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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
March 31, 1998
--------------------------
DECORA INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-016072 68-0003300
(Commission File Number) (IRS Employer Identification No.)
1 Mill Street, Fort Edward, New York 12828
(Address of principal executive offices) (Zip Code)
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Registrant's telephone number, including area code: (518) 747-6255
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ITEM 5. OTHER EVENTS
On March 30, 1998, Decora Industries, Inc. ("Decora") entered into a
definitive agreement to acquire from Rubbermaid Incorporated ("Rubbermaid")
assets which constitute its Decorative Coverings Group. The assets purchased
will include the rights to three product lines: (i) the ConTact(R) self-adhesive
line, which is currently manufactured by Decora, (ii) the Shelf Liner
light-adhesive line, which is currently manufactured by Rubbermaid, and (iii)
the Grip liner non-adhesive covering line, which is currently manufactured by a
third party pursuant to the terms of an exclusive agreement.
The purchase price for the assets and certain transition services is $62.5
million which will be paid and is subject to adjustment as follows: $57.5
million will be paid at closing, which amount will be adjusted downward if
inventory levels at closing are below a set level. The purchase price will be
further adjusted up or down on January 30, 1999 by a maximum of $2.5 million
depending on actual sales levels of the product lines for the calendar year
ending December 31, 1998. Following the closing, an additional $5.0 million
will be paid by Decora to Rubbermaid in nine equal monthly installments,
partly for transition services performed by Rubbermaid and partly as
additional purchase price.
No infrastructure or employees are being transferred to Decora as part of
the acquisition. Instead, following the closing of the Rubbermaid acquisition,
Decora will establish its own national sales and marketing organization and
distribution, order entry, customer service, billing and collection functions in
an attempt to provide a smooth operational transition from Rubbermaid to the
Company upon expiration of a nine month transition services period. Most of the
Company's new national sales, marketing and distribution team will be located in
a new office in Cleveland, Ohio. In order to facilitate the transition, Decora
will have a two-year, royalty free license for use of the name "Rubbermaid" on
the Decorative Coverings Group products. During the transition services period,
Rubbermaid will provide warehousing, shipping, order entry, customer service,
billing and collection functions and will manufacture Shelf Liner products for
Decora until such manufacturing operations are transferred to Decora's existing
operations in Fort Edward, New York.
The Company is financing the purchase of assets with a private placement.
The transaction is expected to close following receipt of necessary approvals
pursuant to HSR Act and is anticipated to be on or about April 30, 1998.
This report on Form 8-K includes "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities and Exchange Act of 1934, as amended. All statements other
than statements of historical facts, including, without limitation, the
statements regarding potential synergies, industry prospects and the Company's
financial position are forward-looking statements. Although the Company believes
that the expectations reflected in such forward-looking statements are
reasonable, it can
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give no assurance that such expectations will prove to have been correct.
Factors that could cause actual results to differ materially from the Company's
expectations are disclosed in this report and the Company's Form 10-K for its
year ended March 31, 1997 and Form 10-Q for its quarter ended December 31, 1997.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
1. Asset Purchase Agreement dated as of March 30, 1998 by and
between Rubbermaid Incorporated and Rubbermaid Specialty
Products, Inc., on one hand, and Decora Industries, Inc. and
Decora, Incorporated, on the other hand.
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DECORA INDUSTRIES, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
DECORA INDUSTRIES, INC.
(Registrant)
By: /s/ Timothy N. Burditt
------------------------------------
Timothy N. Burditt
Principal Accounting Officer
Dated: April 13, 1998
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
RUBBERMAID INCORPORATED,
AN OHIO CORPORATION
AND
RUBBERMAID SPECIALTY PRODUCTS INC.,
A DELAWARE CORPORATION
AND
DECORA, INCORPORATED,
A DELAWARE CORPORATION
AND
DECORA INDUSTRIES, INC.,
A DELAWARE CORPORATION
DATED: MARCH __, 1998
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TABLE OF CONTENTS
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ARTICLE I
SALE OF ASSETS.......................................................................1
1.1 Assets to Be Transferred to Buyer.............................................1
1.2 Reserved......................................................................3
1.3 No Encumbrances. .............................................................3
1.4 Assumption of Liabilities and Obligations. ...................................3
1.5 Excluded Obligations. .......................................................3
1.6 Further Assurances. .........................................................3
ARTICLE II
CONSIDERATION AND METHOD OF PAYMENT..................................................4
2.1 Consideration; Purchase Price. ...............................................4
2.2 Taxes. ......................................................................5
2.3 Prorations. .................................................................5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER.............................................5
3.1 Organization and Good Standing. .............................................5
3.2 Due Authorization. ..........................................................5
3.3 Agreement Not in Breach of Other Instruments. ...............................5
3.4 Fixed Assets..................................................................5
3.5 Equipment Leases. ...........................................................6
3.6 Intellectual Property.........................................................6
3.7 Contracts. ..................................................................6
3.8 Licenses and Permits. .......................................................7
3.9 Litigation. .................................................................7
3.10 Insurance. ..................................................................7
3.11 Compliance with Law. ........................................................7
3.12 Reserved......................................................................8
3.13 Reserved......................................................................8
3.14 Conflicts of Interest. ......................................................8
3.15 Tax Returns...................................................................9
3.16 No Legal Bar. ...............................................................9
3.17 Finder's Fees. ..............................................................9
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3.18 UCC Reports. ................................................................9
3.19 Inventories. ................................................................9
3.20 Financial Statements. .......................................................9
3.21 Suppliers and Customers. ...................................................10
3.22 Pricing. ...................................................................10
3.23 Reserved.....................................................................10
3.24 Reserved.....................................................................10
3.25 Absence of Certain Changes. ................................................10
3.26 Required Consents. .........................................................11
3.27 No Undisclosed Liabilities...................................................11
3.28 Delivery of Closing Documents. .............................................11
3.29 Other Information. .........................................................11
3.30 Representations. ...........................................................11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER ............................................12
4.1 Organization and Good Standing. ............................................12
4.2 Due Authorization. .........................................................12
4.3 Agreement Not in Breach of Other Instruments. ..............................12
4.4 Litigation. ................................................................12
4.5 Consents.....................................................................12
4.6 Representations. ...........................................................13
ARTICLE V
COVENANTS AND AGREEMENTS OF SELLER..................................................13
5.1 Conduct of Business. .......................................................13
5.2 Fulfillment of Conditions and Covenants. ...................................14
5.3 Status of Assets. ..........................................................14
5.4 Grip-Tex.....................................................................14
5.5 Financial Statements. ......................................................14
5.6 Consents. ...................................................................14
5.7 Transfer of Licenses and Permits and Authorizations. ........................15
5.8 Reserved. ..................................................................15
5.9 Agreement with Respect to Other Regulatory Filings. ........................15
5.10 Solicitation of Inquiries. .................................................15
5.11 Public Announcements. ......................................................15
ARTICLE VI
COVENANTS AND AGREEMENTS OF BUYER...................................................15
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6.1 Public Announcements.........................................................15
6.2 Fulfillment of Conditions and Covenants......................................15
6.3 Agreement with Respect to Other Regulatory Filings...........................16
6.4 Financing....................................................................16
6.5 Other Acquisitions...........................................................16
ARTICLE VII
CONDITIONS PRECEDENT IN FAVOR OF SELLER.............................................16
7.1 Accuracy of and Certificate as to Representations and Warranties. ..........16
7.2 Compliance with Covenants. .................................................17
7.3 Opinion of Counsel. ........................................................17
7.4 Reserved.....................................................................17
7.5 Reserved.....................................................................17
7.6 Action/Proceeding. .........................................................17
7.7 Governmental Concurrences. .................................................17
7.8 Manufacturing Agreement......................................................17
7.9 Assumption Agreement.........................................................17
7.10 Corporate Authorization......................................................17
7.11 Termination of Manufacturing Agreement.......................................17
ARTICLE VIII
CONDITIONS PRECEDENT IN FAVOR OF BUYER..............................................18
8.1 Accuracy of and Certificate as to Representations and Warranties. ..........18
8.2 Compliance with Covenants. .................................................18
8.3 Compliance with Law. .......................................................18
8.4 UCC Report. ................................................................18
8.5 Reserved.....................................................................18
8.6 Opinion of Counsel for Seller. .............................................19
8.7 Documents of Title. ........................................................19
8.8 Reserved.....................................................................19
8.9 Action/Proceeding. .........................................................19
8.10 Adverse Change. ............................................................19
8.11 License Agreement............................................................19
8.12 Corporate Authorization. ...................................................19
8.13 Governmental Concurrences. .................................................19
8.14 Non-Competition Agreement. .................................................20
8.15 Termination of Manufacturing Agreement. ....................................20
8.16 Reserved.....................................................................20
8.17 Transition Agreement.........................................................20
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8.18 Inventories..................................................................20
8.19 Manufacturing Agreement......................................................20
ARTICLE IX
CLOSING.............................................................................20
9.1 Closing Date. ..............................................................20
9.2 Deliveries at Closing. .....................................................21
.............................................................................21
ARTICLE X
TERMINATION.........................................................................22
10.1 Termination. ...............................................................22
10.2 Notice of Termination. .....................................................22
10.3 Effect of Termination. .....................................................22
ARTICLE XI
INDEMNIFICATION.....................................................................23
11.1 Survival of Warranties. ....................................................23
11.2 Indemnification. ...........................................................23
(a) Seller's Indemnity. .................................................23
(i) Misrepresentations. ..........................................23
(ii) Non-assumed Liabilities. .....................................24
(b) Buyer Indemnity.......................................................24
(i) Misrepresentations. ..........................................24
(ii) Assumed Liabilities. .........................................24
11.3 Indemnification Notice.......................................................24
(a) Third Party Claim. ..................................................24
(b) Non-Third Party Claim. ..............................................25
ARTICLE XII
REMEDIES............................................................................25
12.1 Litigation Costs. ..........................................................25
ARTICLE XIII
CERTAIN ADDITIONAL AGREEMENTS OF THE PARTIES........................................26
13.1 Due Diligence Review.........................................................26
13.2 Reserved.....................................................................26
13.3 H-S-R Act. .................................................................26
13.4 Use of Names. ..............................................................27
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13.5 Adjustment to Purchase Price for Net Sales...................................27
13.6 Inventory Determination......................................................28
13.7 Shelf Space..................................................................29
ARTICLE XIV
MISCELLANEOUS.......................................................................30
14.1 Notices. ...................................................................30
14.2 Assignment. ................................................................31
14.3 Expenses. ..................................................................31
14.4 Governing Law. .............................................................31
14.5 Entire Understanding. ......................................................31
14.6 Reserved.....................................................................32
14.7 Further Assurances. ........................................................32
14.8 Waiver. ....................................................................32
14.9 Headings. ..................................................................32
14.10 Counterpart. ...............................................................32
14.11 Severability. ..............................................................32
14.12 Binding on Successors........................................................32
14.13 Knowledge....................................................................32
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SIGNATURE PAGE
LIST OF SCHEDULES
LIST OF EXHIBITS
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ASSET PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of March __, 1998, by and
among Rubbermaid Incorporated, an Ohio corporation, and Rubbermaid Specialty
Products Inc., a Delaware corporation, a wholly owned subsidiary of Rubbermaid
Incorporated (collectively "Seller"), and Decora Industries, Inc., a Delaware
corporation, and Decora, Incorporated., a Delaware corporation doing business as
Decora Manufacturing and a wholly owned subsidiary of Decora Industries, Inc.
