ii) the net proceeds paid to the Company of any offering of
any shares of capital stock of the Company (other than, in the
case of any preferred stock requiring mandatory redemption or
sinking fund payments prior to May 31, 1995, those shares which
are subject to such requirement) from December 31, 1994 and
through the end of the fiscal quarter immediately preceding the
date of determination (including any such proceeds derived from
the issuance of shares of capital stock of the Company (other
than, in the case of any preferred stock requiring mandatory
redemption or sinking fund payments prior to May 31, 1995, those
shares of which that are subject to such requirement) as a
result of the exercise of stock options of the Company or from
the conversion of debt securities of the Company)."
1.4 Clause (xi) of the definition of "Consolidated Net Income" in
paragraph 10B of the Note Agreement is hereby amended to read in its entirety
as follows:
"(xi) a one time charge appearing as a separate line item
on the Company's income statement as 'restructuring and other
charges' of up to $48,500,000 before income taxes of the Company
incurred in the fourth fiscal quarter of fiscal year 1993, a one
time charge appearing as a separate line item on the Company's
income statement as 'restructuring and other charges' of up to
$2,600,000 before income taxes of the Company incurred in the
first fiscal quarter of fiscal year 1994 and a one time charge
of up to $3,700,000 before income taxes of the Company relating
to losses from discontinued operations incurred in the first
fiscal quarter of fiscal year 1994."
2
<PAGE> 3
2. EFFECTIVENESS OF AGREEMENT. The terms of Section 1 of this
Agreement and the allonge (the form of which is attached hereto as Exhibit A,
the "Allonge") for the outstanding Note shall be deemed to be effective as of
December 31, 1994 upon the occurrence of (a) Prudential's receipt of a copy
hereof duly authorized, executed and delivered by the Company, (b) Prudential's
receipt of the duly authorirzed, executed and delivered Allonge, (c) the
acquisition by the Company on or before January 31, 1995 of certain assets of
Nexus Ltd. related to the photoprocessing business (the "Acquisition"), and (d)
simultaneously with the completion of the Acquisition, the payment by the
Company to Prudential of a fee, in immediately available funds, of $75,000 by
wire transfer to the following account:
Account No. 050-54-526
Morgan Guaranty Trust Company of New York
23 Wall Street
New York, New York 10015
(ABA No.: 021-000-238)
3. MISCELLANEOUS.
3.1 Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Note Agreement.
3.2 On and after the date hereof, each reference in the Note Agreement
and the Notes issued thereunder shall mean and be a reference to the Note
Agreement as amended by this Agreement.
3.3 The Note Agreement, as amended by this Agreement, is and shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed.
3.4 This Agreement may be executed in any number of counterparts and
by any combination of the parties hereto in separate counterparts, each of
which counterparts shall be an original and all of which taken together shall
constitute one and the same Agreement.
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to set their hands below as of the day and year first above
written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Kevin Kraska
-------------------------
Title: Vice President
NASHUA CORPORATION
By: /s/ Daniel M. Junius
-------------------------
Title: Treasurer
4
<PAGE> 1
EXHIBIT 4.06
------------
ALLONGE TO PRUDENTIAL PROMISSORY NOTE
THIS ALLONGE is attached to, made a part of and amends that certain
promissory note, No. R-1, dated September 17, 1991, entitled "NASHUA
CORPORATION 9.17% SENIOR NOTE DUE March 20, 2001" (the "Note"), in the
principal amount of $20,000,000 made by NASHUA CORPORATION, a Delaware
corporation (the "Company") to The Prudential Insurance Company of America
("Prudential").
WITNESSETH:
WHEREAS, the Company and Prudential desire to amend the interest
rate of the Note appearing in the heading and the first paragraph thereof:
NOW, THEREFORE, the Companies agree that:
(1) the heading and first sentence of the Note are each hereby amended
by deleting the reference to "9.17%" in the heading and clause (a) of the first
sentence thereof, and substituting a reference to "9.67%"; and
(2) the first sentence of the Note is hereby further amended by
deleting the reference to "11.17%" in the nineteenth line thereof, and
substituting a reference to "11.67%".
IN WITNESS WHEREOF, the Company has caused this Allonge to be executed
and delivered effective the 31st day of December, 1994, by an officer thereunto
validly authorized, and Prudential has accepted this Allonge and caused the
same to be attached to and become a part of the Note.
NASHUA CORPORATION
Suzane L. Ansara
Attest:_____________________________
By: /s/ Daniel M. Junius
---------------------
Name: Daniel M. Junius Name:
Title: Treasurer Title:
Accepted effective the
31st day of December, 1994.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
Kevin Kraska
By:________________________
Title: Second Vice President
<PAGE> 1
EXHIBIT 4.08
------------
________________________________________________________________________________
________________________________________________________________________________
$75,000,000
CREDIT AGREEMENT
among
NASHUA CORPORATION,
THE BANKS PARTIES HERETO
and
CHEMICAL BANK,
as Agent
Dated as of January 5, 1995
________________________________________________________________________________
________________________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2. THE COMMITTED RATE LOANS;
THE BID LOANS; AMOUNT AND TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.1 The Committed Rate Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Committed Rate Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3 Procedure for Committed Rate Loan Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.4 Conversion and Continuation Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.5 The Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.6 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.7 Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.8 Optional Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.9 Mandatory Prepayments and Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.10 Minimum Principal Amount and Maximum Number of Eurodollar Tranches . . . . . . . . . . . . . . . . . . 20
2.11 Loan Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.12 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.13 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.14 Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.15 Inability to Determine Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.16 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.17 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.18 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.19 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.20 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.21 Extension of Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.1 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.3 Corporate Existence; Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.4 Corporate Power; Authorization; Enforceable Obligations . . . . . . . . . . . . . . . . . . . . . . . 28
3.5 No Legal Bar; No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.6 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
3.7 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.8 Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.9 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.10 Nexus Acquisition Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.1 Conditions to Initial Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.2 Conditions to All Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.4 Conduct of Business and Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.6 Inspection of Property; Books and Records; Discussions . . . . . . . . . . . . . . . . . . . . . . . . 34
5.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 6. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.1 Financial Condition Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.2 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.3 Limitation on Consolidation, Merger and Dispositions
and Purchases of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.4 Limitation on Sale of Accounts Receivable, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.5 Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.6 Prohibition on Certain Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.7 No Modification of Insurance and Other Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.4 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.6 Non-Reliance on Agent and Other Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
8.8 Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.4 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.6 Successors and Assigns; Participations; Purchasing Banks . . . . . . . . . . . . . . . . . . . . . . . 47
9.7 Adjustments; Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.8 Independence of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.9 Table of Contents and Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.12 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.13 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.14 Submission to Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.15 Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
9.17 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
EXHIBITS:
A Form of Committed Rate Note
B Form of Grid Bid Loan Note
C Form of Individual Bid Loan Note
D Form of Committed Rate Borrowing Notice
E Form of Bid Loan Request
F Form of Bid Loan Offer
G Form of Bid Loan Confirmation
H-1 Form of Bid Loan Assignment
H-2 Form of Commitment Assignment
I Form of Officer's Certificate
J Form of Certificate of Assistant Secretary of the Company
K Form of Opinion of Counsel to the Company
L Form of Extension Request
iii
<PAGE> 5
SCHEDULES:
Page
----
1.1 Commitments
3.3 Subsidiaries
Schedule 3.3 has been omitted in accordance with SK-601(b)(2) and will be
submitted to the Commission upon request.
iv
<PAGE> 6
CREDIT AGREEMENT, dated as of January 5, 1995, among NASHUA
CORPORATION, a Delaware corporation (the "COMPANY"), the several banks parties
to this Agreement (collectively, the "Banks"; individually, a "BANK") and
CHEMICAL BANK, a New York banking corporation, as agent for the Banks hereunder
(in such capacity, the "Agent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company has requested the Banks to make loans to
it in an aggregate amount up to $75,000,000 at any one time outstanding as more
particularly described herein;
WHEREAS, the Banks are willing to make such loans on the terms
and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, terms defined
in the Preamble to this Agreement have the meanings therein indicated, and the
following terms have the following meanings:
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, a Person shall be deemed to be
"controlled by" a Person if such Person possesses, directly or
indirectly, power either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors of such
Person or (b) direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"AGREEMENT": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time in accordance with its terms.
"APPLICABLE MARGIN": the Applicable Margin shall be 0% for
all Reference Rate Loans and .75% for all Eurodollar Loans; PROVIDED,
on any day that the aggregate principal amount of the Committed Rate
Loans outstanding shall be in excess of 50% of the aggregate
Commitments on the date hereof, the Applicable Margin for all
Reference Rate Loans shall be .50% and the Applicable Margin for all
Eurodollar Loans shall be 1.125%.
"ASSET DISPOSITION": any transaction consisting of the sale,
lease, transfer or other disposition of assets (other than (i)
transactions between Subsidiaries or between the Company and a
Subsidiary, (ii) the sale of inventory in the ordinary course of
<PAGE> 7
2
business, (iii) repurchases by the Company of its own common stock and
(iv) the sale by the Company of its own equity securities) having a
book value at the time of such transaction equal to or greater than
$1,000,000. Any group of related sales, leases, transfers or other
dispositions shall be treated as one transaction for purposes of
determining whether the same is an Asset Disposition.
"BENEFITTED BANK": as defined in subsection 9.7.
"BID LOAN": each Bid Loan made pursuant to subsection 2.5;
the aggregate amount advanced by a Bank pursuant to subsection 2.5 on
each Bid Loan Date shall constitute one or more Bid Loans, as
specified by such Bank pursuant to subsection 2.5(b)(vii).
"BID LOAN ASSIGNEES": as defined in subsection 9.6(c).
"BID LOAN ASSIGNMENT": a Bid Loan Assignment, substantially
in the form of Exhibit H-1.
"BID LOAN CONFIRMATION": each confirmation by the Company of
its acceptance of Bid Loan Offers, which Bid Loan Confirmation shall
be substantially in the form of Exhibit G and shall be delivered to
the Agent in writing, by telex or by facsimile transmission.
"BID LOAN DATE": in respect of a Bid Loan, the day on which a
Bank makes such Bid Loan pursuant to subsection 2.5.
"BID LOAN OFFER": each offer by a Bank to make Bid Loans
pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the
information specified in Exhibit F and shall be delivered to the Agent
in writing, by telex or by facsimile transmission, or by telephone,
immediately confirmed by telex or facsimile transmission.
"BID LOAN REQUEST": each request by the Company for Banks to
submit bids to make Bid Loans, which shall contain the information in
respect of such requested Bid Loans specified in Exhibit E and shall
be delivered to the Agent in writing, by telex or facsimile
transmission, or by telephone, immediately confirmed by telex or
facsimile transmission.
"BID NOTES": the collective reference to the Grid Bid Loan
Notes and the Individual Bid Loan Notes; individually, a "Bid Note".
"BORROWING DATE": in respect of any Committed Rate Loan, the
date such Committed Rate Loan is made.
"BUSINESS DAY": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close; PROVIDED, HOWEVER, that the term "Business
Day" shall also exclude when used in
<PAGE> 8
3
connection with a Eurodollar Loan, any day on which commercial banks
are not open for dealing in Dollar deposits in the London interbank
market.
"CASH EQUIVALENTS": (i) securities issued or directly and
fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than
twelve months from the date of acquisition, (ii) time deposits and
certificates of deposit having maturities of not more than twelve
months from the date of acquisition of any Bank or of any domestic
commercial bank having capital and surplus in excess of $500,000,000
which has, or the holding company of which has, a commercial paper
rating meeting the requirements specified in clause (iv) below, (iii)
repurchase obligations with a term of not more than ten days for
underlying securities of the types described in clauses (i) and (ii)
entered into with any bank meeting the qualifications specified in
clause (ii) above, (iv) commercial paper rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or P-2 or the
equivalent thereof by Moody's Investors Service, Inc. and in either
case maturing within six months from the date of acquisition, (v)
auction rate preferred stock rated at least A3 or the equivalent
thereof by Standard & Poor's Corporation or A- or the equivalent
thereof by Moody's Investors Service, Inc., and (vi) floating rate tax
exempt bonds rated at least MIG1 or the equivalent thereof by Standard
& Poor's Corporation or SP1+ or the equivalent thereof by Moody's
Investors Service, Inc.
"CHEMICAL": Chemical Bank.
"CLOSING DATE": the date on which the conditions specified in
subsection 4.1 are satisfied in full.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT": as to any Bank on the Closing Date, the amount
set forth opposite such Bank's name on Schedule 1.1 hereto under the
caption "Commitment Amount", as such amount may from time to time be
reduced in accordance with this Agreement; collectively, as to all the
Banks, the "Commitments".
"COMMITMENT ASSIGNMENT": as defined is subsection 9.6(d).
"COMMITMENT PERCENTAGE": as to any Bank, the percentage of
the aggregate Commitments from time to time constituted by such Bank's
Commitment; collectively, as to all the Banks, the "Commitment
Percentages".
"COMMITMENT PERIOD": the period from and including the
Closing Date to but not including the Termination Date.
"COMMITTED RATE LOANS": Loans made pursuant to subsection 2.1.
"COMMITTED RATE NOTE": as defined in subsection 2.2;
collectively, the "COMMITTED RATE NOTES".
<PAGE> 9
4
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001 of ERISA.
"CONSOLIDATED CURRENT ASSETS": at any date, all amounts which
would, in conformity with GAAP, be included under current assets on a
consolidated balance sheet of the Company and its Subsidiaries at such
date.
"CONSOLIDATED CURRENT LIABILITIES": at a particular date, all
amounts which would, in conformity with GAAP, be included under
current liabilities on a consolidated balance sheet of the Company and
its Subsidiaries as at such date.
"CONSOLIDATED INTANGIBLES": at a particular date, all assets
of the Company and its Subsidiaries, determined on a consolidated
basis at such date, that would be classified as intangible assets in
accordance with GAAP, but in any event including, without limitation,
unamortized debt discount and expense, unamortized organization and
reorganization expense, patents, trade or service marks, franchises,
trade names, goodwill and the amount of any write-up in the book value
of any assets resulting from any revaluation thereof after April 1,
1994.
"CONSOLIDATED INTEREST COVERAGE RATIO": for any period, the
ratio of (a) the sum of (i) Consolidated Pre-tax Income for such
period and (ii) Consolidated Interest Expense for such period to (b)
Consolidated Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE": for any period, the amount
which, in conformity with GAAP, would be set forth opposite the
caption "interest expense" or any like caption on the consolidated
income statement of the Company and its Subsidiaries for such period.
"CONSOLIDATED NET INCOME": for any period, the consolidated
net income of the Company and its Subsidiaries for such period
determined in accordance with GAAP.
"CONSOLIDATED NET WORTH": at a particular date, all amounts
which would be included under shareholders' equity on a consolidated
balance sheet of the Company and its Subsidiaries determined in
accordance with GAAP as at such date (other than any amounts (whether
positive or negative) included therein in respect of cumulative effect
of foreign currency translation).
"CONSOLIDATED PRE-TAX INCOME": for any period which such
amount is being determined, the earnings from operations before taxes
based on income for such period as determined on a consolidated basis
for the Company and its consolidated Subsidiaries in accordance with
GAAP.
"CONSOLIDATED TANGIBLE NET WORTH": at a particular date, the
excess, if any, of Consolidated Net Worth over Consolidated
Intangibles as at such date.
<PAGE> 10
5
"CONTRACTUAL OBLIGATION": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"DEFAULT": any of the events specified in Section 7, whether
or not any requirement for the giving of notice or the lapse of time,
or both, or any other condition, has been satisfied.
"DOLLARS" and "$": dollars in lawful currency of the United
States of America.
"ELIGIBLE ASSIGNEE": any of (a) a commercial bank organized
under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of
$500,000,000; (b) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof or
the District of Columbia, and having a net worth of at least
$100,000,000, calculated in accordance with generally accepted
accounting principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having total assets in excess of
$1,000,000,000, PROVIDED that such bank is acting through a branch or
agency located in the country in which it is organized or another
country which is also a member of the OECD; and (d) the central bank
of any country which is a member of the OECD.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ESCROW ACCOUNT": shall mean the deposit accounts designated
in the Escrow Agreement.
"ESCROW AGREEMENT": the Escrow Agreement dated as of January
5, 1995 among the Company, the Agent and the Banks.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied
to a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements, if any, in
effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of
the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto),
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D
of such Board) maintained by a member bank of such System.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum at
which Chemical is offered Dollar deposits two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange
operations are customarily conducted at or about 10:00 A.M., New York
City time, for
<PAGE> 11
6
delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of
the Eurodollar Loan of Chemical to be outstanding during such Interest
Period.
"EURODOLLAR LOANS": Committed Rate Loans that bear interest
for the Interest Period applicable thereto at an interest rate based
on the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such Interest Period in accordance with the following
formula (rounded upwards to the nearest whole multiple of 1/100th of
one percent):
Eurodollar Base Rate
-------------------------------------
1.00 - Eurodollar Reserve Requirement
"EVENT OF DEFAULT": any of the events specified in Section 7;
PROVIDED, HOWEVER, that any requirement for the giving of notice or
the lapse of time, or both, or any other condition, has been
satisfied.
"EXTENSION REQUEST": each request by the Company made
pursuant to subsection 2.21 for the Banks to extend this Agreement,
which shall contain the information in respect of such extension
specified in Exhibit L and shall be delivered to the Agent in writing.
"FINANCIAL INDEBTEDNESS": shall mean (a) any loan, advance of
funds, overdraft, or other borrowing, (b) any obligation under leases,
conditional sale or other title retention agreements that, in
accordance with GAAP, are required to be capitalized, (c) any recourse
obligation of the seller protecting the buyer against credit risk in
connection with the sale of accounts receivable, leases, rental
agreements or other chattel paper, (d) any reimbursement obligation
not satisfied substantially contemporaneously with a drawing under any
letter of credit, (e) any other financial obligation evidenced by a
promissory note or similar instrument, (f) any Guaranty (excluding any
Guaranty of performance) of any of the foregoing, or (g) in the case
of any preferred stock requiring any mandatory redemption or sinking
fund payments prior to the Termination Date, those shares of which
that are subject to such requirement; in determining whether any of
the foregoing shall constitute Financial Indebtedness it shall be of
no consequence that such item does not appear on the liability side of
a balance sheet of such Person but instead appears on the asset side
of a balance sheet of such Person as a part of net assets of
discontinued businesses or of businesses held for sale.
"FINANCING LEASE": any obligation of a type described in
clause (b) of the definition of Financial Indebtedness.
"FUNDED DEBT": any obligations of a type described in clauses
(a), (b), (d) or (e) of the definition of Financial Indebtedness.
<PAGE> 12
7
"GAAP": generally accepted accounting principles in effect in
the United States of America on the date hereof.
"GOVERNMENTAL AUTHORITY": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GRID BID LOAN NOTE": as defined in subsection 2.5(b)(vi);
collectively, the "GRID BID LOAN NOTES".
"GUARANTY": as to any Person (the "GUARANTYING PERSON"), any
guaranty of indebtedness or other obligation of any other Person or
any assurance with respect to the financial condition of any other
Person (including, without limitation, any purchase or repurchase
agreement, any indemnity or any keep-well, take-or-pay, through-put or
other arrangement having the effect of assuring or holding harmless
any third Person against loss with respect to any obligation of such
other Person), but excluding (a) any agreement or arrangement under
which there is no obligation of the Guarantying Person with respect to
the indebtedness or other obligations of any other Person, except that
the Guarantying Person waives its right to receive or agrees not to
accept dividends, returns on capital or other payments from such other
Person, or concurs in such other Person's agreement not to pay such
amounts, in order to maintain the financial condition of such other
Person to induce the extension of credit to such other Person and (b)
endorsements of negotiable instruments for deposit or collection in
the ordinary course of business.
"INDIVIDUAL BID LOAN NOTE": as defined in subsection
2.5(b)(vi); collectively, the "INDIVIDUAL BID LOAN NOTES".
"INSOLVENCY": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INSURANCE AND OTHER DEBT": the indebtedness of the Company
to holders of the Company's 9.17% Senior Notes due 2001.
