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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 13, 1997
Rubbermaid Incorporated
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(Exact Name of Registrant as Specified in Charter)
Ohio 1-4188 34-0628700
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
1147 Akron Road, Wooster, Ohio 44691-6000
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(Address of Principal Executive Office) (Zip Code)
Registrant's telephone number, including area code: (330) 264-6464
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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Item 2. Acquisition or Disposition of Assets.
On June 13, 1997, Rubbermaid Incorporated (the "Company") completed
the sale of its office products business (the "Office Products Business") to
Newell Co. ("Newell"). Under the terms of the definitive agreement between the
Company and Newell for the sale of the Office Products Business (the
"Agreement"), Newell paid $246.5 million in cash to the Company for the stock of
Rubbermaid Office Products Inc. and other stock and assets comprising the Office
Products Business. The Company and Newell entered into the Agreement following a
controlled auction involving additional bidders. A copy of the Agreement is
attached hereto as Exhibit 2.
Item 7. Financial Statements and Exhibits
(a) Not applicable
(b) Not applicable
(c) Exhibits.
2. Stock and Asset Purchase Agreement dated as of
May 7, 1997, between Rubbermaid Incorporated and
Newell Co. (as amended).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
RUBBERMAID INCORPORATED
Date: June 17, 1997 By: /s/ James A. Morgan
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James A. Morgan
Senior Vice President,
General Counsel and Secretary
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
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2 Stock and Asset Purchase Agreement dated as
of May 7, 1997, between Rubbermaid
Incorporated and Newell Co. (as amended).
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EXHIBIT 2
Pursuant to Regulation S-K, Item 601(b)(2), a summary table of contents for the
Schedules to the Agreement is attached hereto. The Company agrees to furnish a
copy of each omitted Schedule to the Commission upon request.
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STOCK AND ASSET PURCHASE AGREEMENT
between
RUBBERMAID INCORPORATED
and
NEWELL CO.
Dated as of May 7, 1997
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TABLE OF CONTENTS
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ARTICLE I. PURCHASE AND SALE OF STOCK AND ASSETS........................ 2
1.1 Stock; Assets; Liabilities..................................... 2
(a) Stock Purchase............................................ 2
(b) Asset Purchase............................................ 2
(c) Excluded Assets........................................... 7
(d) Assumed Liabilities....................................... 9
(e) Excluded Liabilities...................................... 9
1.2 Assumption of Liabilities; Purchase Price...................... 11
1.3 Intercompany Obligations....................................... 11
1.4 Stock and Asset Purchase Price Allocation...................... 12
ARTICLE II. CLOSING..................................................... 13
2.1 Time and Place................................................. 13
2.2 Deliveries by Seller........................................... 13
2.3 Deliveries by Buyer............................................ 14
2.4 Nonassignability of Assets..................................... 15
ARTICLE III. REPRESENTATIONS AND WARRANTIES............................. 16
3.1 Representations and Warranties of Seller....................... 16
(a) Due Organization of ROP and the ROP
Subsidiaries............................................... 16
(b) Due Organization and Power of Seller and the
Affiliates................................................. 17
(c) Authorization and Validity of Agreements................... 18
(d) Good Title................................................. 18
(e) Capitalization of ROP...................................... 19
(f) ROP Subsidiaries........................................... 20
(g) No Conflict................................................ 21
(h) Financial Statements; Financial Results.................... 22
(i) Tax Matters................................................ 23
(j) Title to Real and Personal Properties; Liens
and Encumbrances; No Other Interests....................... 25
(k) Office Products Business Contracts......................... 26
(l) Legal Proceedings.......................................... 29
(m) Government Licenses, Permits and Related
Approvals.................................................. 29
(n) Conduct of Office Products Business in
Compliance with Regulatory Requirements.................... 30
(o) Labor Matters.............................................. 30
(p) Intellectual Property...................................... 31
(q) Employee Benefit Plans..................................... 32
(r) Brokers, Finders, etc...................................... 32
(s) Environmental Matters...................................... 33
(t) Transactions with Affiliated Parties....................... 36
(u) Absence of Changes......................................... 37
(v) No Other Representations or Warranties..................... 37
(w) Shared Tools............................................... 38
(x) Entirety................................................... 38
(y) Undisclosed Liabilities.................................... 38
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(z) Receivables............................................ 39
(aa) Inventory.............................................. 39
(bb) Conduct of the Office Products Business................ 40
(cc) Insurance.............................................. 40
(dd) Product Liability...................................... 40
(ee) Customers and Suppliers................................ 40
(ff) Copies of Documents.................................... 41
(gg) Maryville, Tennessee Construction Contract............. 41
3.2 Representations and Warranties of Buyer......................... 41
(a) Due Organization and Power............................. 41
(b) Authorization and Validity of Agreements............... 41
(c) No Conflict............................................ 42
(d) Brokers, Finders, etc.................................. 43
(e) Financial Capacity..................................... 44
(f) Buyer's Signage Business............................... 44
ARTICLE IV. COVENANTS........................................................ 44
4.1 Access to Information Concerning Properties and
Records; Confidentiality........................................ 44
(a) Access.................................................... 44
(b) Subsequent Access for Seller.............................. 45
(c) Subsequent Access for Buyer............................... 46
4.2 Conduct of the Office Products Business Prior to
the Closing Date................................................ 46
(a) Ordinary Course........................................... 46
(b) Changes in Compensation................................... 47
(c) Assets.................................................... 47
(d) Capital Stock............................................. 47
(e) Dividends................................................. 48
(f) Capital Expenditures...................................... 48
(g) Liens..................................................... 48
(h) Accounting Practices...................................... 48
(i) Constituent Documents..................................... 48
(j) Inventory................................................. 48
(k) Receivables............................................... 49
(l) Intellectual Property..................................... 49
(m) Acquisitions.............................................. 49
(n) Borrowings................................................ 49
(o) Intercompany Payments..................................... 50
(p) Intercompany Agreements................................... 50
(q) Accounts Payable.......................................... 50
(r) Other..................................................... 50
4.3 Preservation of Business........................................ 50
4.4 Antitrust Laws.................................................. 50
4.5 Cash Management................................................. 51
4.6 Intercompany Services and Products.............................. 52
4.7 Post-Closing Accounting Cooperation............................. 53
4.8 WARN............................................................ 53
4.9 Non-Solicitation of Employees................................... 53
4.10 Seller's Name; ROP Name......................................... 54
4.11 Further Actions................................................. 56
4.12 Covenant Not to Compete......................................... 57
4.13 Transfer Taxes.................................................. 59
4.14 Name Changes.................................................... 59
4.15 Additional Financial Statements................................. 60
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4.16 Insurance....................................................... 60
4.17 No Solicitation................................................. 61
4.18 Indebtedness.................................................... 62
4.19 Collection of Receivables....................................... 62
4.20 Mail............................................................ 62
4.21 Notice.......................................................... 63
4.22. Tangible Net Worth Adjustment................................... 64
4.23. Maryville, Tennessee Construction Contract...................... 67
4.24. Shared Office Space............................................. 67
ARTICLE V. CONDITIONS PRECEDENT........................................... 67
5.1 Conditions Precedent to Obligations of Parties.................. 67
(a) Antitrust Laws............................................. 67
(b) No Proceeding or Injunction................................ 67
(c) Consents................................................... 68
5.2 Conditions Precedent to Obligation of Buyer..................... 68
(a) Accuracy of Representations and Warranties................. 68
(b) Performance of Agreements.................................. 69
(c) Certificate................................................ 69
(d) Consents; Third-Party Rights; Filings;
Notices.................................................... 69
(e) Regulatory Authorizations.................................. 69
(f) Ancillary Agreements....................................... 71
(g) Additional Matters......................................... 71
5.3 Conditions Precedent to the Obligation of Seller................ 71
(a) Accuracy of Representations and Warranties................. 71
(b) Performance of Agreements.................................. 72
(c) Certificate................................................ 72
(d) Assumption Agreement....................................... 72
(e) Additional Matters......................................... 72
ARTICLE VI. PROVISIONS AS TO TAX MATTERS.................................. 73
6.1 Certain Tax Matters............................................. 73
(a) Preparation and Filing of Tax Returns...................... 73
(b) Payment of Taxes........................................... 74
(c) Tax Sharing Agreements..................................... 74
(d) Carryforwards and Carrybacks............................... 75
(e) Refunds.................................................... 75
6.2 Tax Indemnification............................................. 75
(a) Seller Indemnification..................................... 75
(b) Buyer Indemnification...................................... 76
(c) Determining Liability for Taxes............................ 76
6.3 Contest Provisions.............................................. 76
6.4 Tax Election.................................................... 77
(a) Section 338(h)(10) Election................................ 77
(b) Tax Allocation............................................. 78
ARTICLE VII. LABOR MATTERS, EMPLOYEE RELATIONS
AND BENEFITS................................................. 79
7.1 Transferred Employees........................................... 79
7.2 Compensation and Benefits for Transferred
Employees....................................................... 80
7.3 Defined Contribution Plan Transfer.............................. 81
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7.4 No Employee Rights............................................... 83
ARTICLE VIII. SURVIVAL; ASSUMPTION OF CERTAIN OBLIGATIONS
AND LIABILITIES; INDEMNIFICATION............................ 83
8.1 Survival......................................................... 83
8.2 Assumption and Indemnification................................... 84
(a) Indemnification by Buyer.................................... 84
(b) Indemnification by Seller............................... 86
8.3 Procedure........................................................ 88
8.4 Limitation on Indemnification.................................... 90
8.5 Adjustment of Indemnity Payment.................................. 90
8.6 Indemnity Payments............................................... 92
ARTICLE IX. MISCELLANEOUS................................................. 92
9.1 Termination and Abandonment...................................... 92
(a) General.................................................... 92
(b) Procedure Upon Termination................................. 93
(c) Survival of Certain Provisions............................. 94
9.2 Fees and Expenses................................................ 94
9.3 Notices.......................................................... 94
9.4 Entire Agreement................................................. 95
9.5 Binding Effect; Benefit.......................................... 96
9.6 Assignability.................................................... 96
9.7 Amendment and Modification; Waiver............................... 96
9.8 Public Announcements............................................. 97
9.9 Bulk Sales Law................................................... 97
9.10 Section Headings, References..................................... 97
9.11 Counterparts..................................................... 97
9.12 Applicable Law................................................... 98
9.13 Severability of Provisions....................................... 98
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INDEX OF DEFINED TERMS
(not a part of the Agreement)
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Accounts .................................................................81
Acquisition Proposal .....................................................61
Affiliates.................................................................1
Affiliate Intellectual Property............................................6
Ancillary Agreements......................................................71
Assets ....................................................................2
Assumed Liabilities........................................................9
Auditor...................................................................64
Benefit Arrangement.......................................................32
Benefit Arrangements .....................................................32
Business Records...........................................................3
Buyer......................................................................1
Buyer Indemnified Parties ................................................86
Buyer's Knowledge.........................................................42
Buyer's Medical Plan .....................................................81
Buyer's Plan .............................................................81
Carson Plant .............................................................87
Cash Management System....................................................51
CERCLA................................................................... 35
Claims ...................................................................60
Closing...................................................................13
Closing Date..............................................................13
Company....................................................................1
Code......................................................................25
Contracts..................................................................4
Consolidated Tax Returns .................................................73
Damages...................................................................84
Environment ..............................................................35
Environmental Law ........................................................35
Environmental Permits.....................................................36
Environmental Statutes ...................................................34
Equity Rights.............................................................19
ERISA.....................................................................32
Excluded Assets ...........................................................7
Excluded Liabilities.......................................................9
Final Balance Sheet.......................................................66
Financial Statements .....................................................23
FCO.......................................................................70
GAAP .....................................................................23
GWB.......................................................................70
HSR Act...................................................................51
Hazardous Substance ......................................................35
Income Taxes .............................................................73
Indebtedness .............................................................11
Indemnified Liabilities...................................................88
Information...............................................................45
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Insurance Policies .......................................................40
Intercompany Account......................................................11
Intellectual Property.....................................................31
Inventory.................................................................39
Leased Real Property......................................................25
Liabilities................................................................9
Liens.....................................................................19
LIFO......................................................................39
Major Customers...........................................................40
Major Suppliers...........................................................40
Material Adverse Effect...................................................17
Ministry..................................................................70
Net Intercompany Debt.....................................................12
Non-Assigned Contracts.....................................................7
Non-Compete Activities....................................................57
Office Products Business...................................................1
Office Products Business Contract ........................................27
Office Products Business Liabilities .....................................60
Operating Team............................................................79
Outside Date..............................................................93
Owned Real Property.......................................................25
Permitted Liens...........................................................19
Pre-Closing Off-Site Environmental Liabilities............................87
Proforma Balance Sheet ...................................................64
Purchased Inventory...................................................... 3
Quartet Agreement.........................................................44
Release...................................................................36
ROP........................................................................1
ROP Subsidiaries...........................................................1
Seller.....................................................................1
Seller Indemnified Parties................................................84
Seller's Insurance Policies ..............................................60
Seller's Knowledge........................................................21
Seller's Objection .......................................................65
Seller's Plan.............................................................81
Shared Tools...............................................................8
Stock......................................................................2
Stock and Asset Purchase Price............................................11
Tangible Net Worth........................................................64
Taxes.................................................................... 23
Tax Returns...............................................................23
338(h)(10) Election.......................................................78
Transfer Date.............................................................81
Transferred Employees.....................................................79
Transaction Agreements....................................................18
WARN......................................................................53
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STOCK AND ASSET PURCHASE AGREEMENT
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STOCK AND ASSET PURCHASE AGREEMENT, dated as of May 7, 1997,
between Newell Co., a corporation organized and existing under the laws of the
State of Delaware ("Buyer"), and Rubbermaid Incorporated, a corporation
organized and existing under the laws of the State of Ohio ("Seller").
Seller, through its wholly-owned subsidiary Rubbermaid Office
Products, Inc. ("ROP"), the subsidiaries of ROP listed on Exhibit A hereto (the
"ROP Subsidiaries" and collectively with ROP, the "Company") and the Company's
affiliates listed on Exhibit B hereto (the "Affiliates") is engaged in the
design, manufacture, marketing and sale worldwide of computer and desk
accessories, office furniture, chairmats, storage and organization products and
other office products ("Office Products Business").
Buyer desires to purchase, and Seller desires to sell, the
Office Products Business as a going concern, including 100% of the outstanding
shares of stock of ROP, upon the terms and subject to the conditions set forth
herein, and Buyer and/or one or more subsidiaries of Buyer desire to purchase
from the Affiliates, and such Affiliates desire to sell to Buyer and/or such
subsidiaries, the assets, subject to the assumption of certain liabilities,
comprising the Office Products Business presently operated by such Affiliates
upon the terms and subject to the conditions set forth herein.
The parties hereto agree as follows:
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ARTICLE I
PURCHASE AND SALE OF STOCK AND ASSETS
1.1 STOCK; ASSETS; LIABILITIES. (a) STOCK PURCHASE. Upon the
terms and subject to the conditions of this Agreement, at the Closing (as
defined in Section 2.1), Seller shall sell, and Buyer shall purchase, all of
the capital stock (the "Stock") of ROP.
(b) ASSET PURCHASE. Upon the terms and subject to the
conditions of this Agreement, at the Closing, Seller shall cause each of the
Affiliates to sell, convey, assign, transfer and deliver to Buyer and/or one or
more of its subsidiaries, and Buyer, and/or one or more of its subsidiaries,
shall purchase, acquire and accept from the Affiliates all of each Affiliate's
right, title and interest in and to the rights, privileges, claims and
contracts, real and personal, tangible and intangible, known or unknown, actual
or contingent, and to the assets and properties that are owned by the
Affiliates and principally used, or held for use, by the Affiliates in
connection with any Affiliate's operation of the Office Products Business,
wherever located, as the same shall exist as of the Closing Date (as defined in
Section 2.1), including, without limitation, the following assets of the
Affiliates that are so principally used or held for use (such assets,
properties, rights, privileges, claims and contracts being sold, conveyed,
assigned, transferred and delivered to Buyer or its subsidiaries being referred
to collectively as, the "Assets"):
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(i) PURCHASED INVENTORY. All inventories of products
and finished goods, including items purchased for
distribution or resale and items which have been ordered for
the Office Products Business operated by the Affiliates
(collectively, the "Purchased Inventory");
(ii) MATERIALS. All raw materials, work in process and
packaging materials of the Office Products Business operated by the
Affiliates, together with the spare parts and supplies that are used,
or held for use, principally in connection with the Office Products
Business;
(iii) RECEIVABLES. All accounts, notes and other
receivables arising from the operations of the Office
Products Business operated by the Affiliates in existence on
or prior to the Closing Date (whether or not billed);
(iv) BUSINESS RECORDS. All books, records, files and tangible
data relating to the Office Products Business operated by the
Affiliates, including all business records, research material, records
relating to Purchased Inventory, purchasing, accounting, sales,
pricing, marketing and shipping documents, personnel records with
respect to the Transferred Employees (as defined in Section 7.1),
invoices, customer lists, vendor lists, service provider lists,
promotional literature, catalogs and advertising materials related to
the Office Products Business operated by the Affiliates, in each case,
however evidenced, by original or copy (including without limitation by
computer disk or tape), if any (collectively, the "Business Records");
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(v) TANGIBLE PERSONAL PROPERTY. All tangible personal property
primarily relating to the Office Products Business operated by the
Affiliates, including all equipment, furniture, furnishings, machinery,
vehicles, tools, molds and other tangible personal property, material
items of which are set forth on Schedule 1.1(b)(v), and all warranties
and guarantees, if any, express or implied, existing for the benefit of
the Affiliates, Seller or its subsidiaries or in connection with the
foregoing;
(vi) CONTRACTS. All contracts, agreements, understandings,
commitments or arrangements, written or oral ("Contracts"), relating to
the Office Products Business operated by the Affiliates (other than the
Non-Assigned Contracts, as defined below), including contracts with
third-party molders and finished goods suppliers, maintenance and
service agreements, purchase orders, purchase commitments for raw
materials, goods and other services, advertising and promotional
agreements, leases and other agreements, the material ones of which are
set forth on Schedule 1.1(b)(vi), including the right of the
Affiliates, Seller or its subsidiaries to receive payment for products
sold or services rendered pursuant to Contracts, and to receive goods
and services pursuant to Contracts and to assert claims and take other
rightful actions with respect to breaches, defaults or other violations
thereof;
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(vii) PERMITS. All licenses, permits, approvals, variances and
franchises issued by any governmental or regulatory authority and
primarily relating to the Office Products Business operated by the
Affiliates, to the extent transferable, all material items of which are
set forth on Schedule 1.1(b)(vii);
(viii) REAL PROPERTY. All leasehold interests in real property
relating to the Office Products Business operated by the Affiliates,
all of which are set forth on Schedule 1.1(b)(viii), including all
buildings, structures, fixtures and other improvements situated
thereon, and all easements, privileges, rights-of-way, riparian and
other water rights, lands underlying any adjacent streets or roads,
appurtenances, licenses and permits pertaining to or accruing to the
benefit of such properties;
(ix) INTELLECTUAL PROPERTY. All right, title and interest in
and to the trademarks, patents, service marks, trade names, copyrights,
trade dress, labels, logos, know-how, inventions, designs, trade
secrets, and other similar proprietary rights, including the brand
names, technical information, blueprints, management information
systems, software, technology, processes, know-how, specifications,
designs, drawings, patent applications, inventions, trade secrets,
copyright registrations and applications, works of authorship and
service marks and all agreements, licenses and other rights with
respect to any intellectual property (except, in each case, for
intellectual property that
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constitutes an Excluded Asset (as defined in Section 1.1(c)) that are
used, or held for use, principally in the Office Products Business
operated by the Affiliates (collectively, the "Affiliate Intellectual
Property");
(x) OTHER INTANGIBLE ASSETS. The customer lists,
vendor lists, catalogs, research material and prepaid assets
primarily relating to the Office Products Business operated
by the Affiliates;
(xi) ADVERTISING MATERIALS. The sales promotion
literature and advertising materials primarily used for the
marketing and promotion of the Office Products Business
operated by the Affiliates;
(xii) AFFILIATE BANK ACCOUNTS. Bank accounts of the
Affiliates relating to the Office Products Business, which are set
forth on Schedule 4.5(b);
(xiii) OTHER ASSETS. All other assets reflected on the
Affiliate Balance Sheet (as defined in Section 3.1(h)), and any other
assets related primarily to the Office Products Business which are of a
nature not customarily reflected in the books and records of a
business, including without limitation, assets which have been written
off for accounting purposes but which are used by or are of value to
the Office Products Business operated by the Affiliates; and
(xiv) MISCELLANEOUS. The other assets set forth on Schedule
1.1(b)(xiv), except to the extent that any such assets have been
disposed of in accordance with Section 4.2 during the period commencing
on the date hereof and ending
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at the Closing Date, and including any assets of the nature described
above acquired by the Affiliates during the period commencing on the
date hereof and ending at the Closing Date in the ordinary course of
and primarily for use in the Office Products Business.