(collectively "Buyer") herein sometimes collectively referred to as the
"Parties," is made with reference to the following facts:
R E C I T A L S
A. Seller wishes to sell and Buyer wishes to purchase various assets of
Seller constituting Seller's Decorative Covering Business (the "Division");
B. The Division consists of the decorative covering product lines which
includes: ConTact(R), Grip Liner and Shelf Liner products. Only the Shelf Liner
product is manufactured by Seller;
C. Decora Industries, Inc. and Rubbermaid Incorporated are parties to a
non-binding Term Sheet dated January 28, 1998, as amended on February 12, 1998,
and March 12, 1998, (the "Letter of Intent"), pursuant to which Seller agreed to
sell the operating assets of the Division, pending the execution of a Definitive
Agreement with respect to such purchase;
D. Buyer and Seller desire to provide for the sale by Seller to Buyer of
the assets of the Division, all upon the terms and conditions hereinafter set
forth. Buyer does not intend to hire any employees of Seller; instead Buyer will
establish its own business organization and will relocate any manufacturing
operations of Seller. Following the Closing (as hereinafter defined), Seller
shall perform significant services pursuant to a Transition Agreement (as
hereinafter defined).
NOW THEREFORE, in consideration of the foregoing recitals and the
promises, mutual covenants, agreements, representations and warranties herein
contained, the parties hereto hereby agree as follows:
ARTICLE I
SALE OF ASSETS
1.1 Assets to Be Transferred to Buyer. Subject to the terms and
conditions set forth in this Agreement and in reliance upon the representations
and warranties set forth herein, at the
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Closing (as hereinafter defined), Seller shall sell, assign, transfer,
contribute and convey to Buyer, by appropriate bills of sale, assignments and
other instruments reasonably satisfactory to Buyer and its counsel, all of
Seller's right, title and interest in and to all of the assets and properties of
Seller listed below (collectively, the "Assets"):
(a) All of the fixed assets of Seller as of the Closing
(hereinafter collectively referred to as the "Fixed Assets") including, without
limitation, to the extent Seller has any interest therein: all racking and
displays currently in the physical possession of customers of the Seller,
equipment, furniture, fixtures, machinery, vehicles, tools, molds and other
tangible personal property used in connection with the business operations of
the Division, which Fixed Assets as of the date hereof are listed on Schedule
1.1(a) hereto, and which Schedule shall be updated as of the date of Closing;
(b) All inventories, including racking and displays in inventory,
raw materials, work in process and finished goods of the Division,
(collectively, "Inventories");
(c) All of Seller's right, title and interest as lessee in and to
certain equipment leases identified on Schedule 1.1(c) attached hereto
(collectively, "Equipment Leases");
(d) If Buyer is unable to obtain the agreement contemplated in
Section 5.4 hereof, the Purchase Agreement by and between Seller and Grip-Tex
Industries Inc. dated September 20, 1995, provided that the assignment of such
Purchase Agreement shall be for a time period expiring on August 15, 1999,
pursuant to the Limited Assignment in the form attached as Exhibit 1.1(d);
(e) The following, to the extent they are necessary or
appropriate for the use by Buyer of the Assets and the operation by Buyer of the
Division following the Closing: all production records, customer lists, pricing
and cost information, purchasing records, historical and current marketing
materials and studies, invoices, vendor lists, service provider lists,
promotional literature, catalogs, advertising materials, trade secrets and
confidential information relating to or arising out of the operation of the
Division;
(f) All rights which Seller might have in all registrations of
trademarks and other marks, excluding therefrom the "Rubbermaid" trademark and
"Rubbermaid" in panel and any alterations and amendments thereto, all
registrations of trade names, labels or other trade rights, all registered user
entries and all pending applications for any such registrations and pending
applications therefor; all patents and pending applications therefor; all other
registered and unregistered copyrights, trademarks and other marks, trade names
and other trade rights, and all other know-how, formulae, treatments,
discoveries, improvements, and applications thereof, and all other know-how used
by Seller in connection with the business of the Division, confidential or
secret processes, proprietary and technical information, inventions, designs and
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patterns, whether or not patentable, and all licenses and other contracts
relating thereto, all to the extent that the foregoing items are owned in whole
or in part or used by Seller and relate to or are used by the Division (such
properties collectively referred to herein as "Intellectual Properties") which
are set forth on Schedule 1.1(f) hereto, and all other intangible assets
associated with such trade names and the business operations currently conducted
by Seller in connection with the operation of the Division, including goodwill;
(g) All of Seller's right, title and interest in and to those
certain contracts, agreements, or commitments, listed on Schedule 1.1(g) hereto
(collectively, the "Contracts") and which Schedule shall be updated as of the
date of Closing;
(h) All of Seller's right, title and interest in and to all
transferable governmental licenses and permits necessary to the ownership or use
of all or any of the Assets by Buyer (collectively the "Licenses and Permits"),
which Licenses and Permits are described in Schedule 1.1(h) hereto;
(i) All packaging materials, together with spare parts and
supplies of the Division owned by Seller as of the Closing.
1.2 Reserved.
1.3 No Encumbrances. The sale, conveyance, assignment, transfer and
delivery of the Assets hereunder shall be made free and clear of all liens and
encumbrances and all obligations and liabilities of Seller, except for Assumed
Liabilities (as hereinafter defined).
1.4 Assumption of Liabilities and Obligations. On the Closing Date,
Buyer shall assume and agree to pay, perform and discharge the obligations and
liabilities of Seller, to the extent they have not theretofore been paid,
performed or discharged, listed on Schedule 1.1(g) (the "Assumed Liabilities")
and the Purchase Agreement if assigned pursuant to Section 1.1(d).
1.5 Excluded Obligations. Except as set forth in Section 1.4 above,
Buyer shall not assume or be responsible for, any liability, obligation, debt or
commitment of Seller or the Division, including without limitation any
liability, obligation, debt or commitment (i) with respect to products liability
and other return of merchandise of the Division sold prior to the Closing Date
(ii) with respect to federal, state, county, local, foreign and other
governmental taxes due with respect to operations of the Division or the Assets
for all periods prior to the Closing Date and (iii) liabilities of any nature
whatsoever relating to employees of the Division.
1.6 Further Assurances. From time to time after the Closing, Seller will
execute and deliver to Buyer such further instruments of sale, transfer,
conveyance, assignment and delivery, consents and assurances as may be
reasonably requested by counsel for Buyer in order to convey
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to Buyer all right, title and interest of Seller in and to the Assets or as
otherwise may be expressly required by this Agreement.
ARTICLE II
CONSIDERATION AND METHOD OF PAYMENT
2.1 Consideration; Purchase Price.
(a) Subject to the terms and conditions of this Agreement, in
reliance on Seller's representations, warranties and agreements contained
herein, and in consideration of, and full payment for, the sale, conveyance,
assignment, transfer and delivery of the Assets provided for in Section 1, on
the Closing Date, (i) Buyer shall execute and deliver to Seller an instrument of
assumption providing for the assumption by Buyer of the Assumed Liabilities in
accordance with Section 1.4, (ii) Buyer shall pay to Seller an aggregate amount
of $57,500,000 (U.S.) (the "Purchase Price"), subject to the adjustment pursuant
to Sections 13.5 and 13.6 such amount to be paid, at Seller's option, by
delivery of certified or bank cashier's check payable to Seller in the amount of
$55,000,000 (U.S.), or wire transfer of such amount to such bank account as
Seller shall have theretofore designated in writing to Buyer at least five days
prior to the Closing Date.
(b) Buyer shall pay $2,500,000 (the "Escrow Amount") by wire
transfer to The Bank of New York (the "Escrow Agent") acting as escrow agent
pursuant to that certain Escrow Agreement (the "Escrow Agreement") of even date
herewith between the Escrow Agent, Buyer and Seller, a copy of the form of which
is attached as Exhibit 2.1(b). The Escrow Amount shall be held pursuant to the
Escrow Agreement for the purpose of settling adjustments to the Purchase Price
pursuant to Section 13.5 hereof, and for such other purposes and pursuant to
such terms and conditions as set forth in the Escrow Agreement.
