<PAGE> 1
As filed with the Securities and Exchange Commission on
July 29, 1994
Registration No. 33-
----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------
FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
-----------
RUBBERMAID INCORPORATED
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Ohio 34-0628700
------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1148 Akron Road
Wooster, Ohio 44691
(216) 264-6464
-------------------------------------------------------------
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
James A. Morgan, Esq.
Senior Vice President, General Counsel and Secretary
Rubbermaid Incorporated
1147 Akron Road
Wooster, Ohio 44691
(216) 264-6464
--------------------------------------------------------
(Name, address, including zip code, and telephone number
including area code, of agent for service)
-------------
Copy to:
Lincoln Oviatt
Critchfield, Critchfield & Johnston
225 North Market Street
Wooster, Ohio 44691
-------------
Approximate date of commencement of proposed sale
to the public:
From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_____]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [ X ]
-------------
<PAGE> 2
<TABLE>
CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------
Proposed Proposed
Title of each Maximum Maximum
Class of Offering Aggregate Amount of
Securities to Amount to be Price Offering Registration
be Registered Registered Per Unit Price Fee
------------- ------------ -------- --------- ------------
<S> <C> <C> <C> <C>
Common Shares 2,198,442 $27.125** $59,632,739** $20,563**
$1 par value Shares*
----------------------------------------------------------------------
</TABLE>
*In accordance with Rule 416(a), the number of Shares being registered
hereunder may be increased from time to time to that number of Shares resulting
from a stock split, stock dividend or similar transaction applicable to the
currently registered number of Shares.
**The registration fee has been calculated, and the offering price
estimated, in accordance with Rule 457(c) upon the basis of the average of the
high and low price of Rubbermaid Common Stock as reported on the Transaction
Reporting System operated by the Consolidated Tape Association on July 25,
1994, which was $27.125 per share.
======================================================================
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
======================================================================
[END OF FACING PAGE]
<PAGE> 3
PROSPECTUS
2,198,442 Common Shares
RUBBERMAID INCORPORATED
_________
Common Shares
(Par Value $1.00 Per Share)
_________
The securities offered hereby are common shares, $1.00 par value
("Common Shares"), of Rubbermaid Incorporated ("Rubbermaid"), and may be sold
from time to time by certain shareholders of Rubbermaid acting as principals
for their own account. (See "Selling Shareholders"). Rubbermaid will receive
none of the proceeds from the offering.
The Common Shares are registered with, and listed on, the New York Stock
Exchange. On August __, 1994, the closing sales price of the Common Shares as
reported on the New York Stock Exchange Composite Tape was $___________.
Sales of the Common Shares may be effected from time to time in
negotiated transactions or on the New York Stock Exchange at prevailing market
prices. The Selling Shareholders may offer the Common Shares to purchasers
directly or to or through broker-dealers which may act as principals or agents.
Rubbermaid has been advised by the Selling Shareholders that no underwriter
will be involved with the offer and sale of the Common Shares hereby unless
such persons are deemed "underwriters" within the meaning of Section 2(11)
under the Securities Act. (See "Plan of Distribution").
_________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_________
The date of this Prospectus is August ____, 1994.
AVAILABLE INFORMATION
---------------------
Rubbermaid is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the
<PAGE> 4
public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C. 20549; at the
Commission's New York Regional Office, 7 World Trade Center, Suite 1300, New
York, New York 10048; and at the Commission's Chicago Regional Office,
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, IL
60611. Copies of such material may also be obtained at prescribed rates from
the Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549. In addition, such material and other
information pertaining to Rubbermaid may be inspected at the New York Stock
Exchange, Inc., 11 Wall Street, New York, New York 10005, the national
securities exchange on which the Common Shares are listed and traded.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
-------------------------------------------------
The following documents filed with the Commission are hereby
incorporated by reference into this Prospectus:
1. Rubbermaid's Annual Report on Form 10-K for the year ended
December 31, 1993, filed pursuant to Section 13(a) of the Exchange Act.
2. Rubbermaid's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994, filed pursuant to Section 13(a) of the Exchange
Act, and all other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to above.
3. The description of the Common Shares contained in documents
filed pursuant to Section 12 of the Exchange Act as updated by the
description set forth in the Amended and Restated Rights Agreement
between Rubbermaid and Ameritrust Company National Association
incorporated by reference from Exhibit 4 to Form 8 filed with the
Commission on October 26, 1989.
All documents subsequently filed by Rubbermaid pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the
offering made hereby, shall be deemed to be incorporated by reference into this
Prospectus.
Rubbermaid will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person,
a copy of any and all of the information that has been incorporated by
reference into this Prospectus or any registration statement containing this
Prospectus (other than exhibits to the information that is incorporated by
reference unless such exhibits are specifically incorporated by reference into
the information that this Prospectus and any registration statement containing
this Prospectus incorporates). Such requests should be directed to James A.
Morgan, Secretary of Rubbermaid, at 1147 Akron Road, Wooster, Ohio 44691, or by
telephone at (216) 264-6464.
<PAGE> 5
THE COMPANY
-----------
Rubbermaid is an Ohio corporation (incorporated in 1920) which, together
with its subsidiaries, is engaged in the manufacture and distribution of
plastic and rubber products. These products are targeted primarily to the
end-user in the consumer and institutional markets. They include such items as
housewares, home horticulture products, decorative coverings, microwave
cookware, leisure and recreational products, toys for infants and children,
office and industrial products, and products used in the areas of food service,
health care and sanitary maintenance. Rubbermaid's products are distributed
through its sales personnel and through manufacturers' agents to a variety of
retailers, including mass merchandisers and wholesalers, and distributors
serving institutional markets.
Rubbermaid's principal executive offices are located at 1147 Akron Road,
Wooster, Ohio 44691. Its main telephone number is (216) 264-6464.
SELLING SHAREHOLDERS
--------------------
The Common Shares being offered for sale hereby comprise the Common
Shares currently owned by The Jack Gantz Irrevocable Trust No. 2, 146
Longmeadow Road, Greenville, NC 27858; The Sarita Gantz Irrevocable Trust No.
3, 835 Niagara Street, Denver, CO 80220; The Sarita Gantz Revocable Trust, 120
Sunset Avenue, 2A, Palm Beach, FL 33480; EJG Realty, L.L.C., 146 Longmeadow
Road, Greenville, NC 27858; The Gantz Investment Company, 120 Sunset Avenue,
2A, Palm Beach, FL 33480; and The Gantz Greenville Company, 120 Sunset Avenue,
2A, Palm Beach, FL 33480 (the "Selling Shareholders") and up to 17,828 Common
Shares which Selling Shareholders may be entitled to receive pursuant to the
adjustment provisions in the Real Estate Purchase Agreement between The Gantz
Greenville Company, The Gantz Investment Company, Rubbermaid Incorporated, and
Acquico, Inc., dated June 15, 1994, and as amended by the Addendum dated June
30, 1994. Rubbermaid presently has ______ Common Shares outstanding.
The Selling Shareholders plan to offer up to 2,198,442 Common Shares
within the two years immediately following the date of this Prospectus. (In
accordance with Rule 416(a) promulgated under the Securities Act, the number of
Common Shares being offered herein may be increased from time to time, to that
number of Common Shares resulting from a stock split, stock dividend, or
similar transaction applicable to the currently offered number of Common
Shares.) Because the Selling Shareholders may offer some or all of the Common
Shares covered by this Prospectus and because the offering is not being
underwritten on a firm commitment basis, no estimates can be given as to the
amount of Common Shares that will be held by the Selling Shareholders on August
___, 1996, the last day on which the offering may be conducted.
<PAGE> 6
The Selling Shareholders first acquired Common Shares on June 30, 1994,
as the result of the merger of National Brush Company, an Illinois corporation
and Empire Brushes, Inc., a Delaware corporation with and into Acquico, Inc., a
Delaware corporation wholly owned by Rubbermaid and the purchase by Rubbermaid
of certain real estate used in the business of Empire Brushes, Inc.
The shareholders of National Brush Company and Empire Brushes, Inc. were
The Jack Gantz Irrevocable Trust No. 2, The Sarita Gantz Irrevocable Trust No.
3, and The Sarita Gantz Revocable Trust. The owners of the real estate on
which Empire Brushes, Inc. conducted certain of its operations were EJG Realty,
L.L.C., The Gantz Greenville Company, and The Gantz Investment Company. The
real estate was acquired from the owners pursuant to separate Real Estate
Purchase Agreements in which Common Shares were transferred to the owners of
the real estate. Because the value of the real estate owned by The Gantz
Investment Company and The Gantz Greenville Company located in Greenville,
North Carolina, was not finally determined at the closing of the transaction on
June 30, 1994, 17,828 Common Shares were withheld by Rubbermaid, some or all of
which may be transferred to The Gantz Investment Company and The Gantz
Greenville Company as the result of an appraisal process which is expected to
be concluded by September 30, 1994. If any additional Common Shares are issued
as a result of this appraisal process, 47.3% of such Common Shares will be
issued to The Gantz Greenville Company and 52.7% of such Common Shares will be
issued to The Gantz Investment Company.
The Common Shares being offered by the Selling Shareholders and their
affiliations are as follows:
<TABLE>
<CAPTION>
Amount of Common
Shares Held Prior
to the Offering
and the amount
Selling Shareholder to be Offered
------------------- -----------------
<S> <C>
Jack Gantz Irrevocable Trust No. 2 992,024
----------------------------------
Co-Trustees: Joseph Gantz, Martin
Blackman, Ernest Adler
Principal beneficiary is Joseph Gantz.
Sarita Gantz Irrevocable Trust No. 3 813,040
------------------------------------
Co-Trustees: Elaine Gantz Berman, Philip Gans
Principal beneficiary is Elaine Gantz Berman.
Sarita Gantz Revocable Trust 99,012
----------------------------
Co-Trustees: Sarita Gantz, Joseph Gantz,
Elaine Gantz Berman
Principal beneficiary is Sarita Gantz.
EJG Realty, L.L.C. 764
------------------
Members: Elaine Gantz Berman and Joseph Gantz
</TABLE>
<PAGE> 7
<TABLE>
<S> <C>
The Gantz Greenville Company, 138,874*
----------------------------
a general partnership whose partners are
The Gantz Investment Company, The Jack Gantz
Revocable Trust, and Sarita Gantz
The Gantz Investment Company, 154,728**
----------------------------
a general partnership whose partners are
The Jack Gantz Revocable Trust, The Sarita
Gantz Revocable Trust, The Sarita Gantz Trust
No. 1, and The Sarita Gantz Trust No. 2
<FN>
*Includes 8,433 Common Shares which could result from appraisal process
**Includes 9,395 Common Shares which could result from appraisal process
</TABLE>
Sarita Gantz is the widow of Jack Gantz, a founder of Empire Brushes,
Inc. Joseph Gantz and Elaine Gantz Berman are the children of Jack and
Sarita Gantz. Joseph Gantz was President and Chief Executive Officer of
Empire Brushes, Inc. and National Brush Company prior to the merger and
has been elected President of Empire Brushes, Inc. (formerly Acquico,
Inc.).
The issuance of the Common Shares to the Selling Shareholders in
connection with the merger and acquisition of real estate involved a
transaction exempt from the registration requirements of the Securities Act.
Any additional Shares which may be issued to The Gantz Greenville Company and
The Gantz Investment Company pursuant to the appraisal process described above
will be considered a part of that original issuance by Rubbermaid.
PLAN OF DISTRIBUTION
--------------------
The Common Shares offered hereby are or will be sold by the Selling
Shareholders acting as principals for their own accounts. Rubbermaid will
receive none of the proceeds from the offering.
The sale of the Common Shares may be effected from time to time in
negotiated transactions or on the New York Stock Exchange at prevailing market
prices. Sales may be consummated by the Selling Shareholders to purchasers
directly pursuant to Rule 144 promulgated under the Securities Act or otherwise
or to or through broker-dealers which may act as principals or agents.
Although no selling arrangements have as yet been finalized, the number of
Common Shares sold on any occasion, as well as the timing, manner, and price of
such sales, will be determined by the Selling Shareholders.
The Selling Shareholders and any broker-dealers that participate in the
distribution of the Common Shares hereunder may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any commissions
paid or any discounts or concessions allowed to them and, if any such
broker-dealer
<PAGE> 8
purchases Common Shares of the principal, any profit on the resale of Common
Shares may be deemed to be underwriting discounts and commissions under the
Securities Act. Rubbermaid has been advised by the Selling Shareholders that
except as set forth in the preceding sentence, no underwriter will be involved
with the offer and sale of the Common Shares hereby and that any broker-dealers
engaged by the Selling Shareholders will receive not in excess of the usual
and customary distributors' or sellers' commission.
Pursuant to the Agreement, Rubbermaid will pay all costs and expenses in
connection with effecting and maintaining the registration of the Common Shares
covered by this Prospectus; the Selling Shareholders will bear all costs and
expenses associated with the offer and sale of the Common Shares hereby. In
certain situations, the Selling Shareholders and Rubbermaid have agreed to
indemnify each other from various liabilities, including liabilities arising
out of violations of the federal securities laws.
LEGAL OPINION
-------------
The legality of the Common Shares offered hereby is being passed upon by
the firm of Critchfield, Critchfield & Johnston, Wooster, Ohio, counsel to
Rubbermaid.
EXPERTS
-------
The consolidated financial statements and schedules of Rubbermaid and
its subsidiaries as of December 31, 1993 and 1992, and for each of the years in
the three year period ended December 31, 1993, have been incorporated by
reference herein and elsewhere in the Registration Statement in reliance upon
the report of KPMG Peat Marwick, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing. The report of KPMG Peat Marwick covering
the December 31, 1993 financial statements refers to a change in inventory
accounting practices and the adoption of the provisions of Financial Accounting
Standards Board's Statements of Financial Accounting Standards Nos. 109 and
106, "Accounting for Income Taxes" and "Employers' Accounting for
Postretirement Benefits Other Than Pensions", respectively, in 1992.
With respect to the unaudited interim financial information of
Rubbermaid for the period ended March 31, 1994, incorporated by reference in
this Prospectus, the independent certified public accountants have reported
that they have applied limited procedures in accordance with professional
standards for a review of such information. However, their separate report
included in Rubbermaid's quarterly report on Form 10-Q for the quarter ended
March 31, 1994, and incorporated by reference herein states that they did not
audit and they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their report on such information should
be restricted in light
<PAGE> 9
of the limited nature of the review procedures applied. The accountants are
not subject to the liability provisions of Section 11 of the Securities Act of
1933 for their report on the unaudited interim financial information because
that report is not a "report" or a "part" of the Registration Statement
prepared and certified by the accountants within the meaning of Sections 7 and
11 of the Act.
* * * * * * *
No person has been authorized to give any information or make any
representation other than as contained or incorporated by reference in this
Prospectus and, if given or made, such information or representation must not
be relied upon as having been authorized by Rubbermaid or the Selling
Shareholders. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that there has
been no change in the affairs of Rubbermaid since the date hereof. This
Prospectus shall not constitute an offer to sell or a solicitation of any offer
to buy any of the Common Shares offered hereby in any jurisdiction where such
offer or solicitation would be unlawful.
<PAGE> 10
PART II
-------
INFORMATION NOT REQUIRED IN PROSPECTUS
--------------------------------------
Item 14. Other Expenses of Issuance and Distribution.
-------------------------------------------
The following represents an itemized statement of all expenses in
connection with effecting the registration of the securities covered by this
Registration Statement:
Commission Registration Fee . . . . . . $20,563
Legal Fees and Expenses . . . . . . . . $ 7,500
Accounting Fees and Expenses . . . . . $ 4,000
New York Stock Exchange Listing Fee . . $ 7,695
Miscellaneous Expenses . . . . . . . . $ 500
-------
Total $40,258
All of the foregoing costs and expenses will be borne by Rubbermaid.
The Selling Shareholders will bear all costs and expenses associated with the
subsequent offer and sale of the securities.
Item 15. Indemnification of Directors and Officers.
------------------------------------------
The Regulations of Rubbermaid provide that it shall indemnify, to the
full extent permitted by Section 1701.13(E) of the Ohio Revised Code (or other
comparable provision then in effect), any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is or was a Director, officer, employee or agent
of Rubbermaid, or is or was serving at the request of Rubbermaid as a director,
trustee, officer, employee or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust or other
enterprise; provided, that Rubbermaid shall indemnify any such agent (as
opposed to any Director, officer or employee) of Rubbermaid to an extent
greater than that required by law only if and to the extent that the Directors
may, in their discretion, so determine. The indemnification is not deemed to
be exclusive of any other right to which those seeking indemnification may be
entitled under any law, the Amended Articles of Incorporation of Rubbermaid, or
any agreement, vote of shareholders, or of disinterested Directors, or
otherwise, both as to action in official capacities and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a Director, trustee, officer, employee or agent of Rubbermaid, and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
<PAGE> 11
Rubbermaid also maintains certain insurance policies which cover certain
of the individuals described above against certain liabilities asserted against
and incurred by any such individual representing Rubbermaid in any capacity
listed above, arising out of his status as such, regardless of whether
Rubbermaid would otherwise have the power to indemnify such individual against
such liability.
Item 16. Exhibits.
---------
<TABLE>
<CAPTION>
Exhibit Number Exhibit Description
-------------- -------------------
<S> <C>
1 Underwriting Agreement
Not applicable
2 Plan of acquisition, reorganization, arrangement, liquidation or succession
(a) Merger Agreement dated as of June 15, 1994 by and among Rubbermaid Incorporated and
Empire Brushes, Inc., National Brush Company, and Acquico, Inc.
(b) Real Estate Purchase Agreement by and between The Gantz Greenville Company, The Gantz
Investment Company, Rubbermaid Incorporated, and Acquico, Inc. dated June 15, 1994,
with Addendum dated June 30, 1994
(c) Real Estate Purchase Agreement by and between EJG Realty, L.L.C., Rubbermaid
Incorporated, and Acquico, Inc. dated June 15, 1994
4 Instruments defining the rights of security holders, including indentures
(a) Amended Articles of Incorporation of Rubbermaid Incorporated. Incorporated by
reference from Exhibits 3a and 4a to Form 10-K for the year ended December 31, 1992.
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
Exhibit Number Exhibit Description
-------------- -------------------
<S> <C>
(b) Regulations of Rubbermaid Incorporated. Incorporated by reference from Exhibits 3a
and 4a to Form 10-K for the year ended December 31, 1992.
(c) Amended and Restated Rights Agreement between Rubbermaid Incorporated and Ameritrust
Company National Association. Incorporated by reference from Exhibit 4 to Form 8
file with the Commission on October 26, 1989.
5 Opinion re legality
Legal Opinion of Critchfield, Critchfield & Johnston as to the legality of the
securities being registered
8 Opinion re tax matters
Not applicable
12 Statement re computation of ratios
Not applicable
13 Annual report to security holders, Form 10-Q or quarterly report to security holders
(a) Form 10-K Annual Report of Rubbermaid Incorporated for the year ended December 31,
1993, previously filed with the Commission
(b) Form 10-Q Quarterly Report of Rubbermaid Incorporated for the quarter ended March
1994, previously filed with the Commission
15 Letter re unaudited interim financial information
</TABLE>
<PAGE> 13
<TABLE>
<CAPTION>
Exhibit Number Exhibit Description
-------------- -------------------
<S> <C>
Letter of KPMG Peat Marwick dated July 29, 1994 as to unaudited interim financial
information
23 Consents of experts and counsel
(a) Consent of Critchfield, Critchfield & Johnston
(b) Consent of KPMG Peat Marwick
24 Power of Attorney
Powers of Attorney of certain Directors of Rubbermaid Incorporated
25 Statement of eligibility of trustee
Not applicable
26 Invitation for competitive bids
Not applicable
27 Financial Data Schedule
Not applicable
28 Information from reports furnished to state insurance regulatory authorities
Not applicable
99 Additional exhibits
Not applicable
</TABLE>
Item 17. Undertakings.
-------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
<PAGE> 14
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if this Registration Statement is on Form S-3, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(i) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to Directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a Director,
officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
Director, officer or controlling person in connection with the
securities being
<PAGE> 15
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Wooster, State of Ohio, on the 29th day of
July, 1994.
RUBBERMAID INCORPORATED
By JAMES A. MORGAN /s/
-------------------------
James A. Morgan,
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
WOLFGANG R. SCHMITT /s/ Director and Chairman
- ----------------------- of the Board (Chief
Wolfgang R. Schmitt Executive Officer) July 29, 1994
CHARLES A. CARROLL /s/ Director and President
- ----------------------- (Chief Operating Officer) "
Charles A. Carroll
GEORGE C. WEIGAND /s/ Senior Vice President and
- ----------------------- Chief Financial Officer "
George C. Weigand
JOHN L. THELER /s/ Vice President and Corporate
- ----------------------- Controller (Principal
John L. Theler Accounting Officer) "
TOM H. BARRETT * Director
- -----------------------
Tom H. Barrett
ZOE COULSON * Director
- -----------------------
Zoe Coulson
ROBERT O. EBERT * Director
- -----------------------
Robert O. Ebert
STANLEY C. GAULT * Director
- -----------------------
Stanley C. Gault
</TABLE>
<PAGE> 16
<TABLE>
<S> <C>
ROBERT M. GERRITY * Director
- -----------------------
Robert M. Gerrity
KAREN N. HORN * Director
- -----------------------
Karen N. Horn
WILLIAM D. MAROHN * Director
- -----------------------
William D. Marohn
STEVEN A. MINTER * Director
- -----------------------
Steven A. Minter
JAN NICHOLSON * Director
- -----------------------
Jan Nicholson
PAUL G. SCHLOEMER * Director
- -----------------------
Paul G. Schloemer
* The undersigned, by signing his name hereto, does sign and execute
this Registration Statement pursuant to Powers of Attorney executed by the
above-named Directors of the Registrant and filed with the Securities and
Exchange Commission on behalf of such Directors.
</TABLE>
By JAMES A. MORGAN /s/
---------------------
James A. Morgan,
Attorney-in-Fact
Date: July 29, 1994
<PAGE> 17
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit Number Exhibit Description
- -------------- -------------------
<S> <C>
2(a) Merger Agreement dated as of
June 15, 1994, by and among
Rubbermaid Incorporated,
Empire Brushes, Inc., National
Brush Company, and Acquico, Inc.
2(b) Real Estate Purchase Agreement
by and between The Gantz
Greenville Company, The
Gantz Investment Company,
Rubbermaid Incorporated, and
Acquico, Inc. dated June 15,
1994, with Addendum dated
June 30, 1994
2(c) Real Estate Purchase Agreement
by and between EJG Realty,
L.L.C., Rubbermaid Incorporated,
and Acquico, Inc. dated June 15,
1994
4(a) Amended Articles of
Incorporation of Rubbermaid
Incorporated. Incorporated by
reference from Exhibits 3a and
4a to Form 10-K for the year ended
December 31, 1992. *
4(b) Regulations of Rubbermaid
Incorporated. Incorporated
by reference from Exhibits 3a
and 4a to Form 10-K for the year
ended December 31, 1992. *
4(c) Amended and Restated Rights
Agreement between Rubbermaid
Incorporated and Ameritrust
Company National Association.
Incorporated by reference from
Exhibit 4 to Form 8 filed
with the Commission on October
26, 1989. *
5 Legal Opinion of Critchfield,
Critchfield & Johnston as to
the legality of the securities
being registered
</TABLE>
<PAGE> 18
<TABLE>
<CAPTION>
Exhibit Number Exhibit Description
-------------- -------------------
<S> <C>
13(a) Form 10-K Annual Report of
Rubbermaid Incorporated for
the year ended December 31,
1993, previously filed with
the Commission *
13(b) Form 10-Q Quarterly Report of
Rubbermaid Incorporated for the
quarter ended March 31, 1994,
previously filed with the
Commission *
15 Letter of KPMG Peat Marwick
dated July 29, 1994, as to
unaudited interim financial
information
23(a) Consent of Critchfield,
Critchfield & Johnston
23(b) Consent of KPMG Peat Marwick
24 Powers of Attorney of certain
Directors of Rubbermaid
Incorporated
- -------------------------------------
* Incorporated by reference
</TABLE>
<PAGE> 1
EXHIBIT 2(a)
AGREEMENT OF MERGER
-------------------
AGREEMENT OF MERGER dated this 15th day of June, 1994,
pursuant to Section 252 of the General Corporation Law of Delaware,
between ACQUICO, INC. and EMPIRE BRUSHES, INC., Delaware corporations,
and NATIONAL BRUSH COMPANY, an Illinois corporation.
WITNESSETH that:
WHEREAS, all of the constituent corporations desire to merge
into a single corporation;
NOW, THEREFORE, the corporations, parties to this Agreement,
in consideration of the mutual covenants, agreements and provisions
hereinafter contained do hereby prescribe the terms and conditions
of said merger and mode of carrying the same into effect as
follows:
FIRST: Acquico, Inc. hereby merges into itself Empire
Brushes, Inc. and National Brush Company, and said Empire Brushes,
Inc. and National Brush Company shall be and hereby are merged into
Acquico, Inc., which shall be the surviving corporation.
SECOND: The Certificate of Incorporation of Acquico, Inc. is
amended as follows:
Strike Article I of the Certificate of Incorporation
and in lieu thereof, insert:
I. The name of the corporation is Empire Brushes,
Inc.
