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 29, 1995
________________________________________
THERMO PROCESS SYSTEMS INC.
(Exact name of Registrant as specified in its charter)
Delaware 1-9549 04-2925807
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation or
organization)
12068 Market Street 48150
Livonia, Michigan (Zip Code)
(Address of principal executive offices)
(617) 622-1000
(Registrant's telephone number
including area code)
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Item 2. Acquisition or Disposition of Assets
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On March 29, 1995, Beheersmaatschappij J. Amerika N.V. ("J. Amerika"),
a 65%-owned subsidiary of Thermo Process Systems Inc. (the "Company"),
acquired all of the issued and outstanding capital stock of Refining and
Trading Holland B.V., which conducts business under the name "North
Refinery" ("North Refinery"), from Stalt Holding B.V., a Dutch petroleum
trading company ("Stalt Holding"). North Refinery specializes in
processing "off-spec" and contaminated petroleum fluids into usable
products such as gas oil, diesel oil and fuel oil.
The purchase price for North Refinery's stock was NLG 9,568,000
(approximately $5,618,000) and 228,570 shares of J. Amerika's capital
stock, valued at NLG 1,327,000 (approximately $857,000). J. Amerika has
also agreed to pay, after the fifth anniversary date of the closing, an
amount equal to 20% of the amount by which the cumulative pretax profits of
North Refinery's business over the five-year period ending on such
anniversary exceeds NLG 5,000,000.
The acquisition was made pursuant to a Stock Purchase Agreement (the
"Agreement") entered into on March 29, 1995 by and among the Company, J.
Amerika, Stalt Holding and three shareholders of Stalt Holding. The
purchase price was based on the Company's determination of the fair market
value of North Refinery's business, and the terms of the Agreement were
determined by arms' length negotiation among the parties.
The Company has no present intention to use North Refinery's plant,
equipment or other assets for purposes materially different from the
purposes for which such assets were used prior to the acquisition.
However, the Company will review North Refinery's business and assets,
corporate structure, capitalization, operations, properties, policies,
management and personnel and, upon completion of this review, may develop
alternative plans or proposals, including mergers, transfers of a material
amount of assets or other transactions or changes relating to such
business.
J. Amerika financed the acquisition of North Refinery from working
capital. North Refinery's gross revenues are estimated to be NLG
15,000,000 (approximately $9,700,000) for the fiscal year ending March 31,
1995.
Item 7. Financial Statements, Pro Forma Combined Condensed Financial
Information and Exhibits
(a) Financial Statements of Business Acquired: as it is
impracticable to file such information at this time, it will
be filed by amendment within the period specified by Item
7(a)(4) of Form 8-K.
(b) Pro Forma Combined Condensed Financial Information: as it is
impracticable to file such information at this time, it will
be filed by amendment within the period specified by Item
7(b)(2) of Form 8-K.
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(c) Exhibits
1. Stock Purchase Agreement entered into on March 29, 1995,
by and among Stalt Holding, B.V., Beheersmaatschappij J.
Amerika N.V., A.J. Van Es, J.B. Van Es and D.A. Slager,
and Thermo Process Systems Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized, on this 31st day of March 1995.
THERMO PROCESS SYSTEMS INC.
By: John P. Appleton
President and
Chief Executive Officer
AA950890055
4
EXHIBIT 1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made and entered into this 29th day of
March, 1995, by and among
1. STALT HOLDING B.V., a limited liability company organized under the
laws of the Netherlands (hereinafter "Seller");
2. BEHEERSMAATSCHAPPIJ J. AMERIKA N.V., a limited liability company
organized under the laws of the Netherlands (hereinafter "Buyer");
3. A.J. VAN ES, J.B. VAN ES and D.A. SLAGER (hereinafter collectively the
"Shareholders" and individually a "Shareholder");
4. THERMO PROCESS SYSTEMS INC., a company organized under the laws of
Delaware, United States of America (hereinafter "TPS");
WHEREAS
- Seller owns all of the issued and outstanding shares (the "Shares") in
the capital of Refining and Trading Holland B.V. ("North Refinery" or
"the Company");
- Seller desires to sell and Buyer desires to buy the Shares for a price
and upon the terms and conditions specified hereinafter;
NOW THE PARTIES HERETO AGREE AS FOLLOWS:
Article 1. Definitions
In this Agreement, the following terms will have the meaning set forth
hereafter:
the "Outlined Business": 1. The buying and/or collecting of feedstocks
(including waste products), the processing
thereof (including filtration, centrifugation
and distillation) all with the purpose to
generate marketable products and the selling
of such products in combination with the
treatment of waste.
2. The buying of mineral products for blending
purposes with finished refined products and
the sale thereof.
3. Acquiring the status of (and then acting as)
central processing unit of used (motor) oils
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and other minerals (Centrale Bewerkings
Eenheid).
4. The project management of on site of soil and
groundwater contamination as well as soil
remediation at the Delfzijl premises.
"Working Capital": Working capital shall be defined as current assets
less current liabilities other than bank debt and
related accrued interest. Attached Exhibit A
details a preliminary working capital calculation
of NLG 568,000. This amount will be adjusted
within one month of Closing to reflect actual tank
readings and other adjustments that the parties
mutually agree upon.
Article 2. Purchase and Sale of the Shares
2.1 Delivery of the Shares. At the Closing (as specified in Section 3.1
hereof), Seller shall transfer to Buyer all right, title and interest
in and to the Shares, free and clear of all liens, encumbrances,
charges or restrictions. Transfer of the Shares shall occur by
execution of a deed of transfer in the form of Exhibit B hereto and
shall be acknowledged by the Company. The transfer shall be registered
in the shareholders' register of the Company.
2.2 Purchase Price. In exchange for the Shares and the Seller's other
obligations hereunder, and subject to the terms and conditions
contained in this Agreement, Buyer agrees to pay to Seller a total
purchase price consisting of the following parts ("Part a", "Part b",
"Part c" and "Part d" respectively):
a. NLG 9,000,000.-- (nine million Dutch guilders) less the amount of
non-working capital liabilities at Closing;
b. NLG 1,5 million in stock of Buyer based upon the last public sale
at $ 3.75 or 228,570 (two hundred twenty-eight thousand five
hundred seventy) shares;
c. an amount equal to the working capital of the Company at the
Closing;
d. 20% of the cumulative pretax profits over the years 1995 to 1999
(inclusive) of the Company, in as far as such total exceeds NLG
5,000,000.-- (five million Dutch guilders), resulting from the
Outlined Business, after deduction of those profits (if any)
attributable to any business currently pursued by Buyer,
including, but not limited to, soil recycling.