(c) Reserved.
(d) In addition to the Purchase Price, Buyer shall pay Seller
$5,000,000.00 as additional compensation hereunder and pursuant to the
Transition Agreement described in Section 8.17.
(e) In the event the Closing fails to occur by March 31, 1998,
the Purchase Price shall be increased in an amount equal to seven percent (7%)
per annum times the Purchase Price prorated upon a daily basis beginning April
1, 1998 ("Additional Purchase Price"), if Closing does not occur by reasons
solely attributable to Buyer (Buyer's failure to obtain financing for any reason
shall be deemed a reason solely attributable to Buyer).
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2.2 Taxes. All taxes, including without limitation sales, use and
transfer taxes arising out of the sale of the Assets hereunder shall be paid by
Buyer.
2.3 Prorations. There shall be no proration of any expenses or
obligations relating to the transfer of the Assets and assumption of the Assumed
Liabilities hereunder, except as specifically provided herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization and Good Standing. Rubbermaid Incorporated is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Ohio, and has all requisite corporate power and authority to own
or lease the Assets as now owned or leased by it. Rubbermaid Specialty Products
Inc. is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has all requisite corporate power
and authority to own or lease the Assets as now owned or leased by it. All
corporate proceedings required by law or by the provisions of this Agreement to
be taken by Seller on or before the Closing Date in connection with the
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been or will be duly and
validly taken.
3.2 Due Authorization. This Agreement and each agreement contemplated
hereby to be executed in connection herewith by Seller have been (or upon
execution will have been) duly executed and delivered by Seller and constitute
(or upon execution will constitute) legal, valid and binding obligations of
Seller enforceable in accordance with their respective terms, except as limited
by bankruptcy, insolvency, reorganization or other laws affecting generally the
enforcement of creditors' rights.
3.3 Agreement Not in Breach of Other Instruments. Except as noted on
Schedule 3.3, the execution and delivery of this Agreement by Seller and the
consummation of the transactions contemplated hereby will not result in a breach
of any of the terms and provisions of, or constitute a default under, or
conflict with, any material agreement, indenture or other instrument to which
Seller is a party or by which it or the Assets are bound.
3.4 Fixed Assets.
(a) Seller has, and at Closing will deliver to Buyer, title to
the Fixed Assets, free and clear of all liens, leases, encumbrances, charges and
restrictions and any agreement or commitment to grant any of such.
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(b) In light of the Buyer's opportunity to inspect and review the
condition and status of the Fixed Assets, Buyer is purchasing the Fixed Assets
in their current condition, AS IS WHERE IS.
(c) Notwithstanding any term to the contrary herein, Seller makes
no representation or warranty as to the title to, or the status of liens,
encumbrances, or charges on, the racking and displays listed on Schedule 1.1(a).
(d) The Fixed Assets include substantially all of the equipment,
fixtures and other personal property used in connection with the manufacture of
Shelf Liner as of the date of the Letter of Intent except for such items which
have been leased by Seller.
3.5 Equipment Leases. Each Equipment Lease is a valid and binding
obligation of Seller and, to the Knowledge of Seller, each of the other parties
thereto and no party to any Equipment Lease is in default with respect to any
material term or condition thereof, nor has any event occurred which through the
passage of time or the giving of notice, or both, would constitute a default
thereunder, except as it may relate to the assignments pursuant hereto.
3.6 Intellectual Property. Except as indicated in Schedule 1.1(f) hereto:
(a) Seller is the legal and beneficial owner of all right, title
and interest in and to the Intellectual Property identified in such Schedule
free and clear of all liens, encumbrances, equities and other adverse claims
(and any agreement or commitment to grant any of such), and, with respect to the
Intellectual Property, no other person, corporation or firm has been authorized
to make any use whatsoever of any of the same. Seller at Closing will deliver to
Buyer, title to the Intellectual Property free and clear of all liens,
encumbrances, equities and other adverse claims (and any agreement or commitment
to grant any of such).
(b) Seller has the right and authority to use the Intellectual
Property in connection with the conduct of Seller's business in the manner
presently conducted, and such use does not conflict with, infringe upon or
violate any tradename, trademark, tradename or trademark registration or any
pending application relating thereto, or involve the unlicensed use of
confidential information of any other person, firm or corporation.
3.7 Contracts. Seller now has, and at Closing will deliver to Buyer,
valid and enforceable interests in and to the Contracts. Except as set forth in
Schedule 1.1(g), neither Seller nor any other party to a Contract is in default
with respect to any material term or condition of any such Contract, nor has any
event occurred which through the passage of time or the giving of notice, or
both, would give Seller or any other party the right to declare a default
thereunder or exercise any remedy. Seller has received no notice that any party
to a Contract intends to modify, cancel or terminate such Contract or to
exercise or not to exercise any option thereunder.
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3.8 Licenses and Permits. Schedule 1.1(h) lists all transferable
governmental licenses and permits held by Seller and which are necessary to the
ownership or use of all or any of the Assets by Buyer. No breach of any such
license or permit currently exists, nor has any event occurred which through the
passage of time or the giving of notice, or both, would constitute a breach
thereunder.
3.9 Litigation. Except as listed in Schedule 3.9:
(a) There is no action, suit or proceeding to which Seller is a
party (either as a plaintiff or defendant) pending before any court or
governmental agency authority or body, or any arbitrator or arbitral body,
which, if decided or concluded adversely, would have a materially adverse impact
upon the operation by Seller of the Division or its ability to consummate the
transactions contemplated herein, and no such action, suit or proceeding has
been threatened against Seller;
(b) Seller has not been permanently or temporarily enjoined by
any order, judgment or decree of any court or tribunal or any other agency from
engaging in or continuing any conduct or practice in connection with the
Division;
(c) There is not in existence on the date hereof any order,
judgment or decree of any court or other tribunal or other agency or any
arbitrator or arbitral body, enjoining or requiring Seller to take any action of
any kind with respect to the business, properties or assets of the Division;
(d) To the Knowledge of Seller, there is no liability or basis
for any present or future proceeding against the Seller for the recall or
replacement of any products sold or manufactured by the Division. No product
sold by the Division is subject to any express warranty;
(e) To the Knowledge of Seller, there is no liability of Seller
or basis for present or future proceeding against the Seller arising out of or
in connection with any injury, death or damage that occurred by reason of use or
otherwise arising from any product designed, manufactured or sold by the
Division.
3.10 Insurance. All of the properties, business and operations of the
Division are adequately insured consistent with businesses of the same or
similar nature and certificates of insurance regarding such policies have been
provided to Buyer. All of such policies have been, are now and will be until
Closing in full force and effect with no premium arrearages.
3.11 Compliance with Law. Except as set forth in Schedule 3.11:
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(a) Seller currently has no outstanding notice or notification
from any court or governmental agency, authority or body that, with respect to
the operations of the Division that it is in violation of or not in compliance
with any federal, state or local laws, statutes, ordinances, rules, regulations,
decrees, orders, permits or other similar items or that upon the passage of time
it will be in violation in any respect of any of the foregoing where such
violation or noncompliance would have a material adverse impact upon Seller's
operation of the Division;
(b) The conduct of the Division within the five year period prior
to the date hereof has not been in violation of any federal, state or local
laws, statutes, ordinances, rules, regulations, decrees, orders, permits or
other similar items in force on the date hereof, the enforcement of which would
materially and adversely affect the business or properties of the Division;
(c) Neither Seller nor any officer, employee or agent of Seller
has, directly or indirectly, within the five year period prior to the date
hereof given or agreed to give any gift or similar benefit to any customer,
supplier, competitor or governmental employee or official or has engaged in any
other practice, which in any such case would subject Seller to any damage or
penalty in any civil, criminal or governmental litigation or proceeding or which
would be grounds for termination or modification of any material contract,
license or other instrument, regarding the Division, to which Seller is a party.
3.12 Reserved.
3.13 Reserved
3.14 Conflicts of Interest. Except as set forth in Schedule 3.14, to the
Knowledge of Seller, no officer, director or management employee of Seller nor
any affiliate of any such person, has, now or within the last three (3) years,
either directly or indirectly:
(a) had an equity or debt interest (except for shareholdings of
publicly traded entities of less than 1%) in any person, corporation or firm
which furnishes or sells or during such period furnished or sold services or
products to the Division or purchases or during such period purchased from the
Division in material quantities any goods or services, or otherwise does or
during such period did business with the Division ;
(b) had a beneficial interest in any contract, commitment or
agreement related to the Division to which Seller is or was a party or under
which Seller is or was obligated or bound or to which any of its properties may
be or may have been subject, other than contracts, commitments or agreements
between Seller and such persons in their capacities as employees, officers, or
directors of Seller.
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(c) hired as an employee of Seller, or entered into a contract,
commitment or agreement with, any relative of an officer, director or
shareholder of Seller.
To the extent they relate to the Division, all transactions or
arrangements described in Schedule 3.14 were, except as set forth therein to the
contrary, entered into upon terms and conditions no less advantageous to Seller
than would have been available to Seller in arms-length negotiations with
unaffiliated third parties.
3.15 Tax Returns. Seller has filed or will file all requisite federal,
state and other tax returns due for all fiscal periods which will end on or
before the Closing Date relevant to the Division. All such taxes due and owing
shall be or have been paid by Seller. Seller has not been advised by any tax
authority of any proposal to file a tax lien against Seller in respect of the
Division or the Assets.
3.16 No Legal Bar. Seller is not prohibited by any order, writ,
injunction or decree of any body of competent jurisdiction from consummating the
transactions contemplated by this Agreement, and no such action or proceeding is
pending against Seller which questions the validity of this Agreement or any of
the transactions contemplated hereby.