THIRD: The manner of converting the outstanding shares of the
capital stock of each of the constituent corporations into shares
or other securities shall be pursuant to that Agreement and Plan of
Reorganization dated June 15, 1994, by and among Rubbermaid
Incorporated, Acquico, Inc., Empire Brushes, Inc., and National
<PAGE> 2
Brush Company ("Agreement and Plan of Reorganization"), the
applicable terms of which are incorporated herein by reference as
if fully stated herein.
FOURTH: The terms and conditions of the merger are as
follows:
(a) The By-Laws of the surviving corporation as they shall
exist on the effective date of this merger shall be and remain the
By-Laws of the surviving corporation until the same shall be
altered, amended or repealed as therein provided.
(b) The directors and officers of the surviving corporation
shall continue in office until their successors shall have been
duly elected or appointed and qualified or until their earlier
death, resignation or removal in accordance with the Certificate of
Incorporation and By-Laws of the surviving corporation.
(c) The merger shall become effective upon filing with the
Secretary of State of Delaware. However, for all accounting
purposes the effective date of the merger shall be at 11:59 p.m. on
the Closing Date as that term is defined in the Agreement and Plan
of Reorganization.
(d) Upon the merger becoming effective, all the property,
rights, privileges, franchises, patents, trademarks, licenses,
registrations and other assets of every kind and description of the
merged corporations shall be transferred to, vested in, and devolve
upon, the surviving corporation without further act or deed and all
property, rights, and every other interest of the surviving
corporation and the merged corporations shall be as effectively the
-2-
<PAGE> 3
property of the surviving corporation as they were of the surviving
corporation and the merged corporations respectively. The merged
corporations hereby agree from time to time, as and when requested
by the surviving corporation or by its successors or assigns, to
execute and deliver or cause to be executed and delivered all such
deeds and instruments and to take or cause to be taken such further
or other action as the surviving corporation may deem necessary or
desirable in order to vest in and confirm to the surviving
corporation title to and possession of any property of the merged
corporations acquired or to be acquired by reason of or as a result
of the merger herein provided for and otherwise to carry out the
interest and purposes hereof and the proper officers and directors
of the merged corporations and the proper officers and directors of
the surviving corporation are fully authorized in the name of the
merged corporations or otherwise to take any and all such action.
IN WITNESS WHEREOF, the parties to the Agreement, pursuant to
the approval and authority duly given by resolutions adopted by
their respective Shareholders and Boards of Directors have caused
these presents to be executed by the President or Vice President
and attested by the Secretary or Assistant Secretary of each party
hereto as the respective act, deed and agreement of each of said
corporations, on this 15th day of June, 1994.
ACQUICO, INC.
By /s/ Donald G. Rubright
---------------------------
Vice President
ATTEST:
By /s/ Martin Degnan
---------------------------
Assistant Secretary
-3-
<PAGE> 4
EMPIRE BRUSHES, INC.
By: /s/ Joseph Gantz
------------------------------
President or Vice President
ATTEST:
By: /s/ J. W. Strom
------------------------
Secretary or Assistant Secretary
NATIONAL BRUSH COMPANY
By /s/ Joseph Gantz
------------------------------
President or Vice President
ATTEST:
By: /s/ J. W. Strom
------------------------
Secretary or Assistant Secretary
-4-
<PAGE> 1
EXHIBIT 2(b)
0789JEMP.GTZ
6/14/94
REAL ESTATE PURCHASE AGREEMENT
dated as of June 15, 1994
between
THE GANTZ GREENVILLE COMPANY, THE GANTZ INVESTMENT COMPANY
and
THE JACK GANTZ REVOCABLE TRUST, SARITA GANTZ,
THE JACK GANTZ REVOCABLE TRUST, THE SARITA GANTZ TRUST NO. 1,
THE SARITA GANTZ TRUST NO. 2
and
RUBBERMAID INCORPORATED, AND ACQUICO, INC.
THE RUBBERMAID COMMON SHARES TO BE ISSUED PURSUANT TO THIS
AGREEMENT AND PLAN OF REORGANIZATION ARE "SECURITIES" UNDER THE
SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.
IN MAKING THE INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR
OWN EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE
NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION
OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES
HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
<PAGE> 2
0789JEMP.GTZ
6/14/94
REAL ESTATE PURCHASE AGREEMENT
------------------------------
This Real Estate Purchase Agreement (the "Agreement") dated as of
June 15 , 1994, by and among:
- ------------------------
A. The Gantz Greenville Company and The Gantz Investment Company
("Owner").
B. The partners of The Gantz Greenville Company and The Gantz
Investment Company, namely:
1. The Gantz Investment Company;
2. The Jack Gantz Revocable Trust; THE GANTZ GREENVILLE
COMPANY
3. Sarita Gantz;
1. The Jack Gantz Revocable Trust;
2. The Sarita Gantz Revocable Trust;
3. The Sarita Gantz Trust No. 1; THE GANTZ INVESTMENT
COMPANY
4. The Sarita Gantz Trust No. 2;
collectively referred to as the "Partners."
C. The Owner and Partners collectively referred to as "Sellers."
D. Acquico, Inc., a Delaware corporation, and a wholly owned
subsidiary of Rubbermaid Incorporated ("Acquico").
E. Rubbermaid Incorporated, an Ohio corporation ("Rubbermaid").
Acquico and Rubbermaid collectively referred to as "Buyer."
RECITALS
A. Owner is the owner of certain real property used for a
manufacturing and warehouse facility located at U.S. 13 North, Greenville,
North Carolina. The real property is occupied and used as one facility.
B. Buyer desires to purchase from Owner and Owner desires to sell to
Buyer the assets as set forth herein.
<PAGE> 3
C. Buyer and others contemporaneous with this transaction are also
under agreement to transfer and to acquire certain other real estate and all
of the issued and outstanding stock of Empire Brushes, Inc., and National
Brush Company (collectively the "Empire Group"). The parties acknowledge and
agree that all of these transactions are interdependent upon one another and
that the obligations of Buyer and Sellers as contained in this Agreement are
contingent upon all transactions being consummated as contemplated herein and
therein.
D. Now, therefore, in consideration of the mutual promises and
conditions hereinafter set forth, the parties covenant and agree as follows:
ARTICLE 1
---------
PURCHASE AND SALE OF ASSETS
---------------------------
1.1 PURCHASED ASSETS. Subject to the terms and conditions set forth in
this Agreement, Owner shall sell, transfer, assign, convey and deliver to
Buyer, and Buyer shall purchase and acquire from Owner, all right, title and
interest in and to all of the assets and properties of every kind and
description (except for the Excluded Assets as defined in Section 1.2 hereof)
owned, held, used or claimed by Owner relating to the real property located at
U.S. 13 North, Greenville, North Carolina (collectively the "Purchased
Assets"), including, by way of example but without limitation, the following:
(a) The real property known as U.S. 13 North, Greenville, North
Carolina, described in SCHEDULE 1.1(a) attached hereto, together with all
buildings, improvements, appurtenances and fixtures thereto (the "Real
Property"), free and clear of all liens and encumbrances except the
Permitted Encumbrances as set forth in SCHEDULE 1.1(a). The Real
Property described on SCHEDULE 1.1(a) constitutes all of the Real
Property owned by Seller used in conjunction with the business carried on
at such location by Empire Brushes, Inc.; and in the event it is later
discovered that Seller owns additional property at such location, Seller
shall convey such property to Buyer without the payment of additional
consideration.
(b) All information pertaining to the Real Property, including
all plans, blueprints, surveys, "as built" drawings, mechanical
schematics, environmental audit reports, soil bearing analysis reports,
and any and all other information relating to the Real Property or the
structures located thereon ("Operating Information").
-2-
<PAGE> 4
(c) All of Owner's interest in the real estate leases described
on SCHEDULE 1.1(c) ("Real Estate Leases"). Copies of all of the Real
Estate Leases have been delivered to Buyer.
(d) All of Owner's interest as listed on SCHEDULE 1.1(d) in
contract rights, options, intangible personal property, or such other
agreements or contracts relating to the Real Property, property adjacent
to the Real Property, or property or contract rights used, or to be used,
in the present or future operation of the Purchased Assets ("Contract
Rights").
(e) All personal property including the personal property listed
on SCHEDULE 1.1(e), which includes, but is not limited to:
(i) All furniture, fixtures, shelving, office supplies,
computers, telephone system, and office equipment, and all parts,
accessories, tools and supplies owned by Owner pertaining thereto
used in connection with the business conducted thereon;
(ii) All other machinery, equipment, parts, accessories,
tools and supplies owned by Owner used in connection with the
business conducted thereon;
(iii) All other tangible personal property owned by Owner
used in connection with the business conducted thereon.
All of the above collectively referred to as the "Tangible Personal
Property."
(f) The nonexclusive right to commence, maintain, and prosecute
any causes of action, claims for damages, suits, and any other choses in
action which could be maintained by Sellers, which Buyer may deem
necessary as the owner of the Purchased Assets to protect its interests
therein.
1.2 EXCLUDED ASSETS. Notwithstanding Section 1.1 hereof, the
Purchased Assets shall not include the following (collectively the "Excluded
Assets"):
(a) Cash;
(b) Accounts receivable and records pertaining thereto;
(c) Bank accounts of Owner;
-3-
<PAGE> 5
(d) Books, records and financial data of Owner;
(e) All refunds due Owner from any prepaid insurance contracts,
any outstanding letters of credit or other items representing outstanding
cash.
1.3 REAL ESTATE TITLE INSURANCE. Owner shall pay the cost of an ALTA
Owner's Policy of Title Insurance covering the Real Property in a principal
insurance amount equal to the purchase price. Buyer shall pay for an
ALTA/ACSM land title survey of the Real Property. Buyer shall make all
arrangements to obtain the Owner's Policy of Title Insurance from a title
company acceptable to it and the land title survey from a surveying firm
acceptable to it. Said policy shall have deleted therefrom the standard
exceptions and shall insure the Real Property to be marketable as required in
Section 1.1(a) subject to Permitted Encumbrances and other exceptions approved
by Buyer. In the event any other title defect shall appear which materially
impairs Buyer's intended use of the property, Buyer or Owner shall have the
right to extend the Closing Date for up to 30 days in order to permit Owner an
opportunity to cure said defect. If Owner is unable to cure the defect within
said 30 day period, either party may, at its option, terminate this Agreement
provided Buyer's right to so terminate shall be subject to Section 9.24 of the
Agreement and Plan of Reorganization or, if this Agreement is not so
terminated, proceed to Closing and accept the title subject to the defect
without adjustment of the purchase price, in either event. Owner shall pay
all costs associated with said title insurance including premiums and title
examination costs.
1.4 ARTICLE 9. LIEN SEARCH. Prior to Closing, Buyer shall obtain a
search of the records of the Secretary of State of North Carolina and the Pitt
County Recorder of all filed financing statements against Owner, if any.
Owner shall pay all costs associated with the financing statement lien search.
1.5 PAYMENT OF CONVEYANCE TAX. Owner shall pay all conveyance taxes
or transfer fees applicable to the sale of the real estate.
ARTICLE 2
---------
PURCHASE PRICE
--------------
2.1 PURCHASE PRICE. The purchase price for the Purchased Assets shall
be estimated at Seven Million Nine Hundred Thousand Dollars ($7,900,000) less
the indebtedness ("Mortgage Debt") secured by mortgage of the Purchased Assets
(the "Purchase Price"). The Purchase Price shall be adjusted at the Closing
as provided in Section 2.5 hereof, and a portion thereof shall be placed in
escrow as provided in Section 13.1 hereof.
-4-
<PAGE> 6
2.2 PAYMENT OF PURCHASE PRICE. The Purchase Price, as adjusted
pursuant to Section 2.5 hereof, shall be paid to the Escrow Agent and Owner at
Closing as provided in Section 13.1 through the delivery of Rubbermaid $1.00
par value common shares, which are authorized by Rubbermaid's Articles of
Incorporation (hereinafter "Rubbermaid Common Shares" or "Shares"). The
number of Rubbermaid Common Shares to be delivered shall be determined as
provided in Section 2.3.
2.3 DETERMINATION OF NUMBER OF SHARES.
(a) BASE NUMBER OF SHARES. The base number of Shares ("Base
Number of Shares") shall be the quotient rounded to the nearest whole
share obtained by dividing the Purchase Price by the average closing sale
price of Rubbermaid Common Shares as reported in the Transaction
Reporting System operated by the Consolidated Tape Association for the
five consecutive Trading Days ending with the Trading Day prior to the
date of signing this Agreement.
(b) ADJUSTMENT TO BASE NUMBER OF SHARES. The number of
anticipated Shares prior to Purchase Price adjustments as called for
herein ("Anticipated Shares") shall be determined by dividing the
Purchase Price by the average closing sale price of Rubbermaid Common
Shares as reported in the Transaction Reporting System operated by the
Consolidated Tape Association for the ten consecutive Trading Days ending
with the third Trading Day prior to the Closing Date; provided, however,
that the quotient shall be not greater than 107.5 percent nor less than
92.5 percent of the Base Number of Shares determined in (a) above.
(c) FINAL NUMBER OF SHARES. The final number of Shares to be
issued to Owner shall be adjusted to reflect all Purchase Price
Adjustments as called for herein. The aggregate dollar value of all
Purchase Price Adjustments shall be divided by the average closing price
of Rubbermaid Common Shares as determined in subsection (b) above. This
quotient shall be added to or subtracted from the number of Anticipated
Shares, with the resulting number of Shares being deemed the final number
of Shares to be issued to Owner.
(d) ALLOCATION OF SHARES. Of the final Shares to be issued to
Owner, Gantz Greenville Company shall receive 47.3 percent and Gantz
Investment Company shall receive 52.7 percent.
2.4 FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, no fractional share of a Rubbermaid Common Share shall be issued as
a result of the transactions contemplated by this Agreement. The total number
-5-
<PAGE> 7
of Shares to be issued to the Owner shall be rounded up or rounded down to the
nearest whole Rubbermaid Common Share.
2.5 ADJUSTMENTS TO PURCHASE PRICE. The Purchase Price shall be
adjusted to reflect the required payment or proration as of the close of
business on the Closing Date (collectively referred to as "Purchase Price
Adjustments"):
(a) Conveyance or transfer fees as provided in Section 1.5;
(b) All costs associated with Title Insurance and lien search as
provided in Section 1.3 and 1.4, including but not limited to search fees
and policy premiums.
ARTICLE 3
---------
ASSUMPTION AND NONASSUMPTION OF CERTAIN LIABILITIES
----------------------------------------------------
3.1 ASSUMPTION OF CERTAIN LIABILITIES. Buyer shall not be obligated
to assume, and shall not assume, any of the liabilities and obligations of
Owner whether existing as of the Closing Date or asserted thereafter and
relating to events that occurred on or before the Closing Date or otherwise,
except upon Closing, Buyer shall assume and agree to pay, perform, and
discharge the following liabilities and obligations of Owner as of the Closing
Date:
(a) Buyer will assume:
(i) the obligations of Owner under the Real Estate Leases
listed on SCHEDULE 1.1(c);
(ii) the obligations of Owner under the Mortgages listed on
SCHEDULE 1.1(a) as Permitted Encumbrances;
(iii) the obligations of Owner under the Contract Rights
listed on SCHEDULE 1.1(d);
(iv) non-delinquent real estate taxes which are the
obligation of the Lessees under the Real Estate Leases.
(b) Buyer shall pay:
(i) the costs of registration and listing as set out in
Section 16.6.
-6-
<PAGE> 8
3.2 BUYER NOT ASSUMING CERTAIN LIABILITIES. Buyer shall assume only
those liabilities and obligations of Owner specifically described in Section
3.1.
Except as to those liabilities and obligations which Buyer assumes under
Section 3.1(a) or pursuant to the Agreement and Plan of Reorganization, Buyer
does not expressly, impliedly or by operation of law accept or assume any
liability of Owner arising out of or in any way related to the Purchased
Assets, the performance of this Agreement or the carrying out of the
transactions contemplated by this Agreement.
Without limiting the generality of the foregoing, Buyer shall not have,
and does not assume, except as set forth in the preceding paragraph:
(a) Any liability regarding the Purchased Assets for income or
other taxes, whether local, state or federal, including by way of
example, but without limitation, personal taxes, personal property tax or
any other tax of whatever nature or description except as set forth at
Section 3.1(a)(iv).
(b) Any liability occurring and arising out of the Purchased
Asset operations or services provided prior to Closing which liability is
the obligation of the Lessee under the Real Estate Leases.
(c) Any environmental liabilities of Sellers occurring during
and arising out of Sellers' ownership of the Purchased Assets. For
purposes of this Agreement, "environmental liabilities" shall mean
third-party claims and all liabilities under federal, state and local law
and regulations arising from the release prior to Closing Date by Sellers
of hazardous or toxic materials into the environment as a result of
Sellers' operations, including, without limitation, any liability under
the Clean Water Act, the Clean Air Act, the Comprehensive Environmental
Response Compensation and Liability Act ("CERCLA" or "Super Fund"), the
Resource Conservation and Recovery Act ("RCRA") and any applicable state
and local law ("Environmental Laws"); any liability for contamination by
Sellers as of the Closing Date of water, ground or ground water; any
liability for the movement or migration after the Closing Date of
substances released into the environment by Sellers prior to the
Date; and any liability to any persons, including Sellers' past or
current employees, for injury, illness, disability or death to the extent
caused by releases by Sellers to the environment prior to the Closing
Date of toxic or hazardous substances.
-7-
<PAGE> 9
(d) Any general obligations of Sellers including, by way of
example, but without limitation, any lawsuit claim, suit, proceeding, or
investigation arising out of the ownership, business or operations of
Owner prior to Closing, which obligations are the obligations of the
Lessee under the Real Estate Leases.
(e) Any liability or obligation to Sellers' creditors or owners
as creditors.
ARTICLE 4
---------
REPRESENTATIONS AND WARRANTIES OF SELLERS
-----------------------------------------
REPRESENTATIONS AND WARRANTIES OF SELLERS. In order to induce Buyer to
enter into this Agreement and to consummate the transactions contemplated
hereunder, Sellers, jointly and severally, make the following representations,
warranties, covenants and agreements, to the best of their knowledge and based
on the knowledge of the Empire Group as defined in the Agreement and Plan of
Reorganization, each of which shall be deemed to be independently material and
relied upon by Buyer regardless of any investigation made or information
obtained by Buyer and each of which shall survive the Closing of this
Agreement for a period of one year.
4.1 ORGANIZATION, ETC. The Gantz Greenville Company and Gantz
Investment Company are general partnerships, duly organized, validly existing
and in good standing under the laws of Florida, and have all requisite power
and authority to own, lease, hold and operate the Purchased Assets, as and
where now owned, leased, held, operated or conducted.
4.2 LOCATION OF OWNER. Owner's chief executive offices are located at
c/o Sarita Gantz, 120 Sunset Avenue, Palm Beach, Florida 33480.
4.3 PURCHASED ASSETS. Generally, except as disclosed on SCHEDULE 4.3,
Sellers have no interest as owner, lessee or otherwise in any asset used in
connection with the business conducted on the Real Property, except the
Purchased Assets. Sellers hereby represent, warrant and covenant to and with
Buyer that except as set forth in SCHEDULE 4.3:
(a) Owner has no direct or indirect beneficial interest in any
other entity, corporation, partnership, joint venture or other
enterprise, which has any claim or interest in the Purchased Assets.
(b) Sellers have not received any written notice nor have any
actual knowledge of any information that there has been any violation of
any statute, law, ordinance, or regulation of any governmental entity
-8-
<PAGE> 10
affecting the Purchased Assets with respect to health, safety and
environmental and pollution control, including the disposition of
hazardous or toxic waste materials or emissions into the air, soil or
water, or any form of contamination, that would have a material adverse
effect on the value of the Purchased Assets or the continued operation
and use of the Purchased Assets by the Buyer in the ordinary course of
business.
(c) Owner has good and marketable title to the Purchased Assets,
free and clear of all liens, encumbrances, security interests, pledges,
equities, claims of others or restrictions whatsoever.
(d) To the best of Sellers' knowledge and belief, all of the
Purchased Assets are now in working condition and subject to occurrences
in the ordinary course of business as of the Closing Date will be in
working condition with no material defects other than those items to be
repaired in the ordinary course of business or identified to Buyer in
writing.
4.4 REAL ESTATE. Except as set forth in Schedule 4.4 or other
Schedules, Sellers hereby make the following representations, warranties and
covenants to and with Buyer regarding the Real Property:
(a) Sellers have not received any uncured written notice that
the Real Property, as currently used by Sellers, is in material violation
of any applicable federal, state or local statute, ordinance, order,
requirement, law, rule or regulation (including without limitation,
building, zoning or environmental laws) affecting the Real Property that
would have a material adverse effect on the value of the Real Property or
its continued operation and use in the ordinary course of business now
being conducted thereon.
(b) The zoning of the Real Property permits the presently
existing improvements and the conduct and continuation of the business
presently being conducted on such Real Property.
(c) The buildings located on the Real Property are structurally
sound and are now in good working condition subject to ordinary wear and
tear and repairs to be made in the ordinary course of business. Sellers
understand that notwithstanding the foregoing representation, Buyer may
engage an engineering consultant to verify the foregoing.
-9-
<PAGE> 11
(d) Owner has good and marketable title to the Real Property,
free and clear of all liens, encumbrances, security interests, pledges,
equities, claims of others or restrictions whatsoever, except:
(i) Zoning and building ordinances and regulations which
do not prohibit or restrict the present use of the Real Property;
(ii) Real estate taxes and assessments, both general and
special, which may be a lien but are not yet due and payable on
the Closing Date;
(iii) Easements, covenants, agreements, encumbrances,
conditions, reservations, restrictions, of record or other
exceptions affecting the real estate, if any, which are disclosed
on SCHEDULE 1.1(a), and any additional title matters which are
approved in writing by Buyer prior to the Closing Date.
(iv) The matters set forth in SCHEDULE 4.4.
(e) No condemnation proceeding is pending or overtly threatened
against the real estate.
(f) No improvement of the Real Property encroaches upon any
adjacent real property, and no improvement of any adjacent real property
encroaches upon the Real Property.
(g) No easements, rights-of-way, or other such agreements not of
record are necessary to be obtained in order to continue the present use
of the Real Property.
4.5 NO EMPLOYEES. As of the date hereof, the Owner does not have any
employees.
4.6 NO DEFAULT. Except as set out on SCHEDULE 4.6 or other Schedules,
Owner is not and, to the best of Owner's knowledge, no tenant of Owner is in
monetary default or material non-monetary default or breach of the terms or
conditions of any lease, contract, or other agreement or obligation to be
assumed by Buyer, including, but not limited to, the Real Estate Leases, and
there has not occurred any event which after the giving of notice, or the
lapse of time, or both, would constitute such a monetary default or
non-monetary material default or breach of any of such leases, contracts,
assumed obligations, or other agreements.
-10-
<PAGE> 12
All such contracts at Closing will be assignable to Buyer and will be
assigned to Buyer as contemplated by this Agreement.
4.7 AUTHORITY AND APPROVAL.
-----------------------
(a) Sellers have all requisite power and authority, subject to
Federal Trade Commission and Department of Justice approval and except as
the same may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other laws relating to or affecting enforcement of
creditors' rights and equitable considerations which may affect a court's
exercise to protect its full power, including its power to order specific
performance, to:
(i) Enter into this Agreement;
(ii) Perform their obligations hereunder;
(iii) Consummate the transactions contemplated; and
(iv) Execute and deliver this Agreement, the general
conveyance, assignment and bill of sale, the special warranty deed
in the form attached hereto as EXHIBIT A, and such other
instruments of sale, assignment or transfer contemplated hereby.
(b) Except for matters set out on SCHEDULE 4.7 or other
Schedules, the consummation of the transactions contemplated hereby and
the compliance by Sellers with the terms of this Agreement do not and
will not conflict with, result in or constitute any of the following:
(i) A material default or an event that, with notice or
lapse of time, or both, would be a material default, breach or
violation of Owner's governing documents or any material lease,
license, promissory note, conditional sales contract, commitment,
indenture, mortgage, deed of trust, or other agreement,
instrument, or arrangement to which Sellers are a party or by
which Sellers or the property of Sellers is bound;
(ii) An event that would permit any party to terminate any
material agreement or to accelerate the maturity of any material
indebtedness or other material obligation of Owner; or
(iii) The creation or imposition of any lien, charge, or
encumbrance on any of the Purchased Assets.
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(c) Except for matters set forth in SCHEDULE 4.7 or other
Schedules, Owner is not a party to or bound under any certificate,
regulation, mortgage, lien, lease, agreement, contract, instrument,
order, judgment, or decree, which materially, adversely affects the
Purchased Assets.
(d) All necessary and appropriate action has been taken by
Sellers with respect to the execution and delivery of this Agreement, and
this Agreement constitutes a valid and binding obligation of Sellers, as
appropriate and enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other laws relating to or affecting enforcement of
creditors' rights, and equitable considerations which may affect a
court's exercise to protect its full power, including its power to order
specific performance. All Trusts which are Sellers are validly existing
trusts with properly appointed trustees who have the power to enter into
the obligations contained herein.