2.3 Payment of the purchase price. Parts a. and b. shall be paid at the
Closing. An advance for Part c. agreed between the parties shall be
paid at Closing, to be finally adjusted within one month and any
difference between the advance and the adjusted amount shall be paid
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within 8 days after the end of that one month period. Part d. shall be
paid within two months of the end of 1999.
2.4 Determination. In the absence of agreement between the parties, the
amounts of Part c. and Part d. respectively shall be determined in a
binding decision by one auditor, appointed by Seller and Buyer in
mutual agreement or, in the absence of such agreement, by the
President of the District Court in Amsterdam. Buyer shall procure that
such auditor shall have full access to the books and records of the
Company, undiminished such auditor's professional duty of
confidentiality.
Article 3. Closing
3.1 Time and Place of Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall occur at the
offices of Houthoff, Parnassusweg 126, Amsterdam, the Netherlands, at
10.00 a.m. on March 29, 1995, or on such other date or at such other
place as the parties hereto may agree (the "Closing Date").
3.2 Action to be taken prior to the Closing. Before the date specified in
Section 3.1 as the intended date of the Closing, Seller shall provide
Buyer with
(i) documents establishing to the satisfaction of Buyer that Seller
is the owner of the Shares;
(ii) an estimate of the working capital of the Company at the intended
date of the Closing.
3.3 Conditions precedent to the Closing. The Closing is conditional on
the following acts being performed immediately prior to the Closing:
(i) signature by the Buyer and Mr. David Slager of a full time
employment agreement hereto;
(ii) Mr. David Slager providing evidence to the Buyer that he has
resigned as managing director of Seller and all companies
associated with Seller;
(iii) Seller as managing director of the Company certifying in writing
that, to its best knowledge, the representations and warranties
contained in this Agreement are true and correct on the date of
his statement and no material adverse development in the status
or outlook of the business of the Company has occurred between
December 31, 1994 and the date of his statement, in the form of
Exhibit C hereto.
3.4 Action to be taken at the Closing. At the Closing:
(i) Seller shall provide evidence of the amount of the non working
capital liabilities of the Company at Closing;
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(ii) Seller shall provide for the written resignation of the Company's
managing director, containing a waiver of any right to further
compensation, to redundancy payment or compensation for salary
after the Closing date;
(iii) Parties shall sign the notarial deed of transfer of the Shares,
as specified in Section 2.1, and Seller shall cause the managing
director of the Company to sign the deed of transfer to
acknowledge the transfer of the Shares to Buyer;
(iv) Seller shall provide, a bank guarantee from a first class Dutch
bank for an amount of NLG 500,000 (five hundred thousand
guilders) plus interest, in the form of Exhibit D hereto;
(v) Buyer shall pay Part a. and Part c, without prejudice to Section
2.3 of the purchase price to Seller by certified check, wire
transfer or other method acceptable to Seller, against signed
receipt from Seller;
(vi) Buyer shall sign a notarial deed issuing 228,570 (two hundred
twenty-eight thousand five hundred seventy) shares in its capital
to Seller for which shares the provision applies that Seller will
have the right to cause TPS to sell or liquidate Buyer on the
most favourable terms available in the event a public offering of
Buyer's common stock has not occurred within four years after the
Closing Date;
(vii) A.J. van Es and J.B. van Es shall enter into a noncompetition and
nonsolicitation agreement with the Buyer in the form of Exhibit E
hereto;
(viii) Seller shall cause MeesPierson to release the Company,
substantially in the form of Exhibit F.
Article 4. Representations and warranties
4.1 Company to include subsidiaries. The term the "Company", when used
below, shall include the Company and each entity of which fifty
percent (50%) or more of the effective voting power or equity interest
is owned directly or indirectly by the Company (a "Subsidiary"), as an
entirety; and representations, warranties and covenants as to the
Company contained herein shall be deemed to mean the Company and each
Subsidiary of the Company, both separately and together as a
consolidated whole, unless and except to the extent expressly
indicated otherwise.
4.2 Representations and warranties of the Seller. The Seller represents,
warrants and guarantees to Buyer that, except as set forth on the
Disclosure Schedule attached hereto as Exhibit G (specifically
identifying the relevant subsection hereof):
(a) Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the
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laws of the Netherlands and has all requisite corporate and other
power and authority to own and lease its properties and to carry
on its business as it is now being conducted. A true and complete
copy of the Articles of Association of the Company, as amended to
date, has previously been provided to the Buyer. The sole
managing director of the Company is Seller. The Company has no
supervisory board.
(b) Capitalization. The authorized capital stock of the Company is
set forth on the Disclosure Schedule. The outstanding capital
stock of the Company is also set forth on the Disclosure
Schedule, and the Shares constitute the total issued share
capital of the Company. There is no other capital stock of the
Company authorized for issuance. All of the Shares have been
validly issued, are fully paid and are free of preemptive rights.
No shares of capital stock are held in treasury. No shares of the
Company's capital stock are reserved for issuance, nor are there
any options, warrants, convertible instruments or other rights,
agreements or commitments, contingent or otherwise obligating the
Company to issue shares of capital stock, and no resolution to
issue shares has been adopted and no authority thereto has been
granted.
(c) Ownership of shares. The Shares are not encumbered and are
freely transferable by Seller. Seller holds good and marketable
title to the Shares and no third party can claim any right
thereto or make any claim thereon. The transfer by Seller of the
Shares to Buyer pursuant to this Agreement will vest in Buyer
full title to the Shares, free and clear of all liens, claims,
equities, options, calls, voting trusts, agreements, commitments
and encumbrances whatsoever.