3.17 Finder's Fees. Seller has not had any dealings with any person which
would entitle such person to any finder's or brokerage fees in connection with
this Agreement or any transaction contemplated hereby.
3.18 UCC Reports. To the Knowledge of Seller, no financing statement
evidencing a security interest in all or any part of the Assets has been filed
in any state other than Ohio or New York or under the name of any debtor other
than "Rubbermaid Incorporated."
3.19 Inventories. All finished good Inventories of Seller on hand as of
the date of execution of this Agreement are, and as of the Closing will be, of a
quality and quantity salable in the ordinary course of business of the Division.
The Inventories of the Division have been carried at the lower of cost (on a
first-in first-out basis) or market in accordance with U.S. generally accepted
accounting principals ("US GAAP") ("Value"). To the Knowledge of Seller, there
are no adverse conditions affecting a material source of materials or services
available to the Division except as are known to Buyer or, upon reasonable
inquiry of publicly available information, could be known to the Buyer.
3.20 Financial Statements. Seller has delivered to Buyer true and
complete copies of audited Statements of Assets to be Acquired as of December
31, 1997 and December 31, 1996 and related Statements of Product Contributions
for the years then ended, which have been prepared in accordance with US GAAP,
as supplemented by the summary of significant
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accounting policies as set forth on Schedule 3.20, consistently applied
throughout the periods indicated and are in accordance with the books and
records of the Division.
3.21 Suppliers and Customers.
(a) Except as disclosed on Schedule 3.21(a), in the last six
months, to the Knowledge of Seller, none of the largest 10 customers (by dollar
volume) or suppliers of the Division has notified Seller of an intent to cancel
or terminate such business relationship.
(b) Except as disclosed on Schedule 3.21(b), or to the extent
that Seller is precluded from disclosing such information by the terms of a
confidentiality agreement, to the Knowledge of Seller, no third party has firm
plans to market a full line of competitive products not currently on the shelf
that would have a material adverse impact on the Division.
3.22 Pricing. Except as disclosed on Schedule 3.22, in the last six
months, there have been no special pricing commitments (excluding therefrom,
promotional allowances granted from time to time) in excess of 5% granted to the
10 largest customers (by dollar volume) of the Division.
3.23 Reserved.
3.24 Reserved.
3.25 Absence of Certain Changes. Except as set forth in Schedule 3.25,
since December 31, 1997, there has not been any material adverse change in the
working capital, financial condition, assets, liabilities, reserves, contractual
allowances, business operations or prospects of the Division, and, as to the
Division, there has not been:
(a) Any material transaction outside the ordinary course of
business;
(b) Any material cancellation of any indebtedness due it except
upon full payment thereof;
(c) Any agreement, whether in writing or otherwise, to do any of
the foregoing;
(d) Any damage, destruction or loss, whether or not covered by
insurance, materially adversely affecting the business or properties of the
Division;
(e) To the Knowledge of Seller, event or condition of a character
which has resulted or may result in a material adverse change in the Division's
financial condition, assets, liabilities, earnings, or business;
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(f) Sale, assignment or transfer of any of the Assets, except in
the ordinary course of business and consistent with past practice;
(g) Change in any method of accounting or accounting principle
with respect to the Division; or
(h) Change in the rate of return of inventory or merchandise of
the Division to Seller by reason of alleged overshipments, defective merchandise
or otherwise, except for changes which have been in the ordinary course of
business or which have not, individually or in the aggregate, been materially
adverse.
3.26 Required Consents. Except for the pre-merger notification
requirements pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended ("H-S-R") and as set forth in Schedule 3.26 hereto, no consent,
approval or other authorization of or filing or qualification with any
governmental or self-regulatory authority is required to the consummation of the
transactions contemplated by this Agreement;
3.27 No Undisclosed Liabilities. Except for the Assumed Liabilities, no
liability or obligation of any nature, whether accrued, absolute, contingent or
otherwise, relating to the Division or the Assets exists which could, after the
Closing result in any form of transferee liability against Buyer or subject any
of the Assets to any encumbrance whatsoever or otherwise affect the full, free
and unencumbered use of the Assets by Buyer.
3.28 Delivery of Closing Documents. At the Closing, Seller shall execute
and deliver to Buyer any appropriate deeds, bills of sale, assignments,
endorsements and such other instruments of title and other documents as are
necessary to vest title to the Assets in Buyer, free and clear of all liens and
adverse claims to title except as provided for elsewhere herein;
3.29 Other Information. The information concerning Seller's business set
forth in this Agreement, the Schedules and any document, statement or
certificate furnished or to be furnished to Buyer pursuant hereto, does not and
will not contain any untrue statement of a material fact. All information
contained or referred to in the Schedules is accurate in all material respects.
Copies of all documents heretofore or hereafter delivered or made available to
Buyer were or will be complete and accurate copies of such documents on the date
such copies are delivered.
3.30 Representations. All representations and warranties of Seller are
true, accurate and complete in all material respects as of the date hereof and
will be true, accurate and complete as of the Closing as if made at such time,
except with respect to the effect of transactions in the ordinary course of
business and transactions contemplated or permitted by this Agreement. Any
exception to a representation or warranty of Seller which is disclosed in any
schedule hereto shall be deemed to apply only to the representation or warranty
referenced by such schedule, and shall
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not, unless scheduled separately, be considered an exception to any other
representation or warranty of Seller in this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization and Good Standing. Each Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. As of the Closing, Buyer will be a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and will
have full power and authority to own, lease or otherwise hold the Assets. All
corporate proceedings required by law or by the provisions of this Agreement to
be taken by Buyer on or before the Closing Date in connection with the execution
and delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement have been or will be duly and validly taken.
4.2 Due Authorization. This Agreement and each other agreement
contemplated hereby to be executed in connection herewith by Buyer have been (or
upon execution will be) duly executed and delivered by Buyer and constitute (or
upon execution will constitute) legal, valid and binding obligations of Buyer,
enforceable in accordance with their respective terms, except as limited by
bankruptcy, insolvency, reorganization or other laws affecting generally the
enforcement of creditors' rights.
4.3 Agreement Not in Breach of Other Instruments. The execution and
delivery of this Agreement by Buyer and the consummation of the transactions
contemplated hereby will not result in a breach of any of the terms and
provisions of, or constitute a default under, or conflict with, any material
agreement, indenture or other instrument to which Buyer is a party or by which
they or their properties are bound.
4.4 Litigation. There is no action, suit or proceeding to which Buyer is
a party (either as a plaintiff or defendant) pending before any court or
governmental agency authority or body, or any arbitrator or arbitral body,
which, if decided or concluded adversely, would have a materially adverse impact
on the ability of Buyer to consummate the transactions contemplated herein, and
Buyer has no knowledge that any such action, suit or proceeding has been
threatened against Buyer.
4.5 Consents. Except for the pre-merger notification requirements
pursuant to the H-S-R and as set forth in Schedule 4.5 hereto, no consent,
approval or other authorization of or filing or qualification with any
governmental or self-regulatory authority is required to the consummation of the
transactions contemplated by this Agreement.
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4.6 Representations. All representations and warranties of Buyer are
true, accurate and complete in all material respects as of the date hereof and
will be true, accurate and complete as of the Closing as if made at such time,
except with respect to the effect of transactions contemplated or permitted by
this Agreement.
ARTICLE V
COVENANTS AND AGREEMENTS OF SELLER
Seller hereby covenants and agrees, between the date hereof and
the Closing, as follows:
5.1 Conduct of Business. Between the date hereof and the Closing, Seller
shall conduct the operations of the Division only in the ordinary course. Seller
shall use reasonable efforts to preserve the goodwill of its customers and
others with whom it has business relations. Except as otherwise permitted by
this Agreement or consented to by Buyer in writing, between the date of this
Agreement and the Closing, Seller shall:
(a) operate the business of the Division in the ordinary course
consistent with past practice, and use reasonable commercial efforts to preserve
the present business organization of the Division, keep available the services
of the present officers and employees of the Division and preserve the present
relationships with persons having business dealings with the Division;
(b) use reasonable commercial efforts to maintain all of the
assets and properties of the Division in good repair, order and condition and
maintain insurance upon all of the assets and properties and with respect to the
conduct of the business of the Division in amounts and kinds comparable to that
in effect on the date hereof;
(c) maintain the books, accounts and records of the Division in
the ordinary course consistent with past practice;
(d) not change the character of the business of the Division in
any material manner.
(e) not sell or transfer any of the Assets, except for sales or
transfers made in the ordinary course of business and consistent with past
practice;
(f) not mortgage, pledge or create any lien, security interest,
charge or encumbrance upon any of the Assets;
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(g) not terminate or modify any material lease, license, permit,
contract or other agreement included in the Assets;
(h) refrain from doing any act or from omitting to do any act
that will cause a material breach of any lease, contract or commitment listed in
Schedules 1.1(c), 1.1(g) and 1.1(h) hereto;
(i) not cause the Division to change its current pricing,
allowance or advertising arrangements except in the ordinary course of business;
(j) not take any action to shift customer shelf space from
products of the Division to other products of Seller, specifically, Seller's
sales force will not recommend that Seller's other products be placed in shelf
space then in use for the Division's product.
5.2 Fulfillment of Conditions and Covenants. Seller shall not voluntarily
undertake any course of action inconsistent with the satisfaction of the
requirements or conditions applicable to it as set forth in this Agreement and
shall promptly do all acts and take all such steps as it deems necessary or
appropriate to enable it to perform as early as possible the obligations herein
provided.
5.3 Status of Assets. Except in conducting the Division in the ordinary
course, Seller's title to the Assets shall be maintained and preserved at all
times from the date hereof until completion of the Closing in material
accordance with the representations and warranties of Seller set forth in
Article III hereof.