"INTEREST PAYMENT DATE": (a) as to any Reference Rate Loan,
the last day of each March, July, September and December to occur
while such Loan is outstanding, (b) as to any Eurodollar Loan in
respect of which the Company has selected an Interest Period of one,
two or three months, the last day of such Interest Period, and (c) as
to any Eurodollar Loan in respect of which the Company has selected an
Interest Period of six months, the date which is three (3) months from
the first day of such Interest Period and the last day of such
Interest Period.
"INTEREST PERIOD": (a) with respect to any Eurodollar Loan,
<PAGE> 13
8
(i) the period commencing on the Borrowing Date or
conversion date with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected
by the Company in its notice of borrowing or notice of
conversion as provided in subsections 2.3 and 2.4,
respectively; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan ending one, two, three or six months
thereafter, as selected by the Company by irrevocable notice
to the Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect
thereto;
(b) with respect to any Bid Loan, the period commencing on the Bid
Loan Date with respect to such Bid Loan and ending on the date not
less than 14 nor more than 180 days thereafter, as specified by the
Company in such Bid Loan Request;
PROVIDED that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(2) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;
(3) the Company shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan;
(4) if any Interest Period pertaining to a Bid Loan
would otherwise end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding
Business Day; and
(5) no Interest Period in respect of a Loan shall
extend beyond the Termination Date.
"LIEN": shall mean (a) any judgment lien or execution,
attachment, levy, distraint or similar legal process and (b) any
mortgage, pledge, hypothecation, assignment, lien, charge, encumbrance
or other security interest of any kind or nature whatsoever
(including, without limitation, the interest of the lessor under any
capital
<PAGE> 14
9
lease and the interest of the seller under any conditional sale or
other title retention agreement), which secures or purports to secure
any Financial Indebtedness.
"LOANS": the collective reference to the Committed Rate Loans
and the Bid Loans.
"MAJORITY BANKS": Banks whose Commitment Percentages
aggregate at least 50.1%.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET PROCEEDS" shall mean, with respect to any Net Proceeds
Event, (a) the gross cash consideration, and all cash proceeds (as and
when received) of non-cash consideration (including, without
limitation, any such cash proceeds in the nature of principal and
interest payments on account of promissory notes or similar
obligations), received by the Company and its Subsidiaries in
connection with such Net Proceeds Event, MINUS (b) the sum, without
duplication, of:
(i) for all Net Proceeds Events contemplated by
clause (b) of the definition of such term, any taxes which are
paid or actually payable to any federal, state, local or
foreign taxing authority during the then current or next
fiscal year by the Company and its Subsidiaries and are
directly attributable to the receipt of such Net Proceeds;
(ii) the amount of reasonable and customary fees and
commissions (including reasonable investment banking fees),
legal, accounting, consulting, survey, title and recording tax
expenses and other costs and expenses directly incident to
such Net Proceeds Event which are paid or payable by the
Company and its Subsidiaries, other than fees and commissions
(including, without limitation, consulting and financial
services fees) paid or payable to Affiliates and Subsidiaries
of the Company (or officers or employees of the Company or any
of its Affiliates or Subsidiaries); and
(iii) for all Net Proceeds Events contemplated by
clause (b) of the definition of such term, the amount of
liabilities (other than intercompany liabilities or
liabilities owing to any Affiliate or Subsidiary of the
Company), if any, which are required to be repaid by the
Company or any of its Subsidiaries at the time or as a result
of such Net Proceeds Event.
"NET PROCEEDS EVENT": shall mean (a) the incurrence by the
Company or any of its Subsidiaries of any obligations of the type
described in clauses (a) and (e) of Financial Indebtedness in excess
of $5,000,000 in any fiscal year; provided that, the incurrence of
debt under this Agreement and of up to an additional $10,000,000 at
any time under overdraft lines in the ordinary course of business
shall not be considered a
<PAGE> 15
10
Net Proceeds Event and (b) any Asset Disposition by the Company or any
of its Subsidiaries in excess of $4,000,000 in any fiscal year;
"NEXUS ACQUISITION": shall mean the acquisition by the
Company of certain assets and stock of Nexus Photo Limited pursuant to
the Nexus Acquisition Documents.
"NEXUS ACQUISITION DOCUMENTS": shall mean (i) the Agreement
For the Sale and Purchase of the Northern Ireland Business and European
Direct Mail Services Business of Nexus Photo Limited dated as of
January , 1995 among Nexus Photo Limited, Nashua Photo Limited,
Nashua Nederland B.V., Nashua Photo Licensing Inc., Nashua
Corporation, Nashua Belmont Limited, Nashua Photo International
Investments, Inc. and Nashua Photo European Investments, Inc.
(including all exhibits, schedules and disclosure letters referred to
therein or delivered pursuant thereto), and (ii) the Share Transfer
Agreement among ColourCare International S.A., Nexus Photo Limited,
Nashua Photo International Investments, Inc. and Nashua Photo
European Investments, Inc. (including all exhibits, schedules and
disclosure letters referred to therein or delivered pursuant thereto)
as each may be amended, supplemented or otherwise modified from time
to time;
"NOTE PURCHASE AGREEMENTS": any Note Agreement related to the
Company's 9.17% Senior Notes due March 20, 2001, as amended by
Amendments Nos. 1 through 4 thereto;
"NOTES": the collective reference to the Committed Rate Notes
and the Bid Notes.
"OBJECTING BANK": as defined in subsection 2.21(a).
"OBLIGATIONS": all indebtedness, obligations and liabilities
of the Company to the Agent and/or any of the Banks incurred under or
arising out of or in connection with this Agreement and the Notes,
whether for principal, interest, fees, expenses or otherwise.
"PARTICIPANTS": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERSON": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"PLAN": at any particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Company or a
Commonly Controlled Entity is (or,
<PAGE> 16
11
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PRIOR CREDIT AGREEMENT": shall mean the Credit Agreement,
dated as of July 29, 1994, as amended, among the Company, the banks
parties thereto and Chemical, as Agent for such Banks.
"REFERENCE RATE": at any particular date, the higher of (a)
the rate of interest publicly announced by Chemical in New York, New
York from time to time as its reference rate and (b) 1/2% above the
rate set forth for such date opposite the caption "Federal Funds
(Effective)" in the weekly statistical release designated as "H.15
(519)", or any successor publication, published by the Board of
Governors of the Federal Reserve System. The reference rate is not
intended to be the lowest rate of interest charged by Chemical in
connection with extensions of credit to debtors.
"REFERENCE RATE LOANS": Committed Rate Loans that bear
interest at an interest rate based upon the Reference Rate.
"REGISTER": as defined in subsection 9.6(e).
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty-day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"REQUIREMENT OF LAW": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and each law, treaty, rule or regulation or
determination of an arbitrator or Governmental Authority, applicable
to or binding upon such Person or any of its property.
"RESPONSIBLE OFFICER": as to the Company, the Chairman, the
President, the Chief Financial Officer, the Treasurer or the
Controller.
"SINGLE EMPLOYER PLAN": any Plan which is an "employee
pension benefit plan" under ERISA and is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"SUBSIDIARY": as to any Person, (i) a corporation,
association, trust or other business entity of which shares of stock
having ordinary voting power (other than stock having such power only
by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation are at
the time owned, or the management of which is otherwise controlled,
directly or indirectly
<PAGE> 17
12
through one or more intermediaries, or both, by such Person and (ii)
any partnership of which such Person or any Subsidiary is a general
partner or any partnership more than 50% of the equity interests of
which are owned, directly or indirectly, by such Person or by one or
more other Subsidiaries, or by such Person and one or more other
Subsidiaries. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"TERMINATION DATE": December 31, 1997 or such later date as
shall be determined pursuant to subsection 2.21 with respect to
non-Objecting Banks or such other date on which the Commitments shall
terminate in accordance with the provisions of this Agreement.
"TOTAL CAPITALIZATION": for any period, the sum of
Consolidated Net Worth and Funded Debt.
"TRANCHE": Eurodollar Loans the Interest Periods with respect
to all of which begin on the same date and end on the same later date
(whether or not such Loans shall have originally been made on the same
day). Tranches may be identified as Eurodollar Tranches.
"TRANSFEREES": as defined in subsection 9.6(g).
"TRANSFER EFFECTIVE DATE": as defined in each Commitment
Assignment and each Bid Loan Assignment.
"TYPE": as to any Committed Rate Loan, its nature as a
Reference Rate Loan or Eurodollar Loan, as the case may be.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) As used herein,
accounting terms not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified. The meaning of defined terms shall be equally applicable
to the singular and plural forms of the defined terms.
SECTION 2. THE COMMITTED RATE LOANS; THE BID
LOANS; AMOUNT AND TERMS
2.1 THE COMMITTED RATE LOANS. (a) During the Commitment
Period, subject to the terms and conditions hereof, each Bank severally agrees
to make loans (individually, a "COMMITTED RATE LOAN"; collectively, the
"COMMITTED RATE LOANS") to the Company from
<PAGE> 18
13
time to time in an aggregate principal amount at any one time outstanding not
to exceed such Bank's Commitment, PROVIDED that no Committed Rate Loan shall be
made hereunder if after giving effect thereto the aggregate principal amount of
all outstanding Loans would exceed the aggregate amount of the Commitments then
in effect. During the Commitment Period, the Company may use the Commitments
by borrowing, repaying and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Committed Rate Loans may be either (i) Eurodollar
Loans, (ii) Reference Rate Loans, or (iii) a combination thereof, as determined
by the Company and notified to the Agent in accordance with subsections 2.3 and
2.4, PROVIDED that no Committed Rate Loan shall be made as a Eurodollar Loan
after the date that is one month prior to the Termination Date.
(c) Upon the release of the funds deposited in the Escrow
Account pursuant to Section 3 of the Escrow Agreement, the Dollar amount
initially transferred by the Banks to the Escrow Account shall automatically be
deemed outstanding under this Agreement as Reference Rate Loans. For purposes
of calculating interest and commitment fees, such Loans shall be deemed to have
been outstanding from the date the funds were deposited by the Banks in the
Escrow Account.
2.2 COMMITTED RATE NOTES. Committed Rate Loans made by each
Bank shall be evidenced by a promissory note of the Company, substantially in
the form of Exhibit A with appropriate insertions (a "COMMITTED RATE NOTE"),
payable to the order of such Bank and representing the obligation of the
Company to pay the lesser of (a) the amount of the initial Commitment of such
Bank and (b) the aggregate unpaid principal amount of all Committed Rate Loans
made by such Bank to the Company. Each Bank is hereby authorized to record the
date, Type and amount of each Committed Rate Loan made by such Bank, the
maturity date thereof, the date and amount of each payment or prepayment of
principal thereof and the interest rate with respect thereto on the schedule
annexed to and constituting a part of its Committed Rate Note, and any such
recordation shall constitute PRIMA FACIE evidence of the accuracy of the
information so recorded; PROVIDED, HOWEVER, that the failure to make any such
recordation shall not affect the obligations of the Company hereunder or under
such Committed Rate Note. Each Committed Rate Note shall (i) be dated the
Closing Date, (ii) be stated to mature on the Termination Date, and (iii) bear
interest for the period from the Borrowing Date thereof until payment in full
on the unpaid principal amount thereof from time to time outstanding at the
applicable interest rate per annum determined as provided in subsection 2.11.
2.3 PROCEDURE FOR COMMITTED RATE LOAN BORROWING. Subject to
the terms and conditions of this Agreement, the Company may borrow Committed
Rate Loans during the Commitment Period on any Business Day PROVIDED, HOWEVER,
that the Company shall give the Agent irrevocable notice thereof (which notice
must be received by the Agent (i) prior to 12:00 Noon, New York City time,
three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, and (ii) prior to 11:00 A.M., New York City time, on the
requested Borrowing Date, in the case of Reference Rate Loans). Each such
notice shall be given in writing, by telex or by facsimile transmission
substantially in the form of Exhibit D (with appropriate insertions) or shall
be given by telephone (specifying the information set forth in Exhibit D)
promptly confirmed by notice given in writing, by telex or by facsimile
transmission substantially in the form of Exhibit
<PAGE> 19
14
D (with appropriate insertions). On the day of receipt of any such notice from
the Company, the Agent shall promptly notify each Bank thereof. Subject to
subsection 2.4 below, each Bank will make the amount of its share of each
borrowing available to the Agent for the account of the Company at the office
of the Agent set forth in subsection 9.2 at 11:00 A.M. (or 3:00 P.M., in the
case of Reference Rate Loans), New York City time, on the Borrowing Date
requested by the Company in funds immediately available to the Agent as the
Agent may direct. The proceeds of all such Committed Rate Loans will then be
made available to the Company by the Agent at the office of the Agent specified
in subsection 9.2 by crediting the account of the Company on the books of such
office of the Agent with the aggregate of the amount made available to the
Agent by the Banks and in like funds as received by the Agent.
2.4 CONVERSION AND CONTINUATION OPTIONS. (a) The Company
may elect from time to time to convert Eurodollar Loans to Reference Rate Loans
by giving the Agent prior irrevocable notice prior to 11:00 A.M. on any
Business Day of such election, PROVIDED that any such conversion of Eurodollar
Loans may only be made on the last day of an Interest Period with respect
thereto. The Company may elect from time to time to convert Reference Rate
Loans to Eurodollar Loans by giving the Agent at least three Business Days'
prior irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Agent shall
promptly notify each Bank thereof. All or any part of outstanding Eurodollar
Loans and Reference Rate Loans may be converted as provided herein, provided
that (i) no Reference Rate Loan may be converted into a Eurodollar Loan when
any Event of Default has occurred and is continuing and the Agent or the
Majority Banks have determined that such a conversion is not appropriate and
(ii) no Reference Rate Loan may be converted into a Eurodollar Loan after the
date that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Company giving notice to the Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, PROVIDED
that no Eurodollar Loan may be continued as such (i) when any Event of Default
has occurred and is continuing and the Agent or the Majority Banks have
determined that such a continuation is not appropriate, (ii) if, after giving
effect thereto, subsection 2.10 would be contravened or (iii) after the date
that is one month prior to the Termination Date; and PROVIDED, FURTHER, that if
the Company shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to Reference Rate Loans on
the last day of such then expiring Interest Period.
2.5 THE BID LOANS. (a) The Company may borrow Bid Loans
from time to time on any Business Day during the period from the Closing Date
until the date occurring 14 days prior to the Termination Date in the manner
set forth in this subsection 2.5 and in
<PAGE> 20
15
amounts such that the aggregate principal amount of all Loans at any time
outstanding shall not exceed the aggregate amount of the Commitments at such
time, PROVIDED, HOWEVER, that the aggregate principal amount of the outstanding
Bid Loans of a Bank may (but shall not be required to) exceed its Commitment.
(b)(i) The Company shall request Bid Loans by giving
telephone notice (to be immediately confirmed by delivering a Bid Loan Request)
to the Agent, not later than 10:30 A.M. (New York City time) one Business Day
prior to the proposed Bid Loan Date. Each Bid Loan Request may solicit bids
for Bid Loans in an aggregate principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and for not more than three
alternative Interest Periods for such Bid Loans. The Interest Period for each
Bid Loan shall end not less than 14 days nor more than 180 days after the Bid
Loan Date therefor (and in any event subject to the proviso to the definition
of "Interest Period" in subsection 1.1). The Agent shall promptly notify each
Bank by telex or facsimile transmission of the contents of each Bid Loan
Request received by it.
(ii) Upon receipt of notice from the Agent of the contents of
a Bid Loan Request, any Bank that elects, in its sole discretion, to do so,
shall irrevocably offer to make one or more Bid Loans at a rate or rates of
interest for each such Bid Loan determined by such Bank in its sole discretion.
Any such irrevocable offer shall be made by giving telephone notice (to be
immediately confirmed by delivering a Bid Loan Offer) to the Agent before 9:30
A.M. (New York City time) on the proposed Bid Loan Date, setting forth the
maximum amount of Bid Loans for each Interest Period, and the aggregate maximum
amount for all Interest Periods, which such Bank would be willing to make
(which amount may, subject to subsection 2.5(a), exceed such Bank's Commitment)
and the rate or rates of interest at which such Bank is willing to make each
such Bid Loan; the Agent shall advise the Company before 10:00 A.M. (New York
City time) on the proposed Bid Loan Date of the contents of each such Bid Loan
Offer received by it. If the Agent in its capacity as a Bank shall, in its
sole discretion, elect to make any such offer, it shall advise the Company of
the contents of its Bid Loan Offer before 9:15 A.M. (New York City time) on the
proposed Bid Loan Date.
(iii) The Company shall before 10:25 A.M. (New York City
time) on the proposed Bid Loan Date either, in its absolute discretion:
(A) cancel such Bid Loan Request by giving the Agent
telephone notice to that effect, or
(B) accept one or more of the offers made by any Bank or
Banks pursuant to clause (ii) above by giving telephone notice to the
Agent (to be immediately confirmed by delivery to the Agent of a Bid
Loan Confirmation) of the amount of Bid Loans for each relevant
Interest Period to be made by each Bank (which amount shall be equal
to or less than the maximum amount for such Interest Period specified
in the Bid Loan Offer of such Bank, and for all Interest Periods
included in such Bid Loan Offer shall be equal to or less than the
aggregate maximum amount specified in such Bid Loan Offer for all such
Interest Periods) and reject any remaining offers made by
<PAGE> 21
16
Banks pursuant to clause (ii) above; PROVIDED, HOWEVER, that (x) the
Company may not accept offers for Bid Loans for any Interest Period in
an aggregate principal amount in excess of the maximum principal
amount requested for such Interest Period in the related Bid Loan
Request, (y) if the Company accepts any of such offers, it must accept
offers strictly based upon pricing for such relevant Interest Period
and no other criteria whatsoever and (z) if two or more Banks submit
offers for any Interest Period at identical pricing and the Company
accepts any of such offers but does not wish to borrow the total
amount offered by such Banks with such identical pricing, the Company
shall accept offers from all of such Banks in amounts allocated among
thempro rata according to the amounts offered by such Banks (or as
nearly pro rata as shall be practicable, after giving effect to the
requirement that Bid Loans made by a Bank on a Bid Loan Date for each
relevant Interest Period shall be in a principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof, it being
agreed that to the extent that it is impossible to make allocations in
accordance with the provisions of this clause (B) such allocations
shall be made in accordance with the instructions of the Company).
(iv) If the Company notifies the Agent that a Bid Loan
Request is cancelled pursuant to clause (iii)(A) above, the Agent shall give
prompt telephone notice thereof to the Banks, and the Bid Loans requested
thereby shall not be made.
(v) If the Company accepts pursuant to clause (iii)(B) above
one or more of the offers made by any Bank or Banks, the Agent shall notify
each Bank which has made such an offer before 10:55 A.M. (New York City time)
on the Bid Loan Date of the aggregate amount of such Bid Loans to be made on
such Bid Loan Date for each Interest Period and of the acceptance or rejection
of any offers to make such Bid Loans made by such Bank. Each Bank which is to
make a Bid Loan shall, before 12:00 Noon (New York City time) on the Bid Loan
Date specified in the Bid Loan Request applicable thereto, make available to
the Agent at its office set forth in subsection 9.2 the amount of Bid Loans to
be made by such Bank, in immediately available funds. The Agent will make such
funds available to the Company as soon as practicable on such date at the
Agent's aforesaid address. As soon as practicable after each Bid Loan Date,
the Agent shall notify each Bank of the aggregate amount of Bid Loans advanced
on such Bid Loan Date, the respective Interest Periods therefor and the range
of bids received on such date.