(d) Authority to transfer. Seller has full capacity and authority to
execute and perform this Agreement. This Agreement constitutes
the valid and binding obligation of Seller enforceable against it
in accordance with its terms. Neither the execution and
performance of this Agreement nor the consummation of the
transactions contemplated hereby will (i) conflict with or result
in a violation, termination, acceleration or default under (or
would result in a violation, termination, acceleration or default
with the giving of notice or passage of time, or both) any of the
terms, conditions or provisions of any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation
to which the Company is a party or (ii) result in the violation
of any order, writ, injunction, decree, statute, rule or
regulation applicable to the Company. No consent or approval by,
or notification to or filing with, any governmental authority or
third party is required in connection with the execution and
performance of this Agreement by Seller or the consummation of
the transactions contemplated hereby.
(e) Financial Statements. Seller has delivered to Buyer prior to the
execution of this Agreement true and complete English
translations of: the balance sheet of the Company as of June 30,
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1994 (the "Balance Sheet"), and the Company's statements of
profit and loss, and sources and applications of funds, for each
of the three book years ended June 30, 1992, 1993 and 1994
(together with the Balance Sheet, the "Financial Statements").
The Financial Statements fairly present the financial condition,
results of operations, and sources and applications of funds of
the Company as at the dates and for the periods indicated, in
each case in accordance with generally accepted Dutch accounting
principles applied on a basis consistent with previous years, and
give a true, complete and reliable picture of the financial
position of the Company.
(f) No undisclosed liabilities; no dealings with Shareholders,
officers, directors or employees. As of the date of the Balance
Sheet, the Company has no liabilities or obligations of any
nature, whether known or unknown, absolute, accrued, contingent
or otherwise, and whether due or to become due, other than those
reflected in the Financial Statements for 1994, or in amounts in
excess of those included for such liabilities on the Balance
Sheet, and there is no basis for the assertion against the
Company of any such liability or obligation as of such date. The
Company had no contractual arrangement with or commitment to or
from any of its shareholders, officers, management, directors or
employees (or their family members) including, without limiting
the generality of the foregoing, being directly or indirectly
joint investor or coventurer with, or owner, lessor, lessee,
licensor or licensee of, any real or personal property, tangible
or intangible, owned or used by, or a lender to or debtor of, the
Company.
(g) Taxes and fiscal matters. The Company has accurately prepared
and duly and timely filed all national, local or foreign tax and
other returns and reports which were required to be filed, in
respect of all taxes, levies, imports, duties, license and
registration fees, charges or withholdings (including payments
required under the rules pertaining to the social insurance laws)
of any nature whatsoever (collectively "Taxes"), and to the
extent the liabilities of the Company for Taxes as per the
Balance Sheet date have not been fully discharged, adequate
reserves have been established on the Balance Sheet under the
appropriate heading. The Company has complied with all duties
with regard to the tax authorities and under the tax rules and is
not in default in the payment of any Taxes due and payable or on
any assessments received in respect thereof, and there are no
claims pending or threatened against the Company for past due
Taxes nor disputes with the authorities about the amount or
payment of Taxes. No Taxes over the period before December 31,
1994 have been paid (and no undertaking to pay such Taxes has
been made) before the Closing, unless a reserve was made for such
payment in the Balance Sheet. The Company will not have any
liability for Taxes, or for any interest, penalties or fines in
respect thereof, for or in respect of any period or periods up to
and including the Closing, except to the extent such liability
therefor is reflected on the Balance Sheet or relates to or
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arises out of operations after the date of the Balance Sheet, and
is reserved on the books of the Company in accordance with
generally accepted Dutch accounting principles applied on a
consistent basis. The Company has withheld or collected from each
payment made to each of their employees, the amount of all taxes
required to be withheld or collected therefrom, and has paid the
same to proper tax receiving officers or authorized depositories.
(h) Property. The Company has good, full and marketable title to, or
a valid and continuing leasehold interest in, all property and
assets, real and personal, reflected on the Balance Sheet or
acquired by the Company since the date of the Balance Sheet, free
and clear of all mortgages, liens, attachments, pledges,
encumbrances or security interests of any nature whatsoever. The
Company is not in violation of any law, regulation or ordinance
(including without limitation, laws, regulations or ordinances
relating to building, health code, zoning, environmental, land
use or similar matters) relating to its property. With regard to
the contamination of the real property, owned, occupied or used
by the Company, which in certain areas exceeds the intervention
level ("interventiewaarde", as set out in the ministerial
directive "Interventiewaarden bodemsanering" Staatscourant 95 of
Tuesday, May 24, 1995), the Company has entered into an agreement
with the "Stichting Bodemsanering in gebruik zijnde
bedrijfsterreinen Drenthe en Groningen" ("Stichting BSB") on
November 16, 1993. This agreement provides that the competent
authorities will not order the Company to clean up its real
property as long as said agreement is not terminated. The
agreement with Stichting BSB may be terminated by the Company by
written notice at any moment. The Seller represents that the
Company has not terminated the agreement. The agreement may also
be terminated by the Stichting BSB if and when the Company is in
default. The Seller represents that the Company is not and has
never been in default. Finally, the agreement with Stichting BSB
is automatically terminated one month after the final priority
score ("definitieve urgentiescore - PR4") has been established in
accordance with the procedure set out in the agreement with
Stichting BSB. Based on the discussions that have taken place
between the Company and the Stichting BSB, the Seller believes
the final priority score will not be established before (a)
January 1, 2000 or (b) the Company removes its old tankfarm,
whichever comes first. There are no proceedings affecting any of
the Company's property pending or threatened which could have an
adverse effect on the present or future use of any such property
for the purposes for which it was acquired or the purpose for
which it is used. All leases pursuant to which the Company leases
real or personal property are in good standing, and are valid and
in full force and effect in accordance with their respective
terms. All buildings, improvements, machinery, equipment and
vehicles used in connection with the operations of the Company
are structurally sound, have no defects causing them not to
function properly without substantial costs, are in good
operating condition and repair, are adequate for the uses to
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which they are being put and are not in need of maintenance or
repairs except for ordinary maintenance.
(i) Accounts receivable. All accounts and notes receivable of the
Company shown on the Balance Sheet and all accounts and notes
receivable acquired by the Company subsequent to the date of the
Balance Sheet have arisen in the ordinary course of business and
have been collected, or are in the process of collection and are
collectible in the ordinary courses of business and in any event
within three months from the Closing Date, in the aggregate
recorded amounts thereof, less the applicable allowances
reflected on the Balance Sheet with respect to the accounts and
notes receivable shown thereon, or set up on the books of the
Company with respect to the accounts and notes receivable
acquired subsequent to the date of the Balance Sheet.