5.4 Grip-Tex. Seller shall use reasonable efforts to assist Buyer in
obtaining an agreement by and between Buyer and Grip Tex Industries Inc.
("Grip-Tex") for the manufacture of Grip Liner. Buyer shall notify Seller at
least 24 hours prior to Closing if such agreement has been obtained. Seller
shall promptly notify Buyer if Seller or, if within Seller's knowledge,
Grip-Tex, defaults under the Purchase Agreement dated September 20, 1995.
5.5 Financial Statements. Seller shall maintain the Division's books and
records in accordance with US GAAP as supplemented by the summary of significant
accounting policies as set forth in Schedule 3.20 and in the usual, regular and
ordinary manner, and promptly advise Buyer in writing of any material adverse
change in the condition (financial or otherwise) of assets, liabilities,
earnings or business of Seller.
5.6 Consents. Seller shall use reasonable effort in assisting Buyer in
obtaining from third parties to the Contracts all required requests, consents,
assignments, waivers and approvals in writing.
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5.7 Transfer of Licenses and Permits and Authorizations. Seller shall use
reasonable effort in assisting Buyer in obtaining transfers of existing Licenses
and Permits.
5.8 Reserved.
5.9 Agreement with Respect to Other Regulatory Filings. Seller agrees
that it shall provide information in its possession necessary for Buyer to
prepare any document or other material which may be required to fulfill H-S-R
requirements.
5.10 Solicitation of Inquiries. From the date hereof to the earlier to
occur of (i) the Closing, (ii) the termination of this Agreement (if terminated
for any reason other than the default of Seller), or (iii) the Final Termination
Date, as hereafter defined (if this Agreement is terminated prior thereto by
reason of the default of Seller), which period shall be referred to herein as
the "No-Shop Period", Seller will not solicit from any other person, firm or
corporation any inquiries or proposals relating to the disposition of the
Division. Until the expiration of the No-Shop Period, Seller additionally agrees
that, without the prior written consent of Buyer, neither it nor its directors,
employees, agents and representatives will deliver to any other person any
non-public information concerning the Division, its financial affairs or
prospects for the purpose or with the intent of permitting such person or entity
to evaluate a possible acquisition of the Division (other than in the ordinary
course of business).
5.11 Public Announcements. Except as required by any applicable law,
rule or regulation, prior to the Closing, Seller will not issue nor permit to be
issued any press release or otherwise make or permit to be made any public
statement with respect to the transactions contemplated by this Agreement
without the prior written consent of Buyer.
ARTICLE VI
COVENANTS AND AGREEMENTS OF BUYER
Buyer hereby covenants and agrees, between the date hereof and the date
of Closing, as follows:
6.1 Public Announcements. Except as required by any applicable law, rule
or regulation, prior to the Closing, Buyer will not issue nor permit to be
issued any press release or otherwise make or permit to be made any public
statement with respect to the transactions contemplated by this Agreement
without the prior written consent of Seller.
6.2 Fulfillment of Conditions and Covenants. Buyer shall not voluntarily
undertake any course of action inconsistent with the satisfaction of the
requirements or conditions applicable to it
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as set forth in this Agreement, and shall promptly do all acts and take all such
steps as it deems necessary or appropriate to enable it to perform as early as
possible the obligations herein provided.
6.3 Agreement with Respect to Other Regulatory Filings. Buyer agrees that
it shall provide information in its possession necessary for Seller to prepare
any document or other material which may be required to fulfill H-S-R
requirements.
6.4 Financing. Buyer shall utilize its best efforts to promptly obtain
financing in an amount necessary to complete the transactions contemplated by
this Agreement and to diligently negotiate with potential lenders. Buyer shall
notify Seller on a weekly basis of the status of and any developments regarding
obtaining financing as provided for in this section. Buyer shall notify Seller
within one business day of any significant developments relating to such
financing. In the event Buyer is unable to obtain financing, Buyer shall provide
to Seller a complete list of lenders with whom Buyer entered into substantive
negotiations to obtain financing, the proposed terms and conditions of the
extension of such financing, and the reason for the failure to consummate such
financing.
6.5 Other Acquisitions. During the No-Shop Period, Buyer shall not,
directly or indirectly, and shall cause their respective executive officers,
directors, employees, agents, and advisors not to, directly or indirectly,
solicit or initiate any proposals or offers from or to any entity that directly
or indirectly manufactures, distributes, or sells any products or lines, in the
North American continent that are competitive to those products and lines that
make up the Division ("Target"), relating to any acquisition or purchase of all
or any material amount of the assets of, or any equity securities of, or any
merger, consolidation, or business combination with, such Target.
ARTICLE VII
CONDITIONS PRECEDENT IN FAVOR OF SELLER
The obligations of Seller contemplated herein are subject to the
satisfaction, at or before the Closing, of all of the conditions set out herein
below. If any such condition is not satisfied, Seller shall have the right, at
its sole election, either to waive the condition in question and proceed with
the Closing or, in the alternative, to terminate this Agreement without
liability. In the event that Seller elects to waive the condition in question
and proceed with the Closing, the condition in question shall be deemed to have
been satisfied and shall have no further force or effect hereunder in the
absence of any misrepresentation of Buyer to Seller with respect to such
condition.
7.1 Accuracy of and Certificate as to Representations and Warranties. The
representations and warranties of Buyer contained herein and in all documents to
be delivered pursuant hereto shall be true and correct in all material respects
as of the Closing, as if made at such time, and Seller shall have received from
Buyer a certificate, dated as of the Closing and
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signed by an executive officer of Buyer, certifying that all such
representations and warranties of Buyer remain true and correct as of the
Closing.
7.2 Compliance with Covenants. Buyer shall have performed and complied
with all covenants, agreements and conditions required by this Agreement to be
performed by Buyer.
7.3 Opinion of Counsel. Seller shall have been furnished with an opinion
of Messrs. Miller & Holguin, counsel to Buyer, dated as of the Closing, and
substantively in the form of Exhibit 7.3 attached hereto. In rendering its
opinion, counsel for Buyer may rely upon certificates of officers of Buyer and
certificates of governmental authorities as to factual matters.
7.4 Reserved.
7.5 Reserved.
7.6 Action/Proceeding. No court shall have issued an order effective
against a party to restrain or prohibit the transactions herein contemplated.
7.7 Governmental Concurrences. Seller shall satisfy itself that H-S-R
requirements have been complied with in respect of the transactions contemplated
by this Agreement.
7.8 Manufacturing Agreement. Buyer shall be in compliance with the terms
and conditions of the Manufacturing Agreement dated April 12, 1995, and as
amended on March 10, 1998, between Seller and Buyer and Decora Industries, Inc.,
as amended (the "Manufacturing Agreement").
7.9 Assumption Agreement. Buyer shall have executed and delivered an
Assumption Agreement dated as of the Closing substantially in the form of
Exhibit 7.9 attached hereto.
7.10 Corporate Authorization. Buyer shall deliver to Seller certified
copies of all appropriate resolutions of Buyer's Board of Directors authorizing
the transaction contemplated by this Agreement.
7.11 Termination of Manufacturing Agreement. Buyer shall have duly
executed and delivered to Seller a termination of the Manufacturing Agreement
(the "Termination"). Such Termination shall provide that all provisions of the
Manufacturing Agreement shall be null and void. Prior to such Termination, the
parties shall agree on the amount of all payments due Buyer from
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Seller for the period up to the Closing, which shall include without limitation,
accounts receivable, volume payments, and raw material adjustments (collectively
the "Adjustment Payment").
ARTICLE VIII
CONDITIONS PRECEDENT IN FAVOR OF BUYER
The obligations of Buyer contemplated herein are subject to the
satisfaction, at or before the Closing, of all of the conditions set out herein
below. If any such condition is not satisfied, Buyer shall have the right, at
its sole election, either to waive the condition in question and proceed with
the Closing or, in the alternative, to terminate this Agreement without
liability. In the event that Buyer elects to waive the condition in question and
proceed with the Closing, the condition in question shall be deemed to have been
satisfied and shall have no further force or effect hereunder in the absence of
any misrepresentation of Seller to Buyer with respect to such condition.
8.1 Accuracy of and Certificate as to Representations and Warranties. The
representations and warranties of Seller contained herein and in all documents
to be delivered pursuant hereto shall be true and correct in all material
respects as of the Closing, as if made at such time, and Buyer shall have
received (i) a certificate, dated as of the Closing and signed by an authorized
officer or Seller on behalf of Seller certifying that all such representations
and warranties of Seller remain true and correct as of the Closing and (ii)
schedules updated through the Closing Date.
8.2 Compliance with Covenants. Seller shall have performed and complied
in all material respects with all covenants, agreements and conditions required
by this Agreement to be performed or satisfied by Seller.
8.3 Compliance with Law. There shall have been obtained any and all
permits, approvals and consents of all governmental bodies or agencies which
counsel for Buyer may reasonably deem necessary or appropriate so that
consummation of the transactions contemplated by this Agreement will be in
compliance in all material respects with applicable laws.
8.4 UCC Report. On or before the Closing Date, Seller shall have
delivered to Buyer termination statements terminating any financing statements
referenced in any UCC search report or in any update of such report obtained by
Buyer prior to the Closing Date.
8.5 Reserved.
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8.6 Opinion of Counsel for Seller. Buyer shall have been furnished at the
Closing with an opinion of Critchfield, Critchfield & Johnston, Ltd., counsel to
Seller, dated as of the Closing and substantively in the form of Exhibit 8.6
attached hereto. In rendering its opinion, counsel for Seller may rely upon
certificates of officers of Seller and certificates of governmental authorities
as to factual matters.
8.7 Documents of Title. Buyer shall have received documents sufficient to
transfer title to the Assets to Buyer as contemplated by this Agreement, in form
and substance reasonably satisfactory to Buyer's counsel.