(c) EXCLUDED ASSETS. It is expressly understood and
agreed that the following (the "Excluded Assets") are specifically excepted from
the Assets to be transferred to Buyer and/or its subsidiaries pursuant to
Section 1.1(b):
(i) RUBBERMAID BRAND NAME AND TRADEMARK. All rights
of Seller, the Affiliates and any other subsidiary of Seller in the
"Rubbermaid" name, "Rubbermaid" brand name, the "Rubbermaid Office
Products" name and the "Rubbermaid" trademark, except as otherwise
provided in this Agreement or the Ancillary Agreements;
(ii) CASH. All cash and cash equivalents or similar types of
investments of the Affiliates, such as certificates of deposit,
Treasury bills and other marketable securities, but excluding cash held
in petty cash accounts (which are not the accounts referred to in
Sections 1.1(b)(xii) and 4.5(c)) of the Affiliates;
(iii) NON-ASSIGNED CONTRACTS. All of the rights and
interests in, under or pursuant to, any license, lease,
contract, agreement, commitment or undertaking relating to
the Office Products Business set forth on Schedule
1.1(c)(iii), or that do not constitute a part of the Assets
(collectively, the "Non-Assigned Contracts");
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(iv) SHARED TOOLS. All of the tools set forth on
Schedule 3.1(w) (the "Shared Tools");
(v) TAX REFUNDS. All refunds of Taxes (as defined in
Section 3.1(i)) paid by Seller or the Affiliates;
(vi) INSURANCE. All insurance policies of Seller or the
Affiliates pertaining to the Office Products Business and all rights of
Seller or the Affiliates of every nature and description under or
arising out of such insurance policies, other than as provided in
Sections 4.16 and 4.22;
(vii) RECEIVABLES. All receivables of the Affiliates
other than receivables arising from the operations of the
Office Products Business;
(viii) RIGHTS OF THE AFFILIATES. All rights of the
Affiliates under this Agreement and the agreements and
instruments delivered pursuant to or in connection with this
Agreement;
(ix) CORPORATE RECORDS. All minute books, stock
books, share certificates, stock ledgers and corporate seals
of the Affiliates;
(x) EMPLOYEE PLANS. Except as provided in Article
VII, any interest of the Company in or to any funds or other
property held in connection with any Benefit Arrangement (as
defined in Section 3.1(q)); and
(xi) LEASE FOR DIETZENBACH FACILITY. All of the
rights and interests of the Seller and the Affiliates in the
lease agreement for the facility located at Waldstrasse 23,
6057 Dietzenbach, Germany.
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(d) ASSUMED LIABILITIES. Except as otherwise provided in
Section 1.1(e), on the Closing Date, Buyer and/or one or more of its
subsidiaries shall assume and shall thereafter pay, perform and discharge as and
when due all debts, liabilities and obligations of the Affiliates, whether
arising before or after the Closing, known or unknown, vested or unvested,
asserted or unasserted, absolute or contingent, accrued or unaccrued, assessed
or unassessed, liquidated or unliquidated, actual or potential or due to or to
become due ("Liabilities"), including all outstanding checks that have not been
presented for payment, to the extent arising out of or relating to the Office
Products Business operated by the Affiliates (including, without limitation,
their Transferred Employees) or the Assets (the "Assumed Liabilities"). The
assumption by Buyer of the Assumed Liabilities shall not be construed to defeat,
impair or limit in any way Buyer's rights or remedies to in good faith dispute
the validity or amount of any Assumed Liability.
(e) EXCLUDED LIABILITIES. Buyer shall not assume, shall not
take subject to and shall not be liable for, the following Liabilities of
Seller, the Affiliates, or their subsidiaries (the "Excluded Liabilities"):
(i) LIABILITIES RELATED TO EXCLUDED ASSETS. The Liabilities
related to the Excluded Assets, whether arising prior to, on or after
the Closing Date, other than those Liabilities arising out of or
relating to Buyer's use of the Excluded Assets pursuant to the
Transition Services Agreement;
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(ii) LIABILITIES UNDER NON-ASSIGNED CONTRACTS. The
Liabilities of Seller or the Affiliates under or pursuant to the
Non-Assigned Contracts;
(iii) LIABILITIES FOR TAXES. The Liabilities for Taxes for
any taxable period or portion thereof, ending on or before the Closing
Date, subject to the terms and conditions of Section 6.2(a) and
subject to Section 4.13;
(iv) LIABILITIES ASSUMED BY SELLER. The Liabilities for which
Seller has expressly assumed responsibility pursuant to this
Agreement;
(v) LIABILITIES UNDER TRANSACTION AGREEMENTS. Liabilities of
Seller and the Affiliates arising under this Agreement and the other
Transaction Agreements and the transactions contemplated hereby and
thereby;
(vi) CERTAIN ENVIRONMENTAL LIABILITIES. Pre-Closing Off-Site
Environmental Liabilities, as defined in Section 8.2, and Liabilities
for Damages (as defined in Section 3.1(s)) described in Section
8.2(b)(v)(B); and
(vii) INDEBTEDNESS. Indebtedness (A) in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments,
(B) representing the balance deferred and unpaid of the purchase price
of any property, including capital leases, (C) to the extent not
otherwise included in the Assets, obligations under interest rate and
foreign exchange swaps, futures or similar agreements, (D) guarantees,
direct or indirect, in any manner (including, without limitation,
reimbursement agreements in respect to
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11
letters of credit), of all or any part of the indebtedness of any third
party, and (E) any Intercompany Account (collectively, "Indebtedness"),
of the Affiliates.
1.2 ASSUMPTION OF LIABILITIES; PURCHASE PRICE. In
consideration for the sale and transfer of the Stock and the Assets and upon
the terms and conditions of this Agreement, on the Closing Date, Buyer shall
assume and discharge or perform when due the Assumed Liabilities and pay to
Seller by wire transfer in immediately available funds an aggregate amount
equal to Two Hundred Forty-Six Million Five Hundred Thousand Dollars
($246,500,000) (the "Stock and Asset Purchase Price").
1.3 INTERCOMPANY OBLIGATIONS. (a) The Company, Seller and its
subsidiaries maintain, and until the Closing Date will maintain, certain
intercompany payables and intercompany receivables (the "Intercompany Account")
reflecting indebtedness or other liabilities to or from ROP or the ROP
Subsidiaries, on the one hand, and the Seller or its subsidiaries (other than
ROP and the ROP Subsidiaries), on the other.
(b) If, as of the Closing Date, the Net Intercompany Debt (as
defined below) in the Intercompany Account consists of a net indebtedness of the
Company to Seller or its subsidiaries, Seller shall, prior to or simultaneously
with the Closing, contribute or cause to be contributed such Net Intercompany
Debt in the Intercompany Account to the Company, or, if not contributed will,
prior to or simultaneously with the Closing, cause such Net Intercompany Debt in
the Intercompany Account to be settled or to be eliminated in some other manner
reasonably
<PAGE> 20
12
acceptable to Buyer. If, as of the Closing Date, the Net Intercompany Debt in
the Intercompany Account consists of a net indebtedness of Seller or its
subsidiaries to the Company, Seller shall, prior to or simultaneously with the
Closing, cause the Company to cancel or dividend such indebtedness to Seller or
its subsidiaries, or, if not cancelled or dividended, will, prior to the
Closing, cause the same to be settled or to be eliminated in some other manner
reasonably acceptable to Buyer. Any such contribution, cancellation, dividend,
settlement or elimination shall not involve the transfer of funds, the creation
of Liabilities (or the variation in existing Liabilities) of the Company or the
Affiliates or Seller or its subsidiaries to any third party or any continuing
recourse against the Company, the Affiliates, Seller and its subsidiaries. As
used herein, the term "Net Intercompany Debt" shall mean (i) all intercompany
liabilities of the Company to Seller or its subsidiaries in the Intercompany
Account less (ii) the sum of all intercompany receivables due to the Company
from Seller or its subsidiaries in the Intercompany Account.
1.4 STOCK AND ASSET PURCHASE PRICE ALLOCATION. The Stock and
Asset Purchase Price represents the amount agreed upon by the parties to be the
aggregate value of the Stock and the Assets, and shall be allocated between the
Stock and the Assets, in accordance with the allocation schedule attached as
Schedule 1.4. Each of the parties shall report the purchase and sale of the
Stock and the Assets, including, without limitation, in all Federal, foreign,
state, local and other tax returns and
<PAGE> 21
13
reports prepared and filed by or for either of Seller and Buyer, in accordance
with basis of the allocation described in this Section 1.4.
ARTICLE II
CLOSING
2.1 TIME AND PLACE. Unless this Agreement shall have been
terminated or the transactions herein contemplated shall have been abandoned,
each pursuant to Section 9.1, the closing with respect to the purchase and sale
of the Stock and the Assets (the "Closing") shall take place, subject to the
provisions of Article V, at the offices of Jones, Day, Reavis & Pogue, North
Point, 901 Lakeside Avenue, Cleveland, Ohio 44114, at 10:00 a.m. on May 31, 1997
(or as soon as practicable thereafter as all the conditions to the Closing set
forth in Article V are satisfied or waived) or such other place, time and date
as the parties may agree. The actual date of the Closing is herein referred to
as the "Closing Date."
2.2 DELIVERIES BY SELLER. At the Closing, upon the terms and
subject to the conditions of this Agreement, Seller shall deliver, and shall
cause the Affiliates, as applicable, to deliver to Buyer:
(a) certificates representing the stock of ROP, duly endorsed,
or accompanied by stock powers duly executed, with signatures
guaranteed, with all necessary stock transfer stamps attached thereto
and cancelled;
<PAGE> 22
14
(b) such deeds, bills of sale, assignment agreements and/or
other instruments of transfer and assignment, in form and substance
reasonably acceptable to Buyer, duly executed and in valid form
effective to transfer the Assets and Assumed Liabilities in accordance
with the terms of this Agreement to Buyer or such of its subsidiaries
as Buyer may designate;
(c) a duly executed copy of each of the Ancillary Agreements
(as defined in Section 5.2(f));
(d) such instruments of assignment and other documents, in
form and substance reasonably acceptable to Buyer, duly executed and in
valid form effective to convey to Buyer or such of its subsidiaries as
Buyer may designate all title and interest of Seller, any Affiliate or
their subsidiaries (other than ROP and the ROP Subsidiaries) in the
Intellectual Property; and
(e) the other documents to be delivered pursuant to
Section 5.2.
2.3 DELIVERIES BY BUYER. At the Closing, upon the terms and
subject to the conditions of this Agreement, Buyer shall deliver to Seller:
(a) the Stock and Asset Purchase Price, in immediately
available funds by wire transfer to an account designated by Seller
prior to the Closing;
(b) such instruments of assumption and other instruments
or documents, in form and substance reasonably acceptable to Seller,
duly executed and in valid form, as
<PAGE> 23
15
may be necessary for Buyer and/or one or more of its
subsidiaries to assume the Assumed Liabilities in accordance
with the terms of this Agreement;
(c) a duly executed copy of each of the Ancillary
Agreements; and
(d) the certificates and other documents to be
delivered pursuant to Section 5.3 hereof.
2.4 NONASSIGNABILITY OF ASSETS. Notwithstanding anything to
the contrary contained in this Agreement, but without affecting the conditions
precedent set forth in Sections 5.1(a), 5.1(c), 5.2(d) and 5.2(e) hereof, to
the extent that the sale, assignment, transfer, conveyance or delivery or
attempted sale, assignment, transfer, conveyance or delivery to Buyer of any
Asset is prohibited by any applicable law or would require any governmental or
third party authorizations, approvals, consents or waivers and such
authorizations, approvals, consents or waivers shall not have been obtained
prior to the Closing, this Agreement shall not constitute a sale, assignment,
transfer, conveyance or delivery, or any attempted sale, assignment, transfer,
conveyance or delivery thereof. Following the Closing, the parties shall use
reasonable efforts and cooperate with each other to obtain promptly such
authorizations, approvals, consents or waivers; provided, however, that neither
Seller nor Buyer shall be required to pay any consideration therefor. Pending
such authorization, approval, consent or waiver, the parties shall cooperate
with each other in any reasonable and lawful arrangements designed to provide
to Buyer the benefits of use of
<PAGE> 24
16
such Asset. Once authorization, approval, consent or waiver for the sale,
assignment, transfer, conveyance or delivery of an Asset not sold, assigned,
transferred, conveyed or delivered at the Closing is obtained or made, Seller
shall or shall cause an Affiliate to, assign, transfer, convey and deliver such
Asset to Buyer at no additional cost. To the extent that any such Asset cannot
be transferred or the full benefits of use of any such Asset cannot be provided
to Buyer following the Closing pursuant to this Section 2.4, then Buyer and
Seller shall enter into such arrangements (including subleasing or
subcontracting if permitted) to provide to the parties the economic (taking into
account tax costs and benefits) and operational equivalent of obtaining such
authorization, approval, consent or waiver, and the performance by Buyer of the
obligations thereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants on behalf of itself and, as applicable, the Affiliates,
to Buyer as follows:
(a) DUE ORGANIZATION OF ROP AND THE ROP SUBSIDIARIES. Each of
ROP and the ROP Subsidiaries is a corporation duly organized, validly existing
and in good standing, to the extent that the concept of good standing exists in
the relevant jurisdiction, under the laws of the jurisdiction of its
organization. Each of ROP and the ROP Subsidiaries (i) has the requisite power
and authority to own, lease and operate its
<PAGE> 25
17
properties and assets and to conduct its business as it is now being conducted
and (ii) to the extent that the concept of good standing exists in the relevant
jurisdiction, is in good standing and is duly qualified to transact business in
each jurisdiction in which the nature of property owned, leased or operated by
it or the conduct of its business requires it to be so qualified, except, in
each case, where the failure to be so qualified or to be in good standing would
not have a Material Adverse Effect. For purposes of this Agreement, the phrase
"Material Adverse Effect" means, with respect to Seller, the Affiliates or the
Office Products Business, a material adverse effect on (X) the results of
operations, business, assets, liabilities or financial condition of the Office
Products Business taken as a whole or (Y) the ability of Seller and/or the
Affiliates to perform their respective obligations hereunder or under the
Ancillary Agreements and, with respect to the Buyer and its subsidiaries, to
perform their respective obligations hereunder or under the Ancillary Agreements
and to conduct the Office Products Business as presently conducted. Complete and
correct copies of the respective constituent documents of each of ROP and the
ROP Subsidiaries, each as amended to date, have been furnished to Buyer.
(b) DUE ORGANIZATION AND POWER OF SELLER AND THE AFFILIATES.
Each of Seller and each Affiliate is a corporation duly organized, validly
existing and in good standing to the extent that the concept of good standing
exists in the relevant jurisdiction under the laws of the jurisdiction of its
<PAGE> 26
18
organization and has all requisite corporate power and authority to enter into
this Agreement and the Ancillary Agreements (as defined in Section 5.2(f) and
together with this Agreement, the "Transaction Agreements") to which it is a
party and to consummate the transactions contemplated hereby and thereby and
perform its obligations hereunder and thereunder.
(c) AUTHORIZATION AND VALIDITY OF AGREEMENTS. The execution,
delivery and performance, as applicable, by each of Seller and each Affiliate
of the Transaction Agreements to which it is a party and the consummation by it
of the transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action, and no other corporate action on its part is
necessary for the execution, delivery and performance by it of the Transaction
Agreements to which it is a party and the consummation by it of the
transactions contemplated hereby and thereby. This Agreement has been, and at
the Closing each of the Ancillary Agreements will be, duly executed and
delivered by Seller or an Affiliate, as applicable, and this Agreement is, and
at the Closing each of the Ancillary Agreements will be, the legal, valid and
binding obligation of Seller or such Affiliate, as applicable, enforceable
against Seller, or such Affiliate, as applicable, in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws, domestic or foreign, relating to or affecting
creditors' rights generally and by general equity principles.