(vi) Bid Loans made by each Bank shall be evidenced by a
promissory note of the Company substantially in the form of Exhibit B with
appropriate insertions (a "GRID BID LOAN NOTE") or (pursuant to the terms of
subsection 2.5(b)(vii)), by a promissory note of the Company in the form of
Exhibit C with appropriate insertions (an "INDIVIDUAL BID LOAN NOTE"). Each
Grid Bid Loan Note shall represent the obligation of the Company to pay the
lesser of (i) the Commitments, and (ii) the aggregate unpaid principal amount
of all Bid Loans made by such Bank (other than those evidenced by an Individual
Bid Loan Note) to the Company. Each Bank is hereby authorized to record the
date and amount of each Bid Loan made by such Bank, the maturity date thereof,
the date of payment thereof and the interest rate with respect thereto on the
schedule annexed to and constituting a part of its Grid Bid Loan Note, and any
such recordation shall constitute PRIMA FACIE evidence of the accuracy
<PAGE> 22
17
of the information so recorded; PROVIDED, HOWEVER, that the failure to make any
such recordation shall not affect the obligations of the Company hereunder or
under such Grid Bid Loan Note. Each Grid Bid Loan Note shall be dated the
Closing Date.
(vii) Amounts advanced by a Bank on a Bid Loan Date which
have the same Interest Period and interest rate shall be deemed to constitute
one Bid Loan so long as such amounts remain evidenced by the Grid Bid Loan Note
of such Bank. Any such Bank that wishes such amounts to constitute more than
one Bid Loan and to have each such Bid Loan evidenced by an Individual Bid Loan
Note shall notify the Agent and the Company by telex or facsimile transmission
of the respective principal amounts of the Bid Loans (which principal amounts
shall not be less than $5,000,000 for any of such Bid Loans) to be evidenced by
each such Individual Bid Loan Note. Not later than three Business Days after
receipt of such notice, the Company shall deliver to such Bank an Individual
Bid Loan Note payable to the order of such Bank in the principal amount of each
such Bid Loan and otherwise conforming to the requirements of this Agreement.
Upon receipt of such Individual Bid Loan Note, such Bank shall endorse on the
Schedule attached to its Grid Bid Loan Note the transfer of such Bid Loan from
such Grid Bid Loan Note to such Individual Bid Loan Note.
(c) Within the limits and on the conditions set forth in this
subsection 2.5, the Company may from time to time borrow under this subsection
2.5, repay pursuant to paragraph (d) below, and reborrow under this subsection
2.5.
(d) The Company shall repay to the Agent for the account of
each Bank which has made a Bid Loan (or the Bid Loan Assignee in respect
thereof, as the case may be) on the last day of the Interest Period for each
Bid Loan (such Interest Period being that specified by the Company for
repayment of such Bid Loan in the related Bid Loan Request) the then unpaid
principal amount of such Bid Loan. The Company shall not have the right to
prepay any principal amount of any Bid Loan.
(e) The Company shall pay interest on the unpaid principal
amount of each Bid Loan from the applicable Bid Loan Date to the stated
maturity date thereof, at the rate of interest determined pursuant to paragraph
(b) above (calculated on the basis of a 360 day year for actual days elapsed),
payable on the interest payment date or dates specified by the Company for such
Bid Loan in the related Bid Loan Request as provided in the Bid Note evidencing
such Bid Loan. If all or a portion of the principal amount of any Bid Loan
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue principal amount shall, without limiting any rights of
any Bank under this Agreement, bear interest from the date on which such
payment was due at a rate per annum which is 2% above the Reference Rate until
paid in full (as well after as before judgment).
2.6 FEES. (a) The Company agrees to pay to the Agent, for
the ratable accounts of the Banks based upon their respective Commitment
Percentages, a fee equal to .10% of the aggregate Commitments payable on the
Closing Date.
<PAGE> 23
18
(b) The Company agrees to pay to the Agent for the ratable
accounts of the Banks based upon their respective Commitment Percentages
commitment fees from and including the date hereof to but excluding the
Termination Date, payable quarterly in arrears on the last day of each March,
June, September and December and on the Termination Date (or such earlier date
on which the Commitments shall terminate as provided herein), commencing on the
first of such dates to occur after the date hereof, (i) computed at the rate of
.3125% per annum on each Bank's Commitment Percentage of the average daily
unused amount of the Commitments less the daily average principal amount of Bid
Loans outstanding during the period for which payment is being made, and (ii)
computed at the rate of .25% per annum on each Bank's Commitment Percentage of
the daily average principal amount of the Bid Loans outstanding during the
period for which payment is being made.
(c) The Company agrees to pay to the Agent the fees in the
amounts and on the dates specified in the letter agreement between them dated
December 22, 1994.
2.7 COMMITMENT REDUCTIONS. The Company shall have the right
to terminate or reduce the unused portion of the Commitments at any time or
from time to time on or prior to the Termination Date upon not less than five
Business Days' prior notice by the Company to the Agent (which shall notify the
Banks thereof as soon as practicable) of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any
such reduction (which shall be in a minimum amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof) and shall be irrevocable and
effective only upon receipt by the Agent, PROVIDED that no such reduction or
termination shall be permitted if after giving effect thereto, and to any
prepayments of the Committed Rate Loans made on the effective date thereof, the
then outstanding aggregate unpaid principal amount of all Loans would exceed
the amount of the Commitments then in effect.
(b) The Commitments once terminated or reduced pursuant to
this subsection 2.7 may not be reinstated.
2.8 OPTIONAL PREPAYMENT. The Company may, upon five Business
Days' irrevocable notice to the Agent (which shall notify the Banks thereof as
soon as practicable), prepay Committed Rate Loans. If any Committed Rate Loan
shall be prepaid on any day other than the last day of the Interest Period
applicable thereto, the Company shall, on the date of such payment, also pay
all interest accrued on such Loan to the date of such payment and all amounts
payable pursuant to subsection 2.18 in connection therewith.
2.9 MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS. (a)
Upon the occurrence of a Net Proceeds Event, the Company shall reduce the
Commitments by an amount equal to (i) in the case of a Net Proceeds Event
contemplated by clause (a) of the definition of such term, 100% of the Net
Proceeds thereof, within one Business Day following receipt thereof by the
Company or any of its Subsidiaries, and (ii) in the case of a Net Proceeds
Event contemplated by clause (b) of the definition of such term, 50% of the Net
Proceeds, effective not later than the first day of the tenth month following
such Asset Disposition; provided however, that to the extent the Net Proceeds
from any Asset Disposition are used prior to such date, to finance the
acquisition of the assets or capital stock of any
<PAGE> 24
19
entity in the same line of business as the Company or any of its Subsidiaries
which is not prohibited pursuant to the terms of this Agreement, no reduction
shall be required. Any reduction shall be accompanied by prepayment by the
Company of an amount equal to the excess, if any of the aggregate amount of
Loans then outstanding over the amount of the Commitments after giving effect
to such reduction and each such reduction shall permanently reduce the
Commitments then in effect.
(b) If, as a result of the making of any payment required to
be made pursuant to this subsection 2.9 the Company would incur costs pursuant
to subsection 2.18, it may deposit the amount of such payment with the Agent,
for the benefit of the Banks, in a cash collateral account, until the end of
the applicable Interest Period at which time such payment shall be made. The
Company hereby grants to the Agent, for the benefit of the Banks, a security
interest in all amounts from time to time on deposit in such cash collateral
account and expressly waive all rights (which rights the Company hereby
acknowledges and agrees are vested exclusively in the Agent) to exercise
dominion or control over any such amounts. Upon written instruction from the
Company, the Agent shall invest the funds on deposit in such cash collateral
account for the account of the Company in obligations issued or guaranteed by
the United States Government.
2.10 MINIMUM PRINCIPAL AMOUNT AND MAXIMUM NUMBER OF
EURODOLLAR TRANCHES. All borrowings, conversions, payments and prepayments in
respect of Committed Rate Loans shall be in such amounts and be made pursuant
to such elections so that after giving effect thereto each Eurodollar Tranche
shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof, and the number of Eurodollar Tranches shall not exceed five.
2.11 LOAN INTEREST RATES AND PAYMENT DATES. (a) The
Eurodollar Loans shall bear interest for the period from the date thereof until
the stated maturity thereof on the unpaid principal amount thereof at a rate
per annum equal to the Eurodollar Rate determined for the Interest Period
therefor plus the Applicable Margin.
(b) The Reference Rate Loans shall bear interest on the
unpaid principal amount thereof for each day during the period from the date
thereof until the payment in full thereof at a fluctuating rate per annum equal
to the Reference Rate for such day PLUS the Applicable Margin.
(c) If all or a portion of the principal amount of any of the
Loans shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue principal amount of such Loan and
unpaid interest accrued thereon (i) shall bear interest at a rate per annum
which is 2% above the Reference Rate, from the date when such amount is due
until the date on which such amount is paid in full and (ii) shall, if such
Loan is a Eurodollar Loan, be converted to a Reference Rate Loan at the end of
the Interest Period applicable thereto.
(d) Interest on each Committed Rate Loan shall be payable in
arrears on each Interest Payment Date.
<PAGE> 25
20
2.12 COMPUTATION OF INTEREST AND FEES. (a) Interest payable
hereunder with respect to Reference Rate Loans shall be calculated on the basis
of a year of 365/6 days for the actual days elapsed. All other fees, interest
and all other amounts payable hereunder shall be calculated on the basis of a
360 day year for the actual days elapsed. The Agent shall notify the Company
and the Banks of each determination of a Eurodollar Rate on the Business Day of
the determination thereof. Any change in the interest rate on a Committed Rate
Loan resulting from a change in the Applicable Margin, the Eurocurrency Reserve
Requirements, or the Reference Rate shall become effective as of the opening of
business on the day on which such Applicable Margin changes as provided herein
or such change in the Reserve Percentage, the Eurocurrency Reserve Requirements
or Reference Rate shall become effective. The Agent shall as soon as
practicable notify the Company and the Banks of the effective date and the
amount of each such change.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Banks in the absence of manifest error.
2.13 PRO RATA TREATMENT AND PAYMENTS. Each borrowing by the
Company of Committed Rate Loans and any reduction of the Commitments shall be
made PRO RATA according to the respective Commitment Percentages of the Banks.
Each payment by the Company under this Agreement or any Note shall be applied,
FIRST, to any fees then due and owing pursuant to subsection 2.6, SECOND, to
interest then due and owing by the Company in respect of the Notes and, THIRD,
to principal then due and owing by the Company hereunder and under the Notes.
Each payment by the Company on account of any fees pursuant to subsection 2.6
shall be made PRO RATA in accordance with the respective amounts due and owing.
Each payment (other than prepayments) by the Company on account of principal of
and interest on the Loans shall be made PRO RATA according to the respective
amounts due and owing by the Company. Each prepayment on account of principal
of the Loans shall be applied, FIRST, to the Committed Rate Loans, PRO RATA
according to the respective amounts outstanding of the Company and, SECOND, to
Bid Loans, PRO RATA according to the respective amounts outstanding of the
Company; PROVIDED, that nothing herein shall be deemed to permit optional
prepayments on account of Bid Loans. All payments (including prepayments) to
be made by the Company on account of principal, interest and fees shall be made
without setoff or counterclaim and shall be made to the Agent for the account
of the Banks at the Agent's office specified in subsection 9.2 in Dollars and
in immediately available funds. The Agent shall distribute such payments to
the Banks entitled thereto promptly upon receipt in like funds as received. If
any payment hereunder of fees or principal of or interest on Reference Rate
Loans or Bid Loans becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable during such
extension at the rate then applicable hereunder.
2.14 NON-RECEIPT OF FUNDS BY THE AGENT. (a) Unless the
Agent shall have been notified by a Bank prior to the date of the Committed
Rate Loan or Loans to be made by such Bank (which notice shall be effective as
to the Agent upon receipt) that such Bank does not intend to make the proceeds
of such Committed Rate Loan or Loans available to the
<PAGE> 26
21
Agent, the Agent may assume that such Bank has made such proceeds available to
the Agent on such date, and the Agent may in reliance upon such assumption (but
shall not be required to) make available to the Company a corresponding amount.
If such amount is made available to the Agent on a date after such Borrowing
Date, such Bank shall pay to the Agent on demand an amount equal to the product
of (i) the daily average federal funds rate during such period as quoted by the
Agent, times (ii) the amount of such Bank's Commitment Percentage of such
borrowing, times (iii) a fraction, the numerator of which is the number of days
that elapse from and including such Borrowing Date to the date on which such
Bank's Commitment Percentage of such borrowing shall have become immediately
available to the Agent and the denominator of which is 360. A certificate of
the Agent submitted to any Bank with respect to any amounts owing under this
subsection 2.14 shall be conclusive, absent manifest error. If such Bank's
Commitment Percentage is not in fact made available to the Agent by such Bank
within three Business Days of such Borrowing Date, the Agent shall as soon as
practicable thereafter notify the Company thereof, and the Agent shall be
entitled to recover such amount with interest thereon at the rate per annum
applicable to Reference Rate Loans hereunder, on demand, from the Company.
(b) Unless the Agent shall have been notified by the Company
prior to the date on which any payment is due from it hereunder (which notice
shall be effective upon receipt) that the Company does not intend to make such
payment, the Agent may assume that the Company has made such payment when due,
and the Agent may in reliance upon such assumption (but shall not be required
to) make available to each Bank on such payment date an amount equal to the
portion of such assumed payment to which such Bank is entitled hereunder, and
if the Company has not in fact made such payment to the Agent, such Bank shall,
on demand, repay to the Agent the amount made available to such Bank together
with interest thereon in respect of each day during the period commencing on
the date such amount was made available to such Bank and ending on (but
excluding) the date such Bank repays such amount to the Agent, at a rate per
annum equal to the Agent's cost of obtaining overnight funds in the federal
funds market in New York on each such day.
(c) A certificate of the Agent submitted to the Company or
any Bank with respect to any amount owing under this subsection shall be
conclusive absent manifest error.
2.15 INABILITY TO DETERMINE INTEREST RATE. Notwithstanding
any other provision of this Agreement, if (i) Chemical is not, for any reason
whatsoever, being quoted a rate referred to in the definition of Eurodollar
Base Rate or (ii) the Majority Banks shall determine (which determination shall
be conclusive) that the rate quoted by Chemical for the purpose of computing
the Eurodollar Base Rate does not adequately and fairly reflect the cost to
such Banks of funding Eurodollar Loans that the Company has requested be made
on a given Borrowing Date, the Agent shall forthwith give telex notice of such
determination, confirmed in writing, to the Company and the Banks at least two
Business Days prior to the requested Borrowing Date for such Eurodollar Loans.
Unless the Company shall have notified the Agent upon receipt of such telex or
telephone notice that it wishes to rescind or modify its request regarding such
Eurodollar Loans, any requested Eurodollar Loans shall be made as Reference
Rate Loans. Until any such notice has been withdrawn by the Agent, no further
Eurodollar Loans shall be made.
<PAGE> 27
22
2.16 ILLEGALITY. Notwithstanding any other provision of this
Agreement, if any Requirement of Law or any change therein or in the
interpretation or application thereof by the relevant Governmental Authority or
any Bank shall make it unlawful for such Bank to make Eurodollar Loans as
contemplated by this Agreement or to obtain in the interbank eurodollar market
the funds with which to make such Loans, (a) such Bank shall promptly notify
the Agent and the Company thereof, (b) the commitment of such Bank hereunder to
make Eurodollar Loans shall forthwith be cancelled and (c) such Bank's
Committed Rate Loans then outstanding as Eurodollar Loans, if any, shall be
repaid and reborrowed on the Interest Payment Date for such Loans, or within
such earlier period as required by law, as Reference Rate Loans. The Company
agrees promptly to pay any Bank, upon its demand, any additional amounts
necessary to compensate such Bank for actual and direct costs reasonably
incurred by such Bank in making any repayment in accordance with this
subsection 2.16 including, but not limited to, any interest or fees payable by
such Bank to lenders of funds obtained by it in order to make or maintain its
Eurodollar Loans hereunder. A certificate as to any additional amounts payable
pursuant to this subsection submitted by such Bank, through the Agent, to the
Company shall be conclusive in the absence of manifest error. Each Bank agrees
to use reasonable efforts to avoid or to minimize any amounts which may
otherwise be payable pursuant to this subsection; PROVIDED, HOWEVER, that such
efforts shall not cause the imposition on such Bank of any additional costs or
legal or regulatory burdens deemed by such Bank to be material.
2.17 REQUIREMENTS OF LAW. (a) In the event that any change
in any Requirement of Law or in the interpretation or application of any
Requirement of Law by the relevant Governmental Authority or any Bank after the
date hereof or compliance by any Bank with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) does or shall subject such Bank to any tax of any
kind whatsoever with respect to this Agreement, any Note or any
Eurodollar Loan made by it, or change the basis of taxation of
payments to such Bank of principal, fees, interest or any other amount
payable hereunder (except for taxes covered by subsection 2.19 and
changes in the rate of tax on the overall net income of such Bank);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other extensions of credit
extended by, or any other acquisition of funds by, any office of such
Bank which is not otherwise included in the determination of the
Eurodollar Rate hereunder;
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount which such Bank deems to be material, of making, converting into,
continuing or maintaining Loans or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, the Company agrees to promptly pay
such Bank, upon its demand, any additional amounts necessary to compensate such
Bank for such cost or reduced amount receivable. A
<PAGE> 28
23
certificate as to any additional amounts payable pursuant to this subsection
submitted by such Bank, through the Agent, to the Company shall be conclusive in
the absence of manifest error. Each Bank agrees to use reasonable efforts to
avoid or to minimize any amounts which might otherwise be payable pursuant to
this paragraph of this subsection; PROVIDED, HOWEVER, that such efforts shall
not cause the imposition on such Bank of any additional costs or legal or
regulatory burdens deemed by such Bank to be material.
(b) In the event that any Bank shall have determined that any
change in any Requirement of Law regarding capital adequacy, or any change in
the interpretation or application of any such Requirement of Law or compliance
by such Bank or any corporation controlling such Bank with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any central bank or Governmental Authority made subsequent to the date
hereof, does or shall have the effect of reducing the rate of return on such
Bank's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Bank or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's or such corporation's policies with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank, the Company agrees to pay to such Bank such
additional amount as shall be certified by such Bank as being required to
compensate it for such reduction.
(c) The agreements in this subsection shall survive the
termination of this Agreement and payment of the Notes and all other amounts
payable hereunder.
2.18 INDEMNITY. The Company hereby agrees to indemnify each
Bank and to hold such Bank harmless from any loss or expense which such Bank
may sustain or incur as a consequence of (a) default by the Company in payment
of the principal amount of or interest on any Eurodollar Loan by such Bank, (b)
default by the Company in making a borrowing after the Company has given a
notice in accordance with subsection 2.3 or a notice in accordance with
paragraph 2.5(b)(ii) which has not been revoked in accordance with clause
2.5(b)(iii)(A), (c) default by the Company in making any prepayment after the
Company has given a notice in accordance with subsection 2.8 and/or (d) the
making by the Company of a prepayment of a Eurodollar Loan on a day which is
not the last day of the Interest Period with respect thereto, in each case
including, but not limited to, any such loss or expense arising from interest
or fees payable by such Bank to lenders of funds obtained by it in order to
maintain its Loans hereunder. A certificate as to any additional amounts
payable pursuant to this subsection submitted by any Bank, through the Agent,
to the Company shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive termination of this Agreement and
payment of the Notes and all other amounts payable hereunder.
2.19 TAXES. (a) All payments made by the Company under this
Agreement and the Notes shall be made free and clear of, and without reduction
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding, in the case of the Agent and each Bank, net
<PAGE> 29
24
income and franchise taxes based upon net income imposed on the Agent or such
Bank, as the case may be, by the jurisdiction under the laws of which it is
organized or in which is located any office from or at which such Bank is
making or maintaining its Loan, or any political subdivision or taxing
authority thereof or therein, (all such non-excluded taxes, levies, imposts,
duties, deductions, charges, fees or withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Agent or any Bank hereunder or under the Notes, the amounts so payable to
the Agent or such Bank shall be increased to the extent necessary to yield to
the Agent or such Bank (after payment of all Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and the Notes. Whenever any Taxes are payable by the Company, as
promptly as possible thereafter, the Company shall send to the Agent, for its
own account or for the account of such Bank, as the case may be, a certified
copy of an original official receipt or other documentary evidence received by
the Company showing payment thereof. If the Company fails to pay any Taxes
when due to the appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, the Company shall
indemnify the Agent and the Banks for any incremental taxes, interest or
penalties that may become payable by the Agent or any Bank as a result of any
such failure.