8.8 Reserved.
8.9 Action/Proceeding. No court shall have issued an order effective
against a party to restrain or prohibit the transaction herein contemplated.
8.10 Adverse Change. No material adverse change in the results of
operations or the financial condition of the Division which materially impairs
the Division's ability to conduct its business operations shall have occurred
other than for changes which occur from the fact that the Division has entered
into this Agreement with Buyer, and the Division shall not have suffered any
material change, loss or damage, whether or not covered by insurance, since the
date of execution of this Agreement, which change, loss or damage materially
affects or impairs the ability of the Division to conduct its business. Without
limitation of the foregoing, there shall not have occurred any destruction of or
damage or loss to all or any part of the Assets from any cause whatsoever,
including, but not limited to, fire, flood, accident, acts of God, earthquake,
insurrection, riot or any other cause commonly referred to as force majeure,
which destruction, damage or loss shall not have been fully repaired to Buyer'
satisfaction.
8.11 License Agreement. Seller shall have duly executed and delivered to
Buyer a two year royalty free license agreement of the trademark "Rubbermaid" in
the form of Exhibit 8.11 hereto (the "License Agreement").
8.12 Corporate Authorization. Seller shall have delivered to Buyer
certified copies of all appropriate resolutions of Seller's Board of Directors
authorizing the transaction contemplated by this Agreement.
8.13 Governmental Concurrences. Buyer shall satisfy itself that H-S-R
requirements have been complied with in respect of the transaction contemplated
by this Agreement.
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8.14 Non-Competition Agreement. Seller shall have duly executed and
delivered to Buyer a non-competition agreement (the "Non-Competition Agreement")
in the form of Exhibit 8.14 hereto pursuant to which Seller shall agree that
they shall not compete with the business of the Division operated by the Buyer
in the geographical areas and for the term specified therein.
8.15 Termination of Manufacturing Agreement. Seller shall have duly
executed and delivered to Buyer a termination of the Manufacturing Agreement
(the "Termination"). Such Termination shall provide that all provisions of the
Manufacturing Agreement shall be null and void. Prior to such Termination, the
parties shall agree on the amount of all payments due Buyer from Seller for the
period up to the Closing which shall include without limitation accounts
receivable, volume payments and raw material adjustments (collectively, the
"Adjustment Payment").
8.16 Reserved.
8.17 Transition Agreement. Seller shall have duly executed and delivered
to Buyer an agreement (the "Transition Agreement") in the form of Exhibit 8.17
hereto pursuant to which Seller shall agree to perform specified post-closing
services to Buyer for a nine month period following the Closing for total
monthly consideration of $555,556 payable by Buyer to Seller.
8.18 Inventories. Seller and Buyer shall have performed a physical
inspection of the Inventories within three business days prior to Closing and
Seller shall confirm to Buyer that the preliminary Value of the Inventory shall
be at least $7,300,000 ("Preliminary Inventory Amount") subject to the terms of
Section 13.6.
8.19 Manufacturing Agreement. Seller shall be in compliance with the
terms and conditions of the Manufacturing Agreement.
ARTICLE IX
CLOSING
9.1 Closing Date. The transfer of the Assets and the consummation of the
transactions contemplated by this Agreement (the "Closing") shall take place as
soon as possible after the satisfaction or waiver in writing of all of the
conditions precedent to the obligations of the parties hereto, which is
anticipated to be March 31, 1998 (the "Closing Date") as may be designated by
mutual consent of the parties, but not later than April 30, 1998 (the "Final
Termination Date"). The location of the Closing shall be New York, New York, at
the offices of Buyer's Lender.
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9.2 Deliveries at Closing. At the Closing:
(a) Seller shall execute and deliver to Buyer any appropriate
bills of sale, assignments and such other instruments of title and other
documents of Seller as are necessary to vest title to the Assets in Buyer, free
and clear of all liens and adverse claims to title except as otherwise specified
herein, including, without limitation:
(i) Duly executed bills of sale covering Fixed Assets
and Inventory in form and substance as set forth in Exhibit 9.2(a);
(ii) A duly executed assignment of Seller's interest in
and to the Equipment Leases;
(iii) A duly executed Non-Competition Agreement;
(iv) A duly executed License Agreement;
(v) A duly executed Termination;
(vi) A duly executed Transition Agreement;
(vii) The Adjustment Payment;
(viii) The Limited Assignment if applicable; and
(ix) Such other and further documents, instruments,
agreements required to be delivered to Buyer as a condition precedent to
Buyer's obligation to purchase the Assets hereunder, or as otherwise
required to be delivered to Buyer pursuant to this Agreement, if not
previously delivered to Buyer.
(b) Buyer shall execute and deliver to Seller at Closing the
Limited Assignment, if applicable, one or more instruments of assumption, in
form satisfactory to Seller, evidencing Buyer's assumption of the Assumed
Liabilities, as well as the Purchase Price (including any "Additional Purchase
Price") and such other and further documents, instruments, agreements required
to be delivered to Seller as a condition precedent to Seller's obligation to
sell the Assets hereunder, or as otherwise required to be delivered to Seller
pursuant to this Agreement, if not previously delivered to Seller.
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ARTICLE X
TERMINATION
10.1 Termination. This Agreement may be terminated prior to the
Closing:
(a) by mutual written consent of Buyer and Seller at any time;
(b) by Seller at any time after the Final Termination Date,
provided that Seller is not in material breach of any covenant, agreement,
representation or warranty made by it in this Agreement;
(c) by Buyer at any time after the Final Termination Date,
provided that Buyer is not in material breach of any covenant, agreement,
representation or warranty made by it in this Agreement;
(d) by Seller or Buyer at any time if (i) an order is entered by
any court or governmental agency having jurisdiction enjoining Seller or Buyer,
respectively, from consummating the transaction and such order shall not have
been vacated, reversed or withdrawn on or before the earlier of the sixtieth
(60th) day after the date on which such order was first issued, or the Final
Termination Date; or (ii) all requirements under H-S-R have not been met.
(e) by Seller or Buyer if (i) any representation or warranty of
the other hereunder shall not have been true and correct as of the time at which
made, or (ii) any conditions precedent to the obligations of such party as set
forth in this Agreement are not satisfied in timely fashion, or (iii) default
shall be made by the other hereunder in the due and timely observance or
performance of any of its covenants and agreements herein contained, in either
event only if such representation or warranty cannot be made true and correct or
such default cannot be cured on or prior to the earlier of (1) the 15th day
after the non-defaulting or breaching party notifies the other in writing of
such default or breach, specifying the nature thereof, or (2) the Final
Termination Date.
10.2 Notice of Termination. The power of termination provided for by
Section 10.1 hereof may be exercised only by a notice given in writing and
signed on behalf of the party providing such notice.
10.3 Effect of Termination.
(a) In the event of termination and abandonment pursuant to this
Article X, this Agreement shall become void and have no effect, without any
liability on the part of any of the
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parties, except as otherwise provided below and in Articles XI and XII hereof.
Any announcement of the termination of this Agreement shall be made by means of
a press release issued jointly by Seller and Buyer unless otherwise required to
be made by either party pursuant to the federal and state securities laws,
provided that in no event shall a press release be issued without the prior
review and opportunity for comment by the non-issuing party.
(b) In the event that Closing does not occur by the Final
Termination Date by reasons solely attributable to Buyer (Buyer's failure to
obtain financing for any reason shall be deemed a reason solely attributable to
Buyer), and Buyer or Seller terminates this Agreement pursuant to Section
10.1(b) or (c), Buyer shall pay Seller the following liquidated damages:
(i) Up to $15,000 in documented expenses of Seller's
auditors in preparing the audited financial statements described
in Section 3.20; and
(ii) $700,000 in liquidated damages.
Such liquidated damages shall be payable to Seller within three business
days after termination. Upon Seller's receipt of such liquidated damages, Seller
shall have no further claim against Buyer.
ARTICLE XI
INDEMNIFICATION
11.1 Survival of Warranties. The warranties and representations of each
party hereto shall not survive the Closing except as set forth in Section
11.2(c).
11.2 Indemnification. The parties shall indemnify each other as follows:
(a) Seller's Indemnity. Seller hereby agrees to indemnify, defend
and hold harmless Buyer from and against all losses, judgments, liabilities,
claims, damages, or expenses (including reasonable attorneys' fees) of every
kind, nature and description, whether known or unknown, absolute or contingent,
joint or several ("Loss"), arising out of or relating to:
(i) Misrepresentations. Any misrepresentation, breach of
any representations or warranty, or non-fulfillment, non-performance, failure to
timely or fully perform, or breach of any covenant, agreement or other
obligation to be performed by Buyer contained in this Agreement or any Exhibit
or Schedule hereto.
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(ii) Non-assumed Liabilities. Any debt, liability,
obligation, agreement or duty of Seller other than the debts, liabilities and
obligations expressly assumed by Buyer.
(b) Buyer Indemnity. Buyer agrees to indemnify, defend and hold
harmless Seller from and against any Loss arising out of or relating to:
(i) Misrepresentations. Any misrepresentation, breach of
any representations or warranty, or non-fulfillment, non-performance, failure to
timely or fully perform, or breach of any covenant, agreement or other
obligation to be performed by Buyer contained in this Agreement or any Exhibit
or Schedule hereto.
(ii) Assumed Liabilities. Any non-fulfillment,
non-performance, failure to timely or fully perform or breach of any agreement
or other obligation to be performed related to the Assumed Liabilities.
(c) Notwithstanding any term herein to the contrary, the
indemnities relating to representations and warranties and covenants of the
parties set forth in Sections 11.2 and 11.3 and the parties' rights to exercise
thereunder shall terminate at Closing, except for those representations,
warranties and covenants set forth in Sections 1.5, 1.6, 3.2, 3.3, 3.4, 3.6,
4.2, 4.3, , 11.2(a)(ii), 11.2(b)(ii), 13.4, 13.5, 13.6 and 13.7, which shall
survive until January 31, 1999.