(d) GOOD TITLE. Upon consummation of the transactions
contemplated hereby at the Closing, Seller or the Affiliates
<PAGE> 27
19
shall deliver or shall cause to be delivered to Buyer or one or more
subsidiaries of Buyer, as applicable, good and marketable title to the Stock and
good, marketable and, in the case of the Owned Real Property (as that term is
defined in Section 3.1(j)), insurable title to the Assets, free and clear of any
liens, charges, security interests, restrictions or other legal or equitable
encumbrances ("Liens"), except (i) liens set forth on Schedule 3.1(d), (ii)
Liens that are publicly disclosed or do not affect the use thereof in any
material respect, (iii) statutory Liens securing payments not yet due and
payable or due but not yet delinquent, (iv) mechanics', carriers', workmen's,
repairmen's or other like Liens arising or incurred in the ordinary course of
business and which are not in dispute or do not relate to past due amounts, and
(v) original purchase price conditional sales contracts and equipment leases
with third parties entered into in the ordinary course of business
(collectively, "Permitted Liens").
(e) CAPITALIZATION OF ROP. Schedule 3.1(e) sets forth for ROP
the authorized capital stock and the number of shares of outstanding capital
stock. All of the outstanding shares of capital stock and any other equity
interests of ROP have been validly issued, are fully paid and nonassessable,
and are owned by Seller free and clear of all Liens. There are no outstanding
options, warrants or rights to subscribe for, securities or rights convertible
into or exchangeable for, or other contracts or commitments by which ROP is or
may be required to issue, sell, transfer or otherwise dispose of (collectively,
"Equity Rights")
<PAGE> 28
20
additional shares of ROP capital stock, subscription obligations, conversion
rights or other rights of any kind relating to the sale, issuance or voting of
any shares of capital stock of any class of, or other ownership interests in,
ROP or any securities convertible into or evidencing the right to purchase any
shares of capital stock of any class of, or other ownership interests in, ROP.
There are no contracts, commitments, understandings or arrangements by which
Seller or ROP is or may be obligated to transfer any shares of the capital stock
of ROP.
(f) ROP SUBSIDIARIES. (i) Exhibit A lists any corporation or
other legal entity of which ROP controls or owns, directly or
indirectly, more than 50% of the stock or other equity interest
entitled to vote on the election of members to the board of directors
or similar governing body, all of which are ROP Subsidiaries. All of
the outstanding shares of capital stock of each such ROP Subsidiary are
owned by ROP either directly or indirectly through another ROP
Subsidiary. No equity securities of any ROP Subsidiary may be required
to be issued by reason of any Equity Rights for shares of the capital
stock of any ROP Subsidiary. There are no contracts, commitments,
understandings or arrangements by which Seller, ROP or any ROP
Subsidiary is or may be obligated to transfer any shares of the capital
stock of any ROP Subsidiary. All of the shares of capital stock of each
ROP Subsidiary held by ROP or any ROP Subsidiary have been validly
issued, are fully paid and
<PAGE> 29
21
nonassessable and are owned by ROP or such ROP Subsidiary
free and clear of any Lien.
(ii) Except for interests in the ROP Subsidiaries, ROP does
not own, directly or indirectly, any interest or investment (whether
equity or debt) in, participate in the management of or share in the
profits or losses, however determined, of any corporation, partnership,
joint venture, business, trust or other entity.
(g) NO CONFLICT. The execution, delivery and performance by
each of Seller and each Affiliate of the Transaction Agreements to which it is a
party, the consummation by each of Seller and each Affiliate of the transactions
contemplated hereby and thereby and the compliance by each of Seller and each
Affiliate with its respective obligations pursuant to the Transaction Agreements
to which it is a party, do not and will not, (i) to the actual knowledge after
reasonable investigation of the individuals listed on Schedule 3.1(g)(i)
("Seller's Knowledge") violate any provision of Federal, state, local or foreign
law, rule, regulation, order, injunction, judgment or decree applicable to
Seller or the Affiliates (in each case, in relation to the Office Products
Business) or ROP or the ROP Subsidiaries or to which their respective properties
or the Office Products Business are subject; (ii) except as set forth on
Schedule 3.1(g), require any consent or approval of, or filing with or notice
to, any governmental or regulatory authority under any provision of Federal,
state, local or foreign law applicable to Seller, the Affiliates, ROP or the ROP
<PAGE> 30
22
Subsidiaries; (iii) violate any provision of the certificate or articles of
incorporation or regulations or other constituent documents of Seller, the
Affiliates, ROP or the ROP Subsidiaries; or (iv) except as set forth on Schedule
3.1(g), require any consent, approval or notice under, or result in the breach,
lapse, cancellation or termination of, or constitute a default under, or result
in the acceleration of any right or obligation of or the performance by Seller,
the Affiliates, ROP or the ROP Subsidiaries under any note, bond, mortgage,
indenture, deed of trust, lease, license, loan or credit agreement, or other
instrument or agreement to which Seller, ROP, the ROP Subsidiaries or the
Affiliates is a party or by which any of them, or any of their assets, are bound
or encumbered or result in the creation of any Lien on any of the Assets or the
Stock, except, in the case of clauses (i), (ii) and (iv), for such violations,
consents, approvals, notices, breaches, lapses, cancellations, terminations,
defaults or accelerations that could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(h) FINANCIAL STATEMENTS; FINANCIAL RESULTS. Seller has
previously delivered to Buyer (i) unaudited balance sheets of the Office
Products Business as at December 31, 1994, 1995 and 1996 and unaudited
consolidated statements of income of the Office Products Business for the
respective fiscal years then ended, (ii) unaudited consolidated balance sheet
of the North American operations of ROP as at March 31, 1997 and unaudited
consolidated statements of income of the North American
<PAGE> 31
23
operations of ROP for the three-month period ended March 31, 1997 (the
"Financial Statements"), and (iii) unaudited consolidated balance sheets of the
Office Products Business as at December 31, 1996 and the North American
operations of ROP as at March 31, 1997, each on a proforma basis after giving
effect to the elimination of the Intercompany Accounts pursuant to the
provisions of Section 1.3(b). The Financial Statements fairly present in all
material respects the financial condition and results of operations of the
Office Products Business (or in the case of the Financial Statements referred to
in clause (ii) above, ROP) as of the dates thereof or for the periods then
ended, as the case may be, and were prepared in accordance with United States
Generally Accepted Accounting Principles ("GAAP") consistently applied
throughout the periods involved, except as described on Schedule 3.1(h) (except
that the Financial Statements do not contain footnote disclosures required by
GAAP, and except that the Financial Statements referred to in clause (ii) above
are subject to normal year-end adjustments (the effect of which will not,
individually or in the aggregate, have a Material Adverse Effect)).
(i) TAX MATTERS. (i) Each of ROP and the ROP Subsidiaries
have filed all material federal, state, local and foreign tax returns ("Tax
Returns"), including information returns, required to be filed by it, and paid
or made adequate provision for the payment of all Taxes shown on such returns
to be owed by it. For purposes of this Agreement, "Taxes" shall mean all taxes,
charges, fees, levies or other assessments,
<PAGE> 32
24
including without limitation, all net income, gross income, value-added,
alternative or add-on minimum, environmental, gross receipts, sales, use, goods
and services, ad valorem, transfer, capital stock, franchise, profits, license,
withholding, payroll, single business, employment, excise, stamp, occupation,
property, unemployment or other taxes, customs, duties, and any installments
with respect thereto, together with any interest penalties, additions to tax or
additional amounts imposed by any taxing authority (domestic or foreign).
(ii) Buyer has been given access to complete and correct
copies of all Tax Returns and all amendments or modifications thereto
filed or caused to be filed by each of ROP and the ROP Subsidiaries for
the period beginning January 1, 1994, up to and including the quarter
ended December 31, 1996. Each such return reflects accurately all
liability for Taxes for the period covered thereby and is complete and
correct in all respects.
(iii) Except as set forth on Schedule 3.1(i)(iii), each of ROP
and the ROP Subsidiaries have established adequate reserves on the
Financial Statements for payment for Taxes by the Company relating to
periods (or portions thereof) for which a return was required to be
filed, for Taxes that are not then due or payable and have or will
establish adequate reserves for Taxes relating to subsequent periods
through the Closing.
(iv) Except as set forth on Schedule 3.1(i)(iv), none
of ROP and the ROP Subsidiaries is a party to any pending
<PAGE> 33
25
action or proceeding, nor, to Seller's Knowledge, is any such action or
proceeding threatened, by the Internal Revenue Service or any state,
local or foreign governmental authority for the assessment or
collection of Taxes (including interest or penalties thereon). For all
years not closed by the relevant statute of limitations, neither ROP
nor any of the ROP Subsidiaries has been a member of an affiliated
group filing a consolidated federal income tax return other than a
group the common parent of which is Seller.
(v) Except as indicated on Schedule 3.1(i)(v), no waivers of
statute of limitations with respect to ROP and the ROP Subsidiaries
have been given to or requested in writing by any governmental
authority.
(vi) Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code").
(j) TITLE TO REAL AND PERSONAL PROPERTIES; LIENS AND
ENCUMBRANCES; NO OTHER INTERESTS. Schedule 3.1(j) sets forth a list of all of
the real property which is owned by ROP or the ROP Subsidiaries (the "Owned
Real Property"), and all real property which is leased by Seller, ROP, any ROP
Subsidiary or any Affiliate, and, in the case of Seller or any Affiliate, is
leased in connection with the Office Products Business (the "Leased Real
Property"). The Company or the Affiliates (in the case of the Assets) has good,
marketable and, in the case of Owned Real Property, insurable title to, or a
valid leasehold interest in,
<PAGE> 34
26
all of the material properties, including all Owned Real Property and Leased
Real Property, and assets, tangible or intangible, reflected in the balance
sheet at December 31, 1996 included in the Financial Statements, free and clear
of all Liens, except for Permitted Liens. To Seller's Knowledge, there are no
appropriation, condemnation, eminent domain or like proceedings relating to the
Owned Real Property and none are threatened. Except as set forth on Schedule
3.1(j), the improvements and building systems comprising each of the Owned Real
Property sites identified on Schedule 3.1(j) are in a condition suitable for
their intended use, and there are no material defects in the structural
components comprising each such site or in any building or mechanical systems
located hereon or therein. All leased buildings and all leased fixtures,
equipment and other property and assets, including, without limitation, all
Leased Property that are material to the Office Products Business on a
consolidated basis are held under leases or subleases that are valid instruments
enforceable in accordance with their respective terms, except where the failure
to be enforceable, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(k) OFFICE PRODUCTS BUSINESS CONTRACTS. Schedule 3.1(k) sets
forth, as of the date hereof, each contract, maintenance and service agreement,
purchase order, plan, understanding, commitment and arrangement, written or
oral, that (i) relates to the Office Products Business and is being transferred
to Buyer, and (ii) to which any of Seller, ROP, any
<PAGE> 35
27
ROP Subsidiary or the Affiliates is a party or by which any of them or their
assets are bound, including, without limitation, each purchase commitment for
raw materials, goods and other services, advertising and promotional agreement,
lease, license, shipping agreement, agreement with a third-party molder, and
agreement with a finished goods supplier, collective bargaining agreement and
Works Council agreement which (A) requires any party thereto to pay an amount
(whether in a lump sum or in a series of installments) in excess of $200,000
annually, (B) provides for a surety, cosigner, endorser, guaranty or indemnity
by ROP or any ROP Subsidiary or any Affiliate of any obligation or liability in
excess of $200,000, contingent or otherwise, (C) has a stated term in excess of
one year, requires any party thereto to pay an amount (whether in a lump sum or
in a series of installments) in excess of $50,000 annually, and may not be
terminated by any party thereto upon less than three months' notice, (D)
requires the disclosure to a third party of any trade secret relating to the
Office Products Business, (E) restricts the kinds of businesses which may be
conducted by ROP, any ROP Subsidiary or any Affiliate or the geographical area
in which it may be conducted, (F) currency exchange contracts, (G) contracts for
borrowed money, or (H) is otherwise material to the conduct of the Office
Products Business and is being transferred to Buyer (each, an "Office Products
Business Contract"). Each Office Products Business Contract is in full force and
effect and is a legal and valid contract or agreement, binding on ROP, such ROP
Subsidiary or such Affiliate, and to Seller's Knowledge, each
<PAGE> 36
28
other party thereto, except where the failure to be legal, valid and binding
could not reasonably be expected to have a Material Adverse Effect, and there is
no default or breach (or, to Seller's Knowledge, any event that, with the giving
of notice or lapse of time or both would result in a default or breach) by ROP,
the ROP Subsidiaries or the Affiliates, or, to Seller's Knowledge, any other
party, in the timely performance of any obligation to be performed or paid
thereunder or any other material provision thereof, that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. In
each instance where any Office Products Business Contract contains any
provisions which impose minimum levels of manufactured units to be purchased,
machine hours to be utilized or such other minimum obligation with respect to
ROP, any ROP Subsidiary or any Affiliate and the result of failing to meet such
minimum level would be materially adverse (monetarily or otherwise) to ROP, any
ROP Subsidiary or any Affiliate, such minimum levels are currently being
satisfied for each annual or other relevant measurement period, and no payment,
penalty or other adverse consequence is currently being imposed or paid or
threatened to be imposed as a result of failing to meet any such minimum
requirement. Except as listed on Schedule 3.1(k), none of ROP, any ROP
Subsidiary or any Affiliate in respect of the Office Products Business is in
receipt of any current claim in writing that the Company or any Affiliate is not
the holder of title to any molds, tools, heads, plates, or equipment owned by
<PAGE> 37
29
the Company or any Affiliate and in the possession (pursuant to
lease, bailment or otherwise) of any third party.
(l) LEGAL PROCEEDINGS. Schedule 3.1(l) lists all actions,
suits or proceedings instituted or pending, or to Seller's Knowledge,
threatened, against Seller, ROP, the ROP Subsidiaries or the Affiliates
relating to the Office Products Business as of the date of this Agreement. None
of the legal proceedings set forth on Schedule 3.1(l), individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. All
workers compensation claims listed on Schedule 3.1(l) have been submitted to
Seller's insurance carrier. None of ROP, the ROP Subsidiaries or the Affiliates
is subject to any judgment, order, writ, injunction or decree that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(m) GOVERNMENT LICENSES, PERMITS AND RELATED APPROVALS.
Schedule 3.1(m) lists each license, permit, consent, approval, authorization,
qualification and order of any governmental or regulatory authority or
organization required to permit Seller, ROP, the ROP Subsidiaries or the
Affiliates to conduct the Office Products Business as presently conducted. Each
such license, permit, consent, approval, authorization, qualification and order
is valid and in full force and effect and will not be invalidated or otherwise
materially affected by the consummation of the transactions contemplated by
this Agreement or the Ancillary Agreements.
<PAGE> 38
30
(n) CONDUCT OF OFFICE PRODUCTS BUSINESS IN COMPLIANCE WITH
REGULATORY REQUIREMENTS. Each of Seller, ROP, the ROP Subsidiaries and the
Affiliates is in compliance with each law, regulation, rule, ordinance, order,
judgment, decree and code promulgated or rendered by any federal, state, local
or foreign governmental or regulatory authority or organization, in the case of
Seller or the Affiliates, applicable to the operation or conduct of, or
ownership of the property relating to, the Office Products Business, except
where such noncompliance could not reasonably be expected to have a Material
Adverse Effect. None of Seller, ROP, the ROP Subsidiaries and the Affiliates is
aware of any material changes which would be required in connection with its
manufacturing or distribution processes, properties or procedures to comply in
all material respects with such laws, regulations, rules, ordinances, orders,
judgments, decrees and codes.
(o) LABOR MATTERS. Except as set forth in Schedule 3.1(o),
none of ROP, the ROP Subsidiaries or the Affiliates is a party to, and no
employment agreements or other agreements affecting Transferred Employees to
which any of Seller, ROP, the ROP Subsidiaries or the Affiliates is a party are
subject to, any collective bargaining agreement, Works Council agreement or
other contract or agreement with any labor organization or other representative
of any of the employees of the Office Products Business and there is no labor
strike, slowdown, work stoppage, dispute, lockout or other labor controversy in
effect or otherwise affecting any of Seller and the Affiliates, each with
<PAGE> 39
31
respect to the Office Products Business, or ROP and the ROP
Subsidiaries.
(p) INTELLECTUAL PROPERTY. Schedule 3.1(p) sets forth a
correct and complete list of the following owned by Seller, its subsidiaries,
the Affiliates (in each case, principally relating to the Office Products
Business), ROP or the ROP Subsidiaries: all letters patent, patent
applications, trademark and service mark registrations and applications
therefor, all other material trade names, brand names, trade marks and service
marks, and all copyright registrations and applications therefor (collectively,
the "Intellectual Property"). Schedule 3.1(p) also sets forth all material
agreements and licenses with respect to any Affiliate Intellectual Property and
Intellectual Property. Except as set forth on Schedule 3.1(p), ROP, the ROP
Subsidiaries or the Affiliates owns or has, to Seller's Knowledge, a binding,
enforceable right to use the Intellectual Property, is the owner of record of
any application, registration or grant for each item of Intellectual Property,
and with respect to material non-U.S. registrations or applications, is the
owner of record of any application, registration or grant for each item of
Intellectual Property and has properly executed and recorded all documents
necessary to perfect its title to such Intellectual Property. Except as set
forth on Schedule 3.1(p), to Seller's Knowledge, neither the conduct of the
Office Products Business, nor any of the products sold or services provided by
ROP, the ROP Subsidiaries or the Affiliates in connection therewith, infringes
upon or is inconsistent with the intellectual property rights of
<PAGE> 40
32
any other person or entity. Except as set forth on Schedule 3.1(p), to Seller's
Knowledge, no person or entity is currently infringing upon or taking any action
[that conflicts] with the intellectual property rights of Seller or the
Affiliates (in each case with respect to the Office Products Business) or ROP or
the ROP Subsidiaries.
(q) EMPLOYEE BENEFIT PLANS. Set forth on Schedule 3.1(q) is a
complete and correct list of (i) all "employee benefit plans," within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), of Seller, the Company or any affiliate of either that
provides benefits for employees of the Company or any other individual who
could become a Transferred Employee (as defined in Section 7.1), and (ii) any
severance or similar arrangement or employment contract or change in control or
similar arrangement entered into by the Company with any such employee (each, a
"Benefit Arrangement" and collectively, the "Benefit Arrangements"). Seller has
provided Buyer with copies of all documents comprising the Benefit
Arrangements.
(r) BROKERS, FINDERS, ETC. Except for Goldman, Sachs & Co.,
whose fees are the sole responsibility of Seller, none of Seller, the Company
or the Affiliates have entered into any contract, arrangement or understanding
with any person or firm that may result in the obligation of any of them to pay
any finder's fees, brokerage or agent's commissions or other like payments in
connection with the transactions contemplated hereby or by the Ancillary
Agreements.