(e) Except for matters set forth in SCHEDULE 4.7 or other
Schedules, there are no material contracts, commitments, leases, permits
or other instruments necessary to hold the Purchased Assets by Owner, as
and where now held by Owner, or related to the management of the
Purchased Assets, other than those to be transferred to Buyer pursuant to
this Agreement.
4.8 PAYMENT OF TAXES. Owner has paid all taxes owed by Owner for all
taxable years of Owner concluded prior to and payable prior to the Closing
Date or such taxes are payable by the Lessee under the Real Estate Leases. No
federal, state or local tax returns or reports filed by Owner (whether filed
prior to, on or after the Closing Date) will result in any taxes, assessments,
fees or other governmental charges upon the Purchased Assets or Buyer, whether
as transferee of the Owner or otherwise, except for taxes with respect to the
Purchased Assets payable without penalty after the Closing.
4.9 LITIGATION. Except as provided on SCHEDULE 4.9 or other
Schedules, there are no claims, actions or proceedings, either administrative
or judicial, pending or threatened, other than matters fully covered by
insurance subject to normal deductibles, and no adverse orders of any
governmental, administrative or regulatory body have been or are about to be
issued against or relating to the Purchased Assets or that could have a
material adverse effect on or prevent the sale of the Purchased Assets
following the Closing Date.
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4.10 MECHANIC'S LIENS. Except as set forth in SCHEDULE 4.10 or other
Schedules, Owner has not requested or contracted for any improvement to the
Real Property that could result in the filing of a mechanic's lien against the
Real Property. At Closing, Owner shall deliver to Buyer an affidavit or other
documents satisfactory to the company issuing the title insurance required in
Section 1.3, so as to delete therefrom the standard exception for such liens.
4.11 COMPLIANCE WITH AGREEMENTS. Seller is in material compliance with
all terms and conditions of the agreements listed on SCHEDULE 1.1(d) where
such agreements require Seller to take or refrain from taking any action, and
Seller has no knowledge that any other party to such agreements has failed to
comply with all material terms and conditions imposed on such other party by
such agreements.
4.12 RESERVED.
4.13 OTHER CONTRACTS. SCHEDULE 4.13 or other Schedules contain a true
and complete list of all material contracts and all leases relating to the
Purchased Assets to which the Owner is a party, and prior to Closing the Owner
will not enter into any contracts or leases relating to the Purchased Assets
without the prior written consent of Buyer.
4.14 COMPLIANCE WITH LAWS. Except as set forth in SCHEDULE 4.14 or
other Schedules, Owner has complied with and is not in material violation of
applicable federal, state, or local statutes, laws and regulations (including,
without limitation, any applicable building, zoning, or other law, ordinance,
or regulation) affecting the Purchased Assets, including without limitation
the Resource Conservation & Recovery Act of 1976, the Comprehensive
Environmental Response Compensation & Liability Act of 1980 (and other
environmental laws), and the Americans with Disabilities Act of 1990, as all
such may be amended, the violation of which would have a material adverse
effect on the business of Empire Group.
4.15 INSURANCE POLICIES. SCHEDULE 4.15 to this Agreement lists all of
the insurance policies held by Owner concerning the Purchased Assets. All
these policies are in the respective principal amounts set forth in SCHEDULE
4.15. Owner has maintained and now maintain or have caused the Lessee under
the Real Estate Leases to maintain (i) insurance on all Purchased Assets of a
type customarily insured, covering property damage and loss of income by fire
or other casualty, and (ii) adequate insurance protection against all
liabilities, claims and risks against which it is customary to insure. Except
as disclosed in SCHEDULE 4.15, there is no monetary breach or default or any
material non-monetary default with respect to any provision contained in any
policy or binder described in this provision nor has there been any failure to
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give any notice or present any material claim under any such policy or binder
in due or timely fashion. There are no outstanding unpaid premiums, and there
are no provisions for retrospective or retroactive premium adjustments except
as set out on SCHEDULE 4.15. Finally, since the later of the date the
Purchased Assets were acquired by Owner or January 1991, except as disclosed
in SCHEDULE 4.15, there have been no instances where there have not been in
full force and effect insurance policies providing the types of insurance as
described above.
4.16 REAL ESTATE LEASES. SCHEDULE 1.1(c) discloses all Real Estate
Leases with regard to the Real Property in which Owner is the Lessor. No
tenant is in arrears in the payment of the rent nor to the best of Sellers'
knowledge after diligent inquiry in material default in the performance of the
non-monetary terms and conditions of said leases.
4.17 FOREIGN PERSON. Owner is not a "foreign person" within the
meaning of the Foreign Investment in Real Property Tax Act, Internal Revenue
Code Section 1445, and Sellers shall deliver at Closing the affidavit required
by Treasury Regulation Section 1.1445-2.
4.18 HAZARDOUS SUBSTANCES. In addition to the representation and
warranty set forth in Section 4.14 regarding environmental law, Sellers
further represent that except as set out in SCHEDULE 4.18: (i) none of the
Purchased Assets are contaminated with any hazardous substance constituting a
violation of applicable law; (ii) Owner or Owner's lessee has arranged for the
proper disposal of hazardous substance removed from the Real Property through
utilization of properly qualified licensed waste disposal transporters and
receivers pursuant to all statutory requirements; (iii) Owner has not caused
and to the best of their knowledge, there has not occurred the release of any
hazardous substance on the Real Property constituting a violation of
applicable law; (iv) the Real Property is not subject to any federal, state or
local "superfund" lien, proceedings, claim, liability or action; (v) there is
no asbestos on the Real Property in violation of applicable law; (vi) there is
no underground storage tank on the Real Property; and (vii) by acquiring the
Real Property, Buyer will not incur or be subjected to any "superfund"
liability for the cleanup, removal or remediation of any hazardous substance
from the property or any liability, cost, or expense for the removal of an
asbestos or underground storage tank from the property. The terms "hazardous
substance," "release" and "removal" as used herein shall have the same meaning
and definition as set forth in paragraphs (14), (22) and (23), respectively,
of Title 42 U.S.C. Section 9601 provided, however, that the term "hazardous
substance" as used herein also shall include "hazardous waste" as defined in
paragraph (5) of 42 U.S.C. Section 6903 and "petroleum" as defined in
paragraph (8) of 42 U.S.C. Section 6991. The term "superfund" as used herein
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means the Comprehensive Environmental Response, Compensation and Liability
Act as amended being Title 42 U.S.C. Section 9601 ET SEQ., as amended, and
any similar state statute or local ordinance applicable to the property,
including, without limitation, all rules and regulations promulgated,
administered and enforced by any governmental agency or authority pursuant
thereto. The term "underground storage tank" as used herein shall have the
same meaning and definition as set forth in paragraph (1) of 42 U.S.C. Section
6991.
4.19 FIRE SYSTEM. Except as set forth on SCHEDULE 4.19, any fire
suppression system used in connection with the Purchased Assets is fully
operational and in accordance with all design and operation specifications of
the system, and has been tested in accordance with all material manufacturer,
insurance company, and statutory requirements.
4.20 OUTSTANDING DEBT. All debt owed by Owner secured by the Purchased
Assets is set forth on SCHEDULE 1.1(a). SCHEDULE 4.20 shall set forth the
contractual repayment schedule showing separately principal and interest due
for all such debt. Owner will pay on the debt only as set forth on the
contractual repayment schedule and shall not make any prepayments unless
authorized in writing by Buyer.
4.21 OTHER ASSETS. Except as set forth in SCHEDULE 4.21 or other
Schedules, to the best of Sellers' knowledge after diligent inquiry:
(a) The Owner does not own any tangible personal property which
is located on or used in connection with the Real Property other than as
set forth on SCHEDULE 1.1(e);
(b) The Lessees, pursuant to the Real Estate Leases, are required
by said Leases to assume and pay all utility services provided to the
Real Property covered by the Real Estate Leases and to pay all taxes
assessed against the Real Property or any personal property located on
the Real Property;
(c) The Owner is not a party to any leases for tangible personal
property, service contracts, or operating agreements pertaining to the
Real Property.
4.22 CONTRACT RIGHTS. The Owner is not in monetary default or in
material non-monetary default of any material terms and conditions relating to
the Contract Rights as listed on SCHEDULE 1.1(d), and the Contract Rights
listed therein will either by operation of law or by assignment inure to the
benefit of Buyer.
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4.23 FULL DISCLOSURE. None of the representations and warranties made
by Sellers, or made in any certificate, memorandum or scheduled documents
provided or furnished or to be furnished by Sellers, or on Sellers' behalf,
contain or will contain any untrue statement of material fact, or omit any
material fact, the omission of which would be misleading.
ARTICLE 5
---------
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
REPRESENTATIONS AND WARRANTIES OF BUYER. In order to induce Sellers to
enter into this Agreement and to consummate the transactions contemplated
hereunder, Buyer jointly and severally makes the following representations,
warranties, covenants, and agreements, each of which shall be deemed to be
independently material and relied upon by Sellers, regardless of any
investigation made or information obtained by Sellers and each of which shall
survive the Closing of this Agreement for a period of one year.
5.1 ORGANIZATION. Acquico is, or at time of Closing will be, a
corporation duly organized and validly existing and in good standing under the
laws of the State of Delaware, and Rubbermaid is a corporation duly organized
and validly existing and in good standing under the laws of the State of Ohio.
5.2 AUTHORITY. Rubbermaid and Acquico have right, power, legal
capacity and authority, subject to Federal Trade Commission and the Department
of Justice approval, to enter into and perform their obligations under this
Agreement. The execution and delivery of this Agreement, the ancillary
agreements, and the performance of the post closing obligations by Rubbermaid
and Acquico have been duly authorized by its respective Board of Directors.
5.3 CAPITALIZATION.
(a) Rubbermaid is authorized to have outstanding 420,000,000
shares consisting of: (i) 400,000,000 common shares, $1.00 par value, of
which: (a) 160,309,500 shares are issued and outstanding as of December
31, 1993, and (b) 47,590 shares are treasury shares; and (ii) 20,000,000
shares are preferred stock without par value, of which no shares are
outstanding. All of the outstanding Rubbermaid Common Shares are, and
the Rubbermaid Common Shares to be issued in connection with the
Reorganization will be, when issued, validly issued, fully paid, and
nonassessable.
(b) Acquico is authorized to have outstanding 1,000 shares
consisting of 1,000 common shares, no par value, of which 1,000 shares
are issued and outstanding as of the Closing Date.
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5.4 AUTHORIZATION, EXECUTION, AND DELIVERY. Rubbermaid and Acquico
have full corporate power and authority to execute and deliver this Agreement
and all other agreements or certificates required by the Agreement, to perform
their respective obligations hereunder and thereunder, and to consummate the
transactions with respect to them and as contemplated hereby. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of Rubbermaid and Acquico and this
Agreement, when executed and delivered by Rubbermaid and Acquico, will be
valid and binding obligations of Rubbermaid and Acquico, as appropriate and
enforceable in accordance with their respective terms, except as the same may
be limited by bankruptcy, insolvency, reorganization, moratorium, or other
laws relating to or affecting enforcement of creditors' rights, and equitable
considerations which may affect a court's exercise to protect its full powers,
including its power to order specific performance.
5.5 FINANCIAL STATEMENTS. To the best of its knowledge, filings
required to be made by Rubbermaid under the Securities Act and Exchange Act
have been filed with the SEC and all such filings have complied in all
material respects with all applicable requirements of the appropriate Act and
the rules and regulations thereunder. Rubbermaid has made available to the
Owner complete copies of each report, schedule, registration statement, and
definitive proxy statement filed by Rubbermaid with the SEC since January 1,
1991 (as such documents have since the time of their filing been amended) (the
"Rubbermaid SEC Reports"). As of their respective dates, the Rubbermaid SEC
Reports did not contain any untrue statement of material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made
not misleading. The audited consolidated financial statements and unaudited
interim financial statements of Rubbermaid included in the Rubbermaid SEC
Reports (the "Rubbermaid Financial Statements") have been prepared in
accordance with GAAP (except as may be indicated therein or in the notes
thereto and except with respect to unaudited statements as permitted by Form
10-Q of the SEC) and fairly present the financial position of Rubbermaid as of
the dates thereof and the results of its operations and cash flows for the
periods then ended, subject in the case of the unaudited interim financial
statements to normal recurring audit adjustments.
5.6 NO MATERIAL ADVERSE CHANGE. Since the date of the filing of
Rubbermaid's Quarterly Report on Form 10-Q for the quarter ended March 31,
1994, there has been no material change in the condition (financial or
others), business, net worth, assets, properties, obligations or liabilities,
which in the aggregate or severally have had a material and adverse effect on
the business, properties, financial condition or operations of Rubbermaid.
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<PAGE> 19
5.7 FULL DISCLOSURE. None of the representations and warranties made
by Rubbermaid or Acquico, or made in any certificate, memorandum or scheduled
documents provided or furnished or to be furnished to the Sellers, contains or
will contain any untrue statement of material fact, or omit any material fact,
the omission of which would be misleading.
5.8 NONVIOLATION OF LAWS, ORDERS AND AGREEMENTS. The execution and
delivery of this Agreement and the other agreements provided for herein, the
performance of their obligations thereunder, and the consummation of the
transactions provided for therein, will not result in the violation of any
judgment, order, decree, and, to the best of knowledge of Rubbermaid, any law,
statute, ordinance, rule or regulation applicable to Rubbermaid or Acquico, or
their respective properties, or conflict with or constitute a default under
any of the terms of their respective Articles of Incorporation or By-Laws or
any provision of any agreement or instrument to which either Rubbermaid or
Acquico is a party or by which either of them is bound.
5.9 CONSENTS AND APPROVALS. Rubbermaid and Acquico are not required
to obtain the authorization, approval or consent of, or to give notification
to, any person or governmental authority or agency in order to consummate this
transaction, other than the filing under Hart-Scott-Rodino with the Federal
Trade Commission and the Antitrust Division of the Department of Justice.
ARTICLE 6
---------
SELLERS' OBLIGATIONS BEFORE CLOSING
-----------------------------------
Sellers covenant that from the date of this Agreement until Closing:
6.1 ACCESS TO INFORMATION. Buyer and its counsel, accountants, and
other representatives shall have full access during normal business hours upon
reasonable notice to all properties, books, accounts, records, contracts, and
documents of Owner relating to the Purchased Assets. Owner shall furnish or
cause to be furnished to Buyer and its representatives all data and
information concerning the Purchased Assets of Owner that may reasonably be
requested.
6.2 NO CHANGE IN REAL ESTATE. Except as set forth in the Schedules
and except for transactions in the ordinary course of business:
(a) Owner will not create any lien or encumbrance and will not
enter into any contract or transaction regarding the Real Property
without the written consent of Buyer;
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(b) With respect to the Real Property, Owner will not modify,
amend, cancel, or terminate any of its existing contracts or agreements,
or agree to any of those acts.
6.3 INSURANCE. Owner, at its sole expense, will, or cause the Lessee
under the Real Estate Leases to continue to carry existing insurance on the
Purchased Assets. At the request of Buyer and at Buyer's sole expense, the
amount of insurance against fire and other casualties which, at the date of
this Agreement, Owner or its said Lessee carries on the Purchased Assets shall
be increased by such amount or amounts as Buyer shall specify.
6.4 CONSENTS. As soon as reasonably practical after the execution
and delivery of this Agreement, and in any event on or before the Closing Date,
Sellers will obtain written consent of all persons necessary to authorize this
Agreement and will furnish to Buyer executed copies of these consents.
6.5 ACCESS FOR ENVIRONMENTAL AND STRUCTURAL TESTING. Buyer shall
have the right, but not the obligation, at its sole cost and expense, upon
reasonable prior notice, to cause such investigations and tests to be made as
it deems necessary to determine whether there has been any soil, surface
water, ground water or air space contamination on or under the property.
Buyer shall also have the right, but not the obligation, at its sole cost and
expense, upon reasonable prior notice, to cause such investigations and tests
to be made as it deems necessary to determine the structural soundness and
general condition of the buildings on the Real Property. Owner shall provide
reasonable assistance to any engineering company or others ("Consultants")
selected by Buyer reasonably acceptable to Sellers to do environmental and
structural testing of the property, and Owner shall provide such Consultants
access to pertinent records and documents. Owner authorizes Buyer and/or any
Consultants to contact governmental agencies regarding the property. No
inspection conducted by Buyer or its Consultants shall relieve Sellers of any
liability imposed pursuant to this or any other section of this Agreement.
Rubbermaid shall indemnify, defend and hold harmless Empire Group from any
liability, obligation, damage, cost or expense in connection with or in any
way attributable to such investigation and tests, and Rubbermaid will, prior
to entry upon the premises, furnish appropriate insurance coverages for
Sellers and Empire Group, and Rubbermaid will restore the premises to their
prior condition promptly after such tests. The parties shall enter into a
Confidentiality and Access Agreement Regarding Environmental Investigation in
the form attached hereto as EXHIBIT B, and all investigation, inquiry and
testing shall be governed thereby.
6.6 PRIOR TITLE INSURANCE POLICIES. Owner shall provide prior to
Closing copies of all ALTA Owner's Policies of Title Insurance, land title
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surveys, and other surveys and plats relating to the Real Property in their
possession.
ARTICLE 7
---------
BUYER'S OBLIGATIONS BEFORE CLOSING
----------------------------------
7.1 CONFIDENTIALITY. Buyer agrees that, unless and until the Closing
has been consummated, Buyer and its officers, directors, and other
representatives will hold in strict confidence and will not use to the
detriment of Sellers any data and information obtained in connection with this
transaction or Agreement, with respect to the Purchased Assets; and if the
transactions contemplated by this Agreement are not consummated, Buyer will
return to Sellers all this data and information that Sellers may reasonably
request, including but not limited to worksheets, test reports, manuals,
lists, memoranda, and other documents prepared by or made available to Buyer
in connection with this transaction. The provisions of this Section will
survive any termination of this Agreement or failure to consummate the
transactions contemplated by this Agreement.
ARTICLE 8
---------
CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
-------------------------------------------
The obligations of Buyer to purchase the Purchased Assets under this
Agreement are subject to the satisfaction, at or before the Closing, of all
the conditions set out below in this Article 8. Buyer may waive any or all of
these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by Buyer of any
of its other rights or remedies pursuant to this Agreement, if Sellers shall
be in material default of any of its representations, warranties, or covenants
under this Agreement.
8.1 RELATED TRANSACTIONS. The consummation of the Agreement and Plan
of Reorganization ("Plan of Reorganization") entered into on the 3Oth day of
June, 1994, by and between Rubbermaid Incorporated, Acquico, Inc., Empire
Brushes, lnc., National Brush Company, Jack Gantz Irrevocable Trust No. 2,
Sarita Gantz Irrevocable Trust No. 3, Sarita Gantz Revocable Trust; the
consummation of the Real Estate Purchase Agreements by and among Acquico and
Rubbermaid, and Sellers as defined in the Plan of Reorganization.
8.2 SELLERS' COMPLIANCE. Subject to Section 9.24 of the Agreement and
Plan of Reorganization, Sellers shall have substantially complied with and
performed all of the terms, covenants and conditions of this Agreement to be
complied with and performed by Sellers on or before the Closing Date and shall
certify that fact to Buyer.
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8.3 AUTHORITY. Proper action shall have been taken by Sellers
authorizing the execution and performance of this Agreement.
8.4 NEW EAST BANK. Consent and waiver from the New East Bank of
Greenville consenting to the sale of the Purchased Assets and waiving any due
on sale clause contained in any loan document between Sellers and said bank.
8.5 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of Sellers contained in this Agreement were true when made, and
shall be true as of the Closing Date (after giving effect to any changes
contemplated or provided for in this Agreement) with the same force and effect
as if made at and as at the time of the Closing Date and shall not have
constituted a material misrepresentation (as defined in Section 9.24 of the
Plan of Reorganization), when aggregated with all other material
misrepresentations in the Plan of Reorganization or this Agreement and Sellers
shall deliver at Closing a written certification thereof, said certification
to be in substantially the form of EXHIBIT C attached hereto.
8.6 SCHEDULES. Buyer shall have determined in its sole discretion
that none of the terms, conditions or affect of the matters set forth or
disclosed in the land title survey or title commitment other than the
Permitted Encumbrances required by Sections 1.3 and 8.10 hereof will
negatively affect its ownership or intended (present or future) use of the
Purchased Assets.
8.7 REGULATORY APPROVALS AND CONSENTS. There shall have been obtained
all approvals required under any applicable federal or state laws or of any
other applicable regulatory authority for the consummation of this
transaction.
8.8 NO MATERIAL CHANGES. There shall have been no material adverse
change in the properties or assets to be purchased hereunder, since the
execution of this Agreement, and the Sellers shall deliver at Closing a
written certification thereof, said certification to be in substantially the
form of EXHIBIT D attached hereto.
8.9 PITT APPROVAL. In the event the obligations due Pitt County
Industrial Facilities and Pollution Control Financing Authority ("Pitt") have
not been fully paid and all necessary filings filed in the appropriate
governmental office to vest fee simple absolute title in Seller, Seller shall
have obtained and provided to Buyer such consents, approvals, and agreements
as determined necessary by Buyer from Pitt to transfer the Purchased Assets to
Buyer and to assure Buyer that no acceleration of the obligations due to Pitt
will occur.
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8.10 TITLE COMMITMENT. Subject to the procedures provided for in
Section 1.3, not less than five days prior to Closing Date Buyer shall have
received a commitment for the issuance to Buyer as insured of an Owner's title
insurance policy showing title to the Real Property to be free and clear of
all liens and mortgages, except the Permitted Exceptions listed on SCHEDULE
1.1(a), or such other exceptions as are reasonably acceptable to Buyer's
counsel insuring the title to the Real Property in the amount of the Purchase
Price allocated thereto.
8.11 CONTRACT RIGHTS. Sellers shall have provided to Buyer such
consents and approvals as are necessary to convey to Buyer the Contract
Rights.
8.12 OPINION OF COUNSEL. Buyer shall have received from counsel for
Sellers satisfactory to Buyer and its counsel, an opinion dated the Closing
Date, in form and substance satisfactory to Buyer and its counsel, setting
forth the matters in EXHlBIT E.
In rendering their opinion, counsel for Sellers may rely on certificates
of officers and directors of Owner and Buyer as to factual matters, and
opinions of associate counsel approved by Buyer.
8.13 ABSENCE OF LITIGATION. No action, suit, or proceeding before any
court or any governmental body or authority, the effect of which would be to
bar or set aside the transactions contemplated by this Agreement or to its
consummation, shall have been instituted on or before the Closing Date.
8.14 CONSENTS. All necessary agreements and consents of any parties to
the consummation of the transactions contemplated by this Agreement or
otherwise pertaining to the matters covered by it, shall have been obtained by
Sellers and delivered to Buyer.
8.15 APPROVAL OF DOCUMENTS. The form and substance of all
certificates, instruments, opinions, and other documents delivered to Buyer
under this Agreement shall be satisfactory in all reasonable respects to Buyer
and its counsel.
8.16 OTHER AGREEMENTS.
(a) RELEASE. Buyer shall receive a general release in the form
of EXHIBIT F releasing Buyer from any claim of Sellers, including any
rights of contribution or subrogation from and against Sellers other than
claims pursuant to this Agreement, the Plan of Reorganization, and the
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<PAGE> 24
other Real Estate Purchase Agreements, and all other agreements provided
for in any of the foregoing agreements.
(b) EXPIRATION OF WAITING PERIODS. Immediately prior to the
Closing Date, all waiting periods required with respect to this Agreement
and the transactions contemplated herein and in the Plan of
Reorganization by the Hart-Scott-Rodino Antitrust Improvements Act of
1976 and the regulations promulgated thereunder shall have expired or all
necessary approvals thereunder shall have been received.
(c) SELLERS' LETTER. Buyer shall have received a letter from
the individuals listed on SCHEDULE 8.16(c), in a form satisfactory to
Buyer in complying with Article 14 of this Agreement.
8.17 CORPORATION APPROVAL. The Board of Directors of Buyer at its June
28, 1994 meeting shall have duly authorized and approved the execution and
delivery of this Agreement and all corporate action necessary or proper to
fulfill the obligations of Buyer to be performed under this Agreement.
ARTICLE 9
---------
CONDITIONS PRECEDENT TO SELLERS' PERFORMANCE
--------------------------------------------
The obligations of Sellers to sell and transfer the Purchased Assets
under this Agreement are subject to the satisfaction, at or before the
Closing, of all the conditions in this Article 9. Sellers may waive any or
all of these conditions in whole or in part without prior notice; provided,
however, that no such waiver of a condition shall constitute a waiver by
Sellers of any of their other rights or remedies at law or in equity, if
Rubbermaid shall be in material default of any of its representations,
warranties, or covenants under this Agreement.
9.1 BUYER'S WARRANTIES. All representations and warranties by Buyer
contained in this Agreement or in any written statement delivered by Buyer
under this Agreement shall be true when made and on and as of the Closing as
though such representations and warranties were made on and as of that date
and Rubbermaid shall deliver at Closing written certification thereto.
9.2 BUYER'S PERFORMANCE. Buyer shall have performed, satisfied, and
complied with all covenants and agreements, satisfied all conditions that it
is required by this Agreement to perform, comply with, or satisfy, before or
at the Closing Date, and Rubbermaid shall have delivered at Closing written
certification thereto.