(j) Inventories. All Inventories (as defined below) of the Company,
whether reflected on the Balance Sheet or otherwise, are of a
quality and quantity usable and saleable in the ordinary course
of business, except for obsolete items and items of
below-standard quality, all of which are in the aggregate
immaterial to the business, financial condition, results of
operations or prospects of the Company. Items included in such
Inventories are carried on the books of the Company and are
valued on the Balance Sheet, at the last known purchase price for
such Inventories. The value of obsolete materials and materials
below standard quality or quantity has been appropriately written
down on the Company's books of account. The term "Inventories"
includes all stock of raw materials, work-in-process and finished
goods, including but not limited to finished goods purchased for
resale, held by the Company for manufacturing, assembling,
processing, finishing, sale or resale to others, from time to
time in the ordinary course of the business of the Company in the
form in which such inventories are then held or after
manufacturing, assembling, finishing, processing, incorporating
with other goods or items, refining or the like; or held as
consignment or demonstration equipment.
(k) Purchase and sale commitments. No outstanding purchase
commitments by the Company are in excess of the normal, ordinary
and usual requirements of the business of the Company, and the
aggregate of the contract prices to which the Company has agreed
in any outstanding purchase commitments is not so excessive when
compared with current market prices for the relevant commodities
or services that a material loss to the Company taken as a whole
is likely to result. No outstanding sales commitment by the
Company purports to obligate it to sell any product or service at
a price which, because of currently prevailing and projected
costs of materials or labor, is likely to result, when all such
sales commitments are taken in the aggregate, in a material loss
to the Company taken as a whole. There are no suppliers to the
Company of significant goods or services with respect to which
practical alternative sources of supply or comparable products,
are not available on comparable terms and conditions.
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(l) Governmental authorizations. The Company possesses all
governmental permits, licenses, franchises, concessions, zoning
variances and other approvals, authorizations and orders which
are required under all applicable local, provincial, national or
foreign laws and regulations for the operation of the business
being conducted by the Company. All such permits, licenses,
franchises, concessions, zoning variances, approvals,
authorizations and orders are presently in full force and effect,
the Company is in compliance with the requirements thereof, no
suspension or cancellation of any of them is threatened and the
assignment and transfer of the Shares to Buyer will not adversely
affect the validity of effectiveness of, and will not require,
for retention thereof after such change of ownership, the consent
or approval of any party to, or any other person or governmental
agency having jurisdiction of, any such permit, license,
franchise, concession, zoning variance, approval, authorization
or order. There are no facts or circumstances that would prevent,
limit or restrict the Company from continuing to operate its
business in the present manner, and no new requirements
pertaining to the manner of operating the business of the Company
have been issued or announced by any governmental authority
during the past year nor are there any disputes or discussions
pending between the Company and any governmental authority about
the Company's present or future operations. The Company has
furnished to Buyer all reports and applications filed with any
governmental agency in the last five years. Seller's
representations in this Section are limited to situations or
conditions that have material adverse effect on the business of
the Company.
(m) Patents, trademarks. The Company owns or has the exclusive right
to use, free and clear of any obligation of payment, encumbrance,
lien or claim, all patents, trademarks, trade names, service
marks, brand names and copyrights, and applications therefor,
used in the conduct of their business or the use of which is
necessary for its business as now being conducted (the
"Intangibles"). The Company owns or possesses adequate rights to
use, free and clear of any obligation of payment, encumbrance,
lien or claim, all inventions, technology, technical know-how,
processes, designs, trade secrets, vendor and customer lists and
other confidential information required for or used in its
business. No person has made any claim or demand upon the Company
pertaining to, and no proceedings are pending or so far as is
known, threatened, which challenge (i) the rights of the Company
in respect of any Intangibles or (ii) the rights of the Company
to any confidential information or trade secrets used in the
conduct of its business. No Intangible owned or used by the
Company is subject to any order, ruling, decree, judgment or
stipulation by or with any court, arbitrator or administrative
agency which is adverse to the business of the Company taken as a
whole. The Company has not infringed or engaged in the
unauthorized use of, or violated any confidentiality agreement to
which it is or was a party that pertains to, any patent,
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trademark, trade name, service mark, brand name or copy right or
any invention, technology, technical know-how, process, design,
trade secret or other intellectual property of another. The
Seller, after due enquiry, is not aware of any infringement or
unauthorized use by a third party of any patent, trademark, trade
name, service mark, brand name or copyright, or any invention,
technology, technical know-how, process, design, trade secret or
other intellectual property owned by the Company or used in the
conduct of the business of the Company.
(n) Insurance. The Company is not in default with respect to any
provisions of any policy of general liability, fire, product
liability or other forms of insurance held by it, the Company is
current in the payment of all premiums due on such insurance, and
has not failed to give any notice or present any claim thereunder
in due and timely fashion, except for claims that have been
deemed immaterial in either the nature of the claim or in the
amount of such claim. The Company maintains, and since the
commencement of their business has maintained, insurance on all
of its assets and its business from financially sound and
reputable insurers in amounts and coverages and against the kinds
of risks and losses reasonably prudent to be insured against by
corporations engaged in the same or similar businesses, including
product liability insurance for all products marketed by the
Company at any time. No circumstances exist that would jeopardize
the coverage under any such insurance. Any such insurance will
not be terminated or cancelled by reason of the execution,
delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby.