<PAGE> 41
33
(s) ENVIRONMENTAL MATTERS. (i) To Seller's Knowledge,
Schedule 3.1(s)(i) contains a list of all required Environmental
Permits (as defined below) (including the expiration date of each),
all of which are presently valid and effective. To Seller's Knowledge,
except as set forth in Schedule 3.1(s)(i),
(A) the Company and the Affiliates have obtained
all Environmental Permits that are required for the
ongoing operation of the Office Products Business; and
(B) neither the Company nor the Affiliates has
received any written notice alleging a violation of any such
Environmental Permit, and no proceeding is pending to revoke
any such Environmental Permit.
(ii) To Seller's Knowledge, except as set forth on Schedule 3.1(s)(ii),
(A) the Company and the Affiliates are in compliance
with all applicable Environmental Laws (as defined below) in
connection with the operation of the Office Products Business;
(B) neither the Company nor any Affiliate has
received written notice from any governmental authority,
alleging a failure of the Company or any such Affiliate to
comply with any applicable Environmental Law in connection
with the operation of the Office Products Business and no
proceeding alleging such a failure is pending;
<PAGE> 42
34
(C) there have been no Releases (as defined below) of
Hazardous Substances (as defined below) on or from the real
property owned by the Company or any Affiliate and used in
connection with the operation of the Office Products Business
except as in compliance with applicable Environmental Laws;
(D) Hazardous Substances have not at any time been
generated, disposed, used, treated, recycled or stored on the
real property owned by the Company or any Affiliate and used
in connection with the operation of the Office Products
Business except as in substantial compliance with applicable
Environmental Laws;
(E) there are no underground storage tanks located on
the real property owned by the Company or any Affiliate and
used in connection with the operation of the Office Products
Business;
(F) neither the Company nor any Affiliate has
received any written notice or written request for information
alleging that the Company or any such Affiliate is or may be
obligated to investigate or remediate Hazardous Substances at
any site; and
(G) no lien in favor of any governmental authority
for any damages or other liability under applicable
Environmental Law or for costs incurred in response to a
Release of Hazardous Substances has been filed or attached to
the real property owned by the
<PAGE> 43
35
Company or any Affiliate and used in connection with
the operation of the Office Products Business.
(iii) Seller has or has caused to be given to Buyer access
to all records and files in its possession, including, without
limitation, all reports, studies, analyses, tests or monitoring
results, pertaining to the existence of Hazardous Substances or any
other material concerns related to the real property owned by the
Company or the Affiliates or concerning compliance with Environmental
Law, in either case, in connection with the operation of the Office
Products Business.
For purposes of this Agreement, "Environment" means air,
surface water, groundwater, sediments, land surface, or land subsurface;
"Environmental Statutes" means federal, state, local and foreign statutes and
ordinances, and regulations promulgated thereunder, in effect prior to Closing
and intended to provide protection for public health or the Environment,
including, without limitation, the Clean Air Act, the Federal Water Pollution
Control Act, the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), the Emergency Planning and Community Right to Know
Act, the Solid Waste Disposal Act (including the Resource Conservation and
Recovery Act), the Toxic Substances Control Act, the Safe Drinking Water Act and
other substantially similar state or foreign statutes and regulations, as
amended from time to time; "Environmental Law" means Environmental Statutes,
court and administrative orders and any common law (i) creating a cause of
action for damage to person or
<PAGE> 44
36
property due to exposure to Hazardous Substances or (ii) governing the
contamination, pollution or protection of public health or the Environment or
allocating liabilities in respect thereof; "Hazardous Substance" means any
hazardous material, hazardous substance, toxic substance or words of similar
import regulated under any Environmental Statute; "Environmental Permits" means
federal, state and local permits, licenses, and authorizations issued to the
Company or an Affiliate under Environmental Law in connection with the operation
of the Office Products Business; and "Release" means any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping, dumping
or disposing of a Hazardous Substance into the Environment, which (i) requires
notification to a governmental authority under an Environmental Statute; or (ii)
exceeds the reportable quantity for such substance established under an
Environmental Statute.
(t) TRANSACTIONS WITH AFFILIATED PARTIES. (i) Except as set
forth on Schedule 3.1(t)(i), no director, officer or management employee of
Seller or any of its subsidiaries: (a) is a director, officer, stockholder or
employee of, or consultant to or owns, directly or indirectly, any interest in,
any competitor, franchisee, supplier or customer of the Office Products
Business, or is in any way associated with or involved in the Office Products
Business, other than in such capacity (X) as a director, officer, management
employee or holder of securities of Seller or any of its subsidiaries or (Y) as
a holder of securities that represent not more than a 1% interest in any
publicly-held
<PAGE> 45
37
corporation; (b) owns, directly or indirectly, in whole or in part, any
property, asset or right, tangible or intangible, which is associated with any
property, asset or right owned by Seller or any of its subsidiaries in
connection with the Office Products Business or which Seller presently is
operating or using or the use of which is contemplated for the Office Products
Business; (c) has filed any patent application which arises out of any of the
operations of the Office Products Business or is capable of being used or
availed of in connection therewith; or (d) has any contractual relationship with
the Office Products Business other than contractual relationships relating to
employment or employee benefits, and (ii) except as set forth in Schedule
3.1(t)(ii), neither ROP nor the ROP Subsidiaries have engaged in any
transaction, other than the movement of monetary assets not in the ordinary
course of business consistent with past practice with Seller or its subsidiaries
(other than ROP and the ROP Subsidiaries) that was material to the Office
Products Business as a whole or undertaken in consideration of the sale of the
Office Products Business.
(u) ABSENCE OF CHANGES. Except as set forth in Schedule
3.1(u), since March 31, 1997, there has not been any event or circumstance
that, individually or in the aggregate, has had or would have a Material
Adverse Effect on the Office Products Business.
(v) NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this Section 3.1, and in the
Ancillary Agreements or in any other document or
<PAGE> 46
38
agreement delivered at the Closing in connection with this Agreement or any
Ancillary Agreement, Seller makes no other express or implied warranty or
representation in the Transaction Documents.
(w) SHARED TOOLS. Schedule 3.1(w) sets forth all of the
Shared Tools. Neither ROP nor any of the ROP Subsidiaries own any of the Shared
Tools.
(x) ENTIRETY. The Stock and the Assets, when taken together
with the Ancillary Agreements, constitute all of the rights, assets, properties
and arrangements necessary (other than the "Rubbermaid" brand name and
"Rubbermaid" trademark) to conduct the Office Products Business as presently
being conducted, and, other than the "Rubbermaid" brand name and "Rubbermaid"
trademark, there are no other rights, assets, properties or arrangements
necessary to conduct the Office Products Business as currently conducted.
(y) UNDISCLOSED LIABILITIES. To Seller's Knowledge, ROP and
the ROP Subsidiaries and the Affiliates (with respect to the Office Products
Business) do not have any Liabilities that are required to be reflected in a
Balance Sheet which is prepared in accordance with GAAP but subject to the
exceptions set forth in Schedule 3.1(h) except for: (i) Liabilities reflected
or reserved against in the Balance Sheet as of March 31, 1997, included in the
Financial Statements or disclosed in the notes thereto, (ii) Liabilities that
have arisen in the ordinary course after March 31, 1997, (iii) Liabilities
described in the Schedules.
<PAGE> 47
39
(z) RECEIVABLES. Except as set forth in Schedule 3.1(z), all
accounts, notes and other receivables and amounts owing to the Company,
reflected on the balance sheets of the Office Products Business or the Company
at December 31, 1996, or March 31, 1997, respectively, represent actual, bona
fide obligations owing to the Company arising from arm's length sales in the
ordinary course of business, are free of Liens and are carried at their net
realizable value.
(aa) INVENTORY. All inventory of the Company (whether or not
allocated to contracts in process), including without limitation raw materials,
work in process and finished products, packaging, items purchased for
distribution or resale and items which have been ordered or purchased by the
Company, including inventory shown on the balance sheets of the Company or the
Office Products Business dated December 31, 1996 and March 31, 1997 included in
the Financial Statements, or acquired thereafter ("Inventory"), was acquired or
manufactured in the ordinary course of business and is valued on the books of
account and Financial Statements at the lower of cost (on a last-in, first-out
("LIFO") basis) or market (net realizable value on an item-by-item basis by
S.K.U. number in sales in the ordinary course of business) in which the
standard cost less reserves is not greater than individual market value (sales
price less direct selling and direct distribution costs), in accordance with
GAAP, and such balance sheets contain all inventory reserves that are
appropriate in accordance with GAAP and the historical inventory valuation
policies of the Company.
<PAGE> 48
40
(bb) CONDUCT OF THE OFFICE PRODUCTS BUSINESS. Except as set
forth on Schedule 3.1(bb) none of Seller or any of its subsidiaries (other than
ROP, the ROP subsidiaries and the Affiliates) engage in any Non-Compete
Activities (as defined in Section 4.12) with respect to products that are
identical or substantially similar in specifications to products currently
manufactured, distributed or sold by the Office Products Business.
(cc) INSURANCE. Schedule 3.1(cc) sets forth a correct and
complete list, as of the date hereof, of all casualty, general liability and
other insurance policies maintained by Seller on behalf of the Company
(collectively, the "Insurance Policies").
(dd) PRODUCT LIABILITY. To Seller's Knowledge, in connection
with the conduct of the Office Products Business, there are no design defects
or series of manufacturing defects with respect to the products of the Office
Products Business which could reasonably be expected to have a Material Adverse
Effect.
(ee) CUSTOMERS AND SUPPLIERS. Seller has delivered a list of
the ten largest customers and a list of the ten largest suppliers (measured by
dollar volume) of the Office Products Business during the last fiscal year
("Major Customers" and "Major Suppliers," respectively) and the amount of
business done with each such supplier or customer. No Major Customer or Major
Supplier is currently threatening in writing any material adverse
<PAGE> 49
41
change in its business relationship with the Office Products
Business.
(ff) COPIES OF DOCUMENTS. Copies of any documents listed or
described in any Schedule (other than Schedules 3.1(cc) or 3.1(ff)) have been
delivered to Buyer or Buyer has been provided access to such documents. All such
documents are complete and correct copies, and there are not amendments or
modifications thereto, except as specifically noted in the particular Schedule
where such document is referenced.
(gg) MARYVILLE, TENNESSEE CONSTRUCTION CONTRACT. Seller and
ROP are in compliance with all of the terms of the Maryville, Tennessee
Construction Contract between ROP and Joseph Construction Co., Inc.
3.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents
and warrants on behalf of itself and, as applicable, its subsidiaries and
affiliates, to Seller as follows:
(a) DUE ORGANIZATION AND POWER. Each of Buyer and its
affiliates and subsidiaries that is a party to an Ancillary Agreement is a
corporation duly organized, validly existing and in good standing to the extent
that the concept of good standing exists in the relevant jurisdiction, under
the laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority to enter into the Transaction Agreements to which
it is a party and perform its obligations thereunder.
(b) AUTHORIZATION AND VALIDITY OF AGREEMENTS. The execution,
delivery and performance by each of Buyer and any affiliate or subsidiary of
Buyer that is a party to an Ancillary
<PAGE> 50
42
Agreement of the Transaction Agreements to which it is a party, and the
consummation by it of the applicable transactions contemplated hereby and
thereby, have been duly authorized by all necessary corporate and shareholder
action, and no other corporate action on its part is necessary for the
execution, delivery and performance by it of the Transaction Agreements to which
it is a party and the consummation by it of the applicable transactions
contemplated hereby and thereby. This Agreement has been, and at the Closing the
Ancillary Agreements will be, duly executed and delivered by Buyer or an
affiliate or subsidiary of Buyer, as applicable, and this Agreement is, and at
the Closing the Ancillary Agreements will be, the legal, valid and binding
obligation of Buyer or an affiliate or subsidiary of Buyer, as applicable,
enforceable against Buyer or such affiliate in accordance with their respective
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and by general equity principles.
(c) NO CONFLICT. Except as set forth in Schedule 3.2(c), the
execution, delivery and performance by each of Buyer and its affiliates and
subsidiaries that is a party to an Ancillary Agreement of the Transaction
Agreements to which it is a party and the consummation by the Buyer or its
affiliates or subsidiaries, as applicable, of the transactions contemplated
thereby does not and will not (i) to the actual knowledge after reasonable
investigation of the officers of Buyer set forth in Schedule 3.2(c)(i)
("Buyer's Knowledge"), violate any provision
<PAGE> 51
43
of Federal, state, local or foreign law, rule, regulation, order, injunction,
judgment or decree applicable to Buyer or any of its affiliates and subsidiaries
or to which their respective properties are subject; (ii) except as set forth on
Schedule 3.2(c) and Section 5.2(e), require any consent or approval of, or
filing with or notice to, any governmental or regulatory authority under any
provision of Federal, state, local and foreign law applicable to Buyer or any of
its affiliates or subsidiaries); (iii) violate any provision of the certificate
or articles of incorporation or by-laws or other constituent documents of Buyer
or any of its affiliates or subsidiaries; or (iv) require any consent, approval
or notice under, or result in the breach, lapse, cancellation or termination of,
or constitute a default under, or result in the acceleration of, any right or
obligation of or the performance by Buyer or any of its affiliates or
subsidiaries under, any indenture, lease, franchise, agreement, or other
instrument to which Buyer or any of its affiliates or subsidiaries is a party or
by which any of them or their assets, are bound or encumbered, or result in the
creation of any Lien, except, in the case of clauses (i), (ii) and (iv), for
such violations, consents, approvals, notices, breaches, lapses, cancellations,
terminations, defaults or accelerations that could not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
(d) BROKERS, FINDERS, ETC. Except for Robert W. Baird & Co.
Incorporated, whose fees are the sole responsibility of Buyer, none of Buyer,
its affiliates or subsidiaries have entered
<PAGE> 52
44
into any contract, arrangement or understanding with any person or firm that may
result in the obligation of any of them to pay any finder's fees, brokerage or
agent's commissions or other like payments in connection with the transactions
contemplated hereby or by the Ancillary Agreements.
(e) FINANCIAL CAPACITY. Buyer has sufficient cash on hand, or
available under a committed credit facility or line of credit with unutilized
capacity, in the aggregate amount of not less than the Stock and Asset Purchase
Price, which cash on hand or available as described above will be available at
the Closing to pay the Stock and Asset Purchase Price.
(f) BUYER'S SIGNAGE BUSINESS. Schedule 3.2(f) lists the
product categories of Buyer which Buyer believes as of the date hereof may be
directly competitive with the business conducted and sold by ROP and Seller
pursuant to the Asset Purchase Agreement, dated November, 1994, by and among
Quartet Manufacturing Company, Seller and ROP (the "Quartet Agreement").
ARTICLE IV
COVENANTS
4.1 ACCESS TO INFORMATION CONCERNING PROPERTIES AND RECORDS;
CONFIDENTIALITY. (a) ACCESS. For the sole purpose of confirming the accuracy of
the representations and warranties of Seller contained in Section 3.1, during
the period commencing on the date hereof and ending on the Closing Date, Seller
shall cause the Company and the Affiliates to, upon reasonable notice, afford
to Buyer, its counsel, accountants and other authorized
<PAGE> 53
45
representatives such access, during normal business hours, to the facilities,
properties, books, records, tax returns, documents, personnel and auditors of
the Office Products Business, as Buyer shall reasonably request. Seller shall
cause the Company and the Affiliates and their respective officers, employees,
accountants and other agents to furnish to Buyer such additional financial and
operating data and information relating to the Office Products Business as Buyer
may from time to time reasonably request. If this Agreement is terminated
pursuant to Section 9.1 prior to the Closing Date, Buyer shall return to Seller
all copies held by Buyer or its representatives of such books, records, tax
returns and documents and results of such inspections, assessments, audits and
tests. Buyer agrees that it will continue to treat all information so obtained
from Seller as "Information" under the Confidentiality Agreement, dated as of
March 4, 1997, between Seller and Buyer, and will continue to honor its
obligations thereunder with respect to such Information and pursuant to Sections
6(a), 6(b) and 6(d) of the Confidentiality Agreement; PROVIDED, HOWEVER, that if
this Agreement is terminated pursuant to Article IX, the provisions of the
Confidentiality Agreement (other than Section 6(c)) shall remain in full force
and effect.
(b) SUBSEQUENT ACCESS FOR SELLER. Following the Closing,
Buyer shall provide Seller and its representatives reasonable access to
personnel and records of Buyer relating to the Office Products Business to the
extent Seller reasonably requests such access.
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46
(c) SUBSEQUENT ACCESS FOR BUYER. For a period of five years
following the Closing, (i) Seller shall provide, and shall cause the Affiliates
to provide, to Buyer and its representatives reasonable access to the personnel
and records of Seller related to the Office Products Business and of the
Affiliates relating to the Office Products Business, and not included in the
Assets, in each case to the extent Buyer reasonably requests such access and
(ii) neither Seller nor the Affiliates shall dispose of or destroy any of the
books and records related to the Office Products Business and not included in
the Assets, without first offering to turn over possession thereof to Buyer by
written notice to Buyer at least ninety days prior to the proposed date of such
disposition or destruction.