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9.3 OPINION OF BUYER'S COUNSEL. Buyer shall have furnished Sellers
with an opinion, dated the Closing Date, of counsel for Buyer, in form and
substance satisfactory to Sellers and their counsel, to the effect that:
(a) Rubbermaid is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Ohio, and
Acquico is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware, and both have all
requisite corporate power to perform their obligations under this
Agreement;
(b) 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 duly and validly taken;
(c) Buyer has the corporate power and authority to acquire the
Purchased Assets for the consideration set forth herein;
(d) To the best knowledge of counsel, this Agreement does not
violate or contravene any of the provisions of any charter, by-law, or
resolution of Buyer or of any indenture, agreement, judgment, or order to
which Buyer is a party or by which Buyer is bound;
(e) Rubbermaid is authorized to have outstanding 420,000,000
shares consisting of: (i) 400,000,000 common shares, $1.00 par value, of
which (a) 160,309,500 shares are issued and outstanding as of December
31, 1993; and, (b) 47,590 shares are treasury shares; and (ii) 20,000,000
shares are preferred stock without par value of which no shares are
outstanding. All of the outstanding Rubbermaid Common Shares are, and
the Rubbermaid Common Shares to be issued in connection with this
transaction will be when issued, validly issued, fully paid, and
nonassessable;
(f) Acquico is authorized to have outstanding 1,000 common
shares without par value, of which 1,000 common shares are issued and
outstanding and owned of record by Rubbermaid. All of the outstanding
Acquico common shares are validly issued, fully paid, and nonassessable;
(g) The Agreement, when executed and delivered by Rubbermaid and
Acquico, will be a valid and binding obligation of Rubbermaid and Acquico
enforceable in accordance with its terms, except as may be limited by
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bankruptcy, insolvency, reorganization, moratorium, or other laws
relating to or affecting the enforcement of creditors' rights generally;
(h) To the best knowledge of counsel after reasonable inquiry,
the Agreement does not violate or contravene any of the provisions of
Rubbermaid's Articles of Incorporation and Code of Regulations or the
Certificate of Incorporation or By-Laws of Acquico or any resolution,
indenture, agreement or judgment of Rubbermaid or Acquico to which each
is a party or by which they are bound.
In rendering their opinion, counsel for Buyer may rely on certificates of
Buyer's officers or of governmental authorities and on opinions of associate
counsel.
9.4 CORPORATION APPROVAL. The Board of Directors of Buyer shall have
duly authorized and approved the execution and delivery of this Agreement and
all corporate action necessary or proper to fulfill the obligations of Buyer
to be performed under this Agreement on or before the Closing Date.
9.5 RELATED TRANSACTIONS. The consummation of the Plan of
Reorganization entered into on the _______ day of June, 1994, by and between
Rubbermaid Incorporated, Acquico, Inc., Empire Brushes, Inc., National Brush
Company, Jack Gantz Irrevocable Trust No. 2, Sarita Gantz Irrevocable Trust
No. 3, Sarita Gantz Revocable Trust; the consummation of the Real Estate
Purchase Agreements by and among Acquico and Rubbermaid, and Sellers as
defined in the Plan of Reorganization.
9.6 IMPEDIMENTS TO AGREEMENT. No action or proceeding against Buyer,
Sellers, or the consummation of this Agreement shall have been instituted
which renders it impossible for either party to consummate this Agreement.
9.7 APPROVALS AND CONSENTS. There shall have been obtained all
approvals required under any applicable federal or state laws or of any other
applicable regulatory authority for the consummation of this transaction.
9.8 APPROVAL OF DOCUMENTS. The form ad substance of all
certificates, instruments, opinions, and other documents delivered to Sellers
under this Agreement shall be satisfactory in all reasonable respects to
Sellers and their counsel.
9.9 RELEASE. Sellers and the resigning directors and officers of
Empire Group shall have received a general release in the form of EXHIBIT G
from any claim of Empire Group, Rubbermaid or Acquico, including any rights of
contribution or subrogation from or through Empire Group, other than claims of
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Rubbermaid pursuant to this Agreement and the other Agreements provided for
herein, and the Real Estate Purchase Agreements.
9.10 EXPIRATION OF WAITING PERIODS. Immediately prior to the Closing
Date, all waiting periods required with respect to this Agreement and the
transactions contemplated herein and in the Plan of Reorganization by the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the regulations
promulgated thereunder shall have expired or all necessary approvals
thereunder shall have been received.
ARTICLE 10
----------
DAMAGE TO PURCHASED ASSETS PRIOR TO CLOSING
-------------------------------------------
Owner shall promptly advise Buyer of any damage or destruction to the
Purchased Assets, whether by fire or other cause, occurring prior to the
Closing Date. If such damage or destruction shall materially and adversely
affect the business of the Empire Group and shall not have been repaired or
reconstructed prior to the Closing Date in a good and workmanlike manner to
the reasonable satisfaction of Buyer, Buyer may, at Buyer's option:
(a) Receive the proceeds of any insurance payable in connection
therewith not theretofore applied to repair and reconstruction plus a
cash payment by Sellers of the deductible amount, if any, under the
insurance policy or policies covering the property not theretofore
applied to repair and reconstruction by Owner or Lessee and thereupon
remain obligated to perform this Agreement without any adjustment of the
Purchase Price; or
(b) Terminate this Agreement; provided that Buyer shall give
Sellers written notice of Buyer's election to terminate, and Sellers
shall be entitled to an extension of up to 90 days to permit completion
of the restoration and repair, in which event the Agreement shall not
terminate, and the closing shall occur within 10 days after notice to
Buyer of such completion.
Upon termination of this Agreement by Buyer pursuant to this Article 10,
neither party shall thereafter be under any further liability to the other and
Owner shall pay all costs of the title examination and title commitment and
any escrow fee. Owner further agrees to execute such instruments as may be
necessary to assign to Buyer any insurance policies presently in effect upon
the property which Buyer elects to assume on the Closing Date.
ARTICLE 11
----------
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BULK SALES LAW
--------------
BULK SALE. If this transaction is subject to the Bulk Sales Law of the
State of North Carolina, the Sellers and Buyer shall comply therewith unless
Buyer shall waive such compliance.
ARTICLE 12
----------
CLOSING
-------
12.1 CLOSING DATE. This transaction shall be completed by the
deliveries to be made by Buyer and Sellers in accordance with this Agreement
(the "Closing") at the offices of Milbank, Tweed, Hadley & McCloy, One Chase
Manhattan Plaza, New York, NY 10005-1413, at 10:00 a.m. on or before the 30th
day of June, 1994, or at such other time and place as the parties may agree to
in writing (the "Closing Date").
12.2 DELIVERIES BY SELLERS. At or prior to Closing, Sellers shall
deliver the following documents to Buyer, all duly and properly executed:
(a) A good and sufficient Conveyance and Assignment and Bill of
Sale in the form attached as EXHIBIT H, shall be in the form and
substance reasonably satisfactory to Buyer, conveying, selling,
transferring and assigning to Buyer title to the Real Estate Leases and
Operating Information, free and clear of all security interests, liens,
charges, encumbrances or equities whatsoever, except the Permitted
Encumbrances and those matters approved in writing by Buyer prior to the
Closing Date;
(b) A good and sufficient special warranty deed in form and
substance as set out on EXHIBIT A hereto reasonably satisfactory to Buyer
conveying the Real Property, subject to Permitted Encumbrances and other
matters approved in writing by Buyer. Owner agrees to provide the
special warranty deed in advance of Closing to a title company, or agent
thereof, in order that the closing of the acquisition of the Real
Property and the recording of the deed can be coordinated with the other
acquisitions described in Section 8.1 hereof. The special warranty deed
held by the title company, or agent thereof, shall be held in escrow and
shall not be recorded until instructed to do so by counsel for Sellers;
(c) Such other separate instruments of sale, assignment or
transfer that Buyer may reasonably request in order to perfect, confirm
or evidence title in Buyer to all or any part of the Purchased Assets,
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subject to the Permitted Encumbrances and other matters approved in
writing by Buyer;
(d) A closing statement reasonably agreed to by Buyer which
reflects the adjustments to the Purchase Price as called for herein, and
the costs to be borne by each party pursuant to this Agreement;
(e) The affidavit on foreign person status as required by
Section 4.17;
(f) The certifications required by Sections 8.5 and 8.8;
(g) Any approvals and consents required by Sections 8.4, 8.7,
8.9 and 8.14;
(h) The opinion of Sellers' counsel as required by Section 8.12;
(i) Letters as required by Section 8.16(c).
12.3 DELIVERIES BY BUYER. On or prior to the Closing Date, Buyer shall
deliver the following to Sellers or Escrow Agent, all duly and properly
executed:
(a) To Sellers, the opinion of Buyer's counsel as required by
Section 9.3;
(b) To Sellers and Escrow Agent, subject to the requirements and
limitations contained in Article 14, Buyer shall deliver the shares
calculated pursuant to Sections 2.3 and 13.1 respectively;
(c) To Sellers, a closing statement reasonably agreed to by
Sellers which reflects adjustments to the Purchase Price as called for
herein, and the costs to be borne by each party pursuant to this
Agreement;
(d) Any other items requested by the title company or provided
for herein.
ARTICLE 13
----------
ESCROW
------
13.1 PAYMENT TO ESCROW AGENT. Upon closing of this Agreement, Buyer
shall deliver 5 percent of the total Shares to be delivered hereunder to
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Chemical Bank, New York, New York, as Escrow Agent, to be held, administered,
set off and disbursed pursuant to the terms and conditions of the Master
Escrow Agreement attached to the Plan of Reorganization and made a part
hereof.
13.2 SETOFF NOT LIMITATION OF LIABILITY. The setoff against Shares in
escrow or the delivery to Sellers of any Shares remaining in the escrow
account as called for in the Master Escrow Agreement shall in no way relieve
Sellers from any liability or obligations imposed pursuant to this Agreement
including any right of indemnification, but the aggregate liability or
obligation of Sellers under this Agreement, the other Real Estate Purchase
Agreements, and the Plan of Reorganization shall be subject to the limitation
thereon set forth in Sections 13.7 and 14.1(d), (e), (f), (g), and (h) of the
Plan of Reorganization.
ARTICLE 14
----------
SELLERS' AGREEMENT RELATING TO SHARES
-------------------------------------
AND COMPLIANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933
------------------------------------------------------------------
In order to induce Buyer to cause its Rubbermaid Common Shares to be
distributed to Owner as provided in this Agreement, Seller, which includes
each individual defined as a Seller in this Agreement, jointly and severally,
make the following additional representations, warranties, and agreements:
14.1 EVALUATION OF INVESTMENT. Sellers have sufficient knowledge and
experience in business and financial matters and are capable of evaluating an
investment in Rubbermaid Common Shares; and in addition thereto, have retained
Tanner & Co., who Sellers represent is a qualified investment banker, to aid
them in evaluating the merits of this transaction.
14.2 OWN ACCOUNT. Subject to Section 16.4 of this Agreement, Sellers
are acquiring the Shares as a result of this transaction for their own account
for investment purposes and without a view to the distribution thereof.
14.3 RECEIPT OF INFORMATION. Sellers have been furnished with copies
of Rubbermaid's (i) Annual Reports on Form 10-K for the fiscal years ended
December 31, 1993, 1992, 1991, and 1990, (ii) Quarterly Report on Form 10-Q
for the quarters ended March 31, 1993 and 1994, June 30, 1993, and
September 30, 1993, and (iii) Proxy Statements relating to its Annual Meetings
of Shareholders held in 1994, 1993, 1992, and 1991. Sellers have had the
opportunity to ask questions of, and receive answers from, officers and
employees of Buyer concerning this Agreement, the Agreement and Plan of
Reorganization, and Buyer's business and financial condition. In reliance on
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the foregoing, Sellers have had the opportunity to form their own independent
judgment with respect to Buyer's business and financial condition.
14.4 RETENTION AND DISPOSITION OF SHARES. Sellers acknowledge that the
Shares received by them as a result of this transaction will be "restricted
securities." Accordingly, Sellers agree that they are subject to certain
restrictions in connection with any attempt by them to offer to sell, sell,
transfer or otherwise dispose of the Shares received by them as a result of
this transaction and therefore covenant with Buyer as follows:
On or prior to the Closing Date, the Sellers will furnish to Buyer
letters in the form and substance of EXHIBIT I attached hereto and made a part
hereof, whereby Sellers agree with Buyer that:
(a) Sellers shall not offer to sell, sell, transfer or otherwise
dispose of any of the Shares received by them as a result of this
transaction, except in accordance with the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder and the
legend contained on the Shares as set forth in subparagraph (b) below.
(b) Sellers hereby consent to Buyer's issuance of stop transfer
instructions to the Transfer Agent for the Shares, with respect to the
Shares received by them as a result of this transaction and covered by
the letter agreement. Such stop transfer instructions shall apply to the
Shares issued to Sellers and shall be for the period set out in Section
14.4(a) above. Sellers agree with the placement of the following legend
on the certificates representing such Shares, or any substitutions
therefor:
SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO A REGISTRATION STATEMENT THEN IN EFFECT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNLESS RUBBERMAID INCORPORATED
("RUBBERMAID") SHALL HAVE RECEIVED A LEGAL OPINION, IN
FORM AND SUBSTANCE SATISFACTORY TO RUBBERMAID, OF
COUNSEL SATISFACTORY TO RUBBERMAID, TO THE EFFECT THAT
THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY
BE LEGALLY EFFECTED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT AND THE RULES AND REGULATIONS
THEREUNDER.
14.5 INFORMATION USED IN PROSPECTUS.
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(a) All information previously or hereafter furnished to Buyer
by Sellers for use in the preparation of the Registration Statement (and
the related prospectus), and all amendments and supplements thereto, is
and will be at the effective date of the Registration Statement or as of
the date of any amendment or supplement, as the case may be, true,
correct and complete in all material respects, and will include all
material facts required to be stated therein or necessary to make the
statements therein not misleading. Sellers covenant to deliver or cause
to be delivered a copy of the then current prospectus covering the
registered Shares to each person to whom any of such shares are offered
for sale.
(b) All information furnished by Rubbermaid for use in the
preparation of the Registration Statement (and the related prospectus),
and all amendments and supplements thereto, is and will be at the
effective date of the Registration Statement or as of the date of any
amendment or supplement, as the case may be, true, correct and complete
in all material respects, and will include all material facts required to
be stated therein or necessary to make the statements therein not
misleading.
ARTICLE 15
----------
SELLERS' OBLIGATIONS AFTER CLOSING
----------------------------------
Sellers covenant that from and after the Date of Closing:
15.1 SELLERS' INDEMNITY. Sellers shall indemnify, defend, and hold
harnless Buyer against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies, including interest, penalties, and reasonable attorneys' fees
(net after-tax when applicable), that it shall incur or suffer, which arise,
result from, or relate to:
(a) Any material breach of, or failure by Sellers to perform,
any of their representations, Warranties, covenants, or agreements other
than representations and warranties as to the status of title to the real
estate in this Agreement or in any schedule, certificate, exhibit, or
other instrument furnished or to be furnished by Sellers under this
Agreement;
(b) The transfer of Purchased Assets or Buyer's ownership of the
Purchased Assets to the extent that the event giving rise to such claim
accrued or occurred prior to the Closing;
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(c) Subject to the provisions of Article XIV in the Agreement
and Plan of Reorganization, Sellers' indemnification contained in
subparagraphs (a) and (b) shall expire on the first anniversary of the
Closing Date. The indemnification period for items of tax liability
discovered by Buyer pursuant to its due diligence prior to Closing as to
which written notice is given to Sellers within one (1) year after
Closing may be extended beyond one (1) year for specified time frames as
to such specific items.
(d) The indemnity provided for herein shall be limited as
provided herein and in Sections 13.7 and 14.1(d), (e), (f), (g), and (h)
of the Plan of Reorganization.
15.2 NOTIFICATION BY BUYER. Buyer shall promptly notify Sellers of the
existence of any claim, demand, or other matter to which Sellers'
indemnification obligations would apply, and shall give them a reasonable
opportunity to defend the same at their own expense and with counsel of their
own selection; provided, that Buyer shall at all times also have the right to
fully participate in the defense at its own expense. If Sellers shall, within
a reasonable time after this notice, fail to defend, Buyer shall have the
right, but not the obligation, to undertake the defense of, and to compromise
or settle (exercising reasonable business judgment), subject to Sellers'
consent which shall not be unreasonably withheld, the claim or other matter on
behalf, for the account, and at the risk, of Sellers. If the claim is one
that cannot by its nature be defended solely by Sellers (including, without
limitation, any federal or state tax proceeding), then Buyer shall make
available all information and assistance that Sellers may reasonably request.
15.3 FURTHER ASSURANCES. Upon the reasonable request of either party,
the other party will from time to time after the Closing, without charge,
execute, acknowledge and deliver or cause to be delivered any and all such
further assignments, transfers, conveyances, or other instruments as may be
reasonably required in conformity with this Agreement for purposes of
completing any of the transactions hereunder.
15.4 LIMITATION ON OFFERING. If, in connection with any underwritten
primary or secondary offering of Rubbermaid Common Shares, the underwriters
request that Sellers agree not to sell the Shares other than as a part of such
offering, Sellers shall enter into such agreement for a period not to exceed
90 days from the announcement of such offering. Any expenses of Sellers in
connection with this provision shall be borne by Buyer.
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15.5 RESTRICTIONS ON SHARES. The Sellers shall be obligated by the
provisions of Article 14.
ARTICLE 16
----------
BUYER'S OBLIGATIONS AFTER CLOSING
---------------------------------
Buyer covenants that from and after the Date of Closing:
16.1 BUYER'S INDEMNITY. Buyer agrees to indemnify, defend and hold
harmless Sellers against, and in respect of, any and all claims, losses,
expenses, costs, obligations, liabilities, damages, recoveries, and
deficiencies, including interest, penalties, and reasonable attorney fees (net
after-tax when applicable) it may incur or suffer by reason of or which are
from or relate to Buyer's breach of or failure to perform any of its
warranties, commitments, or covenants in this Agreement or by reason of any
act or omission of Buyer or after the Closing, Empire Group or any of their
successors or assigns after the Closing Date that constitutes a breach or
default under any loan agreement, contract, order, or other agreement to which
it is a party or by which it is bound at the Closing Date.
16.2 ACCESS TO BUSINESS INFORMATION. Buyer agrees to provide Owner
with reasonable access to the business information of Owner transferred to
Buyer, to the extent necessary to permit Owner to prepare its tax returns.
16.3 RESERVED.
16.4 REGISTRATION OF SHARES. Within 30 days of the Closing Date,
Rubbermaid shall prepare and file with the SEC the Registration Statement
pursuant to the Securities Act of 1933 as amended and the rules and
regulations thereunder in respect of the Shares received by Sellers as a
result of the Reorganization. Rubbermaid shall use all reasonable efforts to
cause such Registration Statement to become effective and will advise Sellers
when it has become effective. In order to permit Sellers an opportunity to
resell the Shares received by them as a result of this transaction, Rubbermaid
shall also use all reasonable efforts to maintain the effectiveness of the
Registration Statement for a period of two years plus any period as to which
Shareholders agree not to sell Shares pursuant to Section 14.7 of the Plan of
Reorganization or the earlier sale of all of the Shares covered thereby.
16.5 EXCHANGE LISTING. Rubbermaid covenants with Sellers that it shall
use all reasonable efforts to obtain approval for listing on the New York
Stock Exchange of the Rubbermaid Common Shares covered by the Registration
Statement prior to the effective date thereof.
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16.6 COSTS OF REGISTRATION. Rubbermaid shall pay or cause to be paid
all of its costs and expenses in connection with effecting and maintaining the
registration evidenced by the Registration Statement, including all printing
costs and SEC filing fees, legal fees, accounting fees, Blue Sky costs, and
the New York Stock Exchange listing. Shareholder shall bear all costs and
expenses associated with the offer and sale of the registered Shares,
including any brokerage commissions, Transfer Agent fees and transfer taxes.
ARTICLE 17
----------
BROKERS AND EXPENSE OF TRANSACTION
----------------------------------
17.1 NO COMMISSION. Except as listed on SCHEDULE 17.1, the parties
agree that this Agreement was not induced or procured through any person, firm
or corporation acting as a broker or finder. Buyer and Sellers agree to hold
each other harmless from any loss, damage or expense resulting from any claim
by any person, firm or corporation based upon any such person, firm or
corporation having acted as a broker or finder for or in connection with this
transaction on behalf of Buyer on the one hand, or on behalf of Sellers on the
other.
17.2 EXPENSES. Each of the parties shall pay all costs and expenses
incurred or to be incurred by it in negotiation and preparation of this
Agreement and in closing and carrying out the transactions contemplated by
this Agreement, except as set forth in Section 17.2 of the Plan of
Reorganization.
ARTICLE 18
----------
FORM OF AGREEMENT
-----------------
18.1 HEADINGS. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for purposes of convenience only,
and shall not affect the construction or interpretation of any of its
provisions.
18.2 MODIFICATION AND WAIVER. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by all the parties.
No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall
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any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
18.3 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
18.4 NO OTHER REPRESENTATIONS OR WARRANTIES. Neither party makes any
representations or warranties, and neither party relies on any representations
or warranties, other than those expressly set forth in this Agreement or in
instruments executed and delivered pursuant to this Agreement.
18.5 NO RECORDING. Neither this Agreement nor any Memorandum or
affidavit thereof shall be recorded.
ARTICLE 19
----------
PARTIES
-------
19.1 RIGHTS OF PARTIES. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons or entities other than the parties to it and
their respective successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party to this
Agreement.
19.2 ASSIGNMENT. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties to it and their respective heirs, legal
representatives, successors, and assigns.
19.3 TRUSTEES. The parties executing this Agreement as Sellers are
partnerships of which certain partners are trusts and they execute this
Agreement in such capacity, and Rubbermaid and Acquico agree not to look to
the trustees individually for the enforcement of Sellers' obligations
hereunder.
19.4 GUARANTEE.
(a) Joseph M. Gantz, Elaine Gantz Berman, and Sarita Gantz join
in the execution of this Agreement for the purpose of guaranteeing the
performance of Sellers hereunder.
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(b) Joseph M. Gantz, Elaine Gantz Berman, and Sarita Gantz
jointly and severally guarantee the performance of Sellers under this
Agreement and the representations, warranties, covenants, undertakings,
and agreements contained therein, subject however to the overall
limitation of liability contained in Section 15.1.
ARTICLE 20
----------
REMEDIES
--------
20.1 JURISDICTION. The parties hereby irrevocably consent to the
jurisdiction of the United States Federal District Court for the District in
which the Purchased Assets are located.
20.2 COSTS. If any legal action 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 and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
20.3 TERMINATION. Either party may on the Closing Date terminate this
Agreement, without liability to the other, in the following events:
(a) If any bona fide action or proceeding shall be pending
against either party on the Closing Date that could result in an
unfavorable judgment, decree, or order that would prevent or make
unlawful this transaction, or if any agency of the federal or of any
state government shall have given written notice at or before the Closing
Date that an action or proceeding would be brought to revoke this
acquisition or any other action required by or in connection with this
Agreement; or
(b) By mutual consent of the parties;
(c) If there has been a material misrepresentation or breach of
warranty as that term is defined in the Agreement and Plan of
Reorganization in Section 9.24 on the part of the other party of the
representations and warranties set forth herein; or
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(d) Subject to Section 9.24 of the Plan of Reorganization, if
the Plan of Reorganization does not close pursuant to the terms thereof
or is otherwise terminated.
20.4 TERMINATION ON DEFAULT. If either Buyer or Seller materially
default in the due and timely performance of any of its or their warranties,
covenants, or agreements under this Agreement as defined above, the
nondefaulting party or parties may on the Closing Date, subject to Section
9.24 of the Agreement and Plan of Reorganization, give notice of termination
of this Agreement, in the manner provided in paragraph 21.2. The notice shall
specify with particularity the default or defaults on which the notice is
based. The termination shall be effective at 12:00 midnight of the Closing
Date or any extension thereof, unless the specific default or defaults have
been cured on or before this effective time for termination.
20.5 TERMINATION BY BUYER. Buyer on the Closing Date may terminate
this Agreement, without liability to Sellers, if any of the conditions
precedent to Buyer's obligation to close as contained in Article VIII of this
Agreement have not been satisfied or waived.
20.6 TERMINATION BY SELLERS. Sellers on the Closing Date may terminate
this Agreement, without liability to Buyer, if any of the conditions precedent
to Sellers' obligation to close as contained in Article IX of this Agreement
have not been satisfied or waived.
20.7 OPPORTUNITY TO CURE. Notwithstanding anything to the contrary
contained herein, neither party shall exercise a right of termination unless
written notice of the intention to so terminate and the basis therefor, in
detail, shall have been given to the other party and the other party shall
have failed to cure the default or matter which is the basis for such election
within thirty (30) days after such notice.
ARTICLE 21
----------
NATURE AND SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS AND NOTICE
-----------------------------------------------------------------
21.1 EFFECT OF CLOSING. All representations, warranties, covenants,
and agreements of the parties contained in this Agreement, or in any
instruments, certificate, opinion, or other writing provided for in it, shall
survive the Closing for a one-year period of time except as otherwise limited
in this Agreement.