(b) Prior to the first Interest Payment Date each Bank that
is not incorporated under the laws of the United States of America or a state
thereof agrees that it will deliver to the Company and the Agent (i) two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224 or
successor applicable form, as the case may be, certifying in each case that
such Bank is entitled to receive payments under this Agreement and the Notes
payable to it, without deduction or withholding of any United States federal
income taxes, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption from United
States backup withholding tax. Each Bank which delivers to the Company and the
Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant to the next preceding
sentence further undertakes to deliver to the Company and the Agent two further
copies of the said letter and Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms, or other manner of certification, as the case may
be, on or before the date that any such letter or form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent letter and form previously delivered by it to the Company, and such
extensions or renewals thereof as may reasonably be requested by the Company,
certifying in the case of a Form 1001 or 4224 that such Bank is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless in any such cases an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such letter or form with respect
to it and such Bank advises the Company that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax, and in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax.
(c) Each Bank agrees to use reasonable efforts to avoid or to
minimize any amounts which might otherwise be payable pursuant to this
subsection; PROVIDED, HOWEVER,
<PAGE> 30
25
that such efforts shall not cause the imposition on such Bank of any additional
costs or legal or regulatory burdens deemed by such Bank to be material.
(d) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
2.20 USE OF PROCEEDS. The Company agrees that the proceeds
of the initial Loans shall be used to pay in full the Financial Indebtedness of
the Company outstanding on the Closing Date under the Prior Credit Agreement,
if any. The proceeds of subsequent Loans shall be used for working capital,
other general corporate purposes of the Company and the Nexus Acquisition.
2.21 EXTENSION OF TERMINATION DATE. (a) No later than one
year prior to the Termination Date then in effect, provided that no Default or
Event of Default shall have occurred and be continuing, the Company may request
an extension of such Termination Date by submitting to the Agent an Extension
Request containing the information in respect of such extension specified in
Exhibit L, which the Agent shall promptly furnish to each Bank. If the
Majority Banks shall approve in writing the extension of the Termination Date
requested in such Extension Request, the Termination Date shall automatically
and without any further action by any Person be extended for the period
specified in such Extension Request; PROVIDED that (i) each extension pursuant
to this subsection 2.21 shall be for a maximum of one year, (ii) after giving
effect to any extension, the Termination Date shall not be more than five years
after the date of such extension and (iii) the Commitment of any Bank which
does not consent in writing to such extension within 30 days of its receipt of
such Extension Request (an "OBJECTING BANK") shall, unless earlier terminated
in accordance with this Agreement, expire on the Termination Date in effect on
the date of such Extension Request. If, within 30 days of their receipt of an
Extension Request, the Majority Banks shall not approve in writing the
extension of the Termination Date requested in such Extension Request, the
Termination Date shall not be extended pursuant to such Extension Request. The
Agent shall promptly notify (y) the Banks and the Company of any extension of
the Termination Date pursuant to this subsection 2.21 and (z) the Company and
any other Bank of any Bank which becomes an Objecting Bank.
(b) Any Objecting Bank the Commitment of which shall expire
prior to any extended Termination Date shall, subject to subsection 2.21(c),
have its Committed Rate Loans prepaid in full on such expiration date, together
with accrued interest thereon, and shall have any accrued and unpaid commitment
fee and all other Obligations payable to it hereunder paid on the first date to
occur following such expiration date on which the fees referred to in
subsection 2.6(b) are payable to the non-Objecting Banks or, if such fees shall
be so payable on such expiration date, such unpaid commitment fee and
Obligations shall be paid on such expiration date.
(c) The Company shall have the right, so long as no Default
or Event of Default has occurred and is then continuing, upon giving notice to
the Agent and an Objecting Bank in accordance with subsection 2.8, to prepay in
full the Committed Rate Loans of such Objecting Bank, together with accrued
interest thereon, any accrued and unpaid
<PAGE> 31
26
commitment fee and all other Obligations payable to it hereunder and/or, upon
giving not less than three Business Days' notice to such Objecting Bank and the
Agent, to cancel the whole or part of the Commitment of such Objecting Bank.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make
the Loans herein provided for, the Company hereby represents and warrants to
the Agent and to each Bank that:
3.1 FINANCIAL CONDITION. (a) The audited consolidated
balance sheet of the Company and its consolidated Subsidiaries as at December
31, 1993 and the related audited consolidated statements of income and retained
earnings and of changes in cash flow for the year then ended, accompanied by
the opinions of Price Waterhouse dated February 1, 1994 and March 1, 1994,
copies of which have heretofore been furnished to each Bank, are complete and
correct and present fairly the consolidated financial condition of the Company
and its consolidated Subsidiaries as at such date, and the consolidated results
of their operations and changes in cash flow for the fiscal year then ended.
The unaudited consolidated balance sheet of the Company and its consolidated
Subsidiaries as at September 30, 1994 and the related unaudited consolidated
statements of income and of cash flows for the nine- month period ended on such
date, certified by a Responsible Officer, copies of which have heretofore been
furnished to each Bank, are complete and correct and present fairly the
consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the nine-month period then ended (subject
to normal year-end audit adjustments). All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the period involved
(except as disclosed therein).
3.2 NO CHANGE. Since September 30, 1994, there has been no
material adverse change in the business, operations, property or financial or
other condition of the Company and its Subsidiaries taken as a whole.
3.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Company
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except, in the case of clauses (c) or (d) above, to the extent that the
failure to comply therewith would not be reasonably likely, in the aggregate,
to have a material adverse effect on the business, operations, property or
financial or other condition of the Company and its Subsidiaries taken as a
whole. Schedule 3.3 correctly sets forth the
<PAGE> 32
27
ownership interests of the Company in each of its Subsidiaries and the Company
has no Subsidiary not shown on Schedule 3.3.
3.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The
Company has full power and authority and the legal right to make, deliver and
perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement. No consent or
authorization of, filing with or other act by or in respect of any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery or performance of this Agreement, or
the Notes or with the validity or enforceability of this Agreement or the Notes
against the Company. This Agreement has been duly executed and delivered on
behalf of the Company. This Agreement will constitute a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
The Company has full power and authority and the legal right to make, deliver
and perform the Notes and to borrow hereunder and has taken all necessary
action to authorize the borrowings contemplated by this Agreement on the terms
and conditions of this Agreement and the Notes and to authorize the execution,
delivery and performance of the Notes. On the Closing Date, each Committed
Rate Note and Grid Bid Loan Note, and on the date of delivery thereof, each
Individual Bid Loan Note, will have been duly executed and delivered on behalf
of the Company and will constitute a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 NO LEGAL BAR; NO DEFAULT. The execution, delivery
and performance of this Agreement and the Notes, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or any
Contractual Obligation of the Company or of any of its Subsidiaries and will
not result in, or require, the creation or imposition of any Lien on any of its
or their respective properties or revenues pursuant to any Requirement of Law
or Contractual Obligation. Neither the Company nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could be materially adverse to the business, operations, property
or financial or other condition of the Company and its Subsidiaries taken as a
whole. No Default or Event of Default has occurred and is continuing.
3.6 NO MATERIAL LITIGATION. No litigation, investigation
or proceeding of or before any arbitrator or Governmental Authority is pending
or, to the best knowledge of the Company threatened by or against the Company
or any of its Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to this Agreement or the Notes or any Loan or any
of the transactions contemplated hereby, or (b) which has any reasonable
likelihood of having a material adverse effect on the business, operations,
property or financial or other condition of the Company and its Subsidiaries
taken as a whole.
<PAGE> 33
28
3.7 INVESTMENT COMPANY ACT. The Company is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
3.8 FEDERAL REGULATIONS. No part of the proceeds of any
Loan hereunder will be used directly or indirectly for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation G,
T, U or X of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect.
3.9 ERISA. No Reportable Event has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code. The
present value of all benefit obligations under each Single Employer Plan
maintained by the Company or any Commonly Controlled Entity (based on those
assumptions used to fund the Plans) did not, as of the last annual valuation
date, exceed the value of the assets of each such Plan allocable to such
obligations by an amount in excess of $7,500,000. Neither the Company nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan and the liability to which the Company or any Commonly
Controlled Entity would become subject under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date hereof is not in
excess of $0. No such Multiemployer Plan is in Reorganization or Insolvent.
3.10 NEXUS ACQUISITION DOCUMENTS. As of the Closing Date the
Agent and each Bank has received complete and correct copies of each of the
Nexus Acquisition Documents (including, without limitation, all exhibits,
schedules and disclosure letters referred to therein or delivered pursuant
thereto) and all amendments thereto, waivers relating thereto and other side
letters or agreements affecting the terms thereof. Each Nexus Acquisition
Document to which the Company or any of its Subsidiaries is a party has been
duly executed and delivered by the Company or such Subsidiary, as the case may
be, and to the best knowledge of the Company and each of its Subsidiaries, each
Nexus Acquisition Document has been duly executed and delivered by the parties
thereto other than the Company and its Subsidiaries and is in full force and
effect. The representations and warranties of the Company and each of its
Subsidiaries contained in each Nexus Acquisition Document to which the Company
or such Subsidiary, as the case may be, is a party are true and correct in all
material respects on the date hereof and will be true and correct in all
material respects on the Closing Date, and the Agent and each Bank shall be
entitled to rely upon such representations and warranties with the same force
and effect as if they were incorporated in this Credit Agreement and made to
each Bank directly. To the best knowledge of the Company and each of its
Subsidiaries, the representations and warranties of each other party to each
Nexus Acquisition Document contained therein are true and correct in all
material respects on the date hereof and on the Closing Date as if made on and
as of the date hereof and the Closing Date, such knowledge qualification being
given only with respect to parties to the Nexus Acquisition Documents other
than the Company and its Subsidiaries.
<PAGE> 34
29
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO INITIAL LOANS. The obligation of each Bank
to make its initial Loan hereunder is subject to the satisfaction of the
following conditions precedent:
(a) EXECUTION OF AGREEMENT. The Agent shall have received
one or more counterparts of this Agreement, executed by a duly
authorized officer of each party hereto.
(b) NOTES. The Agent shall have received for the account of
each Bank a Committed Rate Note and a Grid Bid Loan Note from the
Company conforming to the requirements hereof and executed by a duly
authorized officer of the Company, and the Agent shall promptly
forward such Notes to the appropriate Banks.
(c) OFFICERS' CERTIFICATE. The Agent shall have received,
with a counterpart for each Bank, an Officers' Certificate of the
Company, dated the Closing Date, substantially in the form of Exhibit
I with appropriate insertions, executed by a Responsible Officer of
the Company.
(d) ASSISTANT SECRETARY'S CERTIFICATE. The Agent shall have
received, with a counterpart for each Bank, a certificate of the
Assistant Secretary of the Company dated the Closing Date,
substantially in the form of Exhibit J with appropriate insertions and
attachments.
(e) LEGAL OPINION OF COUNSEL TO THE COMPANY. The Agent shall
have received, with a copy for each Bank, an opinion of Paul Buffum,
Secretary and Counsel of the Company, dated the Closing Date and
addressed to the Agent and the Banks, substantially in the form of
Exhibit K. Such opinion shall also cover such other matters incident
to the transactions contemplated by this Agreement as the Agent shall
reasonably require.
(f) FEES. The Agent shall have received the fees to be
received on the Closing Date in connection with this Agreement.
(g) CONDITIONS PRECEDENT UNDER ESCROW AGREEMENT. The
conditions precedent in Section 2 of the Escrow Agreement shall have
been satisfied.
(h) ADDITIONAL MATTERS. All other documents and legal
matters in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Agent and
its counsel.
4.2 CONDITIONS TO ALL LOANS. The obligation of each Bank to
make any Loan to be made by it hereunder (including the initial Loan) is
subject to the satisfaction of the following conditions precedent on the date
of making such Loan:
<PAGE> 35
30
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Company herein or which are contained in any
certificate, document or financial or other statement furnished at any
time under or in connection herewith shall be correct on and as of the
date of such Loan as if made on and as of such date.
(b) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of
Default shall have occurred and be continuing on such date or after
giving effect to the Loan to be made on such date.
(c) ADDITIONAL CONDITIONS TO BID LOANS. If such Loan is made
pursuant to subsection 2.5, all conditions set forth in such
subsection shall have been satisfied.
Each acceptance by the Company of a Loan shall be deemed to
constitute a representation and warranty by the Company as of the date of such
Loan that the applicable conditions in paragraphs (a), (b) and (c) of this
subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid or any other amount
is owing to the Agent or any Bank hereunder, the Company shall and, in the case
of subsections 5.3, 5.4, 5.5 and 5.6, shall cause each of its Subsidiaries to:
5.1 FINANCIAL STATEMENTS. Furnish to the Agent and each Bank:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and changes in cash flow
for such year, setting forth in each case in comparative form the
figures for the previous year, reported on without a "going concern"
or like qualification or exception, or qualification arising out of
the scope of the audit, by independent certified public accountants of
nationally recognized standing not unacceptable to the Banks;
(b) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of
each fiscal year of the Company, the unaudited consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end
of each such quarter and the related unaudited consolidated statements
of income and retained earnings of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year
through such date and cash flows of the Company and its consolidated
Subsidiaries for such date, setting forth in each case in comparative
form the figures for the previous year, certified by a Responsible
Officer (subject to normal year-end audit adjustments);
<PAGE> 36
31
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
approved by such accountants or officer, as the case may be, and disclosed
therein).
5.2 CERTIFICATES; OTHER INFORMATION. Furnish to each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a), (b), (c) and (d), a
certificate of a Responsible Officer stating that, to the best of such
officer's knowledge, the Company during such period has observed or
performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and in the Notes to be
observed, performed or satisfied by it, and that such officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate; each certificate delivered pursuant to
this subsection 5.2(a) shall be accompanied by a schedule setting
forth computations as of the date of the relevant financial statements
of each of the financial covenants specified in subsections 6.1(a)
through (d), 6.2 (stating the principal amount of indebtedness which
is secured by permitted Liens), 6.3, 6.4, and 6.5 and of the total
amount of Asset Dispositions made subsequent to July 1, 1994;
(b) within five Business Days after the same are sent,
copies of all financial statements and reports which the Company sends
to its stockholders, and within five days after the same are filed,
copies of all financial statements and reports which the Company may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
(c) promptly, such additional financial and other
information as any Bank may from time to time reasonably request.
5.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent and any
additional costs are imposed as a result thereof, as the case may be, all its
material obligations of whatever nature, except when the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries, as the case may be.
5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Continue to engage in business of the same general type as now conducted by the
Company and its Subsidiaries taken as a whole and preserve, renew and keep in
full force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges, licenses, qualifications, permits and
franchises necessary or desirable in the normal conduct of its businesses;
comply with all Contractual Obligations and Requirements of Law applicable to
it except to the extent that failure to comply therewith could not, in the
aggregate, have a material adverse effect on the business, operations, property
or financial or other condition of the Company and its Subsidiaries taken as a
whole and could not adversely affect the ability of the Company to perform its
obligations under this Agreement and the Notes.
<PAGE> 37
32
5.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep all
property useful and necessary in its business in good working order and
condition; maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least
such risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to each Bank, upon
written request, full information as to the insurance carried; PROVIDED,
HOWEVER, that the Company may maintain self insured plans to the extent
companies of similar size and in similar businesses do so.
5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS;
Discussions. Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit representatives of any Bank to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
during normal business hours and as often as may reasonably be desired, and to
discuss the business, operations, properties and financial and other condition
of the Company and its Subsidiaries with officers and employees of the Company
and its Subsidiaries and with its independent certified public accountants.
5.7 NOTICES. Promptly give notice to the Agent (which
shall promptly transmit such notice to each Bank):
(a) of the occurrence of any Event of Default or any
Default, such notice to be accompanied by a certificate of a
Responsible Officer specifying the nature of such event, the period of
existence thereof and what action the Company proposes to take with
respect thereto;
(b) of any (i) default or event of default under any
Contractual Obligation of the Company or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any
time between the Company or any of its Subsidiaries and any
Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, would have a material
adverse effect on the business, operations, property or financial or
other condition of the Company and its Subsidiaries taken as a whole
or would have an adverse effect on the ability of the Company to
perform its obligations under this Agreement and the Notes;
(c) of any material litigation or proceeding affecting
the Company or any of its Subsidiaries;
(d) of any material adverse change in the business,
operations, property or financial or other condition of the Company
and its Subsidiaries taken as a whole or of any event which could
adversely affect the ability of the Company to perform its obligations
under this Agreement and the Notes.
<PAGE> 38
33
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company proposes to take with
respect thereto.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid or any other amount
is owing to the Agent or any Bank hereunder, the Company shall not, nor shall
it permit any of its Subsidiaries to, directly or indirectly:
6.1 FINANCIAL CONDITION COVENANTS.
(a) CONSOLIDATED INTEREST COVERAGE RATIO. At the last
day of each fiscal quarter, permit the Consolidated Interest Coverage Ratio for
the period of four consecutive fiscal quarters ending on such day (or in the
case of December 31, 1994 and March 31, 1995, the six- and nine-month periods,
respectively, ending on such dates) to be less than the ratio set forth below
opposite such quarter:
<TABLE>
<CAPTION>
Quarter Ratio
------- -----
<S> <C>
Fourth quarter 1994 3.00 to 1.00
First quarter 1995 2.50 to 1.00
Second quarter 1995 2.75 to 1.00
Third quarter 1995 and thereafter 3.00 to 1.00
</TABLE>
(b) CONSOLIDATED TANGIBLE NET WORTH. Permit Consolidated
Tangible Net Worth at any time to be less than an amount equal to $51,000,000
plus the sum of (i) 50% of Consolidated Net Income arising after December 31,
1994 and computed on a cumulative basis (without any deduction, however, for
any fiscal quarter for which Consolidated Net Income is negative) through the
end of the fiscal quarter immediately preceding the date of determination and
(ii) the net proceeds paid to the Company of any offering of any shares of
capital stock of the Company from the Closing Date and through the end of the
fiscal quarter immediately preceding the date of determination (including any
such proceeds derived from the issuance of shares of capital stock of the
Company as a result of the exercise of stock options of the Company or from the
conversion of debt securities of the Company).
(c) FUNDED DEBT TO TOTAL CAPITALIZATION. Permit the ratio of
Funded Debt to Total Capitalization to exceed 0.5 to 1 at any time.
6.2 LIENS. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except:
<PAGE> 39
34
(a) Liens for taxes not yet due or which are being
contested in good faith and by appropriate proceedings if adequate
reserves with respect thereto are maintained on the books of the
Company or its Subsidiaries, as the case may be, in accordance with
generally accepted accounting principles;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are
being contested in good faith and by appropriate proceedings;
(c) pledges or deposits in connection with workmen's
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, leases,
trade contracts (other than for borrowed money), statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the
businesses of the Company and its Subsidiaries;
(f) Liens in existence on the date hereof and which
secure obligations reflected in the financial statements referred to
in subsection 3.1;
(g) Liens on assets of Persons which become Subsidiaries
after the date of this Agreement; PROVIDED, HOWEVER, that such Liens
existed at the time the respective Persons became Subsidiaries and
were not created in anticipation thereof;
(h) Liens in respect of judgments or awards or in respect
of attachments (i) in an aggregate amount less than $250,000 that
remain in existence for a period of no more than 60 days after the
same shall have been created or (ii) which shall have been discharged,
stayed pending appeal or bonded within 5 Business Days after the
creation thereof and which shall, at the time, be contested in good
faith in appropriate proceedings;
(i) purchase money Liens (including the interest of
lessors under capital leases and of the seller under conditional sale
or other title retention agreements) securing Financial Indebtedness
of any type described in clause (a) or (b) of the definition of
Financial Indebtedness, or of the Company of the type described in
clause (f) of said definition incurred to finance the acquisition of a
capital asset after the Closing Date in accordance with the provisions
hereof, PROVIDED that the principal amount of such Financial
Indebtedness shall not exceed in any case the cost to the Company or
any Subsidiary of the real or personal property acquired and each such
<PAGE> 40
35
Lien shall cover only such real or personal property acquired, the
proceeds thereof, substitutions therefor and replacements thereof, the
land on which real property acquired is located, and improvements on
real property acquired which under law become part of such real
property;
(j) Liens on documents and goods in transit securing
Financial Indebtedness of the type described in clause (d) of the
definition of Financial Indebtedness in respect of commercial letters
of credit;
(k) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses paragraphs (a) through (j);
PROVIDED, HOWEVER, that the principal amount of Financial Indebtedness
secured thereby shall not exceed the principal amount of Financial
Indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Lien
shall be limited to all or a part of the property which secured the
Lien so extended, renewed or replaced (plus improvements on such
property); and
(l) Liens with respect to which the aggregate principal
amount of Financial Indebtedness secured thereby does not exceed
$500,000 at any time.