4.2 CONDUCT OF THE OFFICE PRODUCTS BUSINESS PRIOR TO THE
CLOSING DATE. Seller agrees that, except as provided in or permitted or
contemplated by this Agreement or either of the Ancillary Agreements or with
the prior written consent of Buyer (which consent shall not be unreasonably
withheld) or set forth on Schedule 4.2, during the period commencing on the
date hereof and ending at the Closing Date, none of ROP or the ROP Subsidiaries
shall take any of the following actions, and none of Seller or any of its
subsidiaries (other than the Company) or any of the Affiliates shall take any
of the following actions with respect to the Office Products Business or its
employees:
(a) ORDINARY COURSE. Conduct the Office Products Business
other than in the ordinary course of business consistent with past practice;
<PAGE> 55
47
(b) CHANGES IN COMPENSATION. Grant any increase in
compensation or benefits to employees of the Office Products Business or to the
directors or officers of the Office Products Business, except in the ordinary
course consistent with past practice or as required by law; pay any bonus
compensation to employees of the Office Products Business except in the
ordinary course consistent with past practice and in accordance with the
provisions of any applicable program or plan that is described on Schedule 4.2;
enter into or amend the terms of any severance agreements with its officers; or
effect any change in retirement benefits for any Transferred Employees or
officers (unless such change is required by applicable law), PROVIDED, HOWEVER,
that nothing in this subsection (b) shall prevent the payment or other
performance of any award or grant made prior to the date hereof and disclosed
in the Schedules or pursuant to this Agreement;
(c) ASSETS. Cancel or waive any claims or rights of value or
sell, lease, distribute or otherwise dispose of any of its assets, or acquire
any assets, in each case except in the ordinary course of business consistent
with past practice;
(d) CAPITAL STOCK. Authorize for issuance, issue, sell or
deliver (i) any additional shares of capital stock of any class or series, any
securities having the right to vote or any equity equivalents (including
phantom stock and stock appreciation rights), (ii) any securities convertible
into or exchangeable for shares of capital stock, voting securities or equity
equivalents (iii) any options, warrants or other rights to
<PAGE> 56
48
acquire any shares of capital stock, voting securities or equity equivalents of
ROP or any ROP Subsidiary;
(e) DIVIDENDS. ROP will not declare or pay any dividend,
other than to effect the cancellation or elimination of intercompany
obligations as provided in Section 1.3;
(f) CAPITAL EXPENDITURES. Authorize or commit to, or make
capital expenditures not approved in writing or budgeted by the Company on the
date of this Agreement, which in the aggregate exceed $25,000 (not including
normal cost overruns for existing or budgeted projects);
(g) LIENS. Mortgage or otherwise encumber or subject to any
Lien any properties, assets owned by ROP or an ROP Subsidiary or any Assets,
except for such of the foregoing as are in the normal course of business and
consistent with past practice;
(h) ACCOUNTING PRACTICES. Make any change to the accounting
(including tax accounting) methods, principles or practices of the Office
Products Business, except as may be required by changes in GAAP or as otherwise
contemplated by this Agreement;
(i) CONSTITUENT DOCUMENTS. Make any amendment to its articles
of incorporation or by-laws or equivalent organizational documents;
(j) INVENTORY. Account for inventory in any manner other than
the ordinary course of business and consistent with past practice, or (ii)
write down the value of any inventory other than in immaterial amounts or in
the ordinary course of
<PAGE> 57
49
business and consistent with past practice, or (iii) permit levels of inventory
to fall below reasonably expected requirements;
(k) RECEIVABLES. (i) Account for, manage or treat receivables
in any manner other than the ordinary course of business and consistent with
past practice, or (ii) except in the ordinary course of business and consistent
with past practice, sell, transfer or otherwise dispose of any receivables, or
(iii) accelerate the collection of receivables;
(l) INTELLECTUAL PROPERTY. Except as disclosed on Schedule
4.2(l), dispose of or permit to lapse any rights to or for the use of any
Intellectual Property or Affiliate Intellectual Property or disclose to any
person not an employee or otherwise dispose of any Intellectual Property or
Affiliate Intellectual Property or trade secret, process, know-how or other
confidential or proprietary information not heretofore a matter of public
knowledge except pursuant to judicial or administrative process;
(m) ACQUISITIONS. Acquire by merger or consolidation with or
by purchasing a substantial portion of the assets of, or by any other manner,
any business or any corporation, partnership, association or other business
organization or division thereof of or otherwise acquire any material assets,
or enter into any partnership, joint venture or similar arrangement;
(n) BORROWINGS. Borrow any funds or incur or assume, directly
or indirectly (by way of guarantee or otherwise), any
<PAGE> 58
50
Indebtedness, except in the ordinary course of business and consistent with
past practice;
(o) INTERCOMPANY PAYMENTS. Make any payment or transfer
anything of value to or for the benefit of Seller or any of its subsidiaries or
the Affiliates relating to the Office Products Business (other than ROP and the
ROP Subsidiaries);
(p) INTERCOMPANY AGREEMENTS. Enter into any agreement with
Seller or its subsidiaries or the Affiliates relating to the Office Products
Business (other than ROP and the ROP Subsidiaries);
(q) ACCOUNTS PAYABLE. Change the account payable payment
practices in such a way as to delay the payment of any account payable, except
for accounts payable reasonably contested in the ordinary course of business;
or
(r) OTHER. Agree in writing to do any of the foregoing.
4.3 PRESERVATION OF BUSINESS. Seller will use its, and will
cause the Company and the Affiliates to use their, reasonable efforts to
preserve intact the business organization of the Office Products Business, to
keep available the services of their present officers and key employees, and to
preserve the good will of those having business relationships with the Office
Products Business.
4.4 ANTITRUST LAWS. Subject to the terms and conditions
herein provided, Seller and Buyer shall (a) promptly make their respective
filings and thereafter make any other required submissions under the
Hart-Scott-Rodino Antitrust
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51
Improvements Act of 1976 (the "HSR Act"); (b) use their reasonable best efforts
to cooperate with each other in (i) determining which filings are required to be
made prior to the Closing Date with, and which consents, approvals, permits or
authorizations are required to be obtained prior to the Closing Date from,
governmental authorities in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and (ii)
timely making all such filings and timely seeking all such consents, approvals,
permits or authorizations; and (c) use commercially reasonable efforts to take,
or cause to be taken, all other action and do, or cause to be done, all other
things necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement. If, at any time after the Closing
Date, any further action is necessary or desirable to carry out the purposes of
this Agreement, the officers and directors of the parties shall take all such
necessary action.
4.5 CASH MANAGEMENT. (a) The Company and the Affiliates shall
continue to participate in the central cash management system of Seller (the
"Cash Management System") in accordance with prior practice prior to the
Closing Date and, in connection therewith, Seller shall be permitted to
withdraw on a daily basis all cash of the Office Products Business.
(b) Effective at the opening of business on the Closing Date,
Buyer shall be responsible for funding all disbursements of the Office Products
Business, including the presentation for payment of previously outstanding
checks drawn
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52
on the Company's or the Affiliates' (with respect to the Office Products
Business) bank accounts without violation of Section 4.2. The bank accounts of
the Office Products Business are set forth on Schedule 4.5(b) and will be
assigned to the Buyer on the Closing Date.
(c) Effective as of the opening of business on the Closing
Date, none of Seller, the Affiliates, nor any of their subsidiaries shall have
any right to any funds in any lock box, depository or other similar bank account
of the Office Products Business, other than funds identified as belonging to
Seller or its subsidiaries relating to businesses other than the Office Products
Business, which accounts are set forth on Schedule 4.5(c) and will be assigned
to Buyer on the Closing Date. Buyer shall segregate any such funds and remit all
such segregated funds to Seller on a timely basis.
4.6 INTERCOMPANY SERVICES AND PRODUCTS. Any intercompany
services provided by Seller and its subsidiaries to the Company and the
Affiliates shall terminate as of the Closing Date, except as set forth below,
and all amounts (but without duplication of amounts included in accrued
expenses) owing by the Company with respect to such services as of the close of
business on the day preceding the Closing Date with respect to such services
performed after April 30, 1997, shall be paid as soon as possible, but in no
event later than 30 days after the Closing Date. Notwithstanding the foregoing,
Seller or its subsidiaries shall provide transition services pursuant to the
Transition Services Agreement and products pursuant to the Office Products
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Supply Agreement to the Company on such terms and conditions and for such prices
and duration as described in such agreements.
4.7 POST-CLOSING ACCOUNTING COOPERATION. Seller and Buyer
agree that Seller and/or its independent auditors shall have reasonable access
during normal business hours, provided such access shall not interfere with the
normal operations of the Office Products Business, to the Business Records
applicable to the period the Office Products Business was directly or indirectly
owned by Seller and have the reasonable assistance and cooperation of the
appropriate personnel of Buyer in the review of such books and records
consistent with assistance and cooperation furnished during the period the
Office Products Business was directly or indirectly owned by Seller.
4.8 WARN. Buyer shall not on, or at any time prior to 90 days
after the Closing Date, effectuate a "plant closing" or "mass layoff," as those
terms are defined in the Worker Adjustment and Retraining Notification Act of
1988 ("WARN"), affecting in whole or in part any site of employment of the
Company, in advance and without complying with the notice requirements and other
provisions of WARN.
4.9 NON-SOLICITATION OF EMPLOYEES. (a) If this Agreement is
terminated, Buyer shall not, for a period of two years thereafter, without the
prior written approval of Seller, directly or indirectly, solicit, encourage,
entice or induce any person listed or described on Schedule 3.1(g)(i) who is an
employee of any of the Seller, any Affiliate, ROP or any ROP Subsidiary at the
date hereof or at any time hereafter that
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precedes such termination, to terminate his or her employment with such company.
(b) For a period of two years after the Closing, without the
prior written approval of Buyer, Seller and its subsidiaries shall not employ or
directly or indirectly solicit, receive or accept the performance of services by
any Transferred Employee; provided that Seller and its subsidiaries may employ
any Transferred Employee whose employment has been subsequently terminated.
(c) Each of the parties agrees that any remedy at law for any
breach by it of this Section 4.9 would be inadequate, and that the other party
would be entitled to injunctive relief in such a case. If it is ever held that
the restriction imposed by this Section 4.9 is too broad to permit enforcement
of such restriction to its fullest extent, each party agrees that a court of
competent jurisdiction may enforce such restriction to the maximum extent
permitted by law and hereby consents and agrees that such scope may be
judicially modified accordingly in any proceeding brought to enforce such
restriction.
4.10 SELLER'S NAME; ROP NAME. Except as otherwise provided in
this Section 4.10 and in the Transition Services Agreement, no interest in or
right to use the names "Rubbermaid" or "Rubbermaid Office Products" is being
conveyed pursuant to this Agreement, and Buyer shall cause ROP and the ROP
Subsidiaries whose corporate names include references to such names to change
their names as of or promptly after the Closing Date to eliminate any such
reference and remove or cover, within
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twelve months from the Closing Date, all such names that appear on signs,
billboards, promotional or advertising literature, vehicles, telephone listings,
labels, stationery, office forms and packaging materials in use by the Company
on the Closing Date. Except as provided in this Agreement, neither Buyer nor its
subsidiaries or affiliates shall use any trademark, trade name, brand name,
trade dress or logo that is likely to cause confusion with any name used by or
associated with Seller or its subsidiaries name, or be associated with Seller or
its subsidiaries on or as of the Closing Date, after the end of the twelve-month
period beginning on the Closing Date. This Agreement does not convey to Buyer or
any of Buyer's subsidiaries or affiliates any interest in or right to use any
patent, trademark, trade name, brand name, trade dress or logo that is not
Intellectual Property, including other such rights owned by Seller and used in
the continuing business of Seller or its subsidiaries following the Closing.
Notwithstanding the foregoing, (a) ROP and the ROP Subsidiaries, Buyer, and the
Buyer subsidiary or subsidiaries acquiring the Assets pursuant to this Agreement
may continue to use the names "Rubbermaid" and "Rubbermaid Office Products" for
a period not to exceed twelve months following the Closing Date on all signs,
billboards, promotional and advertising literature, vehicles, telephone
listings, labels, stationery, office forms and packaging materials in existence
on the Closing Date, (b) ROP and the ROP subsidiaries and Buyer and the Buyer
subsidiary or subsidiaries acquiring the Assets pursuant to this Agreement may
continue to
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use the names "Rubbermaid" and "Rubbermaid Office Products" on all tools, plates
and other manufacturing molds in existence on the Closing Date for two years
following the Closing Date and may distribute the products manufactured
therewith, and (c) ROP and the ROP Subsidiaries may continue thereafter to use
any document or literature containing the names "Rubbermaid" or "Rubbermaid
Office Products" so long as such names have been blacked out or otherwise
covered. Effective as of or promptly after the Closing Date, Buyer shall cause
the names of ROP and each of the ROP Subsidiaries to be changed, and such
changed names shall not contain the terms "Rubbermaid" or "Rubbermaid Office
Products," but may otherwise contain the words "office" and "products." After
the Closing Date, Seller, its subsidiaries and the Affiliates shall not
thereafter use the name "Rubbermaid Office Products" for any reason, including
use such of name in connection with any subsidiary, division or other affiliated
entity of Seller. If this Section 4.10 is breached or threatened to be breached,
Buyer expressly consents that in addition to any other remedy Seller or the
Affiliates may have, Seller or the Affiliates shall be entitled to apply for and
receive injunctive relief in order to prevent the continuation of any existing
breach or the occurrence of any threatened breach.
4.11 FURTHER ACTIONS. Subject to the terms and conditions of
this Agreement, each of the parties hereto will use their commercially
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and
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regulations to consummate and make effective the transactions contemplated by
this Agreement and shall use its commercially reasonable efforts to satisfy the
conditions to the transactions contemplated hereby and to obtain all waivers,
permits, consents and approvals and to effect all registrations, filings and
notices with or to third parties or governmental or public bodies or authorities
that are necessary or desirable in connection with the transactions contemplated
by this Agreement.
4.12 COVENANT NOT TO COMPETE. (a) Buyer acknowledges that
Seller and its subsidiaries (other than ROP and the ROP Subsidiaries) currently
manufacture, distribute and sell certain products which are identical in
specifications to products manufactured, distributed or sold by the Office
Products Business. Seller, its subsidiaries and the Affiliates agree that Seller
and its subsidiaries shall not, without the written approval of Buyer (X)
market, advertise, distribute, promote or sell (collectively, "Non-Compete
Activities") such identical products to the customers that the comparable
products of the Office Products Business are sold to as of the Closing Date or
(y) engage in Non-Compete Activities with respect to such identical products to
any customer not served by Seller on the Closing Date, in either case during the
period beginning on the Closing Date and ending on the second anniversary of the
Closing Date. Buyer agrees that Buyer and its affiliates shall not, without the
written approval of Seller, engage in any Non-Compete Activities with respect to
such identical products to the customers that the comparable products of Seller
and its
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subsidiaries (other than the Company and the Affiliates) are sold to as of the
Closing Date, during the period beginning on the Closing Date and ending on the
second anniversary of the Closing Date. Seller agrees to deliver to Buyer prior
to the Closing Date a list which shall set forth such customers of the Office
Products Business and of Seller and its subsidiaries other than the Company and
the Affiliates. Seller further agrees that it will not engage in Non-Compete
Activities with respect to, and will not design or directly or indirectly
produce or manufacture any products identical or similar to those currently
manufactured, distributed or sold by the Office Products Business that are not
currently manufactured, distributed or sold by Seller or its subsidiaries (other
than ROP, the ROP Subsidiaries, the Affiliates and their subsidiaries) during
the period beginning on the Closing Date and ending on the fourth anniversary of
the Closing Date.
(b) If any provision contained in this Section 4.12 shall for
any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Section, but this Section shall be construed as if such invalid, illegal
or unenforceable provision had never been contained herein. It is the intention
of the parties that if any of the restrictions or covenants contained herein is
held to cover a geographic area or to be of a length of time which is not
permitted by applicable law, or in any way construed to be too broad or to any
extent invalid, such provision shall not be construed to be null, void
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and of no effect, but the extent such provision would be valid or enforceable
under applicable law, a court of competent jurisdiction shall construe and
interpret or reform this Section to provide for a covenant having the maximum
enforceable geographic area, time period and other provisions (not greater than
those contained herein) as shall be valid and enforceable under such applicable
law. Each party acknowledges that the other would be irreparably harmed by any
breach of this Section and that there would be no adequate remedy at law or in
damages to compensate Buyer for any such breach. Each party agrees that the
other shall be entitled, in addition to any other rights and remedies it may
have at law or in equity, to apply for an injunction enjoining and restraining
Seller from doing or continuing to do any such act and any other violations or
threatened violations of this Section 4.12.
4.13 TRANSFER TAXES. Buyer and Seller shall each pay one-half
of the aggregate of all sales, use, stamp, documentary, filing, recording and
other transfer taxes (other than any value-added taxes, which are recoverable by
Buyer) incurred in connection with the transactions contemplated by this
Agreement, whether such taxes are imposed on Buyer, Buyer's subsidiaries,
Seller, or its subsidiaries.
4.14 NAME CHANGES. As of or promptly after the Closing Date,
but in no event later than December 31, 1997, Seller shall cause each of its
subsidiaries, if any, whose corporate names include the terms "Office Products,"
"Eldon," "Microcomputer
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Accessories," "Microcomputer," "MCA" or any confusingly similar name, to change
their names to eliminate any such reference.
4.15 ADDITIONAL FINANCIAL STATEMENTS. Seller shall furnish
Buyer with unaudited financial statements for ROP that are prepared with respect
to ROP for each full monthly period prior to the Closing Date and for subsequent
quarterly periods, as soon as they become available. Seller shall prepare each
of the additional financial statements on a basis consistent with the Financial
Statements and in compliance with the representations and warranties set forth
in Section 3.1(h) and subject to the exceptions described on Schedule 3.1(h).
4.16 INSURANCE. (a) To the extent that there are third-party
insurance policies maintained by Seller or any of its subsidiaries other than
ROP and the ROP Subsidiaries ("Seller's Insurance Policies") covering any loss,
liability, damage, expense or other risk relating to the assets, businesses,
operations, conduct, products or employees (including former employees) of the
Office Products Business (all such losses, liabilities, claims, damages,
expenses or risks regardless of the availability of insurance coverage, are
herein referred to collectively as the "Office Products Business Liabilities")
and relating to or arising out of occurrences prior to the Closing, Seller
agrees to cooperate and cause its subsidiaries to cooperate with Buyer and its
subsidiaries in submitting, and to submit and cause its subsidiaries to submit,
claims after the Closing ("Claims") on behalf of Buyer or its subsidiaries under
Seller's Insurance Policies with respect to such Office Products
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Business Liabilities relating to or arising out of occurrences prior to the
Closing.
(b) Seller shall take all action necessary to make available
to Buyer the proceeds of Seller's Insurance Policies with respect to Office
Products Business Liabilities relating to occurrences prior to Closing. Prior to
the Closing, Seller shall provide evidence reasonably satisfactory to Buyer that
Seller's Insurance Policies will be available to cover such occurrences. Seller
shall not amend or cancel Seller's Insurance Policies in any manner that will
adversely affect Buyer's right to make claims relating to such pre-closing
Office Products Business Liabilities.
(c) All Claims made on behalf of Buyer shall be subject to
applicable retention, deductible, coverage and other limitations contemplated by
Seller's Insurance Policies.