21.2 NOTICES. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
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given on the date of service if served personally on the party to whom notice
is to be given, or on the third day after mailing, if mailed to the party to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid and properly addressed as follows:
To Buyer:
Rubbermaid Incorporated
1147 Akron Road
Wooster, OH 44691
Attention: Corporate Secretary
With a copy to:
Lincoln Oviatt
Critchfield, Critchfield & Johnston
225 North Market Street
Wooster, OH 44691
To Sellers:.
Joseph M. Gantz
146 Longmeadow Road
Greenville, NC 27858
With a copy to:
Martin Blackman
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, NY 10005-1413
Any party may change its address for purposes of this paragraph by giving
the other party written notice of the new address in the manner set forth
above.
ARTICLE 22
----------
FAIR INTERPRETATION AND SEVERABILITY
------------------------------------
22.1 FAIR INTERPRETATION. Every covenant, term, and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against either party.
-38-
<PAGE> 40
22.2 SEVERABILITY. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
or legality of the remainder of this Agreement.
ARTICLE 23
----------
GOVERNING LAW
-------------
This Agreement shall be construed in accordance with, and governed by,
the law of the state where the Purchased Assets are located.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it
on the day and year first above written.
Signed and Acknowledged in
the Presence of: ("Buyer")
Not Decipherable
____________________________________ I. RUBBERMAID INCORPORATED
Not Decipherable Not Decipherable
____________________________________ By: _________________________
Not Decipherable
____________________________________ II. ACQUICO, INC.
Not Decipherable Not Decipherable
____________________________________ By: __________________________
-39-
<PAGE> 41
("Sellers")
III. THE GANTZ GREENVILLE COMPANY
A General Partnership
By the Following General
Partnerships:
A. THE GANTZ INVESTMENT COMPANY
General Partner
By:
1. THE JACK GANTZ REVOCABLE
TRUST
General Partner
- ---------------------------
- ---------------------------
/S/ Sarita Gantz
- --------------------------- -------------------------
Sarita Gantz, Trustee
- ---------------------------
- ---------------------------
- ---------------------------
/S/ Joseph M. Gantz
----------------------
Joseph M. Gantz, Trustee
- ---------------------------
- --------------------------- /S/ Elaine Gantz Berman
--------------------------
Elaine Gantz Berman,
Trustee
- ---------------------------
2. THE SARITA GANTZ REVOCABLE
TRUST
General Partner
- ---------------------------
- --------------------------- /S/ Sarita Gantz
----------------------------
Sarita Gantz, Trustee
- ---------------------------
40
<PAGE> 42
- -----------------------------
/S/ Joseph M. Gantz
---------------------------
Joseph M. Gantz, Trustee
- -----------------------------
- ----------------------------- /S/ Elaine Gantz Berman
--------------------------------
Elaine Gantz Berman
Trustee
- -----------------------------
- -----------------------------
3. THE SARITA GANTZ
TRUST NO. 1
General Partner
- -----------------------------
- ----------------------------- /S/ Sarita Gantz
--------------------------------
Sarita Gantz, Trustee
- -----------------------------
- -----------------------------
4. THE SARITA GANTZ
TRUST NO. 2
General Partner
- -----------------------------
- -----------------------------
By: /S/ Sarita Gantz
-----------------------------
Sarita Gantz, Trustee
- -----------------------------
- -----------------------------
B. THE JACK GANTZ REVOCABLE TRUST
General Partner
- -----------------------------
- -----------------------------
By: /S/ Sarita Gantz
-----------------------------
Sarita Gantz, Trustee
- -----------------------------
- -----------------------------
/S/ Joseph M. Gantz
-------------------------------
Joseph M. Gantz, Trustee
- -----------------------------
-41-
<PAGE> 43
- --------------------------------
- --------------------------------
- -------------------------------- /S/ Elaine Gantz Berman
-------------------------------
Elaine Gantz Berman,
Trustee
- --------------------------------
- --------------------------------
C. SARITA GANTZ, GENERAL PARTNER
By: /S/ Sarita Gantz
-------------------------------
Sarita Gantz
- --------------------------------
- --------------------------------
IV. THE GANTZ INVESTMENT COMPANY
A General Partnership
By:
- --------------------------------
- --------------------------------
A. THE JACK GANTZ REVOCABLE TRUST
General Partner
- --------------------------------
- -------------------------------- /S/ Sarita Gantz
--------------------------------
Sarita Gantz, Trustee
- --------------------------------
- --------------------------------
/S/Joseph M. Gantz
-------------------------------
Joseph M. Gantz, Trustee
- -------------------------------
/S/ Elaine Gantz Berman
-------------------------------
Elaine Gantz Berman, Trustee
- -------------------------------
- -------------------------------
B. THE SARITA GANTZ REVOCABLE TRUST
General Partner
- -------------------------------
- -42-
<PAGE> 44
- -----------------------------
- ----------------------------- /S/ Sarita Gantz
-----------------------------
Sarita Gantz, Trustee
- ----------------------------
- ----------------------------
- ----------------------------
/s/ Joseph M. Gantz
-----------------------------
Joseph M. Gantz, Trustee
- ----------------------------
- ---------------------------- /S/ Elaine Gantz Berman
-----------------------------
Elaine Gantz Berman, Trustee
- ----------------------------
- ----------------------------
- ----------------------------
C. THE SARITA GANTZ TRUST NO. 1
General Partner
- ----------------------------
- ---------------------------- /S/ Sarita Gantz
-----------------------------
Sarita Gantz, Trustee
- ----------------------------
- ----------------------------
- ----------------------------
D. THE SARITA GANTZ TRUST NO. 2
General Partner
- ----------------------------
- ---------------------------- /S/ Sarita Gantz
------------------------------
Sarita Gantz, Trustee
- ----------------------------
- ----------------------------
- ----------------------------
V.
- ----------------------------
/s/ Joseph M. Gantz
-----------------------------
Joseph M. Gantz
- ----------------------------
VI.
- ---------------------------- /S/ Elaine Gantz Berman
-----------------------------
Elaine Gantz Berman
- ----------------------------
-43-
<PAGE> 45
EXHIBIT 2(b)
ADDENDUM TO REAL ESTATE PURCHASE AGREEMENT
------------------------------------------
WHEREAS, THE GANTZ GREENVILLE COMPANY, THE GANTZ INVESTMENT COMPANY,
THE JACK GANTZ REVOCABLE TRUST, SARITA GANTZ, THE SARITA GANTZ TRUST NO. 1, THE
SARITA GANTZ TRUST NO. 2 (collectively "Sellers"), ACQUICO, INC. and RUBBERMAID
INCORPORATED (collectively "Rubbermaid") have entered into a Real Estate
Purchase Agreement dated as of June 15, 1994 ("Agreement") for property located
at Greenville, North Carolina ("Property");
WHEREAS, Section 2.1 of the Agreement states that the purchase price
for the Property shall be estimated at $7,900,000.00 less the indebtedness
("Mortgage Debt") secured by the mortgage of the Purchased Assets;
WHEREAS, an initial appraisal has been completed on the Property which
indicates that the fair market value of the Property is less than the purchase
price set forth above;
WHEREAS, the parties desire to have additional appraisals conducted to
determine the fair market value of the Property and the corresponding purchase
price of the Property;
WHEREAS, the parties desire to proceed to close the Agreement and the
other related documents entered into on even date therewith;
WHEREAS, this Agreement is offered as an inducement to each of the
parties to close the above-referenced transaction.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
1. GANTZ APPRAISER. Immediately after Closing, the appraisal
firm of Sauter, Phelan & Associates, shall communicate
<PAGE> 46
with Manufacturers Appraisals ("Rubbermaid's Appraiser"), to attempt to
reconcile differences in the appraisal of the Property in order to determine
the fair market value of the Property. In the event the two appraisal firms and
the parties are unable to agree upon the Property's fair market value within 30
days of the Closing Date, Sauter, Phelan & Associates ("Gantz Appraiser") shall
conduct an appraisal of the Property. The cost of such appraisal shall be paid
solely by Sellers.
2. APPRAISAL REPORT. Within 90 days of the Closing Date, the
Gantz Appraiser shall furnish Rubbermaid and Sellers with an appraisal report
prepared pursuant to the MAI guidelines. In the event the parties agree to the
fair market value of the Property as determined by the Gantz Appraiser, the
parties shall enter into an agreement memorializing their agreement to the
Property's fair market value ("Acknowledgment").
3. NATIONAL APPRAISER. In the event the parties are unable to
reach an agreement regarding the fair market value of the Property after 30
days of receipt of the Gantz Appraiser's report, the parties shall retain an
appraiser at Chusman and Wakefield [an appraisal firm of a national status] to
conduct an appraisal in accordance with the MAI guidelines ("National
Appraiser"). The cost of such appraiser shall be paid as follows: 50 percent by
Rubbermaid; 50 percent by Sellers. Within 60 days of the retention of the
National Appraiser, the National Appraiser shall furnish to Rubbermaid and
Sellers an appraisal report prepared pursuant to the MAI guidelines. In the
event the parties agree to the fair market
-2-
<PAGE> 47
value of the Property as determined by the National Appraiser, the parties
shall enter into an agreement memorializing their agreement to the Property's
fair market value ("Acknowledgment").
4. DETERMINATION OF PURCHASE PRICE. In the event the parties are
unable to agree that the Property's fair market value is equal to the amount
determined by the National Appraiser, the Property's fair market value and
corresponding purchase price shall be determined as follows:
(a) The amount of $7,425,000.00 shall be added to the amount equal to
the Property's fair market value as determined by the Gantz Appraiser which
shall be added to the amount equal to the Property's fair market value as
determined by the National Appraiser. The total sum of these amounts shall be
divided by three to determine the purchase price of the Property. In no event,
however, shall this amount be:
(i) greater than $7,888,308.00; or
(ii) less than $7,425,000.00
less the indebtedness ("Mortgage Debt") secured by mortgage of the Purchased
Assets as determined at the Closing Date.
(b) In the event the parties are unable to reach a mutually
agreeable purchase price and the formula set out above is utilized to determine
the purchase price, the parties shall execute an Acknowledgment of the method
utilized to determine the adjustment to final purchase price of the Property.
5. PAYMENT OF ADDITIONAL PURCHASE PRICE. In the event the
purchase price of the Property as determined herein is in
excess of
-3-
<PAGE> 48
the amount of the purchase price paid at Closing by Rubbermaid as set forth in
the Agreement as to Closing Purchase Price of Real Estate entered into on even
date herewith by the parties, Rubbermaid shall pay the excess (hereinafter
"Purchase Price Adjustment"), if any, to the Sellers at the time the Sellers
and Rubbermaid enter into an Acknowledgment of the amount of the Purchase Price
Adjustment.
As provided in Section 2.2 of the Agreement, Rubbermaid shall pay the
purchase price through the delivery of Rubbermaid Common Shares.
The number of Rubbermaid Common Shares to be delivered shall be
determined by dividing the Purchase Price Adjustment by $25.99.
6. ALLOCATION OF SHARES. All of the Rubbermaid Common Shares, if
any, to be issued as a Purchase Price Adjustment shall be issued in the
following percentages: The Gantz Greenville Company - 47.3 percent; The Gantz
Investment Company - 52.7 percent.
7. FRACTIONAL SHARES. Notwithstanding any other provision herein
or in the Agreement, no fractional share of a Rubbermaid Common Share shall be
issued as a result of the transactions contemplated herein. The total number of
Rubbermaid Common Shares to be issued to the Sellers shall be rounded up or
rounded down to the nearest whole Rubbermaid Common Share.
8. SHARE RESTRICTIONS. Sellers hereby acknowledge that the
Rubbermaid Common Shares shall be subject to the limitations and restrictions
contained in the Agreement and that Sellers shall be
-4-
<PAGE> 49
bound by the provisions of the Agreement. The Sellers hereby agree to enter
into and execute such further instruments, including but not limited to an
investment intent letter and a stop transfer order as may be necessary.
Rubbermaid agrees to register and list the number of Rubbermaid Common Shares
that Owner may be entitled to receive pursuant to paragraph 5 hereof as part of
the registration and listing provided for in Sections 16.4 and 16.5 of the
Agreement.
9. CLOSING EXPENSES. In the event there is a Purchase Price
Adjustment, Sellers shall be responsible for any additional expenses relating
to conveyance fees and title insurance premiums.
10. TERMS. All terms used herein which are defined in the Real
Estate Purchase Agreement or in the Agreement and Plan of Reorganization shall
have the same meaning as used therein.
11. HEADINGS. The subject headings of the paragraphs of
this Agreement are included for purposes of convenience only and shall not
affect the construction or interpretation of any of its provisions.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement this
30th day of June, 1994.
THE GANTZ GREENVILLE COMPANY
A General Partnership
By the Following General
Partnerships:
A. THE GANTZ INVESTMENT COMPANY
General Partner
By:
-5-
<PAGE> 50
1. THE JACK GANTZ REVOCABLE TRUST
General Partner
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
/s/ Joseph M. Gantz
-------------------------------
Joseph M. Gantz, Trustee
/s/ Elaine Gantz Berman
-------------------------------
Elaine Gantz Berman,
Trustee
2. THE SARITA GANTZ REVOCABLE
TRUST
General Partner
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
/s/ Joseph M. Gantz
-------------------------------
Joseph M. Gantz, Trustee
/s/ Elaine Gantz Berman
-------------------------------
Elaine Gantz Berman,
Trustee
3. THE SARITA GANTZ
TRUST NO. 1
General Partner
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
4. THE SARITA GANTZ
TRUST NO. 2
General Partner
By: /s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
-6-
<PAGE> 51
B. THE JACK GANTZ REVOCABLE TRUST
General Partner
By: /s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
/s/ Joseph M. Gantz
-------------------------------
Joseph M. Gantz, Trustee
/s/ Elaine Gantz Berman
-------------------------------
Elaine Gantz Berman,
Trustee
C. SARITA GANTZ, GENERAL PARTNER
By: /s/ Sarita Gantz
-------------------------------
Sarita Gantz
THE GANTZ INVESTMENT COMPANY
A General Partnership
By:
A. THE JACK GANTZ REVOCABLE TRUST
General Partner
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
/s/ Joseph M. Gantz
-------------------------------
Joseph M. Gantz, Trustee
/s/ Elaine Gantz Berman
-------------------------------
Elaine Gantz Berman, Trustee
B. THE SARITA GANTZ REVOCABLE TRUST
General Partner
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
-7-
<PAGE> 52
/s/ Joseph M. Gantz
-------------------------------
Joseph M. Gantz, Trustee
/s/ Elaine Gantz Berman
-------------------------------
Elaine Gantz Berman, Trustee
C. THE SARITA GANTZ TRUST NO. 1
General Partner
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
D. THE SARITA GANTZ TRUST NO. 2
General Partner
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
THE JACK GANTZ REVOCABLE TRUST
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
/s/ Joseph M. Gantz
-------------------------------
Joseph M. Gantz, Trustee
/s/ Elaine Gantz Berman
-------------------------------
Elaine Gantz Berman, Trustee
SARITA GANTZ
/s/ Sarita Gantz
-------------------------------
Sarita Gantz
THE SARITA GANTZ TRUST NO. 1
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
THE SARITA GANTZ TRUST NO. 2
/s/ Sarita Gantz
-------------------------------
Sarita Gantz, Trustee
-8-
<PAGE> 53
ACQUICO, INC.
By: /S/ Donald G. Rubright, V.P.
------------------------------
RUBBERMAID INCORPORATED
By: /S/ Martin Degnan, V.P.
------------------------------
-9-
<PAGE> 1
0789JEMP.EJG EXHIBIT 2(c)
6/14/94
REAL ESTATE PURCHASE AGREEMENT
dated as of June 15, 1994
between
EJG REALTY, L.L.C.
and
JOSEPH M. GANTZ AND ELAINE GANTZ BERMAN
and
RUBBERMAID INCORPORATED, AND ACQUICO, INC.
THE RUBBERMAID COMMON SHARES TO BE ISSUED PURSUANT TO THIS REAL
ESTATE PURCHASE AGREEMENT ARE "SECURITIES" UNDER THE SECURITIES
ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS.
IN MAKING THE INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR
OWN EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE
NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION
OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES
HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE
REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
<PAGE> 2
0789JEMP.EJG
6/14/94
REAL ESTATE PURCHASE AGREEMENT
------------------------------
This Real Estate Purchase Agreement (the "Agreement") dated as of
, 1994, by and among:
- ----------------------------
A. EJG Realty, L.L.C., a North Carolina limited liability company
("Owner").
B. The members of EJG Realty, L.L.C., namely:
1. Joseph M. Gantz;
2. Elaine Gantz Berman.
collectively referred to as the "Members."
C. The Owner and Members collectively referred to as "Sellers."
D. Acquico, Inc., a Delaware corporation, and a wholly owned
subsidiary of Rubbermaid Incorporated ("Acquico").
E. Rubbermaid Incorporated, an Ohio corporation ("Rubbermaid").
Acquico and Rubbermaid collectively referred to as "Buyer."
RECITALS
A. Owner is the owner of certain real property used for a
manufacturing and warehouse facility located at U.S. Highway 64,
Robersonville, North Carolina. The real property is occupied and used as one
facility.
B. Buyer desires to purchase from Owner and Owner desires to sell to
Buyer the assets as set forth herein.
C. Buyer and others contemporaneous with this transaction are also
under agreement to transfer and to acquire certain other real estate and all
of the issued and outstanding stock of Empire Brushes, Inc., and National
Brush Company (collectively the "Empire Group"). The parties acknowledge and
agree that all of these transactions are interdependent upon one another and
that the obligations of Buyer and Sellers as contained in this Agreement are
<PAGE> 3
contingent upon all transactions being consummated as contemplated herein and
therein.
D. Now, therefore, in consideration of the mutual promises and
conditions hereinafter set forth, the parties covenant and agree as follows:
ARTICLE 1
---------
PURCHASE AND SALE OF ASSETS
---------------------------
1.1 PURCHASED ASSETS. Subject to the terms and conditions set forth in
this Agreement, Owner shall sell, transfer, assign, convey and deliver to
Buyer, and Buyer shall purchase and acquire from Owner, all right, title and
interest in and to all of the assets and properties of every kind and
description (except for the Excluded Assets as defined in Section 1.2 hereof)
owned, held, used or claimed by Owner relating to the real property located at
U.S. Highway 64, Robersonville, North Carolina (collectively the "Purchased
Assets"), including, by way of example but without limitation, the following:
(a) The real property known as U.S. Highway 64, Robersonville,
North Carolina, described in SCHEDULE 1.1(a) attached hereto, together
with all buildings, improvements, appurtenances and fixtures thereto (the
"Real Property"), free and clear of all liens and encumbrances except the
Permitted Encumbrances as set forth in SCHEDULE 1.1(a). The Real
Property described on SCHEDULE 1.1(a) constitutes all of the Real
Property owned by Seller used in conjunction with the business carried on
at such location by Empire Brushes, Inc.; and in the event it is later
discovered that Seller owns additional property at such location, Seller
shall convey such property to Buyer without the payment of additional
consideration.
(b) All information pertaining to the Real Property, including
all plans, blueprints, surveys, "as built" drawings, mechanical
schematics, environmental audit reports, soil bearing analysis reports,
and any and all other information relating to the Real Property or the
structures located thereon ("Operating Information").
(c) All of Owner's interest in the real estate leases described
on SCHEDULE 1.1(c) ("Real Estate Leases"). Copies of all of the Real
Estate Leases have been delivered to Buyer.
(d) All of Owner's interest as listed on SCHEDULE 1.1(d) in
contract rights, options, intangible personal property, or such other
agreements or contracts relating to the Real Property, property adjacent
to the Real Property, or property or contract rights used, or to be used,
-2-
<PAGE> 4
in the present or future operation of the Purchased Assets ("Contract
Rights").
(e) All personal property including the personal property listed
on SCHEDULE 1.1(e), which includes, but is not limited to:
(i) All furniture, fixtures, shelving, office supplies,
computers, telephone system, and office equipment, and all parts,
accessories, tools and supplies owned by Owner pertaining thereto
used in connection with the business conducted thereon;
(ii) All other machinery, equipment, parts, accessories,
tools and supplies owned by Owner used in connection with the
business conducted thereon;
(iii) All other tangible personal property owned by Owner
used in connection with the business conducted thereon.
All of the above collectively referred to as the "Tangible Personal
Property."
(f) The nonexclusive right to commence, maintain, and prosecute
any causes of action, claims for damages, suits, and any other choses in
action which could be maintained by Sellers, which Buyer may deem
necessary as the owner of the Purchased Assets to protect its interests
therein.
1.2 EXCLUDED ASSETS. Notwithstanding Section 1.1 hereof, the
Purchased Assets shall not include the following (collectively the "Excluded
Assets"):
(a) Cash;
(b) Accounts receivable and records pertaining thereto;
(c) Bank accounts of Owner;
(d) Books, records and financial data of Owner;
(e) All refunds due Owner from any prepaid insurance contracts,
any outstanding letters of credit or other items representing outstanding
cash.
-3-
<PAGE> 5
1.3 REAL ESTATE TITLE INSURANCE. Owner shall pay the cost of an ALTA
Owner's Policy of Title Insurance covering the Real Property in a principal
insurance amount equal to the purchase price. Buyer shall pay for an
ALTA/ACSM land title survey of the Real Property. Buyer shall make all
arrangements to obtain the Owner's Policy of Title Insurance from a title
company acceptable to it and the land title survey from a surveying firm
acceptable to it. Said policy shall have deleted therefrom the standard
exceptions and shall insure the Real Property to be marketable as required in
Section 1.1(a) subject to Permitted Encumbrances and other exceptions approved
by Buyer. In the event any other title defect shall appear which materially
impairs Buyer's intended use of the property, Buyer or Owner shall have the
right to extend the Closing Date for up to 30 days in order to permit Owner an
opportunity to cure said defect. If Owner is unable to cure the defect within
said 30 day period, either party may, at its option, terminate this Agreement
provided Buyer's right to so terminate shall be subject to Section 9.24 of the
Agreement and Plan of Reorganization or, if this Agreement is not so
terminated, proceed to Closing and accept the title subject to the defect
without adjustment of the purchase price, in either event. Owner shall pay
all costs associated with said title insurance including premiums and title
examination costs.
1.4 ARTICLE 9, LIEN SEARCH. Prior to Closing, Buyer shall obtain a
search of the records of the Secretary of State of North Carolina and the
Martin County Recorder of all filed financing statements against Owner, if
any. Owner shall pay all costs associated with the financing statement lien
search.
1.5 PAYMENT OF CONVEYANCE TAX. Owner shall pay all conveyance taxes
or transfer fees applicable to the sale of the real estate.
ARTICLE 2
---------
PURCHASE PRICE
--------------
2.1 PURCHASE PRICE. The purchase price for the Purchased Assets shall
be estimated at One Million Six Hundred and Fifty Thousand Dollars
($1,650,000) less the indebtedness ("Mortgage Debt") secured by mortgage of
the Purchased Assets (the "Purchase Price"). The Purchase Price shall
adjusted at the Closing as provided in Section 2.5 hereof, and a portion
thereof shall be placed in escrow as provided in Section 13.1 hereof.
2.2 PAYMENT OF PURCHASE PRICE. The Purchase Price, as adjusted
pursuant to Section 2.5 hereof, shall be paid to the Escrow Agent and Owner at
Closing as provided in Section 13.1 through the delivery of Rubbermaid $1.00
par value common shares, which are authorized by Rubbermaid's Articles of
-4-
<PAGE> 6
Incorporation (hereinafter "Rubbermaid Common Shares" or "Shares"). The
number of Rubbermaid Common Shares to be delivered shall be determined as
provided in Section 2.3.
2.3 DETERMINATION OF NUMBER OF SHARES.
(a) BASE NUMBER OF SHARES. The base number of Shares ("Base
Number of Shares") shall be the quotient rounded to the nearest whole
share obtained by dividing the Purchase Price by the average closing sale
price of Rubbermaid Common Shares as reported in the Transaction
Reporting System operated by the Consolidated Tape Association for the
five consecutive Trading Days ending with the Trading Day prior to the
date of signing this Agreement.
(B) ADJUSTMENT TO BASE NUMBER OF SHARES. The number of
anticipated Shares prior to Purchase Price adjustments as called for
herein ("Anticipated Shares") shall be determined by dividing the
Purchase Price by the average closing sale price of Rubbermaid Common
Shares as reported in the Transaction Reporting System operated by the
Consolidated Tape Association for the ten consecutive Trading Days ending
with the third Trading Day prior to the Closing Date; provided, however,
that the quotient shall be not greater than 107.5 percent nor less than
92.5 percent of the Base Number of Shares determined in (a) above.
(c) FINAL NUMBER OF SHARES. The final number of Shares to be
issued to Owner shall be adjusted to reflect all Purchase Price
Adjustments as called for herein. The aggregate dollar value of all
Purchase Price Adjustments shall be divided by the average closing price
of Rubbermaid Common Shares as determined in subsection (b) above. This
quotient shall be added to or subtracted from the number of Anticipated
Shares, with the resulting number of Shares being deemed the final number
of Shares to be issued to Owner.
(d) ALLOCATION OF SHARES. All of the final Shares shall be
issued in the name of Owner.
2.4 FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, no fractional share of a Rubbermaid Common Share shall be issued as
a result of the transactions contemplated by this Agreement. The total number
of Shares to be issued to the Owner shall be rounded up or rounded down to the
nearest whole Rubbermaid Common Share.