6.3 LIMITATION ON CONSOLIDATION, MERGER AND DISPOSITIONS
AND PURCHASES OF PROPERTY.
(a) Enter into any Asset Disposition if, after giving effect
to such Asset Disposition, the aggregate book value of all assets which are the
subject of Asset Dispositions subsequent to July 1, 1994 would exceed 20% of
the excess of consolidated total assets over goodwill, cash and Cash
Equivalents of the Company and its Subsidiaries as at the date of the most
recent quarter end for which financial statements shall have been delivered to
the Banks pursuant to subsection 5.1.
(b) Consolidate with or merge into any other Person or
permit any other Person to merge into or consolidate with it, except that (i) a
Subsidiary may merge into or consolidate with a wholly-owned Subsidiary, (ii)
the Company may merge into or consolidate with a wholly-owned Subsidiary,
PROVIDED, that the Company is the entity surviving such merger, (iii) another
Person may merge into a Subsidiary, PROVIDED that such Subsidiary shall be the
entity surviving such merger, and (iv) another Person may merge into the
Company, PROVIDED that the Company is the entity surviving such merger.
(c) Purchase any assets, including, without limitation,
any capital stock (other than common stock of the Company), but excluding
purchases of inventory in the ordinary course of business, in a transaction or
a series of related transactions, with an aggregate fair market value of
$25,000,000 or more over the term of this Agreement. The provisions in the
foregoing sentence shall not apply to the Nexus Acquisition.
<PAGE> 41
36
6.4 LIMITATION ON SALE OF ACCOUNTS RECEIVABLE, etc. Sell
or in any manner dispose of any accounts receivable or chattel paper, PROVIDED,
HOWEVER, that the Company or any Subsidiary may sell (a) delinquent accounts
receivable and chattel paper for the purposes of collection, and (b)
receivables that, at the time of sale, have a due date occurring one year or
longer from such time, provided that the cumulative amount of such receivables
sold subsequent to the date hereof pursuant to this clause (b) does not exceed
$10,000,000.
6.5 LIMITATION ON SALES AND LEASEBACKS. Directly or
indirectly become liable, as lessee or guarantor or other surety, with respect
to any lease of real or personal property, whether now owned or hereafter
acquired, (a) which is to be sold or transferred by the Company or any
Subsidiary, to any Person, or (b) which the Company or any Subsidiary intends
to use for substantially the same purpose as any other property which has been
or is to be sold or transferred by the Company or any Subsidiary to any Person
in connection with such lease, except that the Company or any Subsidiary may
become liable as such a lessee (or, in the case of the Company, as such a
guarantor or surety) (i) under any such lease representing Financial
Indebtedness described in clause (b) of the definition of Financial
Indebtedness, if after giving effect to such lease, the aggregate Financial
Indebtedness described in said clause (b) under such leases (other than the
leases described in subclause (ii) and (iii) below) does not exceed $5,000,000,
(ii) if such a lease is entered into with respect to a tax exempt financing of
such leased property, the Company or any such Subsidiary is required to enter
into such sale and leaseback in order to obtain such tax exemption, (iii) if
such lease is entered into with respect to a bona fide research and development
project and the aggregate Financial Indebtedness described in said clause (b)
of said definition under such leases relating to research and development does
not exceed $3,000,000, or (iv) if such sale and leaseback is entered into
within six months of (x) the acquisition date of such property or (y) the date
of completion of any material capital improvement on such property.
6.6 PROHIBITION ON CERTAIN LEASES. As lessee, to enter
into, or permit to remain in effect, any agreements to rent or lease any real
or personal property (exclusive of Financing Leases) having a remaining
committed term exceeding one year if the aggregate amount of rental obligations
to accrue during any period of twelve consecutive months under all such
agreements to which the Company or any Subsidiary is a party, as lessee, will
exceed the greater of $10,000,000 or 6% of Consolidated Tangible Net Worth (as
at the end of such period).
6.7 NO MODIFICATION OF INSURANCE AND OTHER DEBT. Amend
or modify the terms of any Note Purchase Agreement or any evidence of
indebtedness issued pursuant to any of them in such manner as to accelerate any
maturity of the Insurance and Other Debt or increase the interest rate,
premium, fees or other amounts payable thereon.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) (i) The Company shall fail to pay any principal on
any Note when due in accordance with the terms thereof or hereof on
the maturity date thereof; or (ii) the
<PAGE> 42
37
Company shall fail to pay any interest on any Note or any fee or other
Obligation payable hereunder when due in accordance with the terms
thereof or hereof and such failure shall continue unremedied for five
Business Days; or
(b) Any representation or warranty made or deemed made by
the Company herein or which is contained in any certificate, document
or financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect,
false or misleading in any material respect on or as of the date made
or deemed made; or
(c) The Company shall default in the observance or
performance of any agreement contained in Section 6 or in subsection
5.1 or 5.2 and such default in respect of subsection 5.1 or 5.2 shall
continue unremedied for a period of five Business Days; or
(d) The Company shall default in the observance or
performance of any other material agreement contained in this
Agreement, and such default shall continue unremedied for a period of
30 days; or
(e) The Company or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any of its
Financial Indebtedness (other than the Notes) having a principal
amount of at least $500,000 in the aggregate beyond the period of
grace, if any, provided in the instrument or agreement under which
such Financial Indebtedness was created; or (ii) default in the
observance or performance of any other agreement or condition relating
to such Financial Indebtedness having an unpaid principal amount of at
least $1,000,000 in the aggregate for the Company and its Subsidiaries
or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause,
or to permit the holder or holders of such Financial Indebtedness to
cause, with the giving of notice if required, such Financial
Indebtedness to become due prior to its stated maturity; or
(f)(i) The Company or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Company or any such
Subsidiary shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Company or any
such Subsidiary any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment and (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Company or any such
<PAGE> 43
38
Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry
of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Company or any such Subsidiary shall take
any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii),
or (iii) above; or
(g) One or more judgments or decrees shall be entered
against the Company or any of its Subsidiaries involving in the
aggregate a liability of $1,000,000 or more which is not paid or
covered by insurance and all such judgments or decrees (to the extent
they involve aggregate liability of $1,000,000 or more) (i) shall not
have been stayed or bonded pending appeal or (ii) shall not have been
vacated or discharged within 60 days from the entry thereof; or
(h)(i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA) shall exist with
respect to any Plan, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed to administer or to terminate, any Single
Employer Plan, which Reportable Event or institution of proceedings
is, in the reasonable opinion of the Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Company, any of its Subsidiaries or any Commonly
Controlled Entity shall withdraw from any Multiemployer Plan, or any
Multiemployer Plan to which the Company, any of its Subsidiaries or
any Commonly Controlled Entity contributes shall be terminated or
shall be in Reorganization or shall be Insolvent, or (vi) any other
event or condition shall occur or exist; and in each case in clauses
(i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could subject the Company or
any of its Subsidiaries to any tax, penalty or other liabilities under
ERISA which in the aggregate could be or are material in relation to
the business, operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above, automatically the Commitments
shall immediately terminate and the Loans (with accrued interest thereon), and
all other amounts owing under this Agreement and the Notes shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Majority Banks, the Agent may, or upon the request of the Majority Banks,
the Agent shall, by notice to the Company declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Majority Banks, the Agent may, or upon the
request of the Majority Banks, the Agent shall, by notice of default to the
Company, declare the Loans (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes to be due and payable
forthwith,
<PAGE> 44
39
whereupon the same shall immediately become due and payable. Except as
expressly provided above in this Section, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.
SECTION 8. THE AGENT
8.1 APPOINTMENT. Each Bank hereby irrevocably designates and
appoints Chemical Bank as the Agent of such Bank under this Agreement, and each
such Bank irrevocably authorizes Chemical Bank, as the Agent for such Bank, to
take such action on its behalf under the provisions of this Agreement and to
exercise such powers and perform such duties as are expressly delegated to the
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent.
8.2 DELEGATION OF DUTIES. The Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
8.3 EXCULPATORY PROVISIONS. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall
be (i) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct), or (ii) responsible in
any manner to any of the Banks for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained in this
Agreement or in any certificate, report, statement or other document referred
to or provided for in, or received by the Agent under or in connection with,
this Agreement or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, the Notes or for any failure
of the Company to perform its obligations hereunder. The Agent shall not be
under any obligation to any Bank to ascertain or to inquire as to the
observance or performance by the Company of any of the agreements contained in,
or conditions of, this Agreement, or to inspect the properties, books or
records of the Company.
8.4 RELIANCE BY AGENT. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless (a) a
written notice of assignment, negotiation or
<PAGE> 45
40
transfer thereof shall have been filed with the Agent and (b) the Agent shall
have received the written agreement of such assignee to be bound hereby as
fully and to the same extent as if such assignee were an original Bank party
hereto, in each case in form satisfactory to the Agent. The Agent shall be
fully justified in failing or refusing to take any action under this Agreement
unless it shall first receive such advice or concurrence of the Majority Banks
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Banks against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the Notes in accordance with a request of the Majority
Banks, and such request and any action taken or failure to act pursuant thereto
shall be binding upon all the Banks and all future holders of the Notes.
8.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received written notice from a Bank or the
Company referring to this Agreement, describing such Default of Event of
Default and stating that such notice is a "notice of default". In the event
that the Agent receives such a notice, the Agent shall give notice thereof to
the Banks. The Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Majority Banks except
as provided in Article VII; PROVIDED, HOWEVER, that unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
8.6 NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representation or warranty to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Company, shall be deemed to
constitute any representation or warranty by the Agent to any Bank. Each Bank
represents to the Agent that it has, independently and without reliance upon
the Agent or any other Bank, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also represents that it
will, independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Company. Except for notices, reports and other documents expressly required to
be furnished to the Banks by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of the Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
<PAGE> 46
41
8.7 INDEMNIFICATION. The Banks agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Company and
without limiting the obligation of the Company to do so), ratably according to
their respective Commitment Percentages, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Notes) be imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement, or any documents contemplated by
or referred to herein or the transactions contemplated hereby or any action
taken or omitted by the Agent under or in connection with any of the foregoing;
PROVIDED, HOWEVER, that no Bank shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the termination of this Agreement and payment of the
Notes and all other amounts payable hereunder.
8.8 AGENT IN ITS INDIVIDUAL CAPACITY. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Company as though the Agent were not the Agent
hereunder. With respect to its Loans made or renewed by it and any Note issued
to it, the Agent shall have the same rights and powers under this Agreement as
any Bank and may exercise the same as though it were not the Agent, and the
terms "Bank" and "Banks" shall include the Agent in its individual capacity.
8.9 SUCCESSOR AGENT. The Agent may resign as Agent upon 10
days' notice to the Company and the Banks. If the Agent shall resign as Agent
under this Agreement, then, the Majority Banks shall appoint from among the
Banks a successor agent for the Banks which successor agent shall be approved
by the Company, whereupon such successor agent shall succeed to the rights,
powers and duties of the Agent, and the term "Agent" shall mean such successor
agent effective upon its appointment, and the former Agent's rights, powers and
duties as Agent shall be terminated, without any other or further act or deed
on the part of such former Agent or any of the parties to this Agreement or any
holders of the Notes. After any retiring Agent's resignation hereunder as
Agent, the provisions of this subsection 8.9 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. Only with the prior written
consent of the Majority Banks may the Agent and the Company, from time to time,
enter into written amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Agreement or the Notes or changing in
any manner the rights of the Banks or the Company hereunder or thereunder, and
only with the prior written consent of the Majority Banks may the Agent enter
into instruments waiving, on such terms and conditions as the Agent may specify
in such instruments, any of the requirements of this Agreement or the Notes or
any Default or Event of Default and its consequences; PROVIDED, HOWEVER, that
no such waiver and no such amendment, supplement or modification shall directly
(a) extend the
<PAGE> 47
42
maturity of any Loan, or reduce the rate or extend the time of payment of
interest thereon, or reduce any fee payable to the Banks hereunder, or forgive
the principal amount thereof, or increase the amount of any Bank's Commitment
or amend, modify or waive any provision of this subsection or reduce the
percentage specified in the definition of Majority Banks, or consent to the
assignment or transfer by the Company of any of its rights and obligations
under this Agreement, in each case without the written consent of each Bank
affected thereby, or (b) amend, modify or waive any provision of Section 8
without the written consent of the then Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Banks
and shall be binding upon the Company, the Banks, the Agent and all future
holders of the Notes. In the case of any waiver, the Company, the Banks and
the Agent shall be restored to their former positions and rights hereunder and
under the Notes, and any Default or Event of Default waived shall be deemed to
be cured and not continuing, but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.
9.2 NOTICES. Except as otherwise provided in Section 2, all
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing, and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or when
deposited in the mail, postage prepaid, or, in the case of telegraphic notice,
when delivered to the telegraph company, or, in the case of telex notice, when
sent, answerback received, or, in the case of facsimile transmission, when
received, addressed as follows in the case of the Company and the Agent, and as
set forth on the signature pages hereof in the case of the Banks, or to such
other address as may be hereafter notified by the respective parties hereto and
any future holders of the Notes:
The Company: NASHUA CORPORATION
44 Franklin Street
P.O. Box 2002
Nashua, New Hampshire 03061-2002
Telex: 94-3438
Answerback: NASHCORP
Telecopier: (603) 880-5860
Attention: Treasurer
The Agent: Chemical Bank
(For notices pursuant 270 Park Avenue
to subsection 2.2) New York, New York 10017
Attention: Owen Lake
Telecopier: (212) 622-0854
Telephone: (212) 622-0691
PROVIDED, HOWEVER, that any notice, request or demand to or upon the Agent or
the Banks pursuant to subsections 2.1, 2.3, 2.4, 2.5, 2.7 and 2.8 shall not be
effective until received.
<PAGE> 48
43
9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Agent or any Bank, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes and the making of
the Loans.
9.5 PAYMENT OF EXPENSES AND TAXES. The Company agrees (a) to
pay or reimburse the Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation, printing and
execution of, and any amendment, supplement or modification to, this Agreement
and the Notes and any other documents prepared in connection herewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agent, (b) to pay or reimburse each Bank and the Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes and any such other documents, including,
without limitation, fees and disbursements of counsel to the Agent and to the
several Banks, and (c) on demand, to pay, indemnify, and hold each Bank and the
Agent harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of
any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the Notes and any such other documents, and (d) to pay, indemnify,
and hold each Bank and the Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, out-of-pocket costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance
and administration of this Agreement, the Notes and any such other documents
(all the foregoing, collectively, the "INDEMNIFIED LIABILITIES"); PROVIDED,
however, that the Company shall not have any obligation hereunder with respect
to indemnified liabilities arising from (i) the gross negligence or willful
misconduct of the Agent or any such Bank, (ii) legal proceedings commenced
against any Bank by any security holder or creditor thereof arising out of and
based upon rights afforded such security holder or creditor solely in its
capacity as such or (iii) legal proceedings commenced against the Agent or any
Bank by any other Bank; PROVIDED, FURTHER, that except as provided in clause
(b) and (d) above, the Company is not obligated to pay the fees and
disbursements of any counsel other than that of the Agent. The agreements in
this subsection shall survive repayment of the Notes and all other amounts
payable hereunder.
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING BANKS.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, the Banks, the
<PAGE> 49
44
Agent, all future holders of the Notes and their respective successors and
assigns, except that the Company may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each
Bank.
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("PARTICIPANTS") participating interests in any
Loan owing to such Bank, any Note held by such Bank, any Commitment of such
Bank, or any other interest of such Bank hereunder. In the event of any such
sale by a Bank of participating interests to a Participant, such Bank's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Company and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. The Company agrees that if amounts
outstanding under this Agreement and the Notes are due and unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have, to the extent
permitted by applicable law, the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement or any Note; PROVIDED, that such
right of setoff shall be subject to the obligation of such Participant to share
with the Banks as provided in subsection 9.7. The Company also agrees that
each Participant shall be entitled to the benefits of subsections 2.20, 2.21,
2.22 and 9.5 with respect to its participation in the Commitments and the Loans
outstanding from time to time; PROVIDED, that no Participant shall be entitled
to receive any greater amount pursuant to such subsections than the transferor
Bank would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Bank to such Participant had no
such transfer occurred. Each Bank agrees that any agreement between such Bank
and any Participant in respect of such participating interest shall not
restrict such Bank's right to agree to any amendment, supplement or
modification to this Agreement except to extend the final maturity of any Note
or reduce the rate or extend the time of payment of interest thereon or reduce
the principal amount thereof or change the fees as set forth in subsection 2.6
hereof.
(c) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time assign to
one or more banks or other entities ("BID LOAN ASSIGNEE") any Bid Loan owing to
such Bank and any Individual Bid Loan Note held by such Bank evidencing such
Bid Loan, pursuant to a Bid Loan Assignment executed by the assignor Bank and
the Assignee. Upon such execution, from and after the Transfer Effective Date
specified in such Bid Loan Assignment, the Bid Loan Assignee shall, to the
extent of the assignment provided for in such Bid Loan Assignment and to the
extent permitted by applicable law, be deemed to have the same rights and
benefits with respect to such Bid Loans and Individual Bid Loan Note and the
same rights of setoff and obligation to share pursuant to subsection 9.7 as it
would have had if it were a Bank hereunder; PROVIDED that unless such Bid Loan
Assignment shall otherwise specify and a copy of such Bid Loan Assignment shall
have been delivered to the Agent for its acceptance and recording in the
Register in accordance with subsection 9.6(e), the as signor Bank shall act as
collection agent
<PAGE> 50
45
for the Bid Loan Assignee, and the Agent shall pay all amounts received from
the Company which are allocable to the assigned Bid Loan or Bid Note directly
to the assignor Bank without any further liability to the Bid Loan Assignee.
The Bid Loan Assignee shall not, by virtue of such Bid Loan Assignment, become
a party to this Agreement or have any rights to consent to or refrain from
consenting to any amendment, waiver or other modification of any provision of
this Agreement or any related document; PROVIDED that (x) the assignor Bank and
the Bid Loan Assignee may, in their discretion, agree between themselves upon
the manner in which the assignor Bank will exercise its rights under this
Agreement and any related document, and (y) if a copy of such Bid Loan
Assignment shall have been delivered to the Agent for its acceptance and
recording in the Register in accordance with subsection 9.6(f), neither the
principal amount of, the interest rate on, nor the maturity date of any Bid
Loan or Bid Note assigned to a Bid Loan Assignee will be modified without the
written consent of such Bid Loan Assignee.