4.17 NO SOLICITATION. From the date hereof and through the
time earlier of the Closing or termination of this Agreement in accordance with
Section 9.1, Seller will not, nor will it authorize or permit any officer,
director or employee of, or any investment banker or other representative or
agent retained by it, to (a) directly or indirectly, solicit, initiate,
encourage or participate in any way (including by way of furnishing information)
in any discussions or negotiations with any person or entity (other than Buyer)
concerning any merger, consolidation, sale of assets, sale of shares of capital
stock or similar transactions relating to all or any portion of the Office
Products Business (each, an "Acquisition Proposal"), (b)
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disclose, directly or indirectly, to any person or entity preparing to make an
Acquisition Proposal any information concerning the Office Products Business, or
(c) enter into any understanding, agreement or commitment with any third party
providing for a business combination involving, equity investment in, or sale of
assets of the Office Products Business. Seller will promptly notify Buyer of any
Acquisition Proposal and will promptly provide Buyer with such information
regarding the Acquisition Proposal as Buyer may request.
4.18 INDEBTEDNESS. On or prior to the Closing, ROP shall, or
shall cause its subsidiaries to, repay all principal and accrued interest in
respect of Indebtedness of the Company.
4.19 COLLECTION OF RECEIVABLES. After the Closing, Buyer will
have the right and authority to collect for its own account or the account of
its subsidiaries (including the Company) all Receivables which are included in
the Assets transferred and assigned to Buyer as provided herein, and Buyer and
its subsidiaries will have the right to endorse with the name of any of the
Affiliates any checks received on account of any such Receivable. Seller and the
Affiliates agree that each will promptly transfer and deliver to Buyer any cash
or other property which Seller or its Affiliates may receive in respect of such
Receivables.
4.20 MAIL. (a) Seller and the Affiliates agree that Buyer and
its subsidiaries will have the right and authority to open all mail and other
communications received by the Office Products Business after the Closing, even
if addressed to Seller
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or its Affiliates, for processing or for forwarding to Seller or its Affiliates,
as appropriate.
(b) Buyer agrees that Seller and the Affiliates will have the
right and authority to open all mail and other communications received by Seller
or the Affiliates relating to the Office Products Business after the Closing,
for processing or forwarding to Buyer, as appropriate.
4.21 NOTICE. (a) Prior to Closing, Seller will promptly give
notice to Buyer of any fact or occurrence of any event or failure of any event
to occur upon receipt of notice or knowledge of any fact or occurrence of such
event, which would or could be reasonably expected to (i) make any
representation or warranty by Seller contained herein untrue, (ii) have a
Material Adverse Effect on Seller's or either of the Affiliate's ability to
consummate the transactions contemplated hereby, (iii) have a Material Adverse
Effect on the Office Products Business, or (iv) result in the failure to satisfy
any of the conditions specified in Article V, and will keep Buyer informed on a
regular basis as to the status of such events.
(b) Prior to Closing, Buyer will promptly give notice to
Seller of any fact or occurrence of any event or failure of any event to occur
upon receipt of notice or knowledge of any fact or occurrence of such event,
which would or could be reasonably expected to (i) make any representation or
warranty by Buyer contained herein untrue, (ii) have a Material Adverse Effect
on Buyer's ability to consummate the transactions contemplated hereby or (iii)
result in the failure to satisfy any
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of the conditions specified in Article V, and will keep Seller informed on a
regular basis as to the status of such events.
4.22. TANGIBLE NET WORTH ADJUSTMENT.
(a) As soon as reasonably possible after the Closing Date (but
not later than 90 days thereafter), Buyer shall prepare or cause to be prepared,
and deliver to Seller an unaudited proforma balance sheet of the Office Products
Business as at the Closing Date, which shall be certified by the Chief Financial
Officer of Buyer (the "Proforma Balance Sheet"). The Proforma Balance Sheet
shall include the tangible net worth of the Office Products Business on the
Closing Date based on the Proforma Balance Sheet (the "Tangible Net Worth"). The
Proforma Balance Sheet shall be based solely on the books and records of the
Office Products Business, which shall be delivered to Buyer at the Closing, and
any other books and records used in the preparation of the proforma balance
sheet as at December 31, 1996 referenced in Section 3.1(h) hereof. The Proforma
Balance Sheet shall be prepared in the same manner as was used by Seller in
preparing the unaudited proforma balance sheet as at December 31, 1996, in
accordance with Section 3.1(h) hereof. As soon as practicable (but not more than
five business days) after the date on which the Final Balance Sheet (as defined
in Section 4.22(d) hereof) shall have been determined in accordance with this
Section 4.22, Seller shall pay to Buyer in immediately available funds the
amount, if any, by which the Tangible Net Worth as at the Closing Date as
reflected in the Final Balance Sheet is less
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than $78,000,000, which shall constitute an immediate adjustment of the Stock
and Asset Purchase Price in such amount.
(b) Seller, upon receipt of the Proforma Balance Sheet, shall
(i) review the Proforma Balance Sheet and (ii) to the extent Seller may deem
necessary, make reasonable inquiry of Buyer relating to the preparation of the
Proforma Balance Sheet. Seller and its employees and advisors shall have full
access upon prior written notice and during normal business hours to the books,
papers and records of the Office Products Business. The Proforma Balance Sheet
shall be binding and conclusive upon, and deemed accepted by, Seller unless
Seller shall have notified Buyer in writing of any objections thereto and a
detailed description of the basis therefor (the "Seller's Objection") within 20
days after receipt of the Proforma Balance Sheet.
(c) In the event of a Seller's Objection, Buyer shall have 10
days to review and respond to the Seller's Objection, and Seller and Buyer shall
attempt to resolve the differences underlying the Seller's Objection within 10
days following completion of Buyer's review of the Seller's Objection. Disputes
between Buyer and Seller which cannot be resolved by them within such 10 day
period shall be referred no later than such 10th day for decision to a
nationally recognized firm of independent public accountants (who shall not have
had a material relationship with Buyer, Seller or any of their respective
affiliates within the past two years) (the "Auditor") who shall be selected by
the mutual agreement of Buyer's and Seller's respective regular independent
public accountants and who shall
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act as arbitrator and determine, based solely on presentations by Seller and
Buyer and on the manner in which the Proforma Balance Sheet was prepared and
only with respect to the remaining differences so submitted, whether and to what
extent, if any, the Proforma Balance Sheet requires adjustment. The Auditor
shall deliver its written determination to Buyer and Seller no later than the
20th day after the remaining differences underlying the Seller's Objection are
referred to the Auditor, or such longer period of time as the Auditor determines
is necessary. The Auditor's determination shall be conclusive and binding upon
the parties. The fees and disbursements of the Auditor shall be allocated
equally between Buyer and Seller. Buyer and Seller shall make readily available
to the Auditor all relevant information, books and records and any work papers
relating to the Proforma Balance Sheet and all other items reasonably requested
by the Auditor. In no event may the Auditor's resolution of any difference be
for an amount which is outside the range of Buyer's and Seller's disagreement.
(d) The Proforma Balance Sheet shall become final and binding
upon the parties upon the earlier of (i) the failure by Seller to object thereto
within the period permitted under Section 4.22(b), (ii) the agreement between
Buyer and Seller with respect thereto and (iii) the decision by the Auditor with
respect to any disputes under Section 4.22(c). The Proforma Balance Sheet, as
adjusted pursuant to the agreement of the parties or decision of the Auditor,
when final and binding is referred to herein as the "Final Balance Sheet."
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4.23. MARYVILLE, TENNESSEE CONSTRUCTION CONTRACT. Seller shall
or shall cause ROP to comply with all of the terms of the Maryville, Tennessee
Construction Contract between ROP and Joseph Construction Co., Inc.
4.24. SHARED OFFICE SPACE. On or prior to the ninetieth day
following the Closing, Buyer shall cause (a) all Transferred Employees to
vacate, and (b) all tangible personal property relating to the Office Products
Business transferred to Buyer pursuant to this Agreement to be removed from the
facilities owned by Seller or its subsidiaries (other than ROP and the ROP
Subsidiaries).
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PARTIES. The
respective obligations of Buyer and Seller hereunder are subject to the
satisfaction or waiver, at or prior to the Closing Date of each of the following
conditions:
(a) ANTITRUST LAWS. The waiting period applicable to the
consummation of the transactions contemplated hereby under the HSR Act shall
have expired or been terminated.
(b) NO PROCEEDING OR INJUNCTION. There shall not have been
instituted or be pending any suit, action, or other proceeding by any
governmental authority in which it is sought to restrain or prohibit the
validity or legality (in each case, in any material respect) of the transactions
contemplated by this Agreement or the other Transaction Agreements. None of the
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parties hereto shall be subject to any order or injunction of a court of
competent jurisdiction that prohibits the consummation of the transactions
contemplated by this Agreement or the other Transaction Agreements. In the event
any such order or injunction shall have been issued, each party agrees to use
commercially reasonable efforts to have any such order overturned or injunction
lifted.
(c) CONSENTS. All consents, authorizations, orders and
approvals of (or filings or registrations with) any governmental authority
required in connection with the execution, delivery and performance of this
Agreement (including the transfer and licensing as applicable, of the Stock and
the Assets to Buyer and its subsidiaries) shall have been obtained or made,
except where the failure to have obtained or made any such consent,
authorization, order, approval, filing or registration would not have a Material
Adverse Effect on Buyer or the Office Products Business following the Closing
Date.
5.2 CONDITIONS PRECEDENT TO OBLIGATION OF BUYER. The
obligation of Buyer to consummate the transactions contemplated by this
Agreement is subject to the satisfaction or waiver by Buyer at or prior to the
Closing Date of each of the following additional conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller contained herein shall be true and
correct in all material respects (with respect to representations and warranties
which do not contain a materiality or Material Adverse Effect qualifier) or true
and correct (with
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respect to representations and warranties which contain a materiality or
Material Adverse Effect qualifier), in either case as of the date of this
Agreement and as of the Closing Date, with the same force and effect as though
made at and as of the Closing Date, except for changes permitted or contemplated
by this Agreement and except that to the extent any representations or
warranties made as of a specified date, which need be true only as of such date.
(b) PERFORMANCE OF AGREEMENTS. Each of the agreements and
contracts of Seller and its subsidiaries to be performed and complied with by
Seller and its subsidiaries prior to or at the Closing Date shall have been
performed and complied with in all material respects.
(c) CERTIFICATE. Buyer shall have received a certificate of
Seller, dated the Closing Date, executed on behalf of Seller by any Vice
President, to the effect (i) that the conditions specified in paragraphs (a) and
(b) above have been fulfilled.
(d) CONSENTS; THIRD-PARTY RIGHTS; FILINGS; NOTICES. Buyer
shall have received evidence satisfactory to it that the consents, approvals,
filings and required notices set forth on Schedule 5.2(d) have been obtained,
made or given (and are in full force and effect), except with respect to the
License Agreement dated September 29, 1994, between ROP and Sunbeam Corporation.
(e) REGULATORY AUTHORIZATIONS. Buyer shall have received, in
form and substance satisfactory to Buyer the
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following confirmations, if Buyer reasonably believes such confirmations are
required for the consummation of the transactions contemplated by this
Agreement:
(i) confirmation from the French Ministry for the Economy and
Finance (the "Ministry") that the transactions contemplated by this
Agreement will not be the subject of a reference to the Competition
Council under Ordinance No. 86- 1243 of 1 December 1986, and that in
any event the Ministry will not oppose it;
(ii) confirmation from the Office of Fair Trading, in terms
satisfactory to Buyer, that the United Kingdom Secretary of State for
Trade and Industry does not intend to refer the transactions
contemplated by this Agreement to the United Kingdom Monopolies and
Merger Commission; and
(iii) confirmation from the German Federal Cartel Office
("FCO") that the conditions for prohibiting the consummation of the
transactions contemplated by this Agreement under Section 24(1) of the
German Act against Restraints of Competition ("GWB") are not fulfilled:
or (A) (where no such confirmation has been received) the one month
period referred to in Section 24a(2) of the GWB having expired without
the FCO having informed Buyer that it has entered into an investigation
of or having prohibited the transactions contemplated hereby; or (B)
(where the FCO has informed Buyer that it has entered into an
investigation of the transactions contemplated hereby following its
notification) the four month period referred to in Section
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24a(2) of the GWB having expired without the FCO prohibiting the
transactions contemplated hereby or agreeing with Buyer upon an
extension of such four-month waiting period.
(f) ANCILLARY AGREEMENTS. Seller shall have executed and
delivered an Assignment Agreement, a Transition Services Agreement and an Office
Products Supply Agreement in forms reasonably agreed upon by Buyer and Seller
prior to Closing (the "Ancillary Agreements").
(g) ADDITIONAL MATTERS. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection with the
transactions contemplated by the Transaction Agreements shall be reasonably
satisfactory to Buyer and Buyer shall have received certified copies of the
resolutions duly adopted by the board of directors of each of Seller and, to the
extent required under such Affiliate's organizational documents, each Affiliate
approving (i) the execution and delivery of this Agreement and the other
Transaction Agreements to which it is a party and (ii) the consummation of the
transactions contemplated hereby and thereby and such other documents as it
shall reasonably request.
5.3 CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER. The
obligation of Seller to consummate the transactions contemplated by this
Agreement is subject to the satisfaction or waiver by Seller at or prior to the
Closing Date of each of the following additional conditions:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer contained herein shall be
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true and correct in all material respects (with respect to representations and
warranties which do not contain a materiality or Material Adverse Effect
qualifier) or true and correct (with respect to representations and warranties
which contain a materiality or Material Adverse Effect qualifier), in either
case as of the date of this Agreement and as of the Closing Date, with the same
force and effect as though made at and as of the Closing Date, except for
changes permitted or contemplated by this Agreement and except that to the
extent any representations or warranties is made as of a specified date, which
need be true only as of such date.
(b) PERFORMANCE OF AGREEMENTS. Each of the agreements and
covenants of Buyer to be performed by Buyer prior to or at the Closing Date
shall have been performed and complied with in all material respects.
(c) CERTIFICATE. Seller shall have received a certificate of
Buyer, dated the Closing Date, executed on behalf of Buyer by any Vice
President, to the effect that the conditions specified in paragraphs (a) and (b)
above have been fulfilled.
(d) ASSUMPTION AGREEMENT. Buyer and/or one or more of its
subsidiaries shall have executed and delivered to Seller an Assumption Agreement
substantially in the form attached hereto as Exhibit F.
(e) ADDITIONAL MATTERS. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection with the
transactions contemplated by the Transaction Agreements shall be reasonably
satisfactory to Seller
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and Seller shall have received certified copies of the resolutions duly adopted
by the board of directors of each of Buyer (or its subsidiaries, if applicable)
approving (i) the execution and delivery of this Agreement and the Transaction
Agreements to which it is a party and (ii) the consummation of the transactions
contemplated hereby and thereby and such other documents as it shall reasonably
request.
ARTICLE VI
PROVISIONS AS TO TAX MATTERS
6.1 CERTAIN TAX MATTERS. (a) PREPARATION AND FILING OF TAX
RETURNS. Seller shall prepare and timely file (or shall cause to be prepared and
timely filed) all Tax Returns in respect of the Company and the Affiliates and
each of their respective assets and activities (i) that are required to be filed
on or before the Closing Date or (ii) are required to be filed after the Closing
Date and (A) are paid on a consolidated, unitary, combined or similar basis with
respect to Tax Returns ("Consolidated Tax Returns") or (B) are with respect to
Taxes based upon, measured by, or calculated with respect to gross or net
income, receipts or profits ("Income Taxes") and are required to be filed on a
separate return basis for any tax period ending on or before the Closing Date.
To the extent reasonably requested by Seller, Buyer shall cause the Company to
assist Seller in the preparation and timely filing of the Tax Returns specified
in the preceding sentence. Buyer shall prepare or cause to be prepared all other
Tax Returns required of the
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Company, its assets or activities, or the assets acquired from the Affiliates.
To the extent reasonably requested by Buyer, Seller shall assist Buyer in the
preparation and timely filing of the Tax Returns specified in the preceding
sentence. Any Tax Returns, reports, statements or forms that include tax periods
ending on or before the Closing Date or that include the Closing Date shall,
insofar as they relate to the Company, be prepared on a basis consistent with
the last previous such returns, reports, statements or forms filed in respect of
the Company.
(b) PAYMENT OF TAXES. Seller shall timely pay or cause to be
paid (i) all Income Taxes and all Taxes other than Income Taxes due with respect
to Tax Returns that Seller is obligated to prepare and file or cause to be
prepared and filed pursuant to Section 6.1(a) and (ii) all Taxes due on or
before the Closing Date for which no Tax Return is required to be filed. Buyer
shall pay or cause to be paid (i) all Income Taxes due with respect to Tax
Returns that Buyer is obligated to prepare and file or cause to be prepared and
filed pursuant to Section 6.1(a) and (ii) all other Taxes owed by the Company
other than Taxes described in the preceding sentence.
(c) TAX SHARING AGREEMENTS. On the Closing Date, all tax
sharing agreements and arrangements between (i) ROP or any of the Subsidiaries,
on the one hand, and (ii) Seller or any of its subsidiaries or affiliates (other
than ROP and the ROP Subsidiaries), on the other hand, shall be terminated and
have no further effect for any taxable year or period (whether current, future
or past).
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(d) CARRYFORWARDS AND CARRYBACKS. Buyer shall cause ROP and
the ROP Subsidiaries to elect, where permitted by law, to carry forward any net
operating loss, charitable contribution or other item arising after the Closing
Date that could, in the absence of such an election, be carried back to a
taxable period of ROP or any of the Subsidiaries ending on or before the Closing
Date in which ROP or any of the Subsidiaries were included in a Consolidated Tax
Return.
(e) REFUNDS. Except to the extent of a receivable reflected on
the books and records of the Company, Seller shall be entitled to retain (or
receive immediate payment from Buyer or any of its subsidiaries or affiliates
(including ROP and the ROP Subsidiaries) equal to) any refund or credit for
Taxes with respect to any Tax period ending on or before the Closing Date
relating to ROP or any of the Subsidiaries.
6.2 TAX INDEMNIFICATION. (a) SELLER INDEMNIFICATION. Seller
hereby agrees to indemnify Buyer and hold it harmless (i) except to the extent
of a liability reflected on the books and records of the Company, from all
liability for Taxes imposed on the Company (including without limitation
liability under Treas. Reg. Section 1.1502-6 or any comparable provision of
state or foreign law) for any taxable year or period ending on or before the
Closing Date and (ii) from any income, franchise or similar taxes arising as a
result of the Section 338(h)(10) Election referred to in Section 6.5(a) or any
comparable or resulting election under state law filed by Buyer and Seller,
including Taxes imposed by any state or local taxing authority as a result of an
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election or deemed election pursuant to Section 338(g) of the Code (or any
comparable election under state law) if an election under Section 338(h)(10) is
made and such state or local taxing authority does not allow or respect a
Section 338(h)(10) election with respect to the purchase and sale of Stock and,
in either case, in the case of any taxable year or period beginning before and
ending after the Closing Date, the portion of such period ending on and
including the Closing Date.