2.5 ADJUSTMENTS TO PURCHASE PRICE. The Purchase Price shall be
adjusted to reflect the required payment or proration as of the close of
-5-
<PAGE> 7
business on the Closing Date (collectively referred to as "Purchase Price
Adjustments"):
(a) Conveyance or transfer fees as provided in Section 1.5;
(b) All costs associated with Title Insurance and lien search as
provided in Section 1.3 and 1.4, including but not limited to search fees
and policy premiums.
ARTICLE 3
---------
ASSUMPTION AND NONASSUMPTION OF CERTAIN LIABILITIES
---------------------------------------------------
3.1 ASSUMPTION OF CERTAIN LIABILITIES. Buyer shall not be obligated
to assume, and shall not assume, any of the liabilities and obligations of
Owner whether existing as of the Closing Date or asserted thereafter and
relating to events that occurred on or before the Closing Date or otherwise,
except upon Closing, Buyer shall assume and agree to pay, perform, and
discharge the following liabilities and obligations of Owner as of the Closing
Date:
(a) Buyer will assume:
(i) the obligations of Owner under the Real Estate Leases
listed on SCHEDULE 1.1(c);
(ii) the obligations of Owner under the Mortgages listed on
SCHEDULE 1.1(a) as Permitted Encumbrances;
(iii) the obligations of Owner under the Contract Rights
listed on SCHEDULE 1.1(d);
(iv) non-delinquent real estate taxes which are the
obligation of the Lessees under the Real Estate Leases.
(b) Buyer shall pay:
(i) the costs of registration and listing as set out in
Section 16.6.
3.2 BUYER NOT ASSUMING CERTAIN LIABILITIES. Buyer shall assume only
those liabilities and obligations of Owner specifically described in Section
3.1.
-6-
<PAGE> 8
Except as to those liabilities and obligations which Buyer assumes under
Section 3.1(a) or pursuant to the Agreement and Plan of Reorganization, Buyer
does not expressly, impliedly or by operation of law accept or assume any
liability of Owner arising out of or in any way related to the Purchased
Assets, the performance of this Agreement or the carrying out of the
transactions contemplated by this Agreement.
Without limiting the generality of the foregoing, Buyer shall not have,
and does not assume, except as set forth in the preceding paragraph:
(a) Any liability regarding the Purchased Assets for income or
other taxes, whether local, state or federal, including by way of
example, but without limitation, personal taxes, personal property tax or
any other tax of whatever nature or description except as set forth at
Section 3.1(a)(iv).
(b) Any liability occurring and arising out of the Purchased
Asset operations or services provided prior to Closing which liability is
the obligation of the Lessee under the Real Estate Leases.
(c) Any environmental liabilities of Sellers occurring during
and arising out of Sellers' ownership of the Purchased Assets. For
purposes of this Agreement, "environmental liabilities" shall mean
third-party claims and all liabilities under federal, state and local law
and regulations arising from the release prior to Closing Date by Sellers
of hazardous or toxic materials into the environment as a result of
Sellers' operations, including, without limitation, any liability under
the Clean Water Act, the Clean Air Act, the Comprehensive Environmental
Response Compensation and Liability Act ("CERCLA" or "Super Fund"), the
Resource Conservation and Recovery Act ("RCRA") and any applicable state
and local law ("Environmental Laws"); any liability for contamination by
Sellers as of the Closing Date of water, ground or ground water; any
liability for the movement or migration after the Closing Date of
substances released into the environment by Sellers prior to the Closing
Date; and any liability to any persons, including Sellers' past or
current employees, for injury, illness, disability or death to the extent
caused by releases by Sellers to the environment prior to the Closing
Date of toxic or hazardous substances.
(d) Any general obligations of Sellers including, by way of
example, but without limitation, any lawsuit, claim, suit, proceeding, or
investigation arising out of the ownership, business or operations of
Owner prior to Closing, which obligations are the obligations of the
Lessee under the Real Estate Leases.
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(e) Any liability or obligation to Sellers' creditors or owners
as creditors.
ARTICLE 4
---------
REPRESENTATIONS AND WARRANTIES OF SELLERS
-----------------------------------------
REPRESENTATIONS AND WARRANTIES OF SELLERS. In order to induce Buyer to
enter into this Agreement and to consummate the transactions contemplated
hereunder, Sellers, jointly and severally, make the following representations,
warranties, covenants and agreements, to the best of their knowledge and based
on the knowledge of the Empire Group as defined in the Agreement and Plan of
Reorganization, each of which shall be deemed to be independently material and
relied upon by Buyer regardless of any investigation made or information
obtained by Buyer and each of which shall survive the Closing of this
Agreement for a period of one year.
4.1 ORGANIZATION, ETC. EJG Realty, L.L.C. is a limited liability
company, duly organized, validly existing and in good standing under the laws
of North Carolina, and has all requisite power and authority to own, lease,
hold and operate the Purchased Assets, as and where now owned, leased, held,
operated or conducted.
4.2 LOCATION OF OWNER. Owner's chief executive offices are located at
U.S. Highway 13 North, Greenville, North Carolina 27835. Owner's registered
agent is .
--------------------------------------
4.3 PURCHASED ASSETS. Generally, except as disclosed on SCHEDULE 4.3,
Sellers have no interest as owner, lessee or otherwise in any asset used in
connection with the business conducted on the Real Property, except the
Purchased Assets. Sellers hereby represent, warrant and covenant to and with
Buyer that except as set forth in SCHEDULE 4.3:
(a) Owner has no direct or indirect beneficial interest in any
other entity, corporation, partnership, joint venture or other
enterprise, which has any claim or interest in the Purchased Assets.
(b) Sellers have not received any written notice nor have any
actual knowledge of any information that there has been any violation of
any statute, law, ordinance, or regulation of any governmental entity
affecting the Purchased Assets with respect to health, safety and
environmental and pollution control, including the disposition of
hazardous or toxic waste materials or emissions into the air, soil or
water, or any form of contamination, that would have a material adverse
effect on the value of the Purchased Assets or the continued operation
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and use of the Purchased Assets by the Buyer in the ordinary course of
business.
(c) Owner has good and marketable title to the Purchased Assets,
free and clear of all liens, encumbrances, security interests, pledges,
equities, claims of others or restrictions whatsoever.
(d) To the best of Sellers' knowledge and belief, all of the
Purchased Assets are now in working condition and subject to occurrences
in the ordinary course of business as of the Closing Date will be in
working condition with no material defects other than those items to be
repaired in the ordinary course of business or identified to Buyer in
writing.
4.4 REAL ESTATE. Except as set forth in Schedule 4.4 or other
Schedules, Sellers hereby make the following representations, warranties and
covenants to and with Buyer regarding the Real Property:
(a) Sellers have not received any uncured written notice that
the Real Property, as currently used by Sellers, is in material violation
of any applicable federal, state or local statute, ordinance, order,
requirement, law, rule or regulation (including without limitation,
building, zoning or environmental laws) affecting the Real Property that
would have a material adverse effect on the value of the Real Property or
its continued operation and use in the ordinary course of business now
being conducted thereon.
(b) The zoning of the Real Property permits the presently
existing improvements and the conduct and continuation of the business
presently being conducted on such Real Property.
(c) The buildings located on the Real Property are structurally
sound and are now in good working condition subject to ordinary wear and
tear and repairs to be made in the ordinary course of business. Sellers
understand that notwithstanding the foregoing representation, Buyer may
engage an engineering consultant to verify the foregoing.
(d) Owner has good and marketable title to the Real Property,
free and clear of all liens, encumbrances, security interests, pledges,
equities, claims of others or restrictions whatsoever, except:
(i) Zoning and building ordinances and regulations which
do not prohibit or restrict the present use of the Real Property;
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(ii) Real estate taxes and assessments, both general and
special, which may be a lien but are not yet due and payable on
the Closing Date;
(iii) Easements, covenants, agreements, encumbrances,
conditions, reservations, restrictions, of record or other
exceptions affecting the real estate, if any, which are disclosed
on SCHEDULE 1.1(a), and any additional title matters which are
approved in writing by Buyer prior to the Closing Date.
(iv) The matters set forth in SCHEDULE 4.4.
(e) No condemnation proceeding is pending or overtly threatened
against the real estate.
(f) No improvement of the Real Property encroaches upon any
adjacent real property, and no improvement of any adjacent real property
encroaches upon the Real Property.
(g) No easements, rights-of-way, or other such agreements not of
record are necessary to be obtained in order to continue the present use
of the Real Property.
4.5 NO EMPLOYEES. As of the date hereof, the Owner does not have any
employees.
4.6 NO DEFAULT. Except as set out on SCHEDULE 4.6 or other Schedules,
Owner is not and, to the best of Owner's knowledge, no tenant of Owner is in
monetary default or material non-monetary default or breach of the terms or
conditions of any lease, contract, or other agreement or obligation to be
assumed by Buyer, including, but not limited to, the Real Estate Leases, and
there has not occurred any event which after the giving of notice, or the
lapse of time, or both, would constitute such a monetary default or
non-monetary material defauit or breach of any of such leases, contracts,
assumed obligations, or other agreements.
All such contracts at Closing will be assignable to Buyer and will be
assigned to Buyer as contemplated by this Agreement.
4.7 AUTHORITY AND APPROVAL.
(a) Sellers have all requisite power and authority, subject to
Federal Trade Commission and Department of Justice approval and except as
the same may be limited by bankruptcy, insolvency, reorganization,
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moratorium, or other laws relating to or affecting enforcement of
creditors' rights and equitable considerations which may affect a court's
exercise to protect its full power, including its power to order specific
performance, to:
(i) Enter into this Agreement;
(ii) Perform their obligations hereunder;
(iii) Consummate the transactions contemplated; and
(iv) Execute and deliver this Agreement, the general
conveyance, assignment and bill of sale, the special warranty deed
in the form attached hereto as EXHIBIT A, and such other
instruments of sale, assignment or transfer contemplated hereby.
(b) Except for matters set out on SCHEDULE 4.7 or other
Schedules, the consummation of the transactions contemplated hereby and
the compliance by Sellers with the terms of this Agreement do not and
will not conflict with, result in or constitute any of the following:
(i) A material default or an event that, with notice or
lapse of time, or both, would be a material default, breach or
violation of Owner's governing documents or any material lease,
license, promissory note, conditional sales contract, commitment,
indenture, mortgage, deed of trust, or other agreement,
instrument, or arrangement to which Sellers are a party or by
which Sellers or the property of Sellers is bound;
(ii) An event that would permit any party to terminate any
material agreement or to accelerate the maturity of any material
indebtedness or other material obligation of Owner; or
(iii) The creation or imposition of any lien, charge, or
encumbrance on any of the Purchased Assets.
(c) Except for matters set forth in SCHEDULE 4.7 or other
Schedules, Owner is not a party to or bound under anv certificate,
regulation, mortgage, lien, lease, agreement, contract, instrument,
order, judgment, or decree, which materially, adversely affects the
Purchased Assets.
(d) All necessary and appropriate action has been taken by
Sellers with respect to the execution and delivery of this Agreement, and
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this Agreement constitutes a valid and binding obligation of Sellers, as
appropriate and enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other laws relating to or affecting enforcement of
creditors' rights, and equitable considerations which may affect a
court's exercise to protect its full power, including its power to order
specific performance.
(e) Except for matters set forth in SCHEDULE 4.7 or other
Schedules, there are no material contracts, commitments, leases, permits
or other instruments necessary to hold the Purchased Assets by Owner, as
and where now held by Owner, or related to the management of the
Purchased Assets, other than those to be transferred to Buyer pursuant to
this Agreement.
4.8 PAYMENT OF TAXES. Owner has paid all taxes owed by Owner for all
taxable years of Owner concluded prior to and payable prior to the Closing
Date or such taxes are payable by the Lessee under the Real Estate Leases. No
federal, state or local tax returns or reports filed by Owner (whether filed
prior to, on or after the Closing Date) will result in any taxes, assessments,
fees or other governmental charges upon the Purchased Assets or Buyer, whether
as transferee of the Owner or otherwise, except for taxes with respect to the
Purchased Assets payable without penalty after the Closing.
4.9 LITIGATION. Except as provided on SCHEDULE 4.9 or other
Schedules, there are no claims, actions or proceedings, either administrative
or judicial, pending or threatened, other than matters fully covered by
insurance subject to normal deductibles, and no adverse orders of any
governmental, administrative or regulatory body have been or are about to be
issued against or relating to the Purchased Assets or that could have a
material adverse effect on or prevent the sale of the Purchased Assets
following the Closing Date.
4.10 MECHANIC'S LIENS. Except as set forth in SCHEDULE 4.10 or other
Schedules, Owner has not requested or contracted for any improvement to the
Real Property that could result in the filing of a mechanic's lien against the
Real Property. At Closing, Owner shall deliver to Buyer an affidavit or other
documents satisfactory to the company issuing the title insurance required in
Section 1.3, so as to delete therefrom the standard exception for such liens.
4.11 COMPLIANCE WITH AGREEMENTS. Seller is in material compliance with
all terms and conditions of the agreements listed on SCHEDULE 1.1(d) where
such agreements require Seller to take or refrain from taking any action, and
Seller has no knowledge that any other party to such agreements has failed to
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comply with all material terms and conditions imposed on such other party by
such agreements.
4.12 RESERVED.
4.13 OTHER CONTRACTS. SCHEDULE 4.13 or other Schedules contain a true
and complete list of all material contracts and all leases relating to the
Purchased Assets to which the Owner is a party, and prior to Closing the Owner
will not enter into any contracts or leases relating to the Purchased Assets
without the prior written consent of Buyer.
4.14 COMPLIANCE WITH LAWS. Except as set forth in SCHEDULE 4.14 or
other Schedules, Owner has complied with and is not in material violation of
applicable federal, state, or local statutes, laws and regulations (including,
without limitation, any applicable building, zoning, or other law, ordinance,
or regulation) affecting the Purchased Assets, including without limitation
the Resource Conservation & Recovery Act of 1976, the Comprehensive
Environmental Response Compensation & Liability Act of 1980 (and other
environmental laws), and the Americans with Disabilities Act of 1990, as all
such may be amended, the violation of which would have a material adverse
effect on the business of Empire Group.
4.15 INSURANCE POLICIES. SCHEDULE 4.15 to this Agreement lists all of
the insurance policies held by Owner concerning the Purchased Assets. All
these policies are in the respective principal amounts set forth in SCHEDULE
4.15. Owner has maintained and now maintain or have caused the Lessee under
the Real Estate Leases to maintain (i) insurance on all Purchased Assets of a
type customarily insured, covering property damage and loss of income by fire
or other casualty, and (ii) adequate insurance protection against all
liabilities, claims and risks against which it is customary to insure. Except
as disclosed in SCHEDULE 4.15, there is no monetary breach or default or any
material non-monetary default with respect to any provision contained in any
policy or binder described in this provision nor has there been any failure to
give any notice or present any material claim under any such policy or binder
in due or timely fashion. There are no outstanding unpaid premiums, and there
are no provisions for retrospective or retroactive premium adjustments except
as set out on SCHEDULE 4.15. Finally, since the later of the date the
Purchased Assets were acquired by Owner or January 1991, except as disclosed
in SCHEDULE 4.15, there have been no instances where there have not been in
full force and effect insurance policies providing the types of insurance as
described above.
4.16 REAL ESTATE LEASES. SCHEDULE 1.1(c) discloses all Real Estate
Leases with regard to the Real Property in which Owner is the Lessor. No
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tenant is in arrears in the payment of the rent nor to the best of Sellers'
knowledge after diligent inquiry in material default in the performance of the
non-monetary terms and conditions of said leases.
4.17 FOREIGN PERSON. Owner is not a "foreign person" within the
meaning of the Foreign Investment in Real Property Tax Act, Internal Revenue
Code Section 1445, and Sellers shall deliver at Closing the affidavit required
by Treasury Regulation Section 1.1445-2.
4.18 HAZARDOUS SUBSTANCES. In addition to the representation and
warranty set forth in Section 4.14 regarding environmental law, Sellers
further represent that except as set out in SCHEDULE 4.18: (i) none of the
Purchased Assets are contaminated with any hazardous substance constituting a
violation of applicable law; (ii) Owner or Owner's lessee has arranged for the
proper disposal of hazardous substance removed from the Real Property through
utilization of properly qualified licensed waste disposal transporters and
receivers pursuant to all statutory requirements; (iii) Owner has not caused
and to the best of their knowledge, there has not occurred the release of any
hazardous substance on the Real Property constituting a violation of
applicable law; (iv) the Real Property is not subject to any federal, state or
local "superfund" lien, proceedings, claim, liability or action; (v) there is
no asbestos on the Real Property in violation of applicable law; (vi) there is
no underground storage tank on the Real Property; and (vii) by acquiring the
Real Property, Buyer will not incur or be subjected to any "superfund"
liability for the cleanup, removal or remediation of any hazardous substance
from the property or any liability, cost, or expense for the removal of any
asbestos or underground storage tank from the property. The terms "hazardous
substance," "release" and "removal" as used herein shall have the same meaning
and definition as set forth in paragraphs (14), (22) and (23), respectively,
of Title 42 U.S.C. Section 9601 provided, however, that the term "hazardous
substance" as used herein also shall include "hazardous waste" as defined in
paragraph (5) of 42 U.S.C. Section 6903 and "petroleum" as defined in
paragraph (8) of 42 U.S.C. Section 6991. The term "superfund" as used herein
means the Comprehensive Environmental Response, Compensation and Liability
Act, as amended, being Title 42 U.S.C. Section 9601 ET SEQ., as amended, and
any similar state statute or local ordinance applicable to tie property,
including, without limitation, all rules and regulations promulgated,
administered and enforced by any governmental agency or authority pursuant
thereto. The term "underground storage tank" as used herein shall have the
same meaning and definition as set forth in paragraph (1) of 42 U.S.C. Section
6991.
4.19 FIRE SYSTEM. Except as set forth on SCHEDULE 4.19, any fire
suppression system used in connection with the Purchased Assets is fully
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operational and in accordance with all design and operation specifications of
the system, and has been tested in accordance with all material manufacturer,
insurance company, and statutory requirements.
4.20 OUTSTANDING DEBT. All debt owed by Owner secured by the Purchased
Assets is set forth on SCHEDULE 1.1(a). SCHEDULE 4.20 shall set forth the
contractual repayment schedule showing separately principal and interest due
for all such debt. Owner will pay on the debt only as set forth on the
contractual repayment schedule and shall not make any prepayments unless
authorized in writing by Buyer.
4.21 OTHER ASSETS. Except as set forth in SCHEDULE 4.21 or other
Schedules, to the best of Sellers' knowledge after diligent inquiry:
(a) The Owner does not own any tangible personal property which
is located on or used in connection with the Real Property other than as
set forth on SCHEDULE 1.1(e);
(b) The Lessees, pursuant to the Real Estate Leases, are required
by said Leases to assume and pay all utility services provided to the
Real Property covered by the Real Estate Leases and to pay all taxes
assessed against the Real Property or any personal property located on
the Real Property;
(c) The Owner is not a party to any leases for tangible personal
property, service contracts, or operating agreements pertaining to the
Real Property.
4.22 CONTRACT RIGHTS. The Owner is not in monetary default or in
material non-monetary default of any material terms and conditions relating to
the Contract Rights as listed on SCHEDULE 1.1(d), and the Contract Rights
listed therein will either by operation of law or by assignment inure to the
benefit of Buyer.
4.23 FULL DISCLOSURE. None of the representations and warranties made
by Sellers, or made in any certificate, memorandum or scheduled documents
provided or furnished or to be furnished by Sellers, or on Sellers' behalf,
contain or will contain any untrue statement of material fact, or omit any
material fact, the omission of which would be misleading.
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ARTICLE 5
---------
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
REPRESENTATIONS AND WARRANTIES OF BUYER. In order to induce Sellers to
enter into this Agreement and to consummate the transactions contemplated
hereunder, Buyer jointly and severally makes the following representations,
warranties, covenants, and agreements, each of which shall be deemed to be
independently material and relied upon by Sellers, regardless of any
investigation made or information obtained by Sellers and each of which shall
survive the Closing of this Agreement for a period of one year.
5.1 ORGANIZATION. Acquico is, or at time of Closing will be, a
corporation duly organized and validly existing and in good standing under the
laws of the State of Delaware, and Rubbermaid is a corporation duly organized
and validly existing and in good standing under the laws of the State of Ohio.
5.2 AUTHORITY. Rubbermaid and Acquico have right, power, legal
capacity and authority, subject to Federal Trade Commission and the Department
of Justice approval, to enter into and perform their obligations under this
Agreement. The execution and delivery of this Agreement, the ancillary
agreements, and the performance of the post closing obligations by Rubbermaid
and Acquico have been duly authorized by its respective Board of Directors.
5.3 CAPITALIZATION.
(a) Rubbermaid is authorized to have outstanding 420,000,000
shares consisting of: (i) 400,000,000 common shares, $1.00 par value, of
which: (a) 160,309,500 shares are issued and outstanding as of December
31, 1993, and (b) 47,590 shares are treasury shares; and (ii) 20,000,000
shares are preferred stock without par value, of which no shares are
outstanding. All of the outstanding Rubbermaid Common Shares are, and
the Rubbermaid Common Shares to be issued in connection with the
Reorganization will be, when issued, validly issued, fully paid, and
nonassessable.
(b) Acquico is authorized to have outstanding 1,000 shares
consisting of 1,000 common shares, no par value, of which 1,000 shares
are issued and outstanding as of the Closing Date.
5.4 AUTHORIZATION, EXECUTION, AND DELIVERY. Rubbermaid and Acquico
have full corporate power and authority to execute and deliver this Agreement
and all other agreements or certificates required by the Agreement, to perform
their respective obligations hereunder and thereunder, and to consummate the
transactions with respect to them and as contemplated hereby. The execution,
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delivery, and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of Rubbermaid and Acquico and this
Agreement, when executed and delivered by Rubbermaid and Acquico, will be
valid and binding obligations of Rubbermaid and Acquico, as appropriate and
enforceable in accordance with their respective terms, except as the same may
be limited by bankruptcy, insolvency, reorganization, moratorium, or other
laws relating to or affecting enforcement of creditors' rights, and equitable
considerations which may affect a court's exercise to protect its full powers,
including its power to order specific performance.
5.5 FINANCIAL STATEMENTS. To the best of its knowledge, filings
required to be made by Rubbermaid under the Securities Act and Exchange Act
have been filed with the SEC and all such filings have complied in all
material respects with all applicable requirements of the appropriate Act and
the rules and regulations thereunder. Rubbermaid has made available to the
Owner complete copies of each report, schedule, registration statement, and
definitive proxy statement filed by Rubbermaid with the SEC since January 1,
1991 (as such documents have since the time of their filing been amended) (the
"Rubbermaid SEC Reports"). As of their respective dates, the Rubbermaid SEC
Reports did not contain any untrue statement of material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made
not misleading. The audited consolidated financial statements and unaudited
interim financial statements of Rubbermaid included in the Rubbermaid SEC
Reports (the "Rubbermaid Financial Statements") have been prepared in
accordance with GAAP (except as may be indicated therein or in the notes
thereto and except with respect to unaudited statements as permitted by Form
10-Q of the SEC) and fairly present the financial position of Rubbermaid as of
the dates thereof and the results of its operations and cash flows for the
periods then ended, subject in the case of the unaudited interim financial
statements to normal recurring audit adjustments.
5.6 NO MATERIAL ADVERSE CHANGE. Since the date of the filing of
Rubbermaid's Quarterly Report on Form 10-Q for the quarter ended March 31,
1994, there has been no material change in the condition (financial or
others), business, net worth, assets, properties, obligations or liabilities,
which in the aggregate or severally have had a material and adverse effect on
the business, properties, financial condition or operations of Rubbermaid.
5.7 FULL DISCLOSURE. None of the representations and warranties made
by Rubbermaid or Acquico, or made in any certificate, memorandum or scheduled
documents provided or furnished or to be furnished to the Sellers, contains or
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will contain any untrue statement of material fact, or omit any material fact,
the omission of which would be misleading.
5.8 NONVIOLATION OF LAWS, ORDERS AND AGREEMENTS. The execution and
delivery of this Agreement and the other agreements provided for herein, the
performance of their obligations thereunder, and the consummation of the
transactions provided for therein, will not result in the violation of any
judgment, order, decree, and, to the best of knowledge of Rubbermaid, any law,
statute, ordinance, rule or regulation applicable to Rubbermaid or Acquico, or
their respective properties, or conflict with or constitute a default under
any of the terms of their respective Articles of Incorporation or By-Laws or
any provision of any agreement or instrument to which either Rubbermaid or
Acquico is a party or by which either of them is bound.
5.9 CONSENTS AND APPROVALS. Rubbermaid and Acquico are not required
to obtain the authorization, approval or consent of, or to give notification
to, any person or governmental authority or agency in order to consummate this
transaction, other than the filing under Hart-Scott-Rodino with the Federal
Trade Commission and the Antitrust Division of the Department of Justice.