(d) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law and with the approval of
the Company, which shall not be unreasonably withheld and upon notice to the
Agent, at any time sell to any Bank or any affiliate thereof, or to any
Eligible Assignee (a "PURCHASING BANK") all or any part, in an amount not less
than the lesser of (i) $5,000,000 and (ii) the remainder of the principal
amount then held by such Bank, of its rights and obligations under this
Agreement and the Committed Rate Notes (a "COMMITMENT ASSIGNMENT") pursuant to
a Commitment Assignment substantially in the form of Exhibit H-2, executed by
such Purchasing Bank, such transferor Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the Company and the
Agent) and delivered to the Agent for its acceptance and recording in the
Register. Upon such execution, delivery and recording and from and after the
Transfer Effective Date determined pursuant to such Commitment Assignment, (x)
the Purchasing Bank hereunder shall be a party hereto and, to the extent
provided in such Commitment Assignment, have the rights and obligations of a
Bank hereunder with a Commitment as set forth therein, and (y) the transferor
Bank thereunder shall, to the extent provided in such Commitment Assignment, be
released from its obligations under this Agreement (and, in the case of a
Commitment Assignment covering all or the remaining portion of a transferor
Bank's rights and obligations under this Agreement, such transferor Bank shall
cease to be a party hereto). Such Commitment Assignment shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Bank and the resulting adjustment of
Commitment Percentages arising from the purchase by such Purchasing Bank of all
or a portion of the rights and obligations of such transferor Bank under this
Agreement and the Committed Rate Notes. On or prior to the Transfer Effective
Date determined pursuant to such Commitment Assignment, the Company, at its own
expense, shall execute and deliver to the Agent in exchange for the surrendered
Committed Rate Note, to the order of such Purchasing Bank in an amount equal to
the Commitment assumed by it pursuant to such Commitment Assignment and, if the
transferor Bank has retained a Commitment hereunder, a new Committed Rate Note,
to the order of the transferor Bank in an amount equal to the Commitment
retained by it hereunder. Such new Committed Rate Notes, shall be dated the
Closing Date and shall otherwise be in the form of the Notes replaced thereby
and shall be given in substitution and extinguishment of, and not in
<PAGE> 51
46
repayment of, the Note replaced thereby. The Notes surrendered by the
transferor Bank shall be returned by the Agent to the Company marked
"cancelled".
(e) The Agent shall maintain at its address referred to in
subsection 9.2 a copy of each Bid Loan Assignment or Commitment Assignment
delivered to it and a register (the "REGISTER") for the recordation of (i) the
names and addresses of the Banks and the Commitment of, and principal amount of
the Loans owing to, each Bank from time to time, and (ii) with respect to each
Bid Loan Assignment delivered to the Agent, the name and address of the Bid
Loan Assignee and the principal amount of each Bid Loan owing to such Bid Loan
Assignee. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Agent and the Banks may treat each Person
whose name is recorded in the Register as the owner of the Loan recorded
therein for all purposes of this Agreement. The Register shall be available
for inspection by the Company or any Bank or Bid Loan Assignee at any
reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of a duly-executed Commitment
Assignment, together with payment to the Agent (by the assignor Bank or the
relevant assignee, as agreed between them) of a registration and processing fee
of $1,000, the Agent shall (i) accept such Commitment Assignment, (ii) record
the information contained therein in the Register and (iii) give prompt notice
of such acceptance and recordation to the assignor Bank, the assignee and the
Company.
(g) The Company authorizes each Bank to disclose to any
Participant or Purchasing Bank (each, a "TRANSFEREE") and any prospective
Transferee, subject to the provisions of Section 9.16, any and all information
in such Bank's possession concerning the Company and its Subsidiaries which has
been delivered to such Bank by or on behalf of the Company pursuant to this
Agreement or in connection with such Bank's credit evaluation of the Company
and its Subsidiaries prior to becoming a party to this Agreement.
(h) If, pursuant to this subsection, any interest on this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for
the benefit of the transferor Bank, the Agent and the Company) that under
applicable law and treaties no taxes will be required to be withheld by the
Agent, the Company or the transferor Bank with respect to any payments to be
made to such Transferee in respect of the Loans, (ii) to furnish to the
transferor Bank, the Agent and the Company either U.S. Internal Revenue Service
Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such Transferee
claims entitlement to complete exemption from U.S. federal withholding tax on
all interest payments hereunder) and (iii) to agree (for the benefit of the
transferor Bank, the Agent and the Company) to provide the transferor Bank, the
Agent and the Company a new Form 4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to
<PAGE> 52
47
time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
(i) Nothing herein shall prohibit any Bank from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
9.7 ADJUSTMENTS; SETOFF.
(a) Each Bank agrees that if any Bank (a "BENEFITTED BANK")
shall at any time receive any payment of all or part of its Committed Rate
Loans, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by setoff, pursuant to events or
proceedings of the nature referred to in clause (f) of Section 7, or otherwise)
in a greater proportion than any such payment to and collateral received by any
other Bank, if any, in respect of such other Bank's Committed Rate Loans, or
interest thereon, such Benefitted Bank shall purchase for cash from the other
Banks such portion of each such other Bank's Committed Rate Loan, or shall
provide such other Banks with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Bank to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Banks; PROVIDED, HOWEVER, that if all or any portion of such excess
payment or benefits is thereafter recovered by the Company or any third party
from such Benefitted Bank, such purchase by the other Banks shall be rescinded,
and the purchase price and benefits returned to the Benefitted Bank, to the
extent of such recovery, but without interest. The Company agrees that each
Bank so purchasing a portion of another Bank's Committed Rate Loan may exercise
all rights of payment (including without limitation rights of setoff) with
respect to such portion as fully as if such Bank were the direct holder of such
portion.
(b) In addition to any rights and remedies of the Banks
provided by law (including, without limitation, other rights of setoff), each
Bank shall have the right, without prior notice to the Company, any such notice
being expressly waived by the Company to the extent permitted by applicable
law, upon the occurrence and during the continuance of any Event of Default, to
set off and appropriate and apply any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect or contingent or matured or unmatured, at any time held or owing by
such Bank to or for the credit or the account of the Company, or any part
thereof in such amounts as such Bank may elect, against and on account of the
obligations and liabilities of the Company to such Bank hereunder and claims of
every nature and description of such Bank against the Company, in any currency,
whether arising hereunder, under the Notes or otherwise, as such Bank may
elect, whether or not such Bank has made any demand for payment and although
such obligations, liabilities and claims may be contingent or unmatured. Each
Bank agrees promptly to notify the Company and the Agent after any such setoff
and application made by such Bank; PROVIDED, HOWEVER, that the failure to give
such notice shall not affect the validity of such setoff and application.
9.8 INDEPENDENCE OF COVENANTS. All covenants hereunder
shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the
<PAGE> 53
48
limitations of, another covenant shall not avoid the occurrence of a Default or
Event of Default if such action is taken or such condition exists.
9.9 TABLE OF CONTENTS AND SECTION HEADINGS. The table of
contents and the Section and subsection headings herein are intended for
convenience only and shall be ignored in construing this Agreement.
9.10 COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Company and the Agent.
9.11 SEVERABILITY. Any provision hereof which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.12 INTEGRATION. This Agreement represents the agreement of
the parties hereto with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by any party hereto
relative to the subject matter hereof not expressly set forth or referred to
herein or in the Notes.
9.13 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
9.14 SUBMISSION TO JURISDICTION; WAIVERS. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating hereto and to the Notes, or for recognition and
enforcement of any judgment in respect thereof, to the nonexclusive
general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof,
(b) consents that any such action or proceeding may be
brought in such courts, and waives, to the maximum extent not
prohibited by law, any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court, or that
such action or proceeding was brought in an inconvenient court, and
agrees not to plead or claim the same;
<PAGE> 54
49
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form or mail), postage
prepaid, to the Company at its address set forth in subsection 9.2 or
at such other address of which the Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
9.15 ACKNOWLEDGMENTS. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery hereof and of the Notes;
(b) neither the Agent nor any Bank has any fiduciary
relationship to the Company in respect of this Agreement, the Loans
and the Notes, and the relationship between the Agent and the Banks,
on one hand, and the Company, on the other hand, in respect of this
Agreement, the Loans and the Notes is solely that of debtor and
creditor; and
(c) no joint venture exists among the Banks or among the
Company and the Banks.
9.16 CONFIDENTIALITY. Each Bank agrees to keep confidential
all information provided to it by the Company pursuant to this Agreement that
is not included in a report filed by the Company with the Securities and
Exchange Commission; PROVIDED that nothing herein shall prevent any Bank from
disclosing any such information (i) to the Agent or any other Bank, (ii) to any
Transferee which receives such information and agrees to be bound by these
confidentiality provisions, (iii) to its employees, directors, agents,
attorneys, accountants and other professional advisors, (iv) upon the request
or demand of any Governmental Authority having jurisdiction over such Bank, (v)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi) which has been
publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
9.17 WAIVERS OF JURY TRIAL. THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING HERETO, OR TO THE NOTES OR ANY OTHER LOAN DOCUMENT, AND FOR
ANY COUNTERCLAIM THEREIN.
<PAGE> 55
50
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York by its proper
and duly authorized officers as of the day and year first above written.
NASHUA CORPORATION
By: /s/ Daniel M. Junius
-------------------------
Name: Daniel M. Junius
Title: Treasurer
CHEMICAL BANK, as Agent and as a Bank
By: /s/ Jeffrey C. Howe
-------------------------
Name: Jeffrey C. Howe
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Thomas F. Farley, Jr.
-------------------------
Name: Thomas F. Farley, Jr.
Title: Director
BANK OF MONTREAL
By: /s/ Glen A. Pole
-------------------------
Name: Glen A. Pole
Title: Director
<PAGE> 56
<TABLE>
Caption>
SCHEDULE 1.1
------------
Initial Initial
Commitment Commitment
Amount Percentage
---------- ----------
<S> <C> <C>
Chemical Bank $25,000,000 33.33%
The First National
Bank of Boston $25,000,000 33.33%
Bank of Montreal $25,000,000 33.33%
----------- ------
Totals $75,000,000 100%
=========== ====
</TABLE>
<PAGE> 57
1
EXHIBIT A
---------
COMMITTED RATE
--------------
PROMISSORY NOTE
---------------
$__________
New York, New York
January 13, 1995
FOR VALUE RECEIVED, the undersigned, NASHUA CORPORATION,
hereby unconditionally promises to pay to the order of _______________ (the
"BANK") at the office of Chemical Bank located at 270 Park Avenue, New York,
New York 10017, in lawful money of the United States of America and in
immediately available funds, the principal amount of (a) __________
($__________), or, if less, (b) the aggregate unpaid principal amount of all
Committed Rate Loans made by the Bank to the undersigned pursuant to subsection
2.1 of the "Credit Agreement" hereinafter referred to on the Termination Date
as defined in the Credit Agreement. The undersigned further agrees to pay
interest in like money at such office on the unpaid principal amount hereof
and, to the extent permitted by law, accrued interest in respect hereof from
time to time from the date hereof until payment in full of the principal amount
hereof and accrued interest hereon at the rates and on the dates set forth in
the Credit Agreement.
The holder of this Note is authorized to endorse the date and
amount of each loan pursuant to subsection 2.1 of the Credit Agreement and each
payment of principal with respect thereto and its character as a Eurodollar
Loan or a Reference Rate Loan on the schedule annexed hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, which endorsement shall constitute PRIMA FACIE evidence of the
accuracy of the information endorsed; PROVIDED, HOWEVER, that the failure to
make any such endorsement shall not affect the obligations of the undersigned
under this Note.
This Note is one of the Committed Rate Notes referred to in
the Credit Agreement dated as of January 5, 1995 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
undersigned, the Bank, the other banks parties thereto and Chemical Bank, as
Agent, and is entitled to the benefits thereof and is subject to mandatory
prepayment in whole or in part as provided therein.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
<PAGE> 58
2
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Terms defined in the Credit Agreement are used herein with
their defined meanings unless otherwise defined herein. This Note shall be
governed by, and construed and interpreted in accordance with, the law of the
State of New York.
NASHUA CORPORATION
By:_________________________
Name:
Title:
<PAGE> 59
SCHEDULE TO
COMMITTED
RATE NOTE
-----------
LOANS AND PAYMENTS OF PRINCIPAL
-------------------------------
<TABLE>
<CAPTION>
Date of
Transfer
Date Amount Interest to Indi-
of of Interest Payment Maturity Payment vidual Author-
Loan Loan Rate Dates Date Date Note ization
- ---- ------ -------- -------- -------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
</TABLE>
<PAGE> 60
EXHIBIT B
---------
[FORM OF GRID BID LOAN NOTE]
----------------------------
PROMISSORY NOTE
---------------
$75,000,000
New York, New York
January 13, 1995
FOR VALUE RECEIVED, the undersigned, NASHUA CORPORATION hereby
unconditionally promises to pay to the order of _________________________ (the
"BANK") at the office of Chemical Bank located at 270 Park Avenue, New York,
New York 10017, in lawful money of the United States of America and in
immediately available funds, the principal amount of (a) SEVENTY FIVE MILLION
DOLLARS ($75,000,000) or, if less, (b) the aggregate unpaid principal amount of
each Bid Loan which is (i) made by the Bank to the undersigned pursuant to
subsection 2.5 of the Credit Agreement hereinafter referred to and (ii) not
evidenced by an Individual Bid Loan Note executed and delivered by the
undersigned pursuant to subsection 2.5(b)(vii) of the Credit Agreement. The
principal amount of each Bid Loan evidenced hereby shall be payable on the
maturity date therefor set forth on the schedule annexed hereto and made a part
hereof or on a continuation thereof which shall be attached hereto and made a
part hereof (the "Grid"). The undersigned further agrees to pay interest in
like money at such office on the unpaid principal amount of each Bid Loan
evidenced hereby, at the rate per annum set forth in respect of such Bid Loan
on the Grid calculated on the basis of a year of 360 days and actual days
elapsed from the date of such Bid Loan until the due date thereof (whether at
the stated maturity, by acceleration or otherwise) and thereafter at the rates
determined in accordance with subsection 2.5(e) of the Credit Agreement.
Interest on each Bid Loan evidenced hereby shall be payable on the date or
dates set forth in respect of such Bid Loan on the Grid. Bid Loans evidenced
by this Note may not be prepaid.
The holder of this Note is authorized to endorse on the Grid
the date, amount, interest rate, interest payment dates and maturity date in
respect of each Bid Loan made pursuant to subsection 2.5 of the Credit
Agreement, each payment of principal with respect thereto and any transfer of
such Bid Loan from this Note to an Individual Bid Loan Note delivered to the
Bank pursuant to subsection 2.5(b)(vii) of the Credit Agreement, which
endorsement shall constitute PRIMA FACIE evidence of the accuracy of the
information endorsed; PROVIDED, HOWEVER, that the failure to make any such
endorsement shall not affect the obligations of the undersigned in respect of
such Bid Loan.
This Note is one of the Grid Bid Loan Notes referred to in the
Credit Agreement, dated as of January 5, 1995 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT") among the
undersigned, the Bank, the other banks parties thereto and Chemical Bank, as
Agent, and is entitled to the benefits thereof and is subject to mandatory
prepayment in whole or in part as provided therein.
<PAGE> 61
2
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notices of any kind.
Terms defined in the Credit Agreement are used herein with
their defined meanings unless otherwise defined herein. This Note shall be
governed by, and construed and interpreted in accordance with, the law of the
State of New York.
NASHUA CORPORATION
By:_________________________
Name:
Title:
<PAGE> 62
SCHEDULE OF BID LOANS
<TABLE>
<CAPTION>
Date of
Transfer
Date Amount Interest to Indi-
of of Interest Payment Maturity Payment vidual Author-
Loan Loan Rate Dates Date Date Note ization
- ---- ------ -------- -------- -------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
</TABLE>
<PAGE> 63
EXHIBIT C
---------
[FORM OF INDIVIDUAL BID LOAN NOTE]
NON-NEGOTIABLE BID NOTE
-----------------------
$__________
New York, New York
January __, 1995
FOR VALUE RECEIVED, the undersigned, NASHUA CORPORATION, a
Delaware corporation, hereby promises to pay on ________, 199_ to
_______________ at the office of Chemical Bank located at 270 Park Avenue, New
York, New York 10017, in lawful money of the United States of America and in
immediately available funds, the principal sum of __________ Dollars
($__________). The undersigned further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time from the
date hereof at the rate of __% per annum (calculated on the basis of a year of
360 days and actual days elapsed) until the due date hereof (whether at the
stated maturity, by acceleration, or otherwise) and thereafter at the rates
determined in accordance with subsection 2.5(e) of the Credit Agreement, dated
as of January 5, 1995 (as amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), among the undersigned, the Banks parties
thereto, and Chemical Bank, as Agent. Interest shall be payable on __________.
This Note may not be prepaid.
This Note is one of the Bid Notes referred to in, is subject
to and is entitled to the benefits of, the Credit Agreement, which Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement.
Terms defined in the Credit Agreement are used herein with
their defined meanings unless otherwise defined herein. This Note shall be
governed by and construed in accordance with the laws of the State of New York.
NASHUA CORPORATION
By:_________________________
Name:
Title:
<PAGE> 64
EXHIBIT D
---------
[FORM OF BORROWING NOTICE FOR COMMITTED RATE LOANS]
[Date]
Chemical Bank,
as Agent under the
Credit Agreement referred
to below
Gentlemen:
Pursuant to subsection 2.3 of the Credit Agreement (as the
same may be amended, supplemented or otherwise modified, the "CREDIT
AGREEMENT") dated as of January 5, 1995 among Nashua Corporation, the Banks
parties thereto and Chemical Bank, as Agent, the undersigned hereby requests
that the following Committed Rate Loans be made on [date] as follows:
(1). Total Amount of Committed Rate Loans . . . . . . . . . $__________
(2). Amount of (1) to be allocated to Eurodollar Loans . . . $__________
(3). Amount of (1) to be allocated to Reference Rate
Loans . . . . . . . . . . . . . . . . . . . . . . . . . $__________
(4). Interest Periods and amounts to be allocated thereto
in respect of Eurodollar Loans made on a given
Borrowing Date (amounts must total (2)):
(i) one month . . . . . . . . . . . . . . . . . . . $__________
(ii) two months . . . . . . . . . . . . . . . . . . . $__________
(iii) three months . . . . . . . . . . . . . . . . . . $__________
(iv) six months . . . . . . . . . . . . . . . . . . . $__________
Total Eurodollar Loans . . . . . . . . . . . . . . $__________
NOTE: EACH AMOUNT APPEARING IN LINES (2) AND (4) ABOVE MUST BE AT
LEAST EQUAL TO $5,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000
<PAGE> 65
2
Terms defined in the Credit Agreement shall have the same meanings when
used herein.
Very truly yours,
NASHUA CORPORATION
By:_________________________
Name:
Title:
<PAGE> 66
EXHIBIT E
---------
[FORM OF BID LOAN REQUEST]
_______________, 19__
Chemical Bank
as Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Credit Agreement, dated as
of January 5, 1995, among Nashua Corporation, the Banks named therein and
Chemical Bank, as Agent for such Banks (as the same may be amended,
supplemented or otherwise modified, the "CREDIT AGREEMENT"). Terms defined
in the Credit Agreement are used herein as therein defined.
This is a Bid Loan Request pursuant to subsection 2.5
of the Credit Agreement requesting quotes for the following Bid Loans:
Aggregate Principal Amount $_______ $_______ $_______
Bid Loan Date _______ _______ _______
Maturity Date _______ _______ _______
Interest Payment Dates _______ _______ _______
Interest Rate Basis 360 day year
Very truly yours,
NASHUA CORPORATION
By:________________________________
Name:
Title:
__________________
<PAGE> 67
2
Note: Pursuant to the Credit Agreement, a Bid Loan Request may be
transmitted in writing, by telex or by facsimile transmission, or by
telephone, immediately confirmed by telex or facsimile transmission.
In any case, a Bid Loan Request shall contain the information
specified in the second paragraph of this form.
<PAGE> 68
EXHIBIT F
[FORM OF BID LOAN OFFER]
_______________, 19__
Chemical Bank
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Credit Agreement, dated as
of January 5, 1995, among Nashua Corporation, the Banks named therein, and
Chemical Bank, as Agent (as the same may be amended, supplemented or otherwise
modified, the "CREDIT AGREEMENT"). Terms defined in the Credit Agreement are
used herein as therein defined.