(b) BUYER INDEMNIFICATION. Buyer hereby agrees to indemnify
Seller and the Affiliates and hold them harmless from all liability for Taxes
imposed on the Company for any taxable year or period beginning after the
Closing Date and, in the case of any taxable year or period beginning before and
ending after the Closing Date, the portion of such period beginning after the
Closing Date.
(c) DETERMINING LIABILITY FOR TAXES. Whenever it is necessary
to determine liability for Taxes for a portion of a taxable year or period
beginning before and ending after the Closing Date, the determination shall be
made assuming that there was a closing of the books at 11:59 p.m. (local time)
on the Closing Date, except that Taxes other than Income Taxes, as well as
exemptions, allowances or deductions that are calculated on an annual basis,
shall be apportioned ratably on a daily basis between the periods in question.
6.3 CONTEST PROVISIONS. Buyer shall promptly notify Seller in
writing upon receipt by Buyer or any of its affiliates of notice of any pending
or threatened audits or assessments that
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may materially affect the tax liabilities of the Company for which Seller would
be required to indemnify Buyer pursuant to Section 6.2(a). Seller shall have the
sole right to represent the Company's interests in any tax audit or
administrative or court proceeding relating to taxable periods ending on or
before the Closing Date, and to settle any such proceeding as it sees fit so
long as Seller indemnifies Buyer against the effects of any such settlement;
provided, however, Seller shall consult with Buyer with respect to the
resolution of any issue relating to or which could affect a straddle or
post-close period and Seller shall not settle or cause to be settled any issue
or file any amended return relating to such issues without the prior written
consent of Buyer, which consent shall not be unreasonably withheld. Seller shall
be entitled to participate at its expense in the defense of any claim for Taxes
for a year or period ending after the Closing Date which may be the subject of
indemnification by Seller pursuant to Section 6.2(a) and, with the written
consent of Buyer, may assume the entire defense of any such claim. Neither Buyer
nor the Company may agree to settle any tax claim for the portion of the year or
period ending on the Closing Date which may be the subject of indemnification by
Seller under Section 6.2(a) without the prior written consent of Seller, which
consent shall not be unreasonably withheld.
6.4 TAX ELECTION.
(a) SECTION 338(h)(10) ELECTION. Buyer and Seller shall
jointly make the election provided by Section 338(h)(10) of the Code in
accordance with Treasury Regulation Section
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1.338(h)(10)-1 with respect to the acquisition by Buyer of the Stock (the
"338(h)(10) Election"), and, if permissible, similar elections under any
applicable state or local income tax laws. The 338(h)(10) Election shall be made
on Form 8023-A, and shall be prepared by Buyer and delivered by Buyer to Seller
as promptly as practicable, but no later than 120 days after the Closing Date. A
copy of such Form 8023-A, reviewed and signed by Seller, shall be provided to
Buyer by Seller no later than 150 days after the Closing Date. Buyer shall
timely file the Form 8023-A with the Internal Revenue Service's Service Center
in Cincinnati, Ohio. Seller shall attach a copy of such form to the U.S.
consolidated corporation income tax return that it will file for its taxable
year that includes the Closing Date. Buyer shall attach a copy of the Form
8023-A to the ROP U.S. corporation income tax return that it will file for the
ROP taxable year that begins on the day following the Closing Date. Seller shall
be responsible for any Taxes that are triggered by the 338(h)(10) Election.
(b) TAX ALLOCATION. Within 90 days of the Closing, Seller and
Buyer shall, based upon an appraisal obtained by Buyer, at Buyer's expense,
determine the allocation for the deemed asset sale treatment resulting from the
Section 338(h)(10) Election referred to in Section 6.5(a) above, with respect to
the proceeds attributable to the Stock of ROP. Such allocation shall be made for
tax purposes in accordance with the rules prescribed in Sections 1060 and 338 of
the Code. Each of Buyer and Seller shall (and Buyer shall cause ROP after the
Closing to) adhere to,
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and to be bound by, such allocation for U.S. federal income tax purposes and, to
the extent such Section 338(h)(10) Election is recognized (or deemed recognized)
by any state or locality for state or local income tax purposes, for all such
state or local income tax purposes.
ARTICLE VII
LABOR MATTERS, EMPLOYEE RELATIONS AND BENEFITS
7.1 TRANSFERRED EMPLOYEES. Following the Closing, Buyer shall
cause the Company to continue the employment of all of the employees of the
Company except as otherwise provided below, and those employees of the
Affiliates who work solely in the Office Products Business (which employees of
the Affiliates are set forth on Schedule 7.1(a)). Schedule 7.1(b) sets forth a
list of the members of the operating team of ROP (collectively, the "Operating
Team"), and those employees of affiliates of Seller other than the Company who
provide substantial services to the Office Products Business. Prior to the
Closing, Buyer shall offer post-Closing employment in the Office Products
Business to such of the employees listed on Schedule 7.1(b) as Buyer determines
to be appropriate. Those employees listed on Schedule 7.1(a), those persons set
forth on Schedule 7.1(b) who accept offers of employment (as described in the
preceding sentence), and all of the employees of the Company other than those
set forth in Schedule 7.1(b) as of the Closing Date, are referred to herein as
the "Transferred Employees" (provided, however, that this Section 7.1 shall not
require Buyer to continue the
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employment of any Transferred Employee for a specified period of time);
7.2 COMPENSATION AND BENEFITS FOR TRANSFERRED EMPLOYEES.
Through December 31, 1997, Buyer shall cause such of the Transferred Employees
(whether hourly or salaried employees) who remain employed in the Office
Products Business to be provided with salary compensation levels that are, in
the aggregate, substantially comparable to those provided to such Transferred
Employees prior to the Closing. Without limiting the generality of the
foregoing:
(a) Buyer shall cause the Company to honor (i) the severance
arrangement set forth on Schedule 7.2(a) adopted by the Company prior to the
Closing for the benefit of the members of the Operating Team who are Transferred
Employees, and (ii) the employment contracts set forth on Schedule 7.2(a)
(provided, however, that this Section 7.2(a)(ii) shall not require Buyer to
continue the employment of the individuals with such employment contracts for a
specified period of time or on terms other than those described in the
employment contracts);
(b) Buyer shall provide severance pay and related benefits to
Transferred Employees (other than members of the Operating Team who are
Transferred Employees) whose employment with the Company is terminated after the
Closing at the same levels and on the same basis as such severance pay and
related benefits are provided under Buyer's severance pay plan as in effect as
of the date of such termination; and
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(c) Buyer shall cause each Transferred Employee (and his or
her eligible dependents) to be covered following the Closing by a group health
plan that provides medical and dental benefits (within the meaning of Section
5000(b)(1) of the Code ("Buyer's Medical Plan") that does not limit or exclude
coverage on the basis of any waiting period or pre-existing condition of such
Transferred Employee or dependent, and that provides each Transferred Employee
full credit, for the year during which the Closing occurs, with any deductible
already incurred by the Transferred Employee under Seller's group health plan
and with any other out-of-pocket expenses that count against any maximum
out-of-pocket expense provision of Seller's group health plan or Buyer's Medical
Plan. Buyer shall retain the right to amend or terminate Buyer's Medical Plan as
it pertains to Transferred Employees.
7.3 DEFINED CONTRIBUTION PLAN TRANSFER. As promptly as
practicable after the Closing Date, Buyer shall offer to the Transferred
Employees the right to participate in a qualified defined contribution
retirement plan of Buyer ("Buyer's Plan"). The accounts of all Transferred
Employees in Seller's qualified defined contribution retirement plan or plans
covering any such Transferred Employee shall be fully vested as of the Closing
Date. As promptly as practicable after the Closing (such date referred to as the
"Transfer Date"), Seller and Buyer shall arrange for the transfer of the account
balances ("Accounts") of the Transferred Employees participating in the
Rubbermaid Retirement Plan ("Seller's Plan") to Buyer's Plan. The assets of
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Seller's Plan to be transferred to Buyer's Plan shall be the total of all
Accounts of Transferred Employees as of the Transfer Date and shall reflect all
contributions earned under Seller's Plan by such Transferred Employees as of the
Closing to the extent not accrued on the books of the Company. In transferring
the Accounts, Seller and Buyer shall comply with all applicable requirements of
Section 411(d)(6), 414(1) and 401(a)(12) of the Code. Buyer represents and
warrants that (i) Buyer's Plan has been maintained in material compliance with
its terms and with the requirements prescribed by any applicable statute and
regulations including ERISA and the Code; (ii) Buyer's Plan has received a copy
of a favorable determination letter stating that it meets the requirements of
the Tax Reform Act of 1986. Seller represents and warrants that Seller's Plan
has been maintained in compliance with its terms and with the requirements
prescribed by any applicable statute and regulations, including ERISA and the
Code. The transfer of assets from Seller's Plan to Buyer's Plan shall be made in
cash and, to the extent Transferred Employees have any outstanding loans from
Seller's Plan as of the Closing, promissory notes evidencing such loans. Seller
has provided Buyer with a copy of (i) the Seller's Plan, (ii) a Summary Plan
Description of Seller's Plan, (iii) a favorable determination letter stating
that Seller's Plan meets the requirements of the Tax Reform Act of 1986, and
(iv) other documentation reasonably satisfactory to Buyer that establishes that
Seller's Plan is qualified under Section 401(a) of the Code. Effective as of the
Closing, Buyer's Plan shall credit Transferred Employees with all
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service credited to the Transferred Employees under Seller's Plan, such service
to be credited under Buyer's Plan for purposes of determining Transferred
Employees eligibility and vesting under Buyer's Plan.
7.4 NO EMPLOYEE RIGHTS. Nothing in this Article VII express or
implied shall confer upon any Transferred Employee or legal representative
thereof any rights or remedies, including any right to employment, or continued
employment for any specified period, of any nature or kind whatsoever under or
by reason of this Agreement.
ARTICLE VIII
SURVIVAL; ASSUMPTION OF CERTAIN OBLIGATIONS
AND LIABILITIES; INDEMNIFICATION
8.1 SURVIVAL. All of the respective representations and
warranties of Seller and Buyer contained in this Agreement will survive the
Closing and continue in full force and effect and (i) in the case of the
representations and warranties of Seller contained in Section 3.1(i), until 30
days after the expiration of the applicable statute of limitations with respect
to the matter to which the claim relates, as such limitation period may be
extended from time to time, (ii) in the case of the representations and
warranties of Seller contained in Sections 3.1(d), 3.1(e) and 3.1(s), until five
years after the Closing Date, and (iii) in the case of any other representation
or warranty contained in this Agreement until April 15, 1998. All of the
covenants and agreements of Seller and Buyer contained in
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this Agreement will survive the Closing and continue in full force and effect
forever thereafter, except that the covenants set forth in Section 4.1, 4.9 and
4.12 shall continue for the respective period stated therein.
8.2 ASSUMPTION AND INDEMNIFICATION.
(a) INDEMNIFICATION BY BUYER. On and after the Closing Date, Buyer hereby agrees
to indemnify, defend and hold harmless Seller and its subsidiaries
(collectively, the "Seller Indemnified Parties") from and against and in respect
of any and all claims, losses, damages, amounts paid in settlement, costs,
expenses, obligations, Liabilities, charges, actions, suits, proceedings,
deficiencies, interest, and reasonable out-of-pocket costs, penalties and fines
(including costs of collection and enforcement, attorney's fees and other costs
of defense, removal costs, remediation costs, closure costs and expenses of
investigation and ongoing monitoring) (collectively, "Damages") imposed on,
sustained, incurred or suffered by or asserted against them, directly or
indirectly, in respect of, but only in respect of:
(i) any breach of Buyer's representations and warranties (such
breach to be determined for this purpose without regard to any
materiality, Material Adverse Effect or similar standard set forth in
any representation or warranty), any such claim to be made by Seller
within the period of survivability set forth in Section 8.1;
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(ii) Buyer's failure to perform or otherwise fulfill
any of its agreements, covenants obligations or undertakings
hereunder;
(iii) the Assumed Liabilities;
(iv) any and all claims asserted by any person for the death
of or injury to any person or any damage to or loss of property or
other liability arising out of products of the Office Products
Business, whether in respect of any express or implied representation
or warranty or otherwise; and
(v) any and all Damages, whether actual or contingent which
may arise out of or under any Environmental Law with respect to the
operations or assets of the Company or of the Affiliates (in connection
with the Affiliates' operation of the Office Products Business), other
than those Damages referred to in Section 8.2(b)(v) and (vi); and
(vi) Liabilities relating to claims asserted by any person for
death or injury to any person or any damage to or loss of property or
other liability arising out of products produced using Shared Tools,
which products were distributed by the Company or the Affiliates, and
such claims are based on occurrences prior to Closing.
Except as provided above, in addition, on and after the
Closing Date, Buyer hereby releases and discharges Seller and its subsidiaries
from any and all environmental liability whatsoever whether actual or contingent
or imposed as a consequence of existing or future Environmental Law, including
all claims, demands and causes of action of every nature related to or
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arising out of the operations or assets of the Company or of the Affiliates (in
connection with the Affiliates' operation of the Office Products Business).
(b) INDEMNIFICATION BY SELLER. On and after the Closing Date,
Seller hereby agrees to indemnify, defend and hold Buyer and its subsidiaries
(including the Company) (collectively, the "Buyer Indemnified Parties"),
harmless from and against and in respect of any and all Damages imposed on,
sustained, incurred or suffered by or asserted against them directly or
indirectly, in respect of, but only in respect of:
(i) any breach of Seller's representations and warranties
(such breach to be determined for this purpose without regard to any
materiality, Material Adverse Effect or similar standard set forth in
any representation or warranty), except for a breach of the
representations and warranties contained in Section 3.1(i), it being
the intention of the parties that Buyer's rights against Seller with
respect to Taxes shall be governed by Article VI and not this Article
VIII, any such claim to be made by Buyer within the period of
survivability set forth in Section 8.1;
(ii) Seller's failure to perform or otherwise fulfill
any of its agreements, covenants, obligations or
undertakings hereunder;
(iii) the Excluded Liabilities;
(iv) any liabilities or obligations relating to, based in
whole or in part on events or conditions occurring or existing in
connection with, or arising out of, the shutdown
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of the ROP facility located in Carson, California (the "Carson Plant")
formerly used in connection with the Office Products Business,
including, without limitation, any action that could be construed as a
"plant closing" or "mass layoff," as those terms are defined in WARN,
or any "employment loss," as defined in WARN, which any former employee
of the Carson Plant may be deemed to have suffered;
(v) notwithstanding Section 8.2(a)(v) and the last paragraph
of Section 8.2(a), Seller hereby agrees to indemnify and hold harmless
Buyer from and against any Damages arising out of or under any
Environmental Law that (A) were retained by ROP with respect to ROP's
operation of its former Compton, California facility or (B) relate to
operations or assets of the Company or the Affiliates at or from any
plant, warehouse, office or other facility that was formerly owned or
leased by the Company or the Affiliates and is not owned or leased by
the Company or the Affiliates as of the Closing;
(vi) notwithstanding Section 8.2(a)(v) and the last paragraph
of Section 8.2(a), Seller hereby agrees to indemnify and hold harmless
Buyer from and against any Damages arising out of or under any
Pre-Closing Off-Site Environmental Liabilities. "Pre-Closing Off-Site
Environmental Liabilities" means Liabilities arising under
Environmental Laws resulting from the placement on or in real property
or at a facility not owned, leased or operated by the Company, the
Affiliates, Seller or any of its
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subsidiaries, or their respective predecessors of any Hazardous
Substance generated, disposed, used, treated, recycled or stored by the
Company, the Affiliates, Seller or any of its subsidiaries, or their
respective predecessors, prior to the Closing;
(vii) except as otherwise provided in Section 8.2(a)(vi),
liabilities relating to claims asserted by any person for death or
injury to any person or any damage to or loss of property or other
liability arising out of products produced using Shared Tools and based
upon occurrences prior to Closing;
(viii) liabilities relating to the failure to obtain the
necessary consent to transfer the License Agreement dated September 29,
1994, between ROP and Sunbeam Corporation to Buyer; and
(ix) any and all Damages arising out of or relating to
Section 7.8 of the Quartet Agreement.
(c) All such Damages described in the foregoing paragraphs (a)
and (b) are collectively referred to as "Indemnified Liabilities".
8.3 PROCEDURE. If a claim by a third party is made against an
indemnified party, and if such party intends to seek indemnity with respect
thereto under this Article VIII or under any other provisions of this Agreement
providing for indemnification, such indemnified party shall promptly notify the
indemnifying party in writing of such claims setting forth such claims in
reasonable detail. The failure of the indemnified
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party to give the indemnifying party prompt notice as provided herein shall not
relieve the indemnifying party of any of its obligations under this Article
VIII, except to the extent that the indemnifying party's legal rights are
materially prejudiced by such failure. The indemnifying party shall have 30 days
after receipt of such notice to undertake, conduct and control, through counsel
of its own choosing and at its own expense, the settlement or defense thereof,
and the indemnified party shall cooperate with it in connection therewith;
PROVIDED that the indemnified party may participate in such settlement or
defense through counsel chosen by such indemnified party if the fees and
expenses of such counsel shall be borne by such indemnified party, and PROVIDED
FURTHER, that Seller and Buyer agree that any action relating to the indemnities
set forth in 8.2.(b)(iv) and (v) shall be continued to be conducted and
controlled by Seller on behalf of ROP, and that Buyer shall cause ROP to fully
cooperate in connection with any such actions. So long as the indemnifying party
is reasonably contesting any such claim in good faith, the indemnified party
shall not pay or settle any such claim. Notwithstanding the foregoing, the
indemnified party shall have the right to pay or settle any such claim; PROVIDED
that in such event it shall waive any right to indemnity therefor by the
indemnifying party. If the indemnifying party does not notify the indemnified
party within 30 days after the receipt of the indemnified party's notice of a
claim of indemnity hereunder that it elects to undertake the defense thereof,
the indemnified party shall have the right to contest, settle or compromise the
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claim but shall not thereby waive any right to indemnity therefor pursuant to
this Agreement. The indemnifying party shall not, except with the consent of the
indemnified party, enter into any settlement that does not include as an
unconditional term thereof the giving by the person or persons asserting such
claim to all indemnified parties (I.E., Seller Indemnified Party or Buyer
Indemnified Party, as the case may be) an unconditional release from all
liability with respect to such claim, or consent to entry of any judgment.