(o) Descriptions and lists. The Company has provided Buyer with due,
correct and complete copies if written, or descriptions if oral,
of (and has listed on the Disclosure Schedule) all of the
following contracts, agreements, leases and other documents
presently in effect to which the Company is a party or by which
any of its property or assets are bound:
(i) all interests in real property owned, leased or otherwise
used or claimed by the Company:
(ii) (a) each agreement of the Company made in the ordinary
course of business which involves aggregate future payments
by the Company of more than fifty thousand guilders (NLG
50,000) (excluding current purchase orders for Company
products, accounts receivable and accounts payable), or the
term of which extends beyond one year after the date hereof;
(b) all distributorship, sales, agency or franchise
agreements of the Company; (c) each agreement containing any
covenant restricting the freedom of the Company to compete
in any line of business or with any person; (d) each
agreement of the Company not made in the ordinary course of
business which is or was to be performed after the Closing;
and (e) each "derivative" contract to which the Company is a
party or has been a party since the date of the Balance
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Sheet, which term shall include any futures, options,
forward, currency, securities ("effecten" as used in the Wet
toezicht effectenverkeer) or interest agreements or
agreements on commodities other than the purchase and sale
of raw or finished material to be handled physically by the
Company;
(iii) a schedule containing: (a) the names and salaries (inclusive
of holiday pay), bonuses, allowances, pension premium
payments and other employment conditions of all present
officers and employees of the Company, including the last
date of any increase in such persons' compensation; (b) any
persons on leave of absence for longer than one month or who
are absent for reason of illness or disability for longer
than one month; and (c) all employment or similar
compensation agreements of the Company which are for a fixed
or minimum period or which provide that there is a penalty
or fixed damages payable when terminated by the Company;
(iv) all bonus, incentive compensation, deferred compensation,
profit-sharing, stock option, retirement, pension,
severance, indemnification, insurance, death benefit or
other fringe benefit plans, agreements or arrangements of
the Company in effect, or under which any amounts remain
unpaid, on the date hereof or to become effective after the
date hereof, the methods of computing the Company's
obligations thereunder, and a description of any funding
vehicles therefor;
(v) details of the Works Council of the Company, if any; the
names of the labor unions or other organizations
representing or purporting to represent any employees of the
Company, in as far as made known to the Company, if any; and
the collective bargaining agreement which is in effect for
the Company, if any;
(vi) each outstanding commitment to make a capital expenditure,
capital addition or capital improvement involving an amount
in excess of twenty thousand guilders (NLG 20,000);
(vii) A list of all assets of the Company at December 31, 1994,
that consisted of accounts receivable from a person, entity
or group of affiliated persons or entities from whom the
aggregate of such receivables exceeded ten thousand guilders
(NLG 10,000); such list also specifically identifies any
receivable that was more than 120 days past due;
(viii) A list of each customer that purchased products or services
from any of the Company during 1994 in an aggregate amount
of one hundred thousand guilders (NLG 100,000) or more; and
(ix) A list of all policies of general liability, fire, product
liability and other forms of insurance held by the Company
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and of all claims pending thereunder (including in their
aggregate amount, employee benefit claims).
(p) Validity. There is no default or claimed or purported or alleged
default, or basis upon which, with notice or lapse of time or
both (including notice of this Agreement), a default would exist,
in any obligation on the part of any party (including the
Company) to be performed under any lease, contract, plan, policy
or other instrument or arrangement referred to in Section 3.2(o)
or otherwise in this Agreement. The Company has furnished to
Buyer a copy of each document that is referred to in Section
3.2(o) or otherwise in this Agreement.
(q) No Changes. Since the date of the Balance Sheet there has not
been:
(i) any material adverse change in the condition (financial or
otherwise), assets, liabilities, earnings or business of the
Company taken as a whole or in the prospects of the Company
taken as a whole;
(ii) any damage, destruction or loss (whether or not covered by
insurance) adversely affecting the condition (financial or
otherwise), assets, liabilities, earnings or business of the
Company taken as a whole;
(iii) any declaration, setting aside or payment of any dividend,
or other distribution, in respect of the capital stock of
the Company or any direct or indirect redemption, purchase
or other acquisition of such stock;
(iv) any option to purchase the capital stock of the Company
granted to any person, or any employment or deferred
compensation agreement entered into between the Company and
any of its shareholders, officers, directors, employees or
consultants;
(v) any issuance or sale by the Company of any stock, bonds or
other corporate securities, or any partial or complete
formation, acquisition, disposition or liquidation of the
Company;
(vi) any strike or labor union involvement in respect of the
Company;
(vii) any statute, rule, regulation or government policy adopted
which may materially and adversely affect the business or
assets of the Companies taken as a whole;
(viii) any mortgage, lien, attachment, pledge, encumbrance or
security interest created on any asset, tangible or
intangible, of the Company, or assumed, either by the
Company or by others, with respect to any such assets;
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(ix) any indebtedness or other liability obligation (whether
absolute, accrued, contingent or otherwise) incurred, or
other transaction (except that reflected in this Agreement)
engaged in, by the Company, except in the ordinary course of
business or those individually less than ten thousand
guilders (NLG 10,000) in amount or less than twenty thousand
guilders (NLG 20,000) in amount in the aggregate;
(x) any obligation or liability discharged or satisfied by the
Company, other than current liabilities shown on the Balance
Sheet and current liabilities incurred since the date of the
Balance Sheet in the ordinary course of business, except
those individually less than ten thousand guilders (NLG
10,000) in amount or less than twenty thousand guilders (NLG
20,000) in amount in the aggregate;
(xi) any sale, assignment, lease, transfer or other disposition
of any tangible asset of the Company, except in the ordinary
course of business, or any sale, assignment, lease, transfer
or other disposition of any of its patents, trademarks,
trade names, brandnames, copyrights, licenses or other
intangible assets, except in the ordinary course of
business;
(xii) any amendment, termination or waiver of any material right
belonging to the Company;
(xiii) any increase in the compensation or benefits payable or to
become payable by the Company to any of its employees,
except for a general raise of 2% on average on January 1,
1995, or agents;
(xiv) any transaction or contract between the Company and Seller,
including a loan, change of employment conditions, change of
pension rights, or bonus;
(xv) any material reduction in the rate of or gross margins
associated with, firm bookings or orders for the products
and services of the Company taken as a whole, or any
material deterioration in the backlog level of the Company
taken as a whole; or
(xvi) any other action or omission by the Company, or the passage
of any resolution, other than in the ordinary course of
business.
(r) Litigation or Proceedings. The Company is not engaged in, or a
party to, so far as is known, threatened with, any claim or legal
action or other proceeding before any court, any arbitrator of
any kind or any administrative agency, or any governmental
investigation, nor does any sound basis for any claim or legal
action or other proceeding or governmental investigation exist.