ARTICLE 6
---------
SELLERS' OBLIGATIONS BEFORE CLOSING
-----------------------------------
Sellers covenant that from the date of this Agreement until Closing:
6.1 ACCESS TO INFORMATION. Buyer and its counsel, accountants, and
other representatives shall have full access during normal business hours upon
reasonable notice to all properties, books, accounts, records, contracts, and
documents of Owner relating to the Purchased Assets. Owner shall furnish or
cause to be furnished to Buyer and its representatives all data and
information concerning the Purchased Assets of Owner that may reasonably be
requested.
6.2 NO CHANGE IN REAL ESTATE. Except as set forth in the Schedules
and except for transactions in the ordinary course of business:
(a) Owner will not create any lien or encumbrance and will not
enter into any contract or transaction regarding the Real Property
without the written consent of Buyer;
(b) With respect to the Real Property, Owner will not modify,
amend, cancel, or terminate any of its existing contracts or agreements,
or agree to any of those acts.
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6.3 INSURANCE. Owner, at its sole expense, will, or cause the Lessee
under the Real Estate Leases to continue to carry existing insurance on the
Purchased Assets. At the request of Buyer and at Buyer's sole expense, the
amount of insurance against fire and other casualties which, at the date of
this Agreement, Owner or its said Lessee carries on the Purchased Assets shall
be increased by such amount or amounts as Buyer shall specify.
6.4 CONSENTS. As soon as reasonably practical after the execution and
delivery of this Agreement, and in any event on or before the Closing Date,
Sellers will obtain written consent of all persons necessary to authorize this
Agreement and will furnish to Buyer executed copies of these consents.
6.5 ACCESS FOR ENVIRONMENTAL AND STRUCTURAL TESTING. Buyer shall have
the right, but not the obligation, at its sole cost and expense, upon
reasonable prior notice, to cause such investigations and tests to be made as
it deems necessary to determine whether there has been any soil, surface
water, ground water or air space contamination on or under the property.
Buyer shall also have the right, but not the obligation, at its sole cost and
expense, upon reasonable prior notice, to cause such investigations and tests
to be made as it deems necessary to determine the structural soundness and
general condition of the buildings on the Real Property. Owner shall provide
reasonable assistance to any engineering company or others ("Consultants")
selected by Buyer reasonably acceptable to Sellers to do environmental and
structural testing of the property, and Owner shall provide such Consultants
access to pertinent records and documents. Owner authorizes Buyer and/or any
Consultants to contact governmental agencies regarding the property. No
inspection conducted by Buyer or its Consultants shall relieve Sellers of any
liability imposed pursuant to this or any other section of this Agreement.
Rubbermaid shall indemnify, defend and hold harmless Empire Group from any
liability, obligation, damage, cost or expense in connection with or in any
way attributable to such investigation and tests, and Rubbermaid will, prior
to entry upon the premises, furnish appropriate insurance coverages for
Sellers and Empire Group, and Rubbermaid will restore the premises to their
prior condition promptly after such tests. The parties shall enter into a
Confidentiality and Access Agreement Regarding Environmental Investigation in
the form attached hereto as EXHIBIT B, and all investigation, inquiry and
testing shall be governed thereby.
6.6 PRIOR TITLE INSURANCE POLICIES. Owner shall provide prior to
Closing copies of all ALTA Owner's Policies of Title Insurance, land title
surveys, and other surveys and plats relating to the Real Property in their
possession.
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ARTICLE 7
---------
BUYER'S OBLIGATIONS BEFORE CLOSING
----------------------------------
7.1 CONFIDENTIALITY. Buyer agrees that, unless and until the Closing
has been consummated, Buyer and its officers, directors, and other
representatives will hold in strict confidence and will not use to the
detriment of Sellers any data and information obtained in connection with this
transaction or Agreement, with respect to the Purchased Assets; and if the
transactions contemplated by this Agreement are not consummated, Buyer will
return to Sellers all this data and information that Sellers may reasonably
request, including but not limited to worksheets, test reports, manuals,
lists, memoranda, and other documents prepared by or made available to Buyer
in connection with this transaction. The provisions of this Section will
survive any termination of this Agreement or failure to consummate the
transactions contemplated by this Agreement.
ARTICLE 8
---------
CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
-------------------------------------------
The obligations of Buyer to purchase the Purchased Assets under this
Agreement are subject to the satisfaction, at or before the Closing, of all
the conditions set out below in this Article 8. Buyer may waive any or all of
these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by Buyer of any
of its other rights or remedies pursuant to this Agreement, if Sellers shall
be in material default of any of its representations, warranties, or covenants
under this Agreement.
8.1 RELATED TRANSACTIONS. The consummation of the Agreement and Plan
of Reorganization ("Plan of Reorganization") entered into on the_______ day of
June, 1994, by and between Rubbermaid Incorporated, Acquico, Inc., Empire
Brushes, Inc., National Brush Company, Jack Gantz Irrevocable Trust No. 2,
Sarita Gantz Irrevocable Trust No. 3, Sarita Gantz Revocable Trust; the
consummation of the Real Estate Purchase Agreements by and among Acquico and
Rubbermaid, and Sellers as defined in the Plan of Reorganization.
8.2 SELLERS' COMPLIANCE. Subject to Section 9.24 of the Agreement and
Plan of Reorganization, Sellers shall have substantially complied with and
performed all of the terms, covenants and conditions of this Agreement to be
complied with and performed by Sellers on or before the Closing Date and shall
certify that fact to Buyer.
8.3 AUTHORITY. Proper action shall have been taken by Sellers
authorizing the execution and performance of this Agreement.
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8.4 NATIONSBANK OF NORTH CAROLINA, N.A. Sellers shall have obtained
and provided to Buyer such consents, approvals, and agreements as determined
necessary by Buyer from NationsBank of North Carolina, N.A. ("NationsBank") to
transfer the Purchased Assets to Buyer and to assure Buyer that no
acceleration of the obligations due to NationsBank will occur.
8.5 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of Sellers contained in this Agreement were true when made, and
shall be true as of the Closing Date (after giving effect to any changes
contemplated or provided for in this Agreement) with the same force and effect
as if made at and as at the time of the Closing Date and shall not have
constituted a material misrepresentation (as defined in Section 9.24 of the
Plan of Reorganization), when aggregated with all other material
misrepresentations in the Plan of Reorganization or this Agreement and Sellers
shall deliver at Closing a written certification thereof, said certification
to be in substantially the form of EXHIBIT C attached hereto.
8.6 SCHEDULES. Buyer shall have determined in its sole discretion
that none of the terms, conditions or affect of the matters set forth or
disclosed in the land title survey or title commitment other than the
Permitted Encumbrances required by Sections 1.3 and 8.10 hereof will
negatively affect its ownership or intended (present or future) use of the
Purchased Assets.
8.7 REGULATORY APPROVALS AND CONSENTS. There shall have been obtained
all approvals required under any applicable federal or state laws or of any
other applicable regulatory authority for the consummation of this
transaction.
8.8 NO MATERIAL CHANGES. There shall have been no material adverse
change in the properties or assets to be purchased hereunder, since the
execution of this Agreement, and the Sellers shall deliver at Closing a
written certification thereof, said certification to be in substantially the
form of EXHIBIT D attached hereto.
8.9 TOWN APPROVAL. Seller shall have obtained and provided to Buyer
such consents, approvals, and agreements as determined necessary by Buyer from
the Town of Robersonville, North Carolina ("Town") to transfer the Purchased
Assets to Buyer and to assure Buyer that no acceleration of the obligations
due to Town will occur.
8.10 TITLE COMMITMENT. Subject to the procedures provided for in
Section 1.3, not less than five days prior to Closing Date Buyer shall have
received a commitment for the issuance to Buyer as insured of
an Owner's title
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insurance policy showing title to the Real Property to be free and clear of
all liens and mortgages, except the Permitted Exceptions listed on SCHEDULE
1.1(a), or such other exceptions as are reasonably acceptable to Buyer's
counsel insuring the title to the Real Property in the amount of the Purchase
Price allocated thereto.
8.11 CONTRACT RIGHTS. Sellers shall have provided to Buyer such
consents and approvals as are necessary to convey to Buyer the Contract
Rights.
8.12 OPINION OF COUNSEL. Buyer shall have received from counsel for
Sellers satisfactory to Buyer and its counsel, an opinion dated the Closing
Date, in form and substance satisfactory to Buyer and its counsel, setting
forth the matters in EXHIBIT E.
In rendering their opinion, counsel for Sellers may rely on certificates
of officers and directors of Owner and Buyer as to factual matters, and
opinions of associate counsel approved by Buyer.
8.13 ABSENCE OF LITIGATION. No action, suit, or proceeding before any
court or any governmental body or authority, the effect of which would be to
bar or set aside the transactions contemplated by this Agreement or to its
consummation, shall have been instituted on or before the Closing Date.
8.14 CONSENTS. All necessary agreements and consents of any parties to
the consummation of the transactions contemplated by this Agreement or
otherwise pertaining to the matters covered by it, shall have been obtained by
Sellers and delivered to Buyer.
8.15 APPROVAL OF DOCUMENTS. The form and substance of all
certificates, instruments, opinions, and other documents delivered to Buyer
under this Agreement shall be satisfactory in all reasonable respects to Buyer
and its counsel.
8.16 OTHER AGREEMENTS.
(a) RELEASE. Buyer shall receive a general release in the form
of EXHIBIT F releasing Buyer from any claim of Sellers, including an
rights of contribution or subrogation from and against Sellers other than
claims pursuant to this Agreement, the Plan of Reorganization, and the
other Real Estate Purchase Agreements, and all other agreements provided
for in any of the foregoing agreements.
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(b) EXPIRATION OF WAITING PERIODS. Immediately prior to the
Closing Date, all waiting periods required with respect to this Agreement
and the transactions contemplated herein and in the Plan of
Reorganization by the Hart-Scott-Rodino Antitrust Improvements Act of
1976 and the regulations promulgated thereunder shall have expired or all
necessary approvals thereunder shall have been received.
(c) SELLERS' LETTER. Buyer shall have received a letter from
the individuals listed on SCHEDULE 8.16(c), in a form satisfactory to
Buyer in complying with Article 14 of this Agreement.
8.17 CERTIFICATE OF GOOD STANDING. Owner shall have provided to Buyer
a Certificate of Good Standing issued by the Secretary of State of North
Carolina.
8.18 CORPORATION APPROVAL. The Board of Directors of Buyer at its June
28, 1994 meeting shall have duly authorized and approved the execution and
delivery of this Agreement and all corporate action necessary or proper to
fulfill the obligations of Buyer to be performed under this Agreement.
ARTICLE 9
---------
CONDITIONS PRECEDENT TO SELLERS' PERFORMANCE
--------------------------------------------
The obligations of Sellers to sell and transfer the Purchased Assets
under this Agreement are subject to the satisfaction, at or before the
Closing, of all the conditions in this Article 9. Sellers may waive any or
all of these conditions in whole or in part without prior notice; provided,
however, that no such waiver of a condition shall constitute a waiver by
Sellers of any of their other rights or remedies at law or in equity, if
Rubbermaid shall be in material default of any of its representations,
warranties, or covenants under this Agreement.
9.1 BUYER'S WARRANTIES. All representations and warranties by Buyer
contained in this Agreement or in any written statement delivered by Buyer
under this Agreement shall be true when made and on and as of the Closing as
though such representations and warranties were made on and as of that date
and Rubbermaid shall deliver at Closing written certification thereto.
9.2 BUYER'S PERFORMANCE. Buyer shall have performed, satisfied, and
complied with all covenants and agreements, satisfied all conditions that it
is required by this Agreement to perform, comply with, or satisfy, before or
at the Closing Date, and Rubbermaid shall have delivered at Closing written
certification thereto.
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9.3 OPINION OF BUVER'S COUNSEL. Buyer shall have furnished Sellers
with an opinion, dated the Closing Date, of counsel for Buyer, in form and
substance satisfactory to Sellers and their counsel, to the effect that:
(a) Rubbermaid is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Ohio, and
Acquico is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware, and both have all
requisite corporate power to perform their obligations under this
Agreement;
(b) 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 duly and validly taken;
(c) Buyer has the corporate power and authority to acquire the
Purchased Assets for the consideration set forth herein;
(d) To the best knowledge of counsel, this Agreement does not
violate or contravene any of the provisions of any charter, by-law, or
resolution of Buyer or of any indenture, agreement, judgment, or order to
which Buyer is a party or by which Buyer is bound;
(e) Rubbermaid is authorized to have outstanding 420,000,000
shares consisting of: (i) 400,000,000 common shares, $1.00 par value, of
which (a) 160,309,500 shares are issued and outstanding as of December
31, 1993; and, (b) 47,590 shares are treasury shares; and (ii) 20,000,000
shares are preferred stock without par value of which no shares are
outstanding. All of the outstanding Rubbermaid Common Shares are, and
the Rubbermaid Common Shares to be issued in connection with this
transaction will be when issued, validly issued, fully paid, and
nonassessable;
(f) Acquico is authorized to have outstanding 1,000 common
shares without par value, of which 1,000 common shares are issued and
outstanding and owned of record by Rubbermaid. All of the outstanding
Acquico common shares are validly issued, fully paid, and nonassessable;
(g) The Agreement, when executed and delivered by Rubbermaid and
Acquico, will be a valid and binding obligation of Rubbermaid and Acquico
enforceable in accordance with its terms, except as may be limited by
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bankruptcy, insolvency, reorganization, moratorium, or other laws
relating to or affecting the enforcement of creditors' rights generally;
(h) To the best knowledge of counsel after reasonable inquiry,
the Agreement does not violate or contravene any of the provisions of
Rubbermaid's Articles of Incorporation and Code of Regulations or the
Certificate of Incorporation or By-Laws of Acquico or any resolution,
indenture, agreement or judgment of Rubbermaid or Acquico to which each
is a party or by which they are bound.
In rendering their opinion, counsel for Buyer may rely on certificates of
Buyer's officers or of governmental authorities and on opinions of associate
counsel.
9.4 CORPORATION APPROVAL. The Board of Directors of Buyer shall have
duly authorized and approved the execution and delivery of this Agreement and
all corporate action necessary or proper to fulfill the obligations of Buyer
to be performed under this Agreement on or before the Closing Date.
9.5 RELATED TRANSACTIONS. The consummation of the Plan of
Reorganization entered into on the________ day of June, 1994, by and between
Rubbermaid Incorporated, Acquico, Inc., Empire Brushes, Inc., National Brush
Company, Jack Gantz Irrevocable Trust No. 2, Sarita Gantz Irrevocable Trust
No. 3, Sarita Gantz Revocable Trust; the consummation of the Real Estate
Purchase Agreements by and among Acquico and Rubbermaid, and Sellers as
defined in the Plan of Reorganization.
9.6 IMPEDIMENTS TO AGREEMENT. No action or proceeding against Buyer,
Sellers, or the consummation of this Agreement shall have been instituted
which renders it impossible for either party to consummate this Agreement.
9.7 APPROVALS AND CONSENTS. There shall have been obtained all
approvals required under any applicable federal or state laws or of any other
applicable regulatory authority for the consummation of this transaction.
9.8 APPROVAL OF DOCUMENTS. The form and substance of all
certificates, instruments, opinions, and other documents delivered to Sellers
under this Agreement shall be satisfactory in all reasonable respects to
Sellers and their counsel.
9.9 RELEASE. Sellers and the resigning directors and officers of
Empire Group shall have received a general release in the form of EXHIBIT G
from any claim of Empire Group, Rubbermaid or Acquico, including any rights of
contribution or subrogation from or through Empire Group, other than claims of
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Rubbermaid pursuant to this Agreement and the other Agreements provided for
herein, and the Real Estate Purchase Agreements.
9.10 EXPIRATION OF WAITING PERIODS. Immediately prior to the Closing
Date, all waiting periods required with respect to this Agreement and the
transactions contemplated herein and in the Plan of Reorganization by the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the regulations
promulgated thereunder shall have expired or all necessary approvals
thereunder shall have been received.
ARTICLE 10
----------
DAMAGE TO PURCHASED ASSETS PRIOR TO CLOSING
-------------------------------------------
Owner shall promptly advise Buyer of any damage or destruction to the
Purchased Assets, whether by fire or other cause, occurring prior to the
Closing Date. If such damage or destruction shall materially and adversely
affect the business of the Empire Group and shall not have been repaired or
reconstructed prior to the Closing Date in a good and workmanlike manner to
the reasonable satisfaction of Buyer, Buyer may, at Buyer's option:
(a) Receive the proceeds of any insurance payable in connection
therewith not theretofore applied to repair and reconstruction plus a
cash payment by Sellers of the deductible amount, if any, under the
insurance policy or policies covering the property not theretofore
applied to repair and reconstruction by Owner or Lessee and thereupon
remain obligated to perform this Agreement without any adjustment of the
Purchase Price; or
(b) Terminate this Agreement; provided that Buyer shall give
Sellers written notice of Buyer's election to terminate, and Sellers
shall be entitled to an extension of up to 90 days to permit completion
of the restoration and repair, in which event the Agreement shall not
terminate, and the closing shall occur within 10 days after notice to
Buyer of such completion.
Upon termination of this Agreement by Buyer pursuant to this Article 10,
neither party shall thereafter be under any further liability to the other and
Owner shall pay all costs of the title examination and title commitment and
any escrow fee. Owner further agrees to execute such instruments as may be
necessary to assign to Buyer any insurance policies presently in effect upon
the property which Buyer elects to assume on the Closing Date.
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ARTICLE 11
----------
BULK SALES LAW
--------------
BULK SALE. If this transaction is subject to the Bulk Sales Law of the
State of North Carolina, the Sellers and Buyer shall comply therewith unless
Buyer shall waive such compliance.
ARTICLE 12
----------
CLOSING
-------
12.1 CLOSING DATE. This transaction shall be completed by the
deliveries to be made by Buyer and Sellers in accordance with this Agreement
(the "Closing") at the offices of Milbank, Tweed, Hadley & McCloy, One Chase
Manhattan Plaza, New York, NY 10005-1413, at 10:00 a.m. on or before the 3Oth
day of June, 1994, or at such other time and place as the parties may agree to
in writing (the "Closing Date").
12.2 DELIVERIES BY SELLERS. At or prior to Closing, Sellers shall
deliver the following documents to Buyer, all duly and properly executed:
(a) A good and sufficient Conveyance and Assignment and Bill of
Sale in the form attached as EXHIBIT H, shall be in the form and
substance reasonably satisfactory to Buyer, conveying, selling,
transferring and assigning to Buyer title to the Real Estate Leases and
Operating Information, free and clear of all security interests, liens,
charges, encumbrances or equities whatsoever, except the Permitted
Encumbrances and those matters approved in writing by Buyer prior to the
Closing Date;
(b) A good and sufficient special warranty deed in form and
substance as set out on EXHIBIT A hereto reasonably satisfactory to Buyer
conveying the Real Property, subject to Permitted Encumbrances and other
matters approved in writing by Buyer. Owner agrees to provide the
special warranty deed in advance of Closing to a title company, or agent
thereof, in order that the closing of the acquisition of the Real
Property and the recording of the deed can be coordinated with the other
acquisitions described in Section 8.1 hereof. The special warranty deed
held by the title company, or agent thereof, shall be held in escrow and
shall not be recorded until instructed to do so by counsel for Sellers;
(c) Such other separate instruments of sale, assignment or
transfer that Buyer may reasonably request in order to perfect, confirm
or evidence title in Buyer to all or any part of the Purchased Assets,
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subject to the Permitted Encumbrances and other matters approved in
writing by Buyer;
(d) A closing statement reasonably agreed to by Buyer which
reflects the adjustments to the Purchase Price as called for herein, and
the costs to be borne by each party pursuant to this Agreement;
(e) The affidavit on foreign person status as required by
Section 4.17;
(f) The certifications required by Sections 8.5 and 8.8;
(g) Any approvals and consents required by Sections 8.4, 8.7,
8.9 and 8.14;
(h) The opinion of Sellers' counsel as required by Section 8.12;
(i) Letters as required by Section 8.16(c);
(j) Certificate of Good Standing as required by Section 8.17.
12.3 DELIVERIES BY BUYER. On or prior to the Closing Date, Buyer shall
deliver the following to Sellers or Escrow Agent, all duly and properly
executed:
(a) To Sellers, the opinion of Buyer's counsel as required by
Section 9.3;
(b) To Sellers and Escrow Agent, subject to the requirements and
limitations contained in Article 14, Buyer shall deliver the shares
calculated pursuant to Sections 2.3 and 13.1 respectively;
(c) To Sellers, a closing statement reasonably agreed to by
Sellers which reflects adjustments to the Purchase Price as called for
herein, and the costs to be borne by each party pursuant to this
Agreement;
(d) Any other items requested by the title company or provided
for herein.
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ARTICLE 13
----------
ESCROW
------
13.1 PAYMENT TO ESCROW AGENT. Upon closing of this Agreement, Buyer
shall deliver 5 percent of the total Shares to be delivered hereunder to
Chemical Bank, New York, New York, as Escrow Agent, to be held, administered,
set off and disbursed pursuant to the terms and conditions of the Master
Escrow Agreement attached to the Plan of Reorganization and made a part
hereof.
13.2 SETOFF NOT LIMITATION OF LIABILITY. The setoff against Shares in
escrow or the delivery to Sellers of any Shares remaining in the escrow
account as called for in the Master Escrow Agreement shall in no way relieve
Sellers from any liability or obligations imposed pursuant to this Agreement
including any right of indemnification, but the aggregate liability or
obligation of Sellers under this Agreement, the other Real Estate Purchase
Agreements, and the Plan of Reorganization shall be subject to the limitation
thereon set forth in Sections 13.7 and 14.1(d), (e), (f), (g), and (h) of the
Plan of Reorganization.
ARTICLE 14
----------
SELLERS' AGREEMENT RELATING TO SHARES
-------------------------------------
AND COMPLIANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933
------------------------------------------------------------------
In order to induce Buyer to cause its Rubbermaid Common Shares to be
distributed to Owner as provided in this Agreement, Seller, which includes
each individual defined as a Seller in this Agreement, jointly and severally,
make the following additional representations, warranties, and agreements:
14.1 EVALUATION OF INVESTMENT. Sellers have sufficient knowledge and
experience in business and financial matters and are capable of evaluating an
investment in Rubbermaid Common Shares; and in addition thereto, have retained
Tanner & Co., who Sellers represent is a qualified investment banker, to aid
them in evaluating the merits of this transaction.
14.2 OWN ACCOUNT. Subject to Section 16.4 of this Agreement, Sellers
are acquiring the Shares as a result of this transaction for their own account
for investment purposes and without a view to the distribution thereof.
14.3 RECEIPT OF INFORMATION. Sellers have been furnished with copies
of Rubbermaid's (i) Annual Reports on Form 10-K for the fiscal years ended
December 31, 1993, 1992, 1991, and 1990, (ii) Quarterly Report on Form 10-Q
for the quarters ended March 31, 1993 and 1994, June 30, 1993, and
September 30, 1993, and (iii) Proxy Statements relating to its Annual Meetings
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of Shareholders held in 1994, 1993, 1992, and 1991. Sellers have had the
opportunity to ask questions of, and receive answers from, officers and
employees of Buyer concerning this Agreement, the Agreement and Plan of
Reorganization, and Buyer's business and financial condition. In reliance on
the foregoing, Sellers have had the opportunity to form their own independent
judgment with respect to Buyer's business and financial condition.
14.4 RETENTION AND DISPOSITION OF SHARES. Sellers acknowledge that the
Shares received by them as a result of this transaction will be "restricted
securities." Accordingly, Sellers agree that they are subject to certain
restrictions in connection with any attempt by them to offer to sell, sell,
transfer or otherwise dispose of the Shares received by them as a result of
this transaction and therefore covenant with Buyer as follows:
On or prior to the Closing Date, the Sellers will furnish to Buyer
letters in the form and substance of EXHIBIT I attached hereto and made a part
hereof, whereby Sellers agree with Buyer that:
(a) Sellers shall not offer to sell, sell, transfer or otherwise
dispose of any of the Shares received by them as a result of this
transaction, except in accordance with the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder and the
legend contained on the Shares as set forth in subparagraph (b) below.
(b) Sellers hereby consent to Buyer's issuance of stop transfer
instructions to the Transfer Agent for the Shares, with respect to the
Shares received by them as a result of this transaction and covered by
the letter agreement. Such stop transfer instructions shall apply to the
Shares issued to Sellers and shall be for the period set out in Section
14.4(a) above. Sellers agree with the placement of the following legend
on the certificates representing such Shares, or any substitutions
therefor:
SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO A REGISTRATION STATEMENT THEN IN EFFECT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNLESS RUBBERMAID INCORPORATED
("RUBBERMAID") SHALL HAVE RECEIVED A LEGAL OPINION, IN
FORM AND SUBSTANCE SATISFACTORY TO RUBBERMAID, OF
COUNSEL SATISFACTORY TO RUBBERMAID, TO THE EFFECT THAT
THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY
BE LEGALLY EFFECTED WITHOUT REGISTRATION UNDER THE
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SECURITIES ACT AND THE RULES AND REGULATIONS
THEREUNDER.
14.5 INFORMATION USED IN PROSPECTUS.
(a) All information previously or hereafter furnished to Buyer
by Sellers for use in the preparation of the Registration Statement (and
the related prospectus), and all amendments and supplements thereto, is
and will be at the effective date of the Registration Statement or as of
the date of any amendment or supplement, as the case may be, true,
correct and complete in all material respects, and will include all
material facts required to be stated therein or necessary to make the
statements therein not misleading. Sellers covenant to deliver or cause
to be delivered a copy of the then current prospectus covering the
registered Shares to each person to whom any of such shares are offered
for sale.