In accordance with subsection 2.5 of the Credit
Agreement, the undersigned Bank offers to make Bid Loans thereunder in the
following amounts with the following maturity dates:
Bid Loan Date: __________, 19__
Aggregate Maximum Amount: $__________
<TABLE>
<S> <C> <C>
Maturity Date 1 ___: Maturity Date 2: ___: Maturity Date 3 ___:
- --------------- --------------- ---------------
Maximum Amount $___ Maximum Amount $___ Maximum Amount $___
Rate __ Amount $___ Rate __ Amount $___ Rate __ Amount $___
Rate __ Amount $___ Rate __ Amount $___ Rate __ Amount $___
</TABLE>
Very truly yours,
[NAME OF BIDDING BANK]
By:_________________________
Name:
Title:
Telephone No.:
Fax No:
<PAGE> 69
EXHIBIT G
---------
[FORM OF BID LOAN CONFIRMATION]
_______________, 19__
Chemical Bank
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Credit Agreement, dated as of January 5, 1995,
among the Nashua Corporation, the Banks named therein, and Chemical Bank, as
Agent (as the same may be amended, supplemented or otherwise modified, the
"CREDIT AGREEMENT"). Terms defined in the Credit Agreement are used herein as
therein defined.
In accordance with subsection 2.5 of the Credit Agreement, the
undersigned accepts and confirms the offers by Bid Loan Bank(s) to make Bid
Loans to the undersigned on __________, 19__ [Bid Loan Date] under said
subsection 2.5 in the (respective) amount(s) set forth on the attached list of
Bid Loan offered.
Very truly yours,
NASHUA CORPORATION
By:_________________________
Name:
Title:
[Company to attach Bid Loan offer list prepared by Agent with accepted amount
entered by the Company to right of each Bid Loan offer].
<PAGE> 70
EXHIBIT H-1
-----------
[FORM OF BID LOAN ASSIGNMENT]
BID LOAN ASSIGNMENT, dated as of the date set forth
in Item 1 of Schedule I hereto, among the Assignor Bank set forth in Item 2 of
Schedule I hereto (the "ASSIGNOR BANK"), the Bid Loan Assignee set forth in
Item 3 of Schedule I hereto (the "BID LOAN ASSIGNEE"), and Chemical Bank, as
agent for the Banks under the Credit Agreement described below (in such
capacity, the "AGENT").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, this Bid Loan Assignment is being executed
and delivered in accordance with subsection 9.6(c) of the Credit Agreement,
dated as of January 5, 1995, among Nashua Corporation (the "COMPANY"), the
Assignor Bank and the other Banks party thereto and the Agent (as from time to
time amended, supplemented or otherwise modified in accordance with the terms
thereof, the "CREDIT AGREEMENT"; terms defined therein being used herein as
therein defined); and
WHEREAS, the Assignor Bank has advanced to the
Company the Bid Loan described in Item 4 of Schedule I hereto (the "BID LOAN")
evidenced by the Bid Loan Note described in such Item 4 (the "BID NOTE"), and
the Assignor Bank is assigning the Bid Loan and the Bid Note to the Bid Loan
Assignee pursuant to this Bid Loan Assignment;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. The Assignor Bank acknowledges receipt from the Bid
Loan Assignee of an amount equal to the purchase price, as agreed between the
Assignor Bank and the Bid Loan Assignee, of the outstanding principal amount
of, and accrued interest on, the Bid Loan and the Bid Note. The Assignor Bank
hereby irrevocably sells, assigns and transfers to the Bid Loan Assignee
without recourse, representation or warranty, and the Bid Loan Assignee hereby
irrevocably purchases, takes and acquires from the Assignor Bank, the Bid Loan
and the Bid Note, together with all instruments, documents and collateral
security pertaining thereto. The Assignor Bank will deliver the Bid Note to
the Bid Loan Assignee promptly upon its receipt thereof from the Company in
accordance with subsection 2.5 of the Credit Agreement.
2. (a) From and after the date hereof (the "TRANSFER
EFFECTIVE DATE"), principal and interest that would otherwise be payable to or
for the account of the Assignor Bank pursuant to the Bid Loan and the Bid Note
shall, instead, be payable to or for the account of the Bid Loan Assignee,
whether such amounts have accrued prior to the Transfer Effective Date or
accrue subsequent to the Transfer Effective Date.
<PAGE> 71
2
(b) If Item 5 of Schedule I hereto contains payment
instructions for the Bid Loan Assignee and if the Bid Loan Assignee delivers a
copy of this Bid Loan Assignment to the Agent in accordance with subsection
9.6(e) of the Credit Agreement at least 5 Business Days prior to the due date
of any payment to the Bid Loan Assignee, the Bid Loan Assignee hereby instructs
the Agent to pay all such amounts payable to it pursuant to the provision of
subparagraph (a) of this paragraph 2, in accordance with such payment
instructions. If Item 5 of Schedule I hereto does not contain payment
instructions for the Bid Loan Assignee (or a copy hereof is not delivered to
the Agent as aforesaid), the Assignor Bank and the Bid Loan Assignee agree
that, notwithstanding the provisions of subparagraph (a) of this paragraph 2,
the Assignor Bank is hereby appointed by the Bid Loan Assignee as its
collection agent to receive from the Agent, for and on behalf of and for the
account of the Bid Loan Assignee, all amounts payable to or for the account of
the Bid Loan Assignee under the Bid Loan and the Bid Note; the Assignor Bank
will immediately pay over to the Bid Loan Assignee any such amounts received by
it, in like funds as received.
3. Each of the parties to this Bid Loan Assignment
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Bid Loan Assignment.
4. By executing and delivering this Bid Loan Assignment,
the Assignor Bank and the Bid Loan Assignee confirm to and agree with each
other and the Agent and the Banks as follows: (i) other than the representation
and warranty that it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim, the Assignor Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Notes or any
other instrument or document furnished pursuant thereto; (ii) the Assignor Bank
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Company or the performance or observance by
the Company of any of its obligations under the Credit Agreement, the Notes or
any other instrument or document furnished pursuant hereto; (iii) the Bid Loan
Assignee confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in subsection 3.1, the
financial statements delivered pursuant to subsection 5.1, if any, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Bid Loan Assignment; (iv) the
Bid Loan Assignee will, independently and without reliance upon the Agent, the
Assignor Bank or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in respect of the Credit Agreement; and (v) the Bid Loan Assignee
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, all in accordance with Section 8 of the Credit Agreement.
5. If the Bid Loan Assignee is organized under the laws
of any jurisdiction other than the United States or any State thereof, the Bid
Loan Assignee (i) represents to the
<PAGE> 72
3
Assignor Bank (for the benefit of the Assignor Bank, the Agent and the Company)
that under applicable law and treaties no taxes will be required to be withheld
by the Agent, the Company or the Assignor Bank with respect to any payments to
be made to the Bid Loan Assignee in respect of the Bid Loan, (ii) will furnish
to the Assignor Bank, the Agent and the Company, on or prior to the Transfer
Effective Date, (x) either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 or successor applicable form, as the case
may be, certifying in each case that the Bid Loan Assignee is entitled to
receive payments under the Bid Loan without deduction or withholding of any
United States federal income taxes, and (y) an Internal Revenue Service Form
W-8 or W-9 or successor applicable form, as the case may be, to establish an
exemption from United States backup withholding taxes, and (iii) agrees (for
the benefit of the Assignor Bank, the Agent and the Company) to provide the
Assignor Bank, the Agent and the Company a new Form 4224 or Form 1001 and Form
W-8 or W-9, or successor applicable forms, or other manner of certification, as
the case may be, on or before the date that any such letter or form expires or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent letter and form previously delivered by it to the Company, and such
extensions or renewals thereof as may reasonably be requested by the Company,
certifying in the case of a Form 1001 or 4224 that such Bid Loan Assignee is
entitled to receive payments under the Bid Loan without deduction or
withholding of any United States federal income taxes, unless in any such cases
an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent the Bid Loan Assignee from duly completing and delivering any such
letter or form with respect to it and such Bid Loan Assignee advises the
Assignor Bank, the Agent and the Company that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax, and in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax.
6. This Bid Loan Assignment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused
this Bid Loan Assignment to be executed by their respective duly authorized
officers on Schedule I hereto as of the date set forth in Item 1 of Schedule I
hereto.
<PAGE> 73
SCHEDULE I TO
BID LOAN
ASSIGNMENT
-------------
<TABLE>
<S> <C> <C>
Item 1 (Date of Assignment): [Insert date of Assignment]
Item 2 (Assignor Bank): [Insert name of Assignor Bank]
Item 3 (Assignee): [Insert name, address, telephone and telex
numbers and name of contact party of Assignee]
</TABLE>
Item 4 (Description of Loans):
a. Date of Loans and Note:
b. Principal Amounts of Loans and Note:
Item 5 (Payment Instructions): [Complete only if payments are to be made by
Agent to Assignee rather than to Assignor
Bank as collection agent for Assignee; leave
blank if Assignor Bank is to act as such
collection agent]
Item 6 (Signatures):
______________________, as
Assignor Bank
By:_________________________
Title:
______________________, as
Assignee
By:_________________________
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
CHEMICAL BANK, as Agent
By:_________________________
Title:
<PAGE> 74
EXHIBIT H-2
-----------
[FORM OF COMMITMENT ASSIGNMENT]
COMMITMENT ASSIGNMENT
---------------------
COMMITMENT ASSIGNMENT, dated as of the date set forth in Item
1 of Schedule I hereto, among the Assignor Bank set forth in Item 2 of Schedule
I hereto (the "ASSIGNOR BANK"), the Assignee set forth in Item 3 of Schedule I
hereto (the "ASSIGNEE"), and Chemical Bank, as agent for the Banks under the
Credit Agreement described below (in such capacity, the "AGENT").
W I T N E S E T H :
- - - - - - - - -
WHEREAS, this Commitment Assignment is being executed and
delivered in accordance with subsection 9.6(d) of the Credit Agreement, dated
as of January 5, 1995, among Nashua Corporation (the "COMPANY"), the Assignor
Bank and the other Banks party thereto and the Agent (as from time to time
amended, supplemented or otherwise modified in accordance with the terms
thereof, the "CREDIT AGREEMENT"; terms defined therein being used herein as
therein defined); and
WHEREAS, the Assignor Bank has advanced to the Company the
Committed Rate Loans described in Item 4 of Schedule I hereto (the "LOANS")
evidenced by the Committed Rate Notes, described in such Item 4 (the "NOTES"),
and the Assignor Bank is assigning the Loan and the Notes to the Committed Rate
Assignee pursuant to this Commitment Assignment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The Assignor Bank acknowledges receipt from the
Assignee of an amount equal to the purchase price, as agreed between the
Assignor Bank and the Assignee, of the outstanding principal amount of, and
accrued interest on, the Loans and the Notes. The Assignor Bank hereby
irrevocably sells, assigns and transfers to the Assignee without recourse,
representation or warranty, and the Assignee hereby irrevocably purchases,
takes and acquires from the Assignor Bank, the Loans and the Notes, together
with all instruments, documents and collateral security pertaining thereto.
The Assignor Bank will deliver the Notes to the Assignee promptly upon its
receipt thereof from the Company.
2. (a) From and after the date hereof (the "TRANSFER
EFFECTIVE DATE"), principal and interest that would otherwise be payable to or
for the account of the Assignor Bank pursuant to the Loans and the Notes shall,
instead, be payable to or for the account of
<PAGE> 75
2
the Assignee, whether such amounts have accrued prior to the Transfer Effective
Date or accrue subsequent to the Transfer Effective Date.
(b) If Item 5 of Schedule I hereto contains payment
instructions for the Assignee and if the Assignee delivers a copy of this
Commitment Assignment to the Agent in accordance with subsection 9.6(e) of the
Credit Agreement at least 5 Business Days prior to the due date of any payment
to the Assignee, the Assignee hereby instructs the Agent to pay all such
amounts payable to it pursuant to the provision of subparagraph (a) of this
paragraph 2, in accordance with such payment instructions. If Item 5 of
Schedule I hereto does not contain payment instructions for the Assignee (or a
copy hereof is not delivered to the Agent as aforesaid), the Assignor Bank and
the Assignee agree that, notwithstanding the provisions of subparagraph (a) of
this paragraph 2, the Assignor Bank is hereby appointed by the Assignee as its
collection agent to receive from the Agent, for and on behalf of and for the
account of the Assignee, all amounts payable to or for the account of the
Assignee under the Loans and the Notes; the Assignor Bank will immediately pay
over to the Assignee any such amounts received by it, in like funds as
received.
3. Each of the parties to this Commitment Assignment
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Commitment Assignment.
4. By executing and delivering this Commitment
Assignment, the Assignor Bank and the Assignee confirm to and agree with each
other and the Agent and the Banks as follows: (i) other than the representation
and warranty that it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim, the Assignor Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Notes or any
other instrument or document furnished pursuant thereto; (ii) the Assignor Bank
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Company or the performance or observance by
the Company of any of its obligations under the Credit Agreement, the Notes or
any other instrument or document furnished pursuant hereto; (iii) the Assignee
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements referred to in subsection 3.1, the financial
statements delivered pursuant to subsection 5.1, if any, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Commitment Assignment; (iv) the
Assignee will, independently and without reliance upon the Agent, the Assignor
Bank or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
respect of the Credit Agreement; and (v) the Assignee appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, all in
accordance with Section 8 of the Credit Agreement.
<PAGE> 76
3
5. If the Assignee is organized under the laws of any
jurisdiction other than the United States or any State thereof, the Assignee
(i) represents to the Assignor Bank (for the benefit of the Assignor Bank, the
Agent and the Company) that under applicable law and treaties no taxes will be
required to be withheld by the Agent, the Company or the Assignor Bank with
respect to any payments to be made to the Assignee in respect of the Loans,
(ii) will furnish to the Assignor Bank, the Agent and the Company, on or prior
to the Transfer Effective Date, (x) either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 or successor applicable form,
as the case may be, certifying in each case that the Assignee is entitled to
receive payments under the Committed Rate Loan without deduction or withholding
of any United States federal income taxes, and (y) an Internal Revenue Service
Form W-8 or W-9 or successor applicable form, as the case may be, to establish
an exemption from United States backup withholding taxes, and (iii) agrees (for
the benefit of the Assignor Bank, the Agent and the Company) to provide the
Assignor Bank, the Agent and the Company a new Form 4224 or Form 1001 and Form
W-8 or W-9, or successor applicable forms, or other manner of certification, as
the case may be, on or before the date that any such letter or form expires or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent letter and form previously delivered by it to the Company, and such
extensions or renewals thereof as may reasonably be requested by the Company,
certifying in the case of a Form 1001 or 4224 that such Assignee is entitled to
receive payments under the Loans without deduction or withholding of any United
States federal income taxes, unless in any such cases an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent the Assignee from
duly completing and delivering any such letter or form with respect to it and
such Assignee advises the Assignor Bank, the Agent and the Company that it is
not capable of receiving payments without any deduction or withholding of
United States federal income tax, and in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding tax.
6. THIS COMMITMENT ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Commitment Assignment to be executed by their respective duly authorized
officers on Schedule I hereto as of the date set forth in Item 1 of Schedule I
hereto.
<PAGE> 77
SCHEDULE I TO
COMMITMENT
ASSIGNMENT
-------------
<TABLE>
<CAPTION>
<S> <C> <C>
Item 1 (Date of Assignment): [Insert date of Assignment]
Item 2 (Assignor Bank): [Insert name of Assignor Bank]
Item 3 (Assignee): [Insert name, address, telephone and telex
numbers and name of contact party of Assignee]
</TABLE>
Item 4 (Description of Loans):
a. Date of Loans and Notes:
b. Principal Amounts of Loans and Notes:
Item 5 (Payment Instructions): [Complete only if payments are to be made by
Agent to Assignee rather than to Assignor
Bank as collection agent for Assignee; leave
blank if Assignor Bank is to act as such
collection agent]
Item 6 (Signatures):
______________________, as
Assignor Bank
By:_________________________
Title:
______________________, as
Assignee
By:_________________________
Title:
<PAGE> 78
2
ACCEPTED FOR RECORDATION
IN REGISTER:
CHEMICAL BANK, as Agent
By:_________________________
Title:
CONSENTED TO:
NASHUA CORPORATION
By:____________________________________
Title:
<PAGE> 79
EXHIBIT I
---------
[FORM OF OFFICER'S CERTIFICATE]
OFFICER'S CERTIFICATE
---------------------
Pursuant to Section 4 of the Credit Agreement (the "CREDIT
AGREEMENT"), dated as of January 5, 1995 among Nashua Corporation (the
"COMPANY"), Chemical Bank, as Agent, and the banks parties thereto, the
undersigned of the Company hereby certifies as follows:
1. The representations and warranties of the Company
set forth in the Credit Agreement or which are contained in any
certificate, document or financial or other statement furnished
pursuant to or in connection with the Credit Agreement are true and
correct on and as of the date hereof with the same effect as if made
on the date hereof; and
2. On the date hereof, no Default or Event of Default
(both as defined in the Credit Agreement) has occurred and is
continuing or will occur after giving effect to the Loans to be made
on the date hereof under the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has hereunto set his name.
NASHUA CORPORATION
By:_________________________
Name:
Title:
Date: January , 1995
<PAGE> 80
EXHIBIT J
---------
[Form of Certificate of Secretary]
SECRETARY'S CERTIFICATE
-----------------------
I, [ ], hereby certify that:
1. I am the Secretary of Nashua Corporation, a Delaware
corporation.
2. Attached hereto as Annex I is a true and complete
copy of a vote adopted by the Board of Directors of the said corporation on
________ ___, 1994, which vote has not been altered, amended or rescinded.
3. Attached hereto as Annex II is a true and complete
copy of the Composite Certificate of Incorporation of the said corporation as
in effect on the date hereof.
4. Attached hereto as Annex III is a true and complete
copy of the By-Laws of the said corporation as in effect at all times
since __________.
5. The following person has been duly elected to, and
has qualified for, and on the date hereof does hold, the office set forth below
opposite his name; and that the signature appearing opposite his name is his
true and genuine signature.
Name Office
_______________
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the seal of the said corporation this ___ day of January 1995.
__________________________
[ ]
<PAGE> 81
2
The undersigned, [insert title ] of Nashua
Corporation, does hereby certify that [insert name of Secretary] is the duly
qualified and acting Secretary of Nashua Corporation and that the signature set
forth directly above is his true signature.
___________________________
[ ]
January __, 1995
<PAGE> 82
EXHIBIT K
FORM OF OPINION OF COUNSEL TO THE COMPANY
-----------------------------------------
Exhibit has been omitted in accordance with S-K 601(b)(2) and will be submitted
to the Commission upon request.
<PAGE> 83
EXHIBIT L
---------
[FORM OF EXTENSION REQUEST]
_______________, ____
Chemical Bank, as Agent
270 Park Avenue
New York, New York 10017
Attention: ________________________
Dear Sirs:
Reference is made to the $75,000,000 Credit Agreement, dated
as of January 5, 1995 among Nashua Corporation, the Banks parties thereto and
Chemical Bank, as Agent. Terms defined in the Credit Agreement are used herein
as therein defined.
This is an Extension Request pursuant to subsection 2.21 of
the Credit Agreement requesting an extension of the Termination Date to
[requested Termination Date]. Please transmit a copy of this Extension Request
to each of the Banks.
Very truly yours,
NASHUA CORPORATION
By:_____________________
Name:
Title:
CHEMICAL BANK
By:_____________________
Name:
Title:
<PAGE> 1
EXHIBIT 10.12
-------------
PROMISSORY NOTE
$500,000.00 Boston, Massachusetts
FOR VALUE RECEIVED, WILLIAM E. MITCHELL (the "Borrower"), of 59 Essex
Road, Chestnut Hill, Massachusetts, hereby promises to pay to the order of
NASHUA CORPORATION, a Delaware corporation, (the "Payee") at the offices of the
Payee at 44 Franklin Street, Nashua, New Hampshire 03061, or such other address
as the Payee shall designate in a written notice to the Borrower, the principal
amount of $500,000 without interest on the Maturity Date defined below.
Overdue principal and interest shall bear interest at the rate of 10% per
annum, payable on demand.
Nothing contained in this Note or the instruments securing this Note shall
be deemed to establish or require the payment of a rate of interest in excess
of the amount legally enforceable. In the event that the rate of interest so
required to be paid exceeds the maximum rate legally enforceable, the rate of
interest so required to be paid shall be automatically reduced to the maximum
enforceable rate shall be automatically credited on account of the principal
hereof without premium or penalty.