There are no orders, rulings, decrees, judgments or stipulations
to which the Company is a party by or with any court, arbitrator
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or administrative agency affecting the Company, or its business
or properties. The Company has always fulfilled its obligations
arising out of contracts or under dutch law or legal regulations,
and there are no claims (of which notice has been given in
writing or orally), in or out of court, by third parties against
the Company based on breach of contract or breach of any other
duty, including tort, which will result in or has resulted in
liability of or cost or damage to the Company.
(s) Compliance with laws; Environment. The Company (i) is not in
violation of any applicable building, zoning, occupational safety
and health, pension, export control, environmental control or
other law ordinance, regulation, order or governmental policy
applicable to their plants, structures or equipment or the
operation thereof, of any employment, equal opportunity or
similar law, ordinance, regulation order or policy, or any other
law, ordinance, regulation order or governmental policy
applicable to the Companies, or their business or assets, which
violation will result or has resulted in liability of or cost or
damage to the Companies; (ii) has not received any complaint from
any governmental authority, and none is threatened, alleging that
the Company has violated any such law, ordinance, regulation,
order or policy; (iii) has not received any notice from any
governmental authority of any pending proceedings to expropriate
any part of the property of the Company (whether leased or owned)
and, to the best knowledge of Seller after due inquiry, no such
proceeding is contemplated; and (iv) are not parties to any
agreement or instrument, or subject to any judgment, order, rule,
regulation or code, which restricts or materially and adversely
affects, or might reasonably be expected to restrict or
materially and adversely affect the business, operations,
prospects, properties, assets or condition, financial or
otherwise of the Company taken as a whole.
(t) Labor Matters. There are no activities or controversies, such as
labor organizing activities, election petitions or proceedings,
labor strikes, disputes, slowdowns or work stoppages pending or
announced against the Company or between the Company and any of
their employees.
(u) Brokers and Finders. Seller nor the Company has employed any
broker, agent or finder or incurred any liability on behalf of
the Company for any brokerage fees, agents' commissions or
finders' fees in connection with the transactions contemplated
hereby.
(v) Powers of Attorney. The Company has no powers of attorney or
similar authorizations outstanding except a power of attorney of
Mr. J.H. Bult authorising him to withdraw upto m 5,000 in cash
from the bankaccount of the Company with ABN/AMRO or instruct the
bank to pay salaries.
(w) No Termination of Relationship. Seller is unaware and has no
reason to expect that any relationship between the Company and a
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customer, supplier, lender, employee or other person will be
terminated or adversely affected after the sale of the Shares
hereunder.
(x) All Information. Seller has furnished Buyer in writing prior to
the execution of this Agreement all information as to the
condition (financial or otherwise), assets, liabilities,
earnings, business and prospects of the Company, material to a
determination by a reasonable buyer to enter into this Agreement
and to consummate the transactions contemplated hereby.
(y) Statements True and Correct: Further Representations and
Warranties. The statements contained in any written documents
prepared and delivered by or on behalf of the Company pursuant to
the terms hereof (when considered as a whole) are true and
correct in all respects, and such documents (when considered as a
whole) do not omit any material fact required by the terms hereof
or thereof to be stated herein or therein or necessary to make
the statements contained herein or therein not misleading.
(z) Indebtedness to and from Officers, Directors and Shareholders.
The Company is not indebted, directly or indirectly, to any
person who is an officer, director or shareholder of any of the
foregoing entities or any affiliate of any such person in any
amount whatsoever other than for salaries for services rendered
or reimbursable business expenses, all of which have been
reflected on the Financial Statements, and no such officer,
director, shareholder of affiliate is indebted to the Company
except for advances made to employees of the Company in the
ordinary course of business to meet reimbursable business
expenses anticipated to be incurred by such obligor.
4.3 Further Representations, Warranties and Covenants of Seller
In reliance on Buyer's statement that, due to the fact Seller has
total assets in excess of $5,000,000 since Seller receives in
excess such amount under this Agreement, Seller represents and
warrants to, and covenants with Buyer that: (i) Seller is an
"accredited investor" as defined in the placement memorandum
dated September 2, 1994 ("the Placement Memorandum"); (ii) Seller
is acquiring the shares in Buyer ("the Amerika Shares") as part
of the transaction contemplated in this Agreement, the Amerika
Shares being exchanged by it for investment and with no present
intention of distributing any of the Amerika Shares; (iii) Seller
will not, directly or indirectly, voluntarily offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers
to buy, purchase or otherwise acquire or take a pledge of) any of
the Amerika Shares except in compliance with all applicable laws
and regulations, in all cases at its own expense; (iv) Seller has
had an opportunity to ask questions and receive answers from the
management of Buyer regarding Buyer, its business and the
offering of the Amerika Shares; (v) Seller acknowledges receipt
of the Placement Memorandum and other financial information
provided to Seller dated subsequent to the Placement Memorandum
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and has, in connection with its decision to exchange the Amerika
Shares, relied upon the Placement Memorandum and the other
information mentioned hereabove;
4.4 Representations and Warranties of Buyer. Buyer represents, warrants
and guarantees to Seller that:
(a) Organization and Good Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws
of the Netherlands, and has all requisite corporate power and
authority to own, lease and operate its properties and to carry
on its business as it is now being conducted.
(b) Authority. The execution hereof and the consummation of the
transactions contemplated hereby, have been duly and validly
authorized by all necessary corporate action on the part of the
Buyer. Neither the execution hereof nor the consummation of the
transactions contemplated hereby will (i) conflict with or result
in a violation, termination or default under (or would result in
a violation, termination or default with the giving of notice or
passage of time, or both), any of the provisions of the Articles
of Associations of Buyer, or of any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation
to which Buyer is a party, or (ii) result in the violation of any
law, judgment, order, rule or regulation applicable to Buyer. No
consent or approval by, or notification to or filing with, any
governmental authority or third party is required in connection
with the execution and performance of the Agreement by Buyer or
the consummation of the transactions contemplated hereby.
Article 5. Post-Closing Covenants
5.1 Proprietary Information. After the Closing, Seller and the
Shareholders shall hold in confidence all knowledge and information of
a secret or confidential nature with respect to the business of the
Company, and shall not disclose, publish or make use of the same
without the consent of the Buyer, except to the extent that such
information shall have become public knowledge other than by breach of
this Agreement by Seller or the Shareholders.