11.3 Indemnification Notice.
(a) Third Party Claim. In the event that Seller or Buyer shall
choose to assert a claim for Loss or potential Loss based upon a claim by a
third party ("Third Party Claim"), the party seeking indemnification
("Indemnified Party") shall notify the party against which indemnification is
sought ("Indemnifying Party") in writing of such claim, promptly following the
occurrence of the event giving rise thereto, certifying that such a claim has
been asserted and the basis therefor which shall be set forth in reasonable
detail ("Notification").
(i) The Indemnifying Party shall acknowledge receipt of
the Notification and advise the Indemnified Party in writing twenty (20) days
after receipt thereof as to whether the Indemnifying Party agrees to such Third
Party Claim and whether the defense of the Third Party Claim shall be undertaken
by counsel of the choice of and at the expense of the Indemnifying Party. If the
Indemnifying Party so agrees, the Indemnifying Party shall be deemed to have
accepted any Indemnifiable Loss suffered arising from such Third Party Claim,
the defense of which has been assumed by the Indemnifying Party. If the
Indemnifying Party advises the Indemnified Party that it shall undertake the
defense of the Third Party Claim, the Indemnified Party shall deliver all the
documents related to the Third Party Claim to the Indemnifying Party
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or to its counsel, after which the responsibility of the Indemnified Party for
the defense of the Third Party Claim shall cease, except that the Indemnified
Party shall make available all documents, books and records in its possession
related to the Third Party Claim, at no expense to the Indemnifying Party, and
shall fully cooperate with counsel for the Indemnifying Party, including
providing its personnel who are acquainted with the facts or the documents or
books and records related to the Third Party Claim.
(ii) If the Indemnifying Party advises the Indemnified
Party that the defense of the Third Party Claim will not be undertaken, either
the Indemnified Party shall settle such Third Party Claim (in which case, the
amount of such settlement and all attorneys' fees attendant to the achievement
of such settlement shall be deemed included in any computation to determine
Loss), or the Indemnified Party shall notify the Indemnifying Party of the
identity of the counsel for the Indemnified Party who has been selected to
defend the Third Party Claim. The Indemnifying Party shall fully cooperate with
the Indemnified Party and its counsel to the extent that the Indemnifying Party
has knowledge of the facts or circumstances relating to the Third Party Claim
and the Indemnified Party shall cause its counsel to be available to the
Indemnifying Party or its counsel to respond to any inquiries of the
Indemnifying Party concerning the progress of such defense. In the event that
the Indemnified Party shall assert a claim for Loss as a result of any loss
suffered by the Indemnified Party in settling or defending such Third Party
Claim, the Indemnified Party shall notify the Indemnifying Party in writing of
such claim. The Indemnifying Party shall pay all costs related to the settlement
or the defense within thirty (30) days after a demand for the Loss or any
component part is made.
(b) Non-Third Party Claim. In the event the Indemnified Party
shall choose to assert a claim for Loss or potential Loss by reason of other
than a Third Party Claim, the Indemnified Party shall notify the Indemnifying
Party in writing of such claim and the reasons therefor, which reasons shall be
set forth in reasonable detail. The Indemnifying Party shall pay to the
Indemnified Party the amount of the Loss within thirty (30) days of demand
pursuant to this Section 11.3.
ARTICLE XII
REMEDIES
12.1 Litigation Costs. If any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees, court costs and
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other costs incurred in such action or proceeding, in addition to any other
relief to which it or they may be entitled.
ARTICLE XIII
CERTAIN ADDITIONAL AGREEMENTS OF THE PARTIES
13.1 Due Diligence Review. The parties hereto acknowledge and agree that
as of the date of this Agreement, Buyer's potential lenders and underwriters
(collectively "Lender") have not had the opportunity to conduct a full and
complete due diligence investigation of Seller. Seller agrees to provide Lender
(including their attorneys and advisors) reasonable access to the materials
provided prior to the date hereof by Seller to Buyer in the due diligence
process. Lender's requests for additional materials will be addressed on a
request by request basis by Seller, taking into account Seller's need to
preserve the confidentiality of certain materials. In the event Seller provides
Lender additional information ("Additional Information"), prior to providing
such Additional Information, such Lender shall execute for the benefit of Seller
a Confidentiality Agreement which shall survive Closing in the same substance
and form as the Confidentiality Agreement between Decora Industries, Inc. and
Rubbermaid Incorporated, dated December 10, 1997, except for an additional
provision which precludes Lender from disclosing to Buyer Additional
Information. Buyer shall cooperate with Seller in limiting the Lender's requests
to that information reasonably necessary to make a credit underwriting decision.
In no case will any information provided by Seller, other than information
contained in a prospectus or offering memorandum issued on or before Closing
("Offering Document"), be provided to an investor of any public or private debt
or equity offering by Buyer. Prior to any distribution of an Offering Document
(preliminary and final), Buyer shall provide Seller a copy of such Offering
Document and a reasonable opportunity to review and comment on the contents
therein.
13.2 Reserved.
13.3 H-S-R Act. Buyer and Seller shall, if applicable, file Notification
and Report Forms under H-S-R with the Federal Trade Commission (the "FTC") and
the Antitrust Division of the Department of Justice (the "Antitrust Division")
and shall use their reasonable efforts to respond as promptly as practicable to
all inquiries received from the FTC or the Antitrust Division for additional
information or documentation. Each party shall bear their own expenses with
respect to such filing, except that any applicable filing fees shall be borne by
Buyer. In the event such filings are required, it shall be a condition to
Closing that any waiting period applicable to the consummation of the
transactions contemplated by this Agreement under H-S-R shall have expired or
been terminated and no action shall have been instituted or authorized to be
instituted by the FTC or the Antitrust Division challenging or seeking to enjoin
the consummation of such transactions, which action shall not have been
withdrawn or terminated.
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13.4 Use of Names. As of the Closing, Seller shall cease using any of the
trade names listed on Schedule 1.1(f) hereto except as required to effectuate
the obligations of Seller under this Agreement and the Transition Agreement.
13.5 Adjustment to Purchase Price for Net Sales.
(a) As soon as practicable after December 31, 1998 (but in no
event later than January 28, 1999), Buyer shall determine the Net Sales (as
hereinafter defined) for the period from January 1, 1998 to December 31, 1998
("Calender 1998 Net Sales"). Calendar 1998 Net Sales shall be the total of:
(i) the Net Sales of Seller of the Division from January
1, 1998 to the Closing Date, as verified in writing by Seller's independent
auditor KPMG Peat Marwick LLP within 30 days of Closing; and
(ii) the Net Sales of Buyer arising from its operation of
the Assets from the Closing Date to December 31, 1998, as verified in writing by
Buyer's independent auditor Price Waterhouse LLP by January 28, 1999.
Net Sales shall refer to gross revenues of the business of the Division as
operated by Seller prior to Closing and the comparable business as operated by
Buyer after Closing less returns, allowances at a deemed rate equal to 3.7% of
gross revenue and all freight charges at a deemed rate equal to 3.9% of gross
revenue.
On or before January 28, 1999, the Buyer shall deliver to Seller in
writing a determination of Calendar 1998 Net Sales ("Calendar 1998 Net Sales
Determination") which shall set forth the following: (i) the information
required under subsection a(i) and (ii) hereof; (ii) the allocation of the
Escrow Amount between Buyer and Seller pursuant to subsections (b)(i) and (c)
hereof; and (iii) the amount owed by Buyer to Seller pursuant to subsection
b(ii) hereof, if any.
In the event Seller disagrees with Buyer's Calendar 1998 Net Sales
Determination , then Seller shall notify Buyer of such disagreement ("Seller's
Notice of Disagreement") within five business days after Buyer's delivery of
Buyer's Calendar 1998 Net Sales Determination. If Seller fails to deliver
Seller's Notice of Disagreement within such five business day period, Buyer's
Calendar 1998 Net Sales Determination shall become final and binding on the
parties. Seller's Notice of Disagreement shall set forth in reasonable detail
the basis of the disagreement. Thereafter, Seller and Buyer shall attempt in
good faith to resolve any differences and agree upon the resolution of the
disagreement. Each party shall cause their respective independent auditor to
make available to such other party all information utilized by such independent
auditor to determine their respective Net
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Sales. If Seller and Buyer are unable to resolve the disagreement within ten
business days after delivery of Seller's Notice of Disagreement, then the
dispute shall be submitted to John Chapman of Deloitte & Touche LLP,
(hereinafter referred to as the "Independent Accountant"). The parties shall
forthwith deliver all documentation necessary for the Independent Accountant to
reach a determination. The Independent Accountant shall resolve the disputed
items and make a determination with respect thereto. Such determination will be
made and written notice thereof given to Buyer and Seller within thirty days
after submission. The fees and expenses of the Independent Accountant shall be
shared equally between Buyer and Seller. The determination of the Independent
Accountant shall be final, binding, and conclusive upon the parties thereto.
(b) If the Calendar 1998 Net Sales are equal to or greater than
$69,172,000 ("Target Sales Amount"), then:
(i) the Escrow Amount shall be released to Seller on
January 31, 1999; and
(ii) Buyer shall pay Seller $0.87 for each $1.00 by which
Calendar 1998 Net Sales exceed the Target Sales Amount up to a maximum payment
by Buyer to Seller of $2,500,000 on January 31, 1999.
(c) If Calendar 1998 Net Sales are less than the Target Sales
Amount then:
(i) Such portion of the Escrow Amount shall be paid to
Buyer equal to $0.87 for each $1.00 by which Calender 1998 Net Sales are less
than the Target Sales Amount up to $2,500,000 on January 31, 1999.