This Note is secured by a Mortgage from the maker hereof and his spouse,
as mortgagors, to the Payee hereof, as mortgagee, on certain property, more
particularly described therein, located at 59 Essex Road, Chestnut Hill,
Massachusetts (the "Massachusetts Property") and a Deed of Trust on certain
property, more particularly described therein, located at 142 Tuscaloosa
Avenue, Atherton, California 94025 (the "California Property").
The term "Maturity Date" as used herein shall mean the earlier of (a)
January 31, 1997 or (b) the date of the sale of or the transfer of title to
either the Massachusetts Property or the California Property.
Every maker, endorser and guarantor of this Note or the obligation
represented hereby waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note, assents to any extension or postponement
of the time of payment or any other indulgence, to any substitution, exchange
or release of collateral and to the addition or release of any other party or
person primarily or secondarily liable.
This Note shall be governed by the laws of the Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the undersigned has executed this Promissory Note as an
instrument under seal, as of this 31st day of January, 1995.
/s/ William E. Mitchell
__________________________
WILLIAM E. MITCHELL
<PAGE> 1
EXHIBIT 10.13
CONTINUING CORPORATE GUARANTY
-----------------------------
BOSTON SAFE DEPOSIT AND
TRUST COMPANY, WILLIAM E. MITCHELL,
Lender Obligor
NASHUA CORPORATION, JAN SCHREYER MITCHELL,
Guarantor Obligor
In consideration of, and as an inducement for BOSTON SAFE DEPOSIT AND
TRUST COMPANY (hereinafter called the "Lender") to make a mortgage loan to
WILLIAM E. MITCHELL and JAN SCHREYER MITCHELL (hereinafter collectively
referred to as the "Obligor"), in an aggregate principal amount not to exceed
One Million One Hundred Thousand and No/Hundreds Dollars ($1,100,000.00)
(hereinafter individually and collectively called the "Loan(s)"), the
undersigned, NASHUA CORPORATION, a Delaware corporation (hereinafter called
the "Guarantor"), with its principal place of business at 44 Franklin Street,
Nashua, New Hampshire 03061, does hereby unconditionally and irrevocably
guarantee to the Lender and its successors and assigns, without offset or
deduction, the prompt payment when due, whether by acceleration or otherwise,
of all payments of the principal of and interest on the promissory notes from
time to time executed by the Obligor evidencing the Loan(s) (hereinafter
individually and collectively called the "Note"), and all other amounts
whatsoever now or hereafter owing and payable by the Obligor under, arising out
of or in connection with any Note evidencing the Loan(s), the guaranty under
this clause constituting hereby a guaranty of payment and not of collection.
The Guarantor does hereby agree that in the event that the Obligor does not or
is unable to pay or perform in accordance with the terms of the Note for any
reason (including, without limitation and to the extent applicable, the
liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceedings affecting the status, existence,
assets or obligations of, the Obligor) it will pay the installments of
principal and interest (and premium, if any) due on such Note or otherwise
provide for and bring about promptly when due such payment and the performance
of such duties, agreements, covenants and obligations of the Obligor.
Guarantor specifically and unconditionally agrees that if a petition in
bankruptcy or for an arrangement or reorganization of Guarantor under the
bankruptcy laws or for the appointment of a receiver for Obligor or Guarantor,
or any of the property of Obligor or Guarantor is filed by or against Obligor
or Guarantor, or if Obligor or Guarantor shall make an assignment for the
benefit of creditors or shall become insolvent, all Obligations of Obligor to
Lender shall, for purposes of this guaranty, be deemed at Lender's election to
have become immediately due and payable. Guarantor further agrees Lender may
declare all the Obligations due and payable for purposes of the Guaranty if
there is a material change in the financial status of Guarantor. All of the
liabilities and obligations of the Obligor hereby guaranteed are hereinafter
collectively referred to as the "Obligations".
<PAGE> 2
Without limiting the generality of clause (i) above, the Guarantor
specifically agrees that it shall not be necessary or required, and that the
Guarantor shall not be entitled to require, that the Lender, or any successor
or assignee of Lender, file suit or proceed to obtain or assert a claim for
personal judgment against the Obligor for the Obligations or make any effort at
collection of the Obligations from the Obligor or foreclose against or seek to
realize upon any security now or hereafter existing for the Obligations or file
suit or proceed to obtain or assert a claim for personal judgment against any
other party liable for the Obligations or make any effort at collection of the
Obligations from any such other party or exercise or assert any other right or
remedy to which any of them is or may be entitled in connection with the
Obligations or any security or other guaranty therefor or assert or file any
claim against the assets of the Obligor or other person liable for the
Obligations, or any part thereof, before or as a condition of enforcing the
liability of the Guarantor under this Guaranty or requiring payment of said
Obligations by the Guarantor hereunder, or at any time thereafter. The
Guarantor agrees, upon demand of the Lender to either, at the Lender's option,
pay directly or reimburse the Lender for the payment of, all costs, fees and
expenses, including, without limitation, attorneys' fees, incurred by the
Lender in the enforcement or attempted enforcement of any of its rights
hereunder.
The Guarantor specifically agrees that it shall not be necessary or
required in order to enforce the obligations of the Guarantor hereunder that
there be, and the Guarantor specifically waives: notice of the acceptance of
this Guaranty and of the performance or nonperformance of any of the
Obligations; demand of payment from the Obligor except to the extent required
by the Note; presentment for payment upon the Obligor or the making of any
protest; notice of the amount of the Obligations outstanding at any time; and
notice of nonpayment or failure to perform on the part of the Obligor. The
Guarantor further waives all defenses, offsets and counterclaims which the
Guarantor may at any time have to the payment or performance of the
Obligations. The obligations of the Guarantor under this Guaranty shall be
absolute and unconditional and shall remain in full force and effect until the
Obligor shall have fully and satisfactorily discharged the Obligations and
shall not be released or discharged by reason of: (i) any waiver by the Lender,
or its successors or assigns, of the performance or observance by the Obligor
of any of the agreements, covenants, terms or conditions contained in the Note;
(ii) the extension of the time for payment by the Obligor of any payment of
principal and interest due on the Note or other sums or any part thereof owing
or payable under or pursuant to the Note, or any Loan or of the time for
performance by the Obligor of any other obligations under or pursuant to the
Note; (iii) any failure, omission or delay of the Lender or its successors or
assigns to enforce, assert or exercise any right, power or remedy conferred on
the Lender under or pursuant to the Note or any action on the part of the
Lender or its successors or assigns granting any extension or indulgence in any
form to the Obligor; (iv) any compromise, settlement, release, renewal,
extension, indulgence, change in or waiver or modification of, any of the
Obligations or the release or discharge of the Obligor from the performance or
observance of any of the Obligations by operation of law; (v) any change in,
waiver or modification of, or amendment to, any of the terms or provisions of
the Note; (vi) if applicable, any consolidation or merger of Obligor, whether
permitted under the terms of the Agreements or otherwise, or the sale, transfer
or other disposition by the Obligor or all or substantially all of the assets
and liabilities of the Obligor; (vii) if applicable, the voluntary or
involuntary liquidation, dissolution, receivership, insolvency, bankruptcy,
assignment for the benefit of
2
<PAGE> 3
creditors, reorganization, arrangement, composition or readjustment of the
Obligor, or any other similar proceeding affecting the status, existence,
assets or obligations of the Obligor; (viii) if applicable, the death or mental
or physical incapacity of the Obligor; (ix) any fictitiousness, incorrectness,
invalidity or unenforceability, for any reason, of the Note or of any provision
thereof, or of any of the Obligations; (x) any transfer or assignment by the
Obligor of any of the Obligor's rights or obligations under the Note, or any
use of the Collateral (as defined in the Note) or any part thereof by any
person or party, or any sale, transfer, assignment, lease, mortgage, pledge,
hypothecation or further encumbering of the Collateral or any part thereof by
Obligor; or (xi) any other circumstance that might otherwise constitute a legal
or equitable discharge of the Obligor (including a discharge in bankruptcy) or
of the Guarantor.
The Guarantor hereby represents and warrants to Lender that: (a) the
Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation set forth above; (b) the
Guarantor has the power and authority to execute and perform this Guaranty, and
has duly authorized the execution, delivery and performance of this Guaranty;
(c) no approval is required from any regulatory body, board, authority or
commission, nor from any other administrative or governmental agency, nor from
any other person, firm or corporation, with respect to the execution of this
Guaranty by the Guarantor and the payment and performance by the Guarantor of
all of the Guarantor's obligations hereunder; (d) this Guaranty constitutes the
legal, valid and binding obligation of the Guarantor, enforceable in accordance
with its terms, and the execution, delivery and performance of the same by the
Guarantor will not violate the Guarantor's Charter, Certificate of
Incorporation, or By-Laws, or any provision of law, any order of any court or
other agency of government, or any indenture, agreement or other instrument to
which the Guarantor is a party, or by or under which the Guarantor or any of
the Guarantor's property is bound, or be in conflict with, result in a breach
of, or constitute (with due notice and/or lapse of time) a default under, any
such indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the Guarantor's property or assets; (e) the Guarantor will furnish Lender (
i) as soon as available, and in any event within 120 days after the last day of
each fiscal year of the Guarantor, a copy of the consolidated balance sheet of
the Guarantor and its consolidated subsidiaries as of the end of such fiscal
years, and related consolidated statements of income and retained earnings of
the Guarantor and its consolidated subsidiaries for such fiscal year, certified
by an independent certified public accounting firm of recognized standing, each
on a comparative basis with corresponding statements for the prior fiscal year,
(ii) within 45 days after the last day of each fiscal quarter of the Guarantor
(except the last such fiscal quarter), a copy of the balance sheet as of the
end of such quarter, and statement of income and retained earnings of the
Guarantor and its consolidated subsidiaries covering the fiscal year to date,
each on a comparative basis with the corresponding period of the prior year,
all in reasonable detail and certified by the chief financial officer of the
Guarantor, (iii) contemporaneously with its transmittal to each stockholder of
the Guarantor, such reports as the Guarantor shall send to its stockholders,
and (iv) such additional financial information as Lender may reasonably request
concerning the Guarantor; and (f) the Guarantor and its consolidated
subsidiaries have filed all United States income tax returns which are required
to be filed and have paid, or made provisions for the payment of, all taxes
which have or may become due pursuant to said returns or pursuant to any
assessment received
3
<PAGE> 4
by the Guarantor or such consolidated subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have
been provided.
Notwithstanding any payment or payments made by the Guarantor
hereunder, the Guarantor shall not be entitled to be subrogated to any of the
Lender's rights against the Obligor or the Collateral (or any part thereof)
until all amounts owing to the Lender by the Obligor for or on account of the
Obligations shall have been paid in full.
This Guaranty (a) may be assigned by the Lender without the consent of
the Guarantor, but may not be assigned by the Guarantor; (b) may be executed in
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument; (c) shall inure to
the benefit of the Lender, and its successors and assigns, and be binding upon
the successors and, subject to the restrictions of clause (a) of this
paragraph, assigns of the Guarantor; (d) may be modified only by an instrument
in writing, signed by the duly authorized representative of the party to be
bound; and (e) shall in all respects be governed by, and be construed in
accordance with, the laws of the Commonwealth of Massachusetts.
All capitalized terms used herein which are not otherwise defined
herein shall have the meanings given to such terms in the Note. The Guarantor
hereby acknowledges receipt of a copy of the Note, as executed by the Obligor
and/or the Lender.
IN WITNESS WHEREOF; the Guarantor has caused this Guaranty to be
executed by its duly authorized officer and its corporate seal to be affixed
hereto this 20th day of January 1995.
NASHUA CORPORATION,
Guarantor
By: /s/ William Luke
-------------------------------
(Print Name) William Luke
----------------------
Its: Vice President-Finance
Attest: ------------------------------
/s/ Suzanne Ansara [Corporate Seal]
- -------------------
Asst. Secretary
/s/ William e. Mitchell
----------------------------------
WILLIAM E. MITCHELL, Obligor
/s/ Jan Schreyer Mitchell
----------------------------------
JAN SCHREYER MITCHELL, Obligor
4
<PAGE> 1
EXHIBIT 10.15
-------------
August 12, 1994
Charles E. Clough
Route 3, Dolly Road
Contoocook, NH 03229
Dear Charlie:
I would like to summarize my understanding of the various agreements we
have reached regarding your resignation as Chief Executive Officer, your
consultation with Nashua and other issues that have been discussed during the
last several weeks.
1. From July 25, 1994 through April 30, 1995, you agree to make
yourself available at times reasonably agreeable to you and me for
consultation concerning the businesses of Nashua Corporation. In that
capacity, you will be an independent contractor, responsible for your
own insurance, vacation and other benefits.
2. You understand that, pursuant to applicable Revenue Rulings of the
Internal Revenue Service, the remuneration you will receive as a
consultant may be subject to withholding for Federal Income Tax, State
Income Tax and Social Security and Medicare Taxes.
3. In return for your services as a consultant, you will receive a lump
sum payment of $300,000 within fifteen days following January 1, 1995.
4. Beginning August 1, 1994, you will also receive $10,000 per quarter
for each quarter you serve as outside Director and Chairman of the
Board of Nashua Corporation.
5. You will be able to purchase your 1991 Ford Taurus for $6,100. Please
let Dan Lyman know how you would like the Bill of Sale and title made
out.
6. Please note that your stock options pursuant to the 1980 Stock Award
Plan must be exercised by October 21, 1994, under the 1987 Stock
Option Plan by January 20, 1995, and under the 1993 Stock Incentive
Plan by July 22, 1996. Your Stock Appreciation Rights must be
exercised by January 20, 1995. The sheet attached sets out the
various options and stock appreciation rights you hold and the last
dates for exercise.
7. The payments referenced above also compensate you for any bonuses,
severance, vacation pay or any other claim or remuneration you may
have or to which you may be entitled (other than pension or
supplemental compensation plan benefits) arising out of your
employment at Nashua.
<PAGE> 2
- 2 -
Charlie, I believe this sets out our agreement. If so, please sign where
indicated below and return a copy of this letter to me. Also, would you please
sign and return the enclosed resignation for the corporate minutes.
Thank you.
Very truly yours,
William E. Mitchell
I have read and agree to the foregoing:
/s/ Charles E. Clough
_______________________________________
Charles E. Clough
<PAGE> 1
EXHIBIT 11.01
NASHUA CORPORATION
COMPUTATION OF EARNINGS PER COMMON AND COMMON EQUIVALENT SHARE
<TABLE>
<CAPTION>
(In thousands, except per share data)
Year Ended December 31,
------------------------------------------
1994 1993 1992
--------- -------- --------
<S> <C> <C> <C>
Income from continuing operations before
cumulative effect of accounting principle changes $ 4,442 $ 2,516 $10,434
------- -------- -------
Loss from discontinued operations (2,295) (21,685) (5,126)
------- -------- -------
Cumulative effect on prior years of
changes in accounting principles for
Postretirement health care and
other benefits - - (9,367)
Income taxes - - (764)
------- -------- -------
Net income (loss) $ 2,147 $(19,169) $(4,823)
======= ======== =======
Shares:
Weighted average common shares
outstanding during the period 6,343 6,312 6,298
Common equivalent shares 17 31 27
------- -------- -------
6,360 6,343 6,325
Earnings per common share(1):
Income from continuing operations before
cumulative effect of accounting principle changes $ .70 $ .40 $ 1.65
------- -------- -------
Loss from discontinued operations (.36) (3.42) (.81)
------- -------- -------
Cumulative effect on prior years of
changes in accounting principles for
Postretirement health care and
other benefits(2) - - (1.48)
Income taxes(2) - - (.12)
------- -------- -------
Net income (loss) $ .34 $ (3.02) $ (.76)
======= ======== =======
<FN>
(1) The computation of earnings per common share on a fully diluted basis
results in no change to the earnings per common share amounts indicated
above.
(2) Amounts are computed based on the average common and common equivalent
shares outstanding in January 1992 of 6,318 (6,284 common shares and 34
common equivalent shares).
</TABLE>
<PAGE> 1
EXHIBIT 21.01
SUBSIDIARIES OF THE REGISTRANT
Nashua Corporation, or one of its wholly-owned subsidiaries, owns beneficially,
directly or indirectly, all of the capital stock in the following subsidiaries:
<TABLE>
<CAPTION>
Jurisdiction of
Domestic Incorporation
- -------- ---------------
<S> <C>
Nashua Belmont Limited (2) Delaware
Nashua Commercial Products Corporation(1) Delaware
Nashua International, Inc.(1) Delaware
Nashua Photo European Investments, Inc.(2) Delaware
Nashua Photo Inc.(1) Delaware
Nashua Photo International Investments, Inc.(2) Delaware
Nashua Photo Licensing Inc.(2) Delaware
Nashua P.R., Inc.(1) Delaware
Nippon Nashua Incorporated(1) Delaware
Promolink Corporation(1) Delaware
</TABLE>
<TABLE>
<CAPTION>
Jurisdiction of
Foreign Incorporation
- ------- ---------------
<S> <C>
Nashua Europe B.V. (1) Netherlands
Nashua FSC Limited (1) Jamaica
Nashua Nederland B.V. (1) Netherlands
Nashua Photo Limited (2) Canada
Nashua Photo Limited (2) England
Postal Film Services (Country-Wide) Limited (3) England
</TABLE>
____________________
(1) Stock held by Nashua Corporation
(2) Stock held by Nashua Photo Inc.
(3) Stock held by Nashua Photo Limited (U.K.)
All of the above listed subsidiaries are included in Nashua's consolidated
financial statements.
<PAGE> 1
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (No. 2-88669, No. 33-13995, No. 33- 67940 and No.
33-72438) of Nashua Corporation of our report dated February 1, 1995, appearing
on page 36 of this Annual Report on Form 10-K. We also consent to the
incorporation by reference of our report on the Financial Statement Schedule,
which appears on page 42 of this Form 10-K.
Price Waterhouse LLP
Boston, Massachusetts
March 28, 1995
<PAGE> 1
EXHIBIT 24.01
-------------
Commission File No. 1-5492-1
POWER OF ATTORNEY
-----------------
Know All Men By These Presents, that each person whose signature appears below
constitutes and appoints Francis J. Lunger, William Luke and Paul Buffum and
each of them, as true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities, to sign Nashua Corporation's Annual Report on Form
10-K, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
Joseph A. Baute Director March 17, 1995
- --------------------- ---------------------
Joseph A. Baute
Sheldon A. Buckler Director March 20, 1995
- --------------------- ---------------------
Sheldon A. Buckler
Richard E. Carter Director March 22, 1995
- --------------------- ---------------------
Richard E. Carter
Charles E. Clough Director March 18, 1995
- --------------------- ---------------------
Charles E. Clough
Thomas W. Eagar Director March 18, 1995
- --------------------- ---------------------
Thomas W. Eagar
John M. Kucharski Director March 18, 1995
- --------------------- ---------------------
John M. Kucharski
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED CONDENSED FINANCIAL STATEMENTS OF NASHUA CORPORATION FOR THE FISCAL
YEAR ENDED DECEMBER 31, 1994 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> DEC-31-1994
<EXCHANGE-RATE> 1
<CASH> 10,219
<SECURITIES> 0
<RECEIVABLES> 40,811
<ALLOWANCES> 2,628
<INVENTORY> 34,161
<CURRENT-ASSETS> 108,162
<PP&E> 129,590
<DEPRECIATION> 58,733
<TOTAL-ASSETS> 227,825
<CURRENT-LIABILITIES> 61,373
<BONDS> 49,166
<COMMON> 6,397
0
0
<OTHER-SE> 86,299
<TOTAL-LIABILITY-AND-EQUITY> 227,825
<SALES> 478,571
<TOTAL-REVENUES> 478,571
<CGS> 361,933
<TOTAL-COSTS> 361,933
<OTHER-EXPENSES> 109,171
<LOSS-PROVISION> 1,374
<INTEREST-EXPENSE> 2,451
<INCOME-PRETAX> 7,467
<INCOME-TAX> 3,025
<INCOME-CONTINUING> 4,442
<DISCONTINUED> (2,295)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,147
<EPS-PRIMARY> .34
<EPS-DILUTED> .34
</TABLE>