5.2 Cooperation in Litigation. Each party hereto will fully cooperate
with the others in the defence or prosecution of any litigation or
proceeding already instituted or which may be instituted hereafter
against or by such party or the Company by or against a third party
relating to or arising out of the conduct of the business of the
Company prior to or after the Closing Date. The party requesting such
cooperation shall pay the out-of-pocket expenses (including legal fees
and disbursements) of the party providing such cooperation and of its
officers, directors, employees and agents reasonable incurred in
connection with providing such cooperation, but shall not be
responsible to reimburse the party providing such cooperation for such
party's time spent in such cooperation or the salaries or costs of
fringe benefits or similar expenses paid by the party providing such
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cooperation to its officers, directors, employees and agents while
assisting in the defense or prosecution of any such litigation or
proceeding.
5.3 Transfer and sales tax. Seller shall pay all transfer and other
taxes, if any, applicable to the sale of the Shares hereunder.
5.4 Expenses. The Buyer, on the one hand, and Seller, on the other hand,
will bear entirely their respective expenses incurred in connection
with this Agreement and the transactions contemplated hereby,
including but not limited to legal and accounting expenses.
5.5 Termination of interest. As soon as practicable but in any event no
later than April 1, 1996, Mr. D.A. Slager shall have terminated his
equity interest in Seller and any associated company, if any.
Article 6. Modification and Waivers
6.1 Modification. All of the parties hereto may, by mutual consent,
amend, modify and supplement this Agreement in such manner as may be
agreed upon by them in writing.
6.2 Waivers. Each of the parties hereto may, by an instrument in writing,
extend the time for or waive the performance of any of the obligations
of another party hereto or waive compliance by such other party with
any of the covenants or conditions contained herein. The
representations, warranties and guarantees in Sections 4.2 and 4.3
shall not be deemed waived, regardless of any due diligence
investigations undertaken by the Buyer.
Article 7. Indemnification; Escrow
7.1 Indemnification by Seller. Seller hereby agrees to indemnify Buyer,
upon its demand, for the full amount of all damages suffered by Buyer
as a result of the inaccuracy of any representation, warranty or
guarantee made by Seller in or pursuant to this Agreement, in the form
and to the extent so made, or the omission of any material facts
relating thereto.
7.2 Indemnification by Buyer. Buyer hereby agrees to indemnify Seller,
upon its demand, for the full amount of all damages suffered by Seller
as a result of the inaccuracy of any representation, warranty or
guarantee made by Buyer in or pursuant to this Agreement, in the form
and to the extent so made, or the omission of any material facts
relating thereto.
7.3 Definition of damages. For the purpose of this Article 7 the term
"damages" shall be deemed to include, but shall not be limited to (i)
all losses, liabilities, expenses or costs incurred by the indemnified
party, including reasonable attorney's fees, after taking into account
the actual immediate tax savings by the indemnified party, if any, and
net of any applicable reserves on the Balance Sheet in the case of
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Buyer and (ii) interest at a rate per annum equal to the
"voorschotrente" ("interest on advances") as fixed and quoted from
time to time by the Netherlands Bank for guilders from the date the
loss, liability, expense or cost is suffered or made, or if an
unliquidated claim, from such later date as the claim is liquidated,
to the date full indemnification is made therefor.
7.4 Limitations on Indemnifications.
(a) The liability of Seller under the representations, warranties or
guarantees shall not exceed NLG 5,250,000 (five million two
hundred fifty thousand guilders) except with regard to the
obligation of Seller to indemnify Buyer for matters specified in
Section 4.2(c), and unless a liability was reasonably foreseeable
for the indemnifying party at the time of the signing of this
Agreement, in which case such liability shall be unlimited.
(b) The obligations of Seller and Buyer to indemnify the other under
the representations, warranties or guarantees shall terminate on
the second anniversary of the Closing Date, except that
(i) the obligation to indemnify the other for tax obligations
shall only terminate six months after the end of the period
during which a claim in respect of Taxes can be made against
the Company; and
(ii) the obligation of Seller to indemnify the Buyer for matters
specified in Section 4.2(c) shall not terminate.
7.5 Procedures Relating to Indemnification. In order for a party (the
"Indemnified Party") to be entitled to any payment under the
indemnification provided for under this Agreement in respect of,
arising out of or involving a claim, legal proceeding or demand made
by any person, firm, governmental authority, corporation or other
entity (other than any of the parties to this Agreement) against the
Indemnified Party (a "Third Party Claim"), such Indemnified Party must
notify the other party (the "Indemnifying Party") in writing of the
Third Party Claim, setting forth in reasonable detail the information
available to the Indemnified Party forming the basis for such claim,
as promptly as practicable after receipt by such Indemnified Party of
written notice of the Third Party Claim (the "Indemnification
Notice"); provided however, that failure to give such Indemnification
Notice shall not affect the indemnification provided hereunder except
to the extent that the Indemnifying Party shall have been prejudiced
as a result of such failure. Thereafter, the Indemnified Party shall
deliver to the Indemnifying Party, within five business days after the
Indemnified Party's receipt thereof, copies of all notices and
documents (including court papers) received by the Indemnified Party
relating to the Third Party Claim.
In connection with any Third Party Claim, the Indemnifying Party, at
the sole cost and expense of the Indemnifying Party, may, upon written
notice to the Indemnified Party, assume the defense of any such Third
Party Claim if (x) the Indemnifying Party acknowledges in writing the
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obligation of the Indemnifying Party to indemnify in accordance with
the terms of this Agreement the Indemnified Party with respect to such
Third Party Claim, (y) the Third Party Claim involved seeks solely
monetary damages and (z) an adversarial resolution of the Third Party
Claim would not have a material adverse effect on the goodwill or
reputation of the Indemnified Party of any of its affiliates, on the
future conduct of the business of the Indemnified Party or on the tax
or accounting policies or positions of the Indemnified Party or its
affiliates. Should the Indemnifying Party so elect to assume the
defense of a Third Party Claim, the Indemnifying Party will not be
liable to the Indemnified Party for legal expenses subsequently
incurred by the Indemnified Party in connection with the defense
thereof. If the Indemnifying Party assumes such defense, the
Indemnified Party shall be entitled to participate in, but not
control, the defense thereof at its own expense. If the Indemnifying
Party shall fail to defend such Third Party Claim, or if after
commencing or undertaking any such defense to such Third Party Claim,
fails or prosecute, or withdraws from such defense, the Indemnified
Party shall have the right to undertake such defense at the
Indemnifying Party's expense. Whether or not the Indemnifying Party
chooses to defend or prosecute any Third Party Claim, the Indemnified
and Indemnifying Parties shall cooperate in the defense or prosecution
thereof. Such cooperation shall include access during normal business
hours afforded to the Indemnifying Party to, and reasonable retention
by the Indemnified Party of, records and information which are
reasonably relevant to such Third Party Claim, and making employees
available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder, and
the Indemnifying Party shall reimburse the Indemnified Party for all
of its reasonable out-of pocket expenses in connection therewith. If
the Party shall not admit any liability with respect of, or settle,
compromise or discharge, such Third Party Claim without the
Indemnifying Party's prior written consent, which consent shall not
reasonable be withheld.