8.4 LIMITATION ON INDEMNIFICATION. An indemnifying party shall
be required to indemnify and hold harmless an indemnified party under Section
8.2(a)(i) or Section 8.2(b)(i) with respect to Damages incurred by such
indemnified party in accordance with Section 8.2(a)(i) or 8.2(b)(i), (a) only to
the extent that the aggregate amount of all such Damages of the Seller
Indemnified Parties or the Buyer Indemnified Parties, as the case may be,
exceeds $3,000,000, and (b) only to the extent that the aggregate amount of all
such Damages of such indemnified party is not in excess of the Stock and Asset
Purchase Price. Notwithstanding the foregoing, if the amount of any claim or
series of related claims for Damages does not exceed $5,000 then the amount of
such claim shall be excluded from the calculation of the aggregate amount of
Damages for purposes of the previous sentence.
8.5 ADJUSTMENT OF INDEMNITY PAYMENT. If the amount of any
claim under any of Sections 6.2, or 8.2(b) (i) is currently deductible in the
calculation of Taxes of the party making the
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claim or (ii) results in an addition to basis of any asset subject to depletion,
depreciation or amortization, the amount of the indemnity payment shall be
adjusted as follows: in the case of a claim described in clause (i) of the
preceding sentence, the indemnity payment shall be reduced by the product of (A)
the amount of the deduction times (B) an assumed marginal tax rate equal to the
highest marginal federal tax rate in effect for corporate taxpayers in the year
the indemnity payment is made. In the case of a claim described in clause (ii)
of such sentence, the indemnity payment shall be reduced by an amount determined
by (A) deeming the useful life of the property to be fifteen years commencing on
the first day of the taxable year in which the payment resulting in the basis
increase is made; (B) amortizing such basis increase ratably on a straight line
basis over such deemed useful life; and (C) calculating the present value of the
tax saving deemed to result therefrom (which tax saving shall be determined
using the highest marginal federal tax rate then in effect for corporate
taxpayers in the year the indemnity payment is made at an annual discount rate
equal to the thirteen-week Treasury bill interest rate quoted in the Money Rates
table of the Wall Street Journal on the date the indemnity payment is made. In
the event that there should be a determination disallowing the deduction or
basis increase, the indemnifying party shall be liable to refund to the
indemnified party the amount of any related reduction previously allowed to the
indemnifying party pursuant to this Section 8.4, PLUS interest at a rate
calculated pursuant to Section 6621(c)(1) of the Code,
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from the date of such payment to the date of such refund. If the amount of any
claim under any of Sections 6.2, 8.2(a) or 8.2(b), (i) is currently deductible
in the calculation of Taxes of the party making the claim or (ii) results in an
addition to basis of any asset subject to depletion, depreciation or
amortization, the amount of the indemnity payment shall be based upon an
affidavit of the chief financial officer of the indemnified party setting forth
the amount of such deduction or addition to basis and the calculation of the
resulting adjustment; provided however, that no party shall have the right to
inspect the tax returns or tax records of any indemnified party by reason of
this Section 8.4.
8.6 INDEMNITY PAYMENTS. All amounts paid pursuant to Article
VI or this Article VIII shall be treated as adjustments to the Stock and Asset
Purchase Price.
ARTICLE IX
MISCELLANEOUS
9.1 TERMINATION AND ABANDONMENT.
(a) GENERAL. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time,
but not later than the Closing Date:
(i) by mutual written consent of Buyer and Seller;
(ii) by Seller, thirty-five days after Buyer files its
submissions required by the HSR Act, if, for any reason, Buyer has not
been approved by the staff of the FTC by such date;
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(iii) by Seller or Buyer (A) after September 30, 1997 (the
"Outside Date") if, through no fault of the party seeking to terminate,
the Closing shall not have occurred;
(iv) by Buyer, if the representations and warranties of Seller
contained herein shall not be true and correct in all material
respects, Buyer has notified Seller in writing of such
misrepresentations or breaches of warranty, and the breach has
continued without cure for a period of thirty (30) days after the
notice of breach;
(v) by Seller, if the representations and warranties of Buyer
contained herein shall not be true in correct in all material respects,
Seller has notified Buyer in writing of such misrepresentations or
breaches of warranty, and the breach has continued without cure for a
period of thirty (30) days after the notice of breach; or
(vi) by Seller or Buyer, upon written notice to the other
party, if a governmental authority of competent jurisdiction shall have
issued an injunction, order or decree enjoining or otherwise
prohibiting the consummation of the transactions contemplated by this
Agreement, and such injunction, order or decree shall have become final
and non-appealable; PROVIDED, HOWEVER, that the party seeking to
terminate this Agreement pursuant to this clause (iv) has used
commercially reasonable efforts to remove such injunction, order or
decree.
(b) PROCEDURE UPON TERMINATION. In the event of the
termination and abandonment of this Agreement, written notice
<PAGE> 102
94
thereof shall promptly be given to the other party hereto and this Agreement
shall terminate and the transactions contemplated hereby shall be abandoned
without further action by any of the parties hereto.
(c) SURVIVAL OF CERTAIN PROVISIONS. The respective obligations
of the parties hereto pursuant to Section 4.1, 4.9 and 9.2 shall survive any
termination of this Agreement, and provided further that no termination of this
Agreement will relieve any party from Liability for any willful breach of this
Agreement prior to such termination.
9.2 FEES AND EXPENSES. Whether or not the transactions
contemplated hereby are consummated, each of the parties hereto shall pay its
own fees and expenses incident to the negotiation, preparation and execution of
this Agreement, including attorneys', accountants' and other advisors' fees.
9.3 NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally
or by overnight courier with delivery charges prepaid, or sent by telecopy, as
follows:
(a) if to Seller:
Rubbermaid Incorporated
1147 Akron Road
Wooster, Ohio 44691-0800
Facsimile: (330) 287-2340
Attn: Corporate Secretary
with a copy to:
<PAGE> 103
95
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
Facsimile: (216) 579-0212
Attn: Christopher M. Kelly, Esq.
(b) if to Buyer:
Newell Co.
One Millington Road
Beloit, Wisconsin 53512-0117
Facsimile: (608) 365-3453
Attn: William T. Alldredge
Vice President-Finance
and
Newell Co.
4000 Auburn Street
Rockford, Illinois 61101
Facsimile: (815) 969-6106
Attn: Dale L. Matschullat, Esq.
Vice President-General Counsel
with a copy to:
Schiff Hardin & Waite
7300 Sears Tower
Chicago, Illinois 60606
Facsimile: (312) 258-5600
Attn: Stuart L. Goodman, Esq.
or to such other person or address as either party shall specify by notice in
writing to the other party. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date of delivery.
9.4 ENTIRE AGREEMENT. This Agreement (including the Exhibits
and Schedules, which are hereby fully incorporated into this Agreement),
together with the Ancillary Agreements and the
<PAGE> 104
96
Confidentiality Agreement, constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral and written, between the parties hereto with
respect to the subject matter hereof.
9.5 BINDING EFFECT; BENEFIT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
9.6 ASSIGNABILITY. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assigned by either of the parties hereto without the
prior written consent of the other party; provided that Buyer may without such
consent assign its rights and obligations with respect to this Agreement to one
or more of its subsidiaries, provided any such assignment shall not relieve
Buyer of its obligations under this Agreement.
9.7 AMENDMENT AND MODIFICATION; WAIVER. Subject to applicable
law, this Agreement and any Schedule or Exhibit attached hereto may be amended,
modified and supplemented by a written instrument expressly identified as an
amendment hereto authorized and executed on behalf of Buyer and Seller at any
time with respect to any of the terms contained herein. No waiver by any party
of any of the provisions hereof shall be effective
<PAGE> 105
97
unless explicitly set forth in writing and executed by the party so waiving. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any other or subsequent breach. No
failure on the part of either party hereto to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof. The remedies
herein are cumulative and not exclusive of any remedies provided by law.
9.8 PUBLIC ANNOUNCEMENTS. Unless otherwise required by law,
prior to the Closing Date, no news release or other public announcement (other
than required filings submitted to any governmental authority) pertaining to the
transactions contemplated by this Agreement will be made by or on behalf of any
party without the prior approval of the other party.
9.9 BULK SALES LAW. The parties hereto each agree to waive
compliance by the other with the provisions of the Bulk Sales Law of any
jurisdiction.
9.10 SECTION HEADINGS, REFERENCES. The section headings
contained in this Agreement are inserted for reference purposes only and shall
not affect the meaning or interpretation of this Agreement. Unless otherwise
indicated, all references to Articles, Sections, subsections, clauses and
Schedules refer to the Articles, Sections, subsections and clauses of this
Agreement and to the Schedules hereto, respectively.
9.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be
<PAGE> 106
98
an original, and all of which together shall be deemed to be one and the same
instrument.
9.12 APPLICABLE LAW. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in accordance with
the laws of the State of New York without regard to conflict of laws principles
thereof. Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State of
New York and of the United States of America in each case located in the County
of New York for any litigation arising out of or relating to this Agreement and
the transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. registered mail to its respective
address set forth in Section 9.3 shall be effective service of process for any
litigation brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objections to the laying of
venue of any litigation arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United States
of America in each case located in the County of New York and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such litigation brought in any such court has been brought
in an inconvenient forum.
9.13 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction
<PAGE> 107
99
shall, as to such jurisdiction, be ineffective to the extent and only for the
duration of such prohibition or enforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 108
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
RUBBERMAID INCORPORATED
By: /s/ James A. Morgan
----------------------------------
Name: James A. Morgan
Title: Senior Vice President,
General Counsel
and Secretary
NEWELL CO.
By: /s/ Dale L. Matschullat
----------------------------------
Name: Dale L. Matschullat
Title: Vice President-General
Counsel
<PAGE> 109
INDEX TO THE DISCLOSURE SCHEDULES FOR THE
STOCK AND ASSET PURCHASE AGREEMENT
BETWEEN RUBBERMAID INCORPORATED
AND NEWELL CO.
DATED AS OF MAY 7, 1997
Exhibit A Subsidiaries of Rubbermaid Office Products Inc.
Exhibit B Company's Affiliates
Schedule 1.1(b)(v) Tangible Personal Property
Schedule 1.1(b)(vi) Contracts
Schedule 1.1(b)(vii) Permits
Schedule 1.1(b)(viii) Real Property
Schedule 1.1(b)(xiv) Miscellaneous
Schedule 1.1(c)(iii) Non-Assigned Contracts
Schedule 1.4 Purchase Price Allocation
Schedule 3.1(d) Good Title
Schedule 3.1(e) Capitalization of ROP
Schedule 3.1(g)(i) Knowledge (Seller)
Schedule 3.1(g) No Conflict (Seller)
Schedule 3.1(h) Exceptions to GAAP Financial Statements
Schedule 3.1(i)(iii) Tax Matters; Reserves
Schedule 3.1(i)(iv) Tax Matters; Pending Actions
Schedule 3.1(i)(v) Tax Matters; Statute of Limitations
Schedule 3.1(j) Title to Real and Personal Property
Schedule 3.1(k) Office Products Business Contracts
Schedule 3.1(l) Legal Proceedings
Schedule 3.1(m) Government Licenses, Permits
Schedule 3.1(o) Labor Matters
Schedule 3.1(p) Intellectual Property
Schedule 3.1(q) Employee Benefit Plans
Schedule 3.1(s)(i) Environmental Matters; Permits
Schedule 3.1(s)(ii) Environmental Matters; Laws
Schedule 3.1(t)(i) Transactions with Affiliated Parties (Individuals)
Schedule 3.1(t)(ii) Transactions with Affiliated Parties
Schedule 3.1(u) Absence of Changes
Schedule 3.1(w) Shared Tools
Schedule 3.1(z) Receivables
Schedule 3.1(bb) Conduct of the Office Products Business
Schedule 3.1(cc) Insurance
Schedule 3.1(ff) Copies of Documents
Schedule 3.2(c) No Conflict (Buyer)
Schedule 3.2(c)(i) Knowledge (Buyer)
Schedule 3.2(f) Signage Business
Schedule 4.2 Conduct of the Office Products Business Prior to
Closing
Schedule 4.12(a) ROP - Identical Products
Schedule 4.12(a)(1) RCP Sales of Identical Products
<PAGE> 110
Schedule 4.2(l) Intellectual Property
Schedule 4.5(b) Bank Accounts
Schedule 4.5(c) Bank Accounts
Schedule 5.2(d) Consents; Third Party Rights; Filings; Notices
Schedule 7.1(a) Transferred Employees (Affiliates Solely OP)
Schedule 7.1(b) Transferred Employees (OT and Shared Services)
Schedule 7.2(a) Employment Contracts
<PAGE> 111
[RUBBERMAID INCORPORATED LETTERHEAD]
June 13, 1997
Dale L. Matschullat, Esq.
Newell Co.
4000 Auburn Street
Rockford, Illinois 61101
Facsimile: (815) 969-6106
Re: First Amendment To Stock & Asset Purchase Agreement
---------------------------------------------------
Dear Dale:
Newell Co., a Delaware corporation ("Newell") and Rubbermaid
Incorporated, an Ohio corporation ("Rubbermaid" and together with Newell, the
"Parties"), have entered into that certain Stock and Asset Purchase Agreement,
dated as of May 7, 1997 (the "Purchase Agreement"), relating to the sale of
Rubbermaid's Office Products Business. Pursuant to Section 9.6 of Purchase
Agreement, and subject to the terms and conditions set forth in this letter
agreement (this "Letter Agreement"), the Parties have agreed to the amendments
to the Purchase Agreement, and the Schedules thereto, set forth below. Terms
capitalized herein but not defined have the meanings ascribed thereto in the
Purchase Agreement.
AMENDMENT 1. Section 4.12(a) of the Purchase Agreement is
hereby amended by deleting the current Section 4.12(a) in its entirety and
replacing it with the following new Section 4.12(a):
"(a) Buyer acknowledges that Seller and its
subsidiaries (other than ROP and the ROP Subsidiaries)
currently manufacture, distribute and sell certain products
which are identical in specifications to products
manufactured, distributed or sold by the Office Products
Business (the "Identical Products"). Seller, its subsidiaries
and the Affiliates agree that Seller and its subsidiaries
shall not, without the written approval of Buyer, market,
advertise, distribute, promote or sell (collectively,
"Non-Compete Activities") Identical Products to customers in
the trade channels identified on Schedule 4.12(a) (with the
exception of those customers of Rubbermaid Commercial
Products, identified in Schedule 4.12(a)(1) and as to those
customers so identified, only with respect to Identical
Products also identified on Schedule 4.12(a)(1) as being sold
to such customers), during the period beginning on the Closing
Date and ending on the second anniversary of the Closing Date
(each such trade channel an "Office Products Channel" and
collectively, the "Office Products Channels"). Buyer agrees
that Buyer and its affiliates shall not, without the written
approval of Seller, engage in any Non-Compete Activities with
respect to an Identical Product in or through trade channels
other than Office Products Channels, other than
<PAGE> 112
Dale L. Matschullat, Esq.
June 13, 1997
Page 2
those exceptions noted on Schedule 4.12(a), during the period
beginning on the Closing Date and ending on the second
anniversary of the Closing Date. With respect to products
other than the Identical Products, Seller further agrees that
it will not engage in Non-Compete Activities with respect to,
and will not design or directly or indirectly produce or
manufacture any products identical or similar to those
currently manufactured, distributed or sold by the Office
Products Business that are not currently manufactured,
distributed or sold by Seller or its subsidiaries (other than
ROP, the ROP Subsidiaries, the Affiliates and their
subsidiaries) during the period beginning on the Closing Date
and ending on the fourth anniversary of the Closing Date."
AMENDMENT 2. Such parts of Schedule 1.1(b)(v) (TANGIBLE
PERSONAL PROPERTY) to the Purchase Agreement as constitute the "Rubbermaid GmbH,
Office Products Division, fixed asset schedule," are hereby amended by deleting
such parts and replacing them in their entirety with the "Rubbermaid GmbH,
Office Products Division, Fixed Asset Schedule," a true and correct copy of
which is attached to this Letter Agreement as EXHIBIT A.
AMENDMENT 3. Schedule 3.1(p) (Intellectual Property) to the
Purchase Agreement is hereby amended by deleting this schedule in its entirety
and replacing it with the "Revised Schedule 3.1(p)," a true and correct copy of
which is attached to this Letter Agreement as EXHIBIT B.
AMENDMENT 4. The following is hereby added to the Purchase
Agreement as Section 9.14:
"9.14 CONFIDENTIALITY. (a) BY SELLER. Seller and its
affiliates, subsidiaries and representatives will not disclose
any information which is confidential, proprietary or
otherwise not publicly available ("Confidential Information")
about (i) the Office Products Business, or (ii) Buyer and its
affiliates obtained in the performance of this Agreement for a
period of three (3) years following the Closing Date.
(b) BY BUYER. Buyer and its affiliates, subsidiaries
and representatives, will not disclose any Confidential
Information about Seller and its affiliates obtained in the
performance of the Agreement (other than with respect to the
Company, the Office Products Business and the Affiliates with
respect to the Office Products Business) for a period of three
(3) years following the Closing Date.
(c) EXCEPTIONS. The obligations provided for in this
Section 9.14 will not apply to information which: (i) can be
reasonably shown to have been in the possession of the party
receiving the information as of the date of receipt; (ii) is
disclosed to the receiving party by a third party which has a
legal right to make such disclosure; (iii) was in the public
domain or generally available as of the date of disclosure
through no fault of the receiving party; or (iv) which is
required by law to be disclosed."
Schedules 4.12(a) and 4.12(a)(1) to the Purchase Agreement,
referred to above in AMENDMENT 1, are attached hereto as EXHIBIT C and EXHIBIT
D, respectively.
<PAGE> 113
Dale L. Matschullat, Esq.
June 13, 1997
Page 3
Except as expressly stated in this Letter Agreement, all of
the provisions of the Purchase Agreement and the Schedules thereto remain
unmodified and in full force and effect. Each of the amendments set forth herein
will be effective as of, and immediately prior to, the Closing. This Letter
Agreement shall bind and inure to the benefit of the Parties and their
respective successors and permitted assigns.
If the above accurately reflects your understanding of our
agreement relating to the amendments to the Purchase Agreement and the Schedules
thereto, please sign this Letter Agreement where indicated below.
Very truly yours,
RUBBERMAID INCORPORATED
By: /s/ James A. Morgan
-------------------------------
James A. Morgan
Senior Vice President,
General Counsel &
Secretary
Agreed this 13th day of
June, 1997.
NEWELL CO.
By: /s/ Dale L. Matschullat
----------------------------------
Dale L. Matschullat, Esq.
Vice President-General
Counsel