(ii) Any remaining portion of the Escrow Amount not so
paid to Buyer shall be paid to Seller on January 31, 1999.
13.6 Inventory Determination. In the event the Preliminary Inventory
Amount is less than $7,300,000 as determined pursuant to Section 8.18, the
Purchase Price shall be reduced at Closing dollar for dollar for each dollar by
which the Preliminary Inventory Amount is less than $7,300,000. Within 15 days
following the Closing Date, Seller shall deliver to Buyer, in writing, (which
writing shall be hereinafter referred to as "Closing Inventory Amount
Determination") a final determination of the Value of the Inventories as of the
Closing (which amount shall be hereinafter referred to as "Closing Inventory
Amount"). In the event the Closing Inventory Amount is less than the Preliminary
Inventory Amount, the Purchase Price shall be further reduced dollar for dollar
for each dollar by which the Closing Inventory Amount is less than the
Preliminary Inventory Amount. In the event the Closing Inventory Amount is
greater than the
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Preliminary Inventory Amount, the Purchase Price shall be increased dollar for
dollar for each dollar by which the Closing Inventory Amount is greater than the
Preliminary Inventory Amount, but in no event shall the Closing Inventory Amount
be greater than $7,300,000 for purposes of Buyer's reimbursement obligation
hereunder. Any reimbursement obligation hereunder shall be made within five days
after Final Determination (as hereinafter defined). In the event Buyer disagrees
with Seller's Closing Inventory Amount Determination, then Buyer shall notify
Seller of such disagreement ("Buyer's Notice of Disagreement") within five
business days after Seller's delivery of Seller's Closing Inventory Amount. If
Buyer fails to deliver Buyer's Notice of Disagreement within such five business
day period, Seller's Closing Inventory Amount Determination shall become final
and binding upon the Parties. Buyer's Notice of Disagreement shall set forth in
reasonable detail the basis of the disagreement. Thereafter, Seller and Buyer
shall attempt in good faith to resolve any differences and agree upon the
resolution of the disagreement. Each party shall cause their respective
officers, employees and independent auditors to make available to such other
party all other information utilized by such officers, employees or independent
auditors to determine the Closing Inventory Amount. If Seller and Buyer are
unable to resolve the disagreement within ten business days after delivery of
Buyer's Notice of Disagreement, then the dispute shall be submitted to John
Chapman of Deloitte and Touche, LLP, ("hereinafter referred to as the
Independent Accountant"). The parties shall forthwith deliver all documentation
necessary for the Independent Accountant to reach a determination. The
Independent Accountant shall resolve the disputed items and make a determination
with respect thereto. Such determination will be made and written notice thereof
given to Buyer and Seller within thirty days after submission. The fees and
expenses of the Independent Accountant shall be shared equally between Buyer and
Seller. The determination of the Independent Accountant shall be final, binding
and conclusive upon the Parties thereto. For purposes hereof, "Final
Determination" shall mean the lapse of Buyer's opportunity to deliver Buyer's
Notice of Disagreement, or if Buyer's Notice of Disagreement is delivered
either: (i) the parties' resolution of the matter, or (ii) the Independent
Accountant's determination of the disagreement.
13.7 Shelf Space. From Closing, until January 31, 1999, Seller shall not
take any action to shift customer shelf space from products of the Division to
other products of Seller, specifically, Seller's sales force will not recommend
that Seller's other products be placed in shelf space then in use for the
Division's product.
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ARTICLE XIV
MISCELLANEOUS
14.1 Notices. All notices, waivers or other communications required or
contemplated hereby shall be deemed given if delivered personally, or sent by
registered or certified mail or air courier, postage prepaid, return receipt
requested, or by telex or telecopier addressed to the parties so to be served as
follows:
If to the Seller:
Rubbermaid Incorporated
1147 Akron Road
Wooster, Ohio 44691
Attn: Corporate Secretary
With a copy to:
Lincoln P. Oviatt, Esq.
Critchfield, Critchfield & Johnston, Ltd.
225 North Market Street
Wooster, Ohio 44691-0599
If to Buyer:
Nathan Hevrony
Decora, Incorporated
1 Mill Street
Fort Edwards, NY 12828
With a copy to:
Dale S. Miller, Esq.
Miller & Holguin
1801 Century Park East
Seventh Floor
Los Angeles, CA 90067
Service of any such notice or demand so made by mail shall be deemed
complete on the date of actual delivery thereof as shown by the addressee's
registry or certification receipt, or upon
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the expiration of seven days following the date of mailing. Any party hereto
from time to time by notice in writing served upon the other as aforesaid may
designate a different mailing address to which, or a different or additional
person to whom, all such notices or demands thereafter shall be addressed.
14.2 Assignment. Neither the Agreement nor any of the rights hereunder may
be assigned by either party without the prior written consent of the other.
Notwithstanding the foregoing, Buyer shall have the right to assign its rights
to a newly formed subsidiary.
14.3 Expenses. Each party shall bear all of its own expenses or costs
related to this Agreement incurred by such party except as may be otherwise
provided in this Agreement.
14.4 Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and constructed in accordance with the laws
of the State of Ohio without regard to conflict of laws principles thereof. Each
of the parties hereto hereby irrevocably and unconditionally consents to submit
to the exclusive jurisdiction of the courts of the State of Ohio for any
litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating thereto
except in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to its respective address set forth
in Section 14.1 shall be effective service of process for any litigation brought
against it in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objections to the laying of venue of any litigation
arising out of this Agreement or the transactions contemplated hereby in the
United States Federal District Court of the Northern District of Ohio and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such litigation brought in any such court has been
brought in an inconvenient forum.
14.5 Entire Understanding. Other than the Confidentiality Agreement
between Decora Industries, Inc. and Rubbermaid Incorporated dated December 10,
1997 ("Confidentiality Agreement"), all prior agreements, representations,
discussions, negotiations, commitments and understandings between the parties
are incorporated in this Agreement and the Exhibits and Schedules attached
hereto which constitute the entire contract between the parties. The terms of
this Agreement are intended by the parties as a final expression of their
agreement with respect to such terms as are included herein and may not be
contradicted by evidence of any prior or contemporaneous written or oral
representations, agreements or understandings, whether express or implied other
than the Confidentiality Agreement. The parties further intend that this
Agreement constitutes the complete and exclusive statement of its terms and that
no extrinsic evidence whatsoever may be introduced in any judicial proceeding,
if any, involving this
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Agreement. No amendment or variation of the terms of this Agreement shall be
valid unless made in writing and signed by each of the parties.
14.6 Reserved.
14.7 Further Assurances. Subject to the terms of this Agreement, each
party, both prior to and after the Closing, shall reasonably cooperate with the
other, at the other party's request, in furnishing information, documents, and
other assistance in connection with the transactions contemplated hereby.
14.8 Waiver. Any party may at any time waive compliance by the other with
any covenants or conditions contained in this Agreement but only by written
instrument executed by the party waiving such compliance. If a party waives a
condition of Closing, the other party shall have not liability hereunder with
respect to the matters so waived.
14.9 Headings. All Section and Article headings are included for
convenience only and are not intended to be full or accurate descriptions of the
contents thereof.
14.10 Counterpart. This Agreement may be executed simultaneously in one or
more counterparts, each of which may be deemed an original but all of which
together shall constitute one or the same instrument. In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
counterpart.
14.11 Severability. If any provision of this Agreement, as applied to any
party or to any circumstance, shall be adjudged by a court to be void, invalid
or unenforceable, the same shall in no way affect any other provision of this
Agreement, the application of such provision in any other circumstance or the
validity or enforceability of this Agreement.
14.12 Binding on Successors. All of the terms, provisions and conditions
of this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto an their respective heirs, successors, assigns and legal
representatives.
14.13 Knowledge. For purposes of this Agreement, Seller's "Knowledge"
shall mean the actual knowledge of any member of the business team of Seller
assigned to the business of the Division.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date above written.
"BUYER" "SELLER"
DECORA, INCORPORATED RUBBERMAID INCORPORATED
an Ohio corporation
By:_____________________________ By:__________________________________
DECORA INDUSTRIES, INC. RUBBERMAID SPECIALTY
PRODUCTS INC.
By:_____________________________ By:__________________________________
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LIST OF SCHEDULES
<TABLE>
<S> <C>
Schedule 1.1(a) Fixed Assets
Schedule 1.1(b) Inventory
Schedule 1.1(c) Equipment Leases
Schedule 1.1(f) Intellectual Property
Schedule 1.1(g) Contracts and Assumed Liabilities and Obligations
Schedule 1.1(h) Licenses and Permits
Schedule 3.3 Material Agreements of Seller
Schedule 3.9 Litigation
Schedule 3.11 Legal Compliance
Schedule 3.14 Conflicts of Interest
Schedule 3.20 Significant Accounting Policies
Schedule 3.21(a) Termination or Alteration of Supplier and Customer Agreements
Schedule 3.21(b) Competitive Products
Schedule 3.22 Special Pricing Commitments
Schedule 3.25 Changes in Financial Condition
Schedule 3.26 Required Consents of Seller
Schedule 4.5 Required Consents of Buyer
</TABLE>
<PAGE> 42
LIST OF EXHIBITS
<TABLE>
<S> <C>
Exhibit 1.1(d) Limited Assignment
Exhibit 2.1(b) Escrow Agreement
Exhibit 7.3 Opinion of Buyer's Counsel
Exhibit 7.9 Assumption Agreement
Exhibit 8.6 Opinion of Seller's Counsel
Exhibit 8.11 License Agreement
Exhibit 8.14 Non-Competition Agreement
Exhibit 8.17 Transition Agreement
Exhibit 9.2(a) Bill of Sale
</TABLE>