(b) All information furnished by Rubbermaid for use in the
preparation of the Registration Statement (and the related prospectus),
and all amendments and supplements thereto, is and will be at the
effective date of the Registration Statement or as of the date of any
amendment or supplement, as the case may be, true, correct and complete
in all material respects, and will include all material facts required to
be stated therein or necessary to make the statements therein not
misleading.
ARTICLE 15
----------
SELLERS' OBLIGATIONS AFTER CLOSING
----------------------------------
Sellers covenant that from and after the Date of Closing:
15.1 SELLERS' INDEMNITY: Sellers shall indemnify, defend, and hold
harmless Buyer against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies, including interest, penalties, and reasonable attorneys' fees
(net after-tax when applicable), that it shall incur or suffer, which arise,
result from, or relate to:
(a) Any material breach of, or failure by Sellers to perform,
any of their representations, Warranties, covenants, or agreements other
than representations and warranties as to the status of title to the real
estate in this Agreement or in any schedule, certificate, exhibit, or
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other instrument furnished or to be furnished by Sellers under this
Agreement;
(b) The transfer of Purchased Assets or Buyer's ownership of the
Purchased Assets to the extent that the event giving rise to such claim
accrued or occurred prior to the Closing;
(c) Subject to the provisions of Article XIV in the Agreement
and Plan of Reorganization, Sellers' indemnification contained in
subparagraphs (a) and (b) shall expire on the first anniversary of the
Closing Date. The indemnification period for items of tax liability
discovered by Buyer pursuant to its due diligence prior to Closing as to
which written notice is given to Sellers within one (1) year after
Closing may be extended beyond one (1) year for specified time frames as
to such specific items.
(d) The indemnity provided for herein shall be limited as
provided herein and in Sections 13.7 and 14.1(d), (e), (f), (g), and (h)
of the Plan of Reorganization.
15.2 NOTIFICATION BY BUYER. Buyer shall promptly notify Sellers of the
existence of any claim, demand, or other matter to which Sellers'
indemnification obligations would apply, and shall give them a reasonable
opportunity to defend the same at their own expense and with counsel of their
own selection; provided, that Buyer shall at all times also have the right to
fully participate in the defense at its own expense. If Sellers shall, within
a reasonable time after this notice, fail to defend, Buyer shall have the
right, but not the obligation, to undertake the defense of, and to compromise
or settle (exercising reasonable business judgment), subject to Sellers'
consent which shall not be unreasonably withheld, the claim or other matter on
behalf, for the account, and at the risk, of Sellers. If the claim is one
that cannot by its nature be defended solely by Sellers (including, without
limitation, any federal or state tax proceeding), then Buyer shall make
available all information and assistance that Sellers may reasonably request.
15.3 FURTHER ASSURANCES. Upon the reasonable request of either party,
the other party will from time to time after the Closing, without charge,
execute, acknowledge and deliver or cause to be delivered any and all such
further assignments, transfers, conveyances, or other instruments as may be
reasonably required in conformity with this Agreement for purposes of
completing any of the transactions hereunder.
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15.4 LIMITATION ON OFFERING. If, in connection with any underwritten
primary or secondary offering of Rubbermaid Common Shares, the underwriters
request that Sellers agree not to sell the Shares other than as a part of such
offering, Sellers shall enter into such agreement for a period not to exceed
90 days from the announcement of such offering. Any expenses of Sellers in
connection with this provision shall be borne by Buyer.
15.5 RESTRICTIONS ON SHARES. The Sellers shall be obligated by the
provisions of Article 14.
ARTICLE 16
----------
BUYER'S OBLIGATIONS AFTER CLOSING
---------------------------------
Buyer covenants that from and after the Date of Closing:
16.1 BUYER'S INDEMNITY. Buyer agrees to indemnify, defend and hold
harmless Sellers against, and in respect of, any and all claims, losses,
expenses, costs, obligations, liabilities, damages, recoveries, and
deficiencies, including interest, penalties, and reasonable attorney fees (net
after-tax when applicable) it may incur or suffer by reason of or which are
from or relate to Buyer's breach of or failure to perform any of its
warranties, commitments, or covenants in this Agreement or by reason of any
act or omission of Buyer or after the Closing, Empire Group or any of their
successors or assigns after the Closing Date that constitutes a breach or
default under any loan agreement, contract, order, or other agreement to which
it is a party or by which it is bound at the Closing Date.
16.2 ACCESS TO BUSINESS INFORMATION. Buyer agrees to provide Owner
with reasonable access to the business information of Owner transferred to
Buyer, to the extent necessary to permit Owner to prepare its tax returns.
16.3 RESERVED.
16.4 REGISTRATION OF SHARES. Within 30 days of the Closing Date,
Rubbermaid shall prepare and file with the SEC the Registration Statement
pursuant to the Securities Act of 1933 as amended and the rules and
regulations thereunder in respect of the Shares received by Sellers as a
result of the Reorganization. Rubbermaid shall use all reasonable efforts to
cause such Registration Statement to become effective and will advise Sellers
when it has become effective. In order to permit Sellers an opportunity to
resell the Shares received by them as a result of this transaction, Rubbermaid
shall also use all reasonable efforts to maintain the effectiveness of the
Registration Statement for a period of two years plus any period as to which
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Shareholders agree not to sell Shares pursuant to Section 14.7 of the Plan of
Reorganization or the earlier sale of all of the Shares covered thereby.
16.5 EXCHANGE LISTING. Rubbermaid covenants with Sellers that it shall
use all reasonable efforts to obtain approval for listing on the New York
Stock Exchange of the Rubbermaid Common Shares covered by the Registration
Statement prior to the effective date thereof.
16.6 COSTS OF REGISTRATION. Rubbermaid shall pay or cause to be paid
all of its costs and expenses in connection with effecting and maintaining the
registration evidenced by the Registration Statement, including all printing
costs and SEC filing fees, legal fees, accounting fees, Blue Sky costs, and
the New York Stock Exchange listing. Shareholder shall bear all costs and
expenses associated with the offer and sale of the registered Shares,
including any brokerage commissions, Transfer Agent fees and transfer taxes.
ARTICLE 17
----------
BROKERS AND EXPENSE OF TRANSACTION
----------------------------------
17.1 NO COMMISSION. Except as listed on SCHEDULE 17.1, the parties
agree that this Agreement was not induced or procured through any person, firm
or corporation acting as a broker or finder. Buyer and Sellers agree to hold
each other harmless from any loss, damage or expense resulting from any claim
by any person, firm or corporation based upon any such person, firm or
corporation having acted as a broker or finder for or in connection with this
transaction on behalf of Buyer on the one hand, or on behalf of Sellers on the
other.
17.2 EXPENSES. Each of the parties shall pay all costs and expenses
incurred or to be incurred by it in negotiation and preparation of this
Agreement and in closing and carrying out the transactions contemplated by
this Agreement, except as set forth in Section 17.2 of the Plan of
Reorganization.
ARTICLE 18
----------
FORM OF AGREEMENT
-----------------
18.1 HEADINGS. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for purposes of convenience only,
and shall not affect the construction or interpretation of any of its
provisions.
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<PAGE> 36
18.2 MODIFICATION AND WAIVER. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by all the parties.
No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
18.3 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
18.4 NO OTHER REPRESENTATIONS OR WARRANTIES. Neither party makes any
representations or warranties, and neither party relies on any representations
or warranties, other than those expressly set forth in this Agreement or in
instruments executed and delivered pursuant to this Agreement.
18.5 NO RECORDING. Neither this Agreement nor any Memorandum or
affidavit thereof shall be recorded.
ARTICLE 19
----------
PARTIES
-------
19.1 RIGHTS OF PARTIES. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons or entities other than the parties to it and
their respective successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party to this
Agreement.
19.2 ASSIGNMENT. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties to it and their respective heirs, legal
representatives, successors, and assigns.
19.3 RESERVED.
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<PAGE> 37
19.4 GUARANTEE.
(a) Joseph M. Gantz, Elaine Gantz Berman, and Sarita Gantz join
in the execution of this Agreement for the purpose of guaranteeing the
performance of Sellers hereunder.
(b) Joseph M. Gantz, Elaine Gantz Berman, and Sarita Gantz
jointly and severally guarantee the performance of Sellers under this
Agreement and the representations, warranties, covenants, undertakings,
and agreements contained therein, subject however to the overall
limitation of liability contained in Section 15.1.
ARTICLE 20
----------
REMEDIES
--------
20.1 JURISDICTION. The parties hereby irrevocably consent to the
jurisdiction of the United States Federal District Court for the District in
which the Purchased Assets are located.
20.2 COSTS. If any legal action 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 and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
20.3 TERMINATION. Either party may on the Closing Date terminate this
Agreement, without liability to the other, in the following events:
(a) If any bona fide action or proceeding shall be pending
against either party on the Closing Date that could result in an
unfavorable judgment, decree, or order that would prevent or make
unlawful this transaction, or if any agency of the federal or of any
state government shall have given written notice at or before the Closing
Date that an action or proceeding would be brought to revoke this
acquisition or any other action required by or in connection with this
Agreement; or
(b) By mutual consent of the parties;
-36-
<PAGE> 38
(c) If there has been a material misrepresentation or breach of
warranty as that term is defined in the Agreement and Plan of
Reorganization in Section 9.24 on the part of the other party of the
representations and warranties set forth herein; or
(d) Subject to Section 9.24 of the Plan of Reorganization, if
the Plan of Reorganization does not close pursuant to the terms thereof
or is otherwise terminated.
20.4 TERMINATION ON DEFAULT. If either Buyer or Seller materially
default in the due and timely performance of any of its or their warranties,
covenants, or agreements under this Agreement as defined above, the
nondefaulting party or parties may on the Closing Date, subject to Section
9.24 of the Agreement and Plan of Reorganization, give notice of termination
of this Agreement, in the manner provided in paragraph 21.2. The notice shall
specify with particularity the default or defaults on which the notice is
based. The termination shall be effective at 12:00 midnight of the Closing
Date or any extension thereof, unless the specific default or defaults have
been cured on or before this effective time for termination.
20.5 TERMINATION BY BUYER. Buyer on the Closing Date may terminate
this Agreement, without liability to Sellers, if any of the conditions
precedent to Buyer's obligation to close as contained in Article VIII of this
Agreement have not been satisfied or waived.
20.6 TERMINATION BY SELLERS. Sellers on the Closing Date may terminate
this Agreement, without liability to Buyer, if any of the conditions precedent
to Sellers' obligation to close as contained in Article IX of this Agreement
have not been satisfied or waived.
20.7 OPPORTUNITY TO CURE. Notwithstanding anything to the contrary
contained herein, neither party shall exercise a right of termination unless
written notice of the intention to so terminate and the basis therefor, in
detail, shall have been given to the other party and the other party shall
have failed to cure the default or matter which is the basis for such election
within thirty (30) days after such notice.
ARTICLE 21
----------
NATURE AND SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS AND NOTICE
-----------------------------------------------------------------
21.1 EFFECT OF CLOSING. All representations, warranties, covenants,
and agreements of the parties contained in this Agreement, or in any
instrument, certificate, opinion, or other writing provided for in it, shall
-37-
<PAGE> 39
survive the Closing for a one-year period of time except as otherwise limited
in this Agreement.
21.2 NOTICES. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice
is to be given, or on the third day after mailing, if mailed to the party to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid and properly addressed as follows:
To Buyer:
Rubbermaid Incorporated
1147 Akron Road
Wooster, OH 44691
Attention: Corporate Secretary
With a copy to:
Lincoln Oviatt
Critchfield, Critchfield & Johnston
225 North Market Street
Wooster, OH 44691
To Sellers:
Joseph M. Gantz
146 Longmeadow Road
Greenville, NC 27858
With a copy to:
Martin Blackman
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, NY 10005-1413
Any party may change its address for purposes of this paragraph by giving
the other party written notice of the new address in the manner set forth
above.
-38-
<PAGE> 40
ARTICLE 22
----------
FAIR INTERPRETATION AND SEVERABILITY
------------------------------------
22.1 FAIR INTERPRETATION. Every covenant, term, and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against either party.
22.2 SEVERABILITy. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
or legality of the remainder of this Agreement.
ARTICLE 23
----------
GOVERNING LAW
-------------
This Agreement shall be construed in accordance with, and governed by,
the law of the state where the Purchased Assets are located.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it
on the day and year first above written.
Signed and Acknowledged in
the Presence of: ("Buyer")
Not Decipherable
____________________________ I. RUBBERMAID INCORPORATED
Not Decipherable
Not Decipherable BY: ----------------------------
____________________________
Not Decipherable II. ACQUICO, INC.
____________________________
Not Decipherable By: Not Decipherable
____________________________ -----------------------------
-39-
<PAGE> 41
("Owner")
Not Decipherable III. EJG REALTY, L.L.C.
- ------------------------------ A North Carolina Limited Liability
Not Decipherable Company
- ------------------------------
By: /S/ JOSEPH M. GANTZ
-----------------------------
Joseph M. Gantz, Manager
("Members")
- ------------------------------ IV. /s/ Elaine Gantz Berman
------------------------------
Elaine Gantz Berman
- ------------------------------
- ------------------------------ /s/ Joseph M. Gantz
Not Decipherable V. -------------------------------
- ------------------------------ Joseph M. Gantz
Not Decipherable
- ------------------------------
STATE OF NEW YORK :
: SS.
COUNTY OF NEW YORK:
Before me, a Notary Public, in and for said State, personally appeared she
above named RUBBERWAID INCORPORATED, by Martin Degnan, its Vice President, Who
acknowledged that he did sign the foregoing instrument, and that the
same is the free act and deed of said Corporation and the free act and deed
of him personally and as such officer.
In TESTIMONY WHEREOF, I have hereunto set my hand and official seal
at ______________________, ________________, this 15th day of June, 1994.
/S/ Guy G. Locksmith
---------------------------------
Notary Public
STATE OF NEW YORK :
: SS.
COUNTY OF NEW YORK:
Before me, a Notary Public, in and for said State, personally appeared the
above named ACQUICO, INC., by Donald G. Rubright, its Vice President, who
acknowledged that he did sign the foregoing instrument, and that the same is
the free act and deed of said Corporation and the free act and deed of him
personally and as such officer.
In TESTIMONY WHEREOF, I have hereunto set my hand and official seal
at _____________,______________, this 15th day of June, 1994.
/s/ Guy G. Locksmith
--------------------------
Notary Public
-40-
<PAGE> 42
STATE OF________ :
: SS.
COUNTY OF_______ :
Before me, a Notary Public, in and for said State, personally appeared
the above named ACQUICO, INC., by ______________, its _______________, who
acknowledged that he did sign the foregoing instrument, and that the same is
the free act and deed of said Corporation and the free act and deed of him
personally and as such officer.
In TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
______________________, ______________, this____ day of____________, 1994
-----------------------
Notary Public
STATE OF NEW YORK :
: SS.
COUNTY OF NEW YORK:
Before me, a Notary Public, in and for said State, personally appeared
the above named EJG REALTY, L.L.C., a North Carolina Limited Liability
Company, by Joseph M. Gantz, Manager, who acknowledged that he did sign the
foregoing instrument, and that the same is the free act and deed of said
Company and the free act and deed of him personally and as such Manager.
In TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
____________________, _________________, this 15th day of June, 1994.
/s/ Guy G. Locksmith
--------------------------------
Notary Public
-41-
<PAGE> 43
STATE OF NEW YORK :
: SS.
COUNTY OF NEW YORK:
Before me, a Notary Public, in and for said State, personally appeared
the above named JOSEPH M. GANTZ, who acknowledged that he did sign the
foregoing instrument, and that the same is his free act and deed.
In TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
__________________, _______________, this 15th day of June, 1994.
/s/ Guy G. Locksmith
- ---------------------------
Notary Public
STATE OF_________ :
: SS.
COUNTY OF________ :
Before me, a Notary Public, in and for said State, personally appeared
the above named ELAINE GANTZ BERMAN, who acknowledged that she did sign the
foregoing instrument, and that the same is her free act and deed.
In TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
____________________, _______________, this _____ day of ________________,
1994.
- -------------------------------
Notary Public
-42-
<PAGE> 1
EXHIBIT 5
CRITCHFIELD, CRITCHFIELD & JOHNSTON
ATTORNEYS AT LAW
WALTER C. GROSJEAN 225 NORTH MARKET STREET
LINCOLN OVIATT P. O. BOX 488 ROBERT CRITCHFIELD
JOHN T. WIGHAM WOOSTER, OH 44691-0488 (1903-1981)
JOHN R. WALTMAN ______
JOHN C. JOHNSON III (216) 264-4444 HENRY B. CRITCHFIELD
DANIEL H. PLUMLY TELECOPIER (216)263-9278 (1905-1980)
J. DOUGLAS DRUSHAL ______
DANIEL L. MATHIE IN MILLERSBURG
CHRISTOPHER M. MILLIK SCHULER LAW FIRM JOHN C. JOHNSON, JR.
PEGGY J. SCHMITZ CRITCHFIELD, CRITCHFIELD & JOHNSON (RETIRED)
BONNIE C. DRUSHAL EN 138 E. JACKSON STREET, SUITE A
ROBERT C. BERRY MILLERSBURG, OH 44654-1294 JUDSON C. SCHULER
SUSAN E. BAKER (216) 674-3055 JOHN W. SCHULER
GARRETT M. ROACH TELECOPIER (216) 674-4469 (COUNSEL)
STEVEN J. SHROCK
DAVID J. WIGHAM
July 29, 1994
Rubbermaid Incorporated
1147 Akron Road
Wooster, Oh 44691
Gentlemen:
We have served as counsel to Rubbermaid Incorporated, an Ohio corporation
("Rubbermaid"), in matters relating to: (i) the Agreemant and Plan of
Reorganization dated June 15, 1994 ("Merger Agreement") by and among
Rubbermaid; Acquico, Inc. (a wholly owned subsidiary of Rubbermaid); Empire
Brushes, Inc., a Delaware corporation; National Brush Company, an Illinois
corporation; and The Jack Gantz Irrevocable Trust No. 2, The Sarita Gantz
Irrevocable Trust No. 3, and The Sarita Gantz Revocable Trust (shareholders of
Empire Brushes, Inc. and National Brush Company); (ii) the Real Estate
Purchase Agreement dated June 15, 1994, by and among Rubbermaid, Acquico, Inc.,
and EJG Realty, L.L.C., of Robersonville, North Carolina; and (iii) the Real
Estate Purchase Agreement dated June 15, 1994, by and among Rubbermaid,
Acquico, Inc., The Gantz Investment Company, of Palm Beach, Florida, and The
Gantz Greenville Company, of Palm Beach, Florida
In rendering this opinion, we have examined certain records of Rubbermaid
and made such inquiries of officers and employees of Rubbermaid as we have
deemed necessary to enable us to render this opinion.
Based upon the foregoing and further facts which have been disclosed to us
by or on behalf of Rubbermaid, it is our opinion that the shares of common
stock which were issued to The Jack Gantz Irrevocable Trust No. 2, The Sarita
Gantz Irrevocable Trust No. 3, The Sarita Gantz Revocable Trust, EJG Realty,
L.L.C., The Gantz
<PAGE> 2
Rubbermaid Incorporated
July 29, 1994
Page 2
Investment Company, and The Gantz Greenville Company, pursuant to
the Merger Agreement and the Real Estate Purchase Agreements were,
at the time of issuance, duly authorized, validly issued, fully
paid, and nonassessable.
Very truly yours,
CRITCHFIELD, CRITCHFIELD & JOHNSTON
/S/ Lincoln Oviatt
------------------------------------
Lincoln Oviatt
LO/bkv
<PAGE> 1
Exhibit 15
Rubbermaid Incorporated
1147 Akron Road
Wooster, Ohio 44691-6000
Ladies and Gentlemen:
Re: Registration Statement No. 33-XXXX
With respect to the subject registration statement, we acknowledge our
awareness of the use therein of our report dated April 12, 1994 related
to our review of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered a part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within
the meaning of sections 7 and 11 of the Act.
Very truly yours,
KPMG Peat Marwick
Cleveland, Ohio
July 29, 1994
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF CRITCHFIELD, CRITCHFIELD & JOHNSTON
We hereby consent to the reference to our firm under the
heading "Legal Opinion" in the Prospectus contained in this
Registration Statement and to the use of our opinion letter as an
Exhibit to this Registration Statement.
CRITCHFIELD, CRITCHFIELD & JOHNSTON
By: /s/ Lincoln Oviatt
---------------------------------
Lincoln Oviatt, Partner
Dated: July 29, 1994
Wooster, Ohio
<PAGE> 1
Exhibit 23(b)
The Board of Directors
Rubbermaid Incorporated:
We consent to the use of our reports dated February 1, 1994 on the consolidated
financial statements and schedules of Rubbermaid Incorporated and subsidiaries
as of December 31, 1993 and 1992, and for each of the years in the three-year
period then ended incorporated herein by reference and to the reference to our
firm under the heading "Experts" in the prospectus.
Our report on the consolidated financial statements refers to a change
in inventory accounting practices and the adoption of the provisions of
Financial Accounting Standards Board's Statements of Financial Accounting
Standards Nos. 109 and 106, ACCOUNTING FOR INCOME TAXES AND EMPLOYERS
ACCOUNTING FOR POSTRETIREMENT BENEFITS OTHER THAN PENSIONS, respectively, in
1992.
KPMG Peat Marwick
Cleveland, Ohio
July 29, 1994
<PAGE> 1
Exhibit 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid Incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the real estate occupied by Empire Brushes, Inc. in Robersonville
and Greenville, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, place, and stead of the undersigned to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and alI applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand as
of July 18th, 1994.
/s/ Tom H. Barrett
-------------------------
<PAGE> 2
Exhibit 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid Incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the real estate occupied by Empire Brushes, Inc. in Robersonville
and Greenville, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, place, and stead of the undersigned, to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and all applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand as
of July 18th, 1994.
/s/ Zoe Coulson
--------------------------
<PAGE> 3
Exhibit 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid Incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the real estate occupied by Empire Brushes, Inc. in Robersonvilie
and Greenville, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, place, and stead of the undersigned, to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and all applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand as
of July 18th, 1994.
/s/ Robert O. Ebert
------------------------
<PAGE> 4
Exhibit 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid Incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the reai estate occupied by Empire Brushes, Inc. in Robersonville
and GreenvilIe, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, piace, and stead of the undersigned, to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and all applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand as
of July 18th, 1994.
/s/ Stanley C. Gault
------------------------
<PAGE> 5
EXHIBIT 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid Incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the real estate occupied by Empire Brushes, Inc. in Robersonville
and Greenville, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, place, and stead of the undersigned, to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and all applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand as
of July 15th, 1994.
/s/ Robert M. Gerrity
------------------------------
<PAGE> 6
Exhibit 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid Incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the real estate occupied by Empire Brushes, Inc. in Robersonville
and Greenville, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, place, and stead of the undersigned, to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and all applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand as
of July 18th, 1994.
/s/ Karen N. Horn
------------------------------
<PAGE> 7
Exhibit 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the real estate occupied by Empire Brushes, Inc. in Robersonviile
and Greenville, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, place, and stead of the undersigned, to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and all applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand as
of July 18th, 1994.
/s/ William D. Marohn
------------------------------
<PAGE> 8
Exhibit 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid Incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the real estate occupied by Empire Brushes, Inc. in Robersonville
and Greenville, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, place, and stead of the undersigned, to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and all applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand as
of July 15th, 1994.
/s/ Jan Nicholson
-----------------------
<PAGE> 9
Exhibit 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid Incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the real estate occupied by Empire Brushes, Inc. in Robersonville
and Greenville, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, place, and stead of the undersigned, to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and all applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorney or any such
substitute or substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand as
of July 15th, 1994.
/s/ Steven A. Minter
---------------------------
<PAGE> 10
Exhibit 24
RUBBERMAID INCORPORATED
POWER OF ATTORNEY
The undersigned, a director of Rubbermaid Incorporated, an Ohio
corporation, which anticipates filing with the Securities and Exchange
Commission, Washington, D.C., under the provisions of the Securities Act of
1933, as amended, a Registration Statement on Form S-3 in connection with the
registering of Common Shares previously issued by Rubbermaid Incorporated to
the shareholders of Empire Brushes, Inc. and National Brush Company and the
owners of the real estate occupied by Empire Brushes, Inc. in Robersonville
and Greenville, North Carolina, hereby constitutes and appoints James A.
Morgan, Martin J. Degnan and George C. Weigand, and each of them, as attorney
for the undersigned, with full power of substitution and resubstitution for and
in the name, place, and stead of the undersigned, to sign and file the proposed
registration statement and any and all amendments, post-effective amendments,
and exhibits thereto, and any and all applications and other documents to be
filed with the Securities and Exchange Commission pertaining to such securities
or such registration with full power and authority to do and perform any and
all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorney or any such
substitutes.
IN WITNESS WHEREOF, The undersigned has hereunto set his or her hand
as of July 20th, 1994.
/s/ Paul G. Schloemer
---------------------------------------