7.6 Bank guarantee. In order to secure the obligations of Seller under
this Agreement, Seller has provided a bankguarantee substantially in
the form of Exhibit F.
Article 8. Guarantee
8.1 Guarantee. Each of the Shareholders guarantees the payment of any
amount due by the Seller under Section 7.1, limited as provided in
Section 7.4, for such part as set out hereunder after his name
A.J. van Es 80%
J.B. van Es 10%
D.A. Slager 10%
The maximum amount of the Guarantee for each of the Shareholders is
such percentage of NLG 5,250,000 as indicated after his name.
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8.2 Demand for payment. Buyer can only demand payment from the
Shareholders under the Guarantee as provided in Section 8.1 after it
has notified Seller of its claim and has demanded payment from Seller
and Seller has not effected payment within 30 days after such demand.
8.3 Indepent obligation. Buyer is free to demand payment of damages under
Section 8.2, or not to demand payment, from each of the Shareholders
as it deems fit, and none of the Shareholders can invoke as a defense
against a demand that Buyer does not demand payment from an other
Shareholder.
8.4 Co-signature. To evidence that they have given their consent to the
Guarantee as meant in section 1: 88 Civil Code, the notarised consents
of the wives of the Shareholders are attached to this Agreement as
Exhibit H.
Article 9. General
9.1 Notices. All notices, requests, demands, consents and other
communications that are required or permitted hereunder shall be in
writing or by written telecommunication, and shall be delivered
personally or mailed by registered or certified mail, postage prepaid
or sent by written telecommunication, as follows:
If to Buyer:
Beheersmaatschappij J. Amerika N.V.
Peizerweg 86
9727 AK Groningen
The Netherlands
Attention: Managing director
With copies to:
(1) Thermo Process Systems Inc.
81, Wymerstreet
Waltham
Massachussets 02254
fax: (1).617.622.1242
Attention: President
(2) Houthoff
Parnassusweg 126
1076 AT Amsterdam
The Netherlands
tel: (31)-20-57-00200
fax: (31)-20-57-00280
Attention: J.C. Schreuder
If to Seller, to:
Stalt Holding B.V.
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Jan van Nassaustraat 56
2596 BV Den Haag
The Netherlands
Attention: Managing director
With a copy to:
Trenite van Doorne
Churchillplein 5
2517 JW Den Haag
The Netherlands
If to shareholders, to:
A.J. van Es
Hazelaan 4
2243 EJ Wassenaar
The Netherlands
J.B. van Es
Konijnenlaan 39
2243 EN Wassenaar
The Netherlands
D.A. Slager
Julianaweg 6
2243 HT Wassenaar
The Netherlands
9.2 No waiver. No waiver of any breach of any term, convenant or
condition under this Agreement shall be construed as a waiver in
regard of any other party to this Agreement or any succeeding breach.
9.3 Materiality of Representations. Each of the representation,
warranties and agreements made by the parties hereto or contained in
any certificates or other instruments delivered by or on behalf of any
of the Buyer or Seller pursuant hereto or in connection with the
transactions contemplated hereby shall be deemed material and shall
constitute representations and warranties by the person making such
statement.
9.4 Entire Agreement. This Agreement supersedes any and all oral or
written agreements or understandings heretofore made relating to the
subject matter hereof (including without limitation the letter of
intent dated December 16, 1994) and constitutes the entire agreement
of the parties relating to the subject matter hereof.
9.5 No dissolution, no annulment. This agreement cannot be dissolved
under section 6: 267, nor be annulled under section 6: 228 Civil Code.
9.6 Parties in Interest: Assignment. All covenants and agreement
contained in this Agreement made by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective
successors, and permitted assigns of the parties hereto whether so
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expressed or not. No party hereto may assign its rights or delegate
its duties and obligations under this Agreement without the prior
written consent of the other parties hereto; provided that Buyer may
assign its rights hereunder to any affiliate of Buyer without the
prior written consent of Seller.
9.7 Headings. The headings in this Agreement are inserted for convenience
of reference only and shall not be a part of or control or affect the
meaning hereof.
9.8 Severability. If any provision of this Agreement shall be declared
void or unenforceable by any judicial or administrative authority, the
validity of any other provision shall not be affected thereby.
9.9 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original.
9.10 Governing Law. This Agreement shall be construed and interpreted
according to the laws of the Netherlands with venue for litigation in
the courts of Amsterdam.
9.11 Exhibits. The Exhibits and the Disclosure Schedule attached hereto
and referred to in this Agreement are a part of this Agreement for all
purposes.
9.12 Further Assurances. Seller will execute and furnish to Buyer all
documents and will do or cause to be done all other things that Buyer
may reasonably request from time to time in order to give full effect
to this Agreement and to effectuate the intent of the parties.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement or caused this Agreement to be duly executed on its behalf, all
as of the day and year first above written.
STALT HOLDING B.V.
By:/s/ D.A. Slager
Name: D.A. Slager
Title: Managing Director
BEHEERSMAATSCHAPPIJ J. AMERIKA B.V.
By:/s/ Jaap Amerika
Name: Jaap Amerika
Title: Managing Director
THERMO PROCESS SYSTEMS INC.
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By: /s/ John P. Appleton
Name: John P. Appleton
Title: President
/s/ A.J. van Es
A.J. van Es
/s/ J.B. van Es
J.B. van Es
/s/ D.A. Slager
D.A. Slager
