<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1996
------------------------------------------------
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number 1-12374
-----------
[LOGO] ALUMAX INC.
(Exact name of registrant as specified in its charter)
Delaware 13-2762395
- -------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5655 Peachtree Parkway, Norcross, Georgia 30092
- -------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 246-6600
- -------------------------------------------------------------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No ___
Number of shares of common stock of registrant outstanding at July 31, 1996:
- -----------------------------------------------------------------------------
44,925,914
- -----------
-1-
<PAGE> 2
Part I. Financial Information
Item 1. Financial Statements
ALUMAX INC.
CONDENSED STATEMENTS OF EARNINGS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
---------------------- ----------------------
1996 1995 1996 1995
--------- -------- -------- --------
(In Millions, Except Per Share Amounts)
<S> <C> <C> <C> <C>
NET SALES . . . . . . . . . . . . . . . . . . . . . . $ 851.4 $ 721.2 $ 1,654.0 $ 1,419.8
--------- -------- --------- ---------
Cost and expenses:
Cost of goods sold . . . . . . . . . . . . . . . 681.5 560.4 1,312.3 1,121.6
Selling and general . . . . . . . . . . . . . . 69.6 55.9 133.3 112.0
Depreciation and amortization . . . . . . . . . 35.9 28.4 68.9 58.2
--------- -------- --------- ---------
787.0 644.7 1,514.5 1,291.8
--------- -------- --------- ---------
EARNINGS FROM OPERATIONS . . . . . . . . . . . . . . 64.4 76.5 139.5 128.0
Gain on sales of assets . . . . . . . . . . . . . . . 92.8 171.2 128.8
Other income, net . . . . . . . . . . . . . . . . . . .8 8.4 14.9 7.8
Interest expense, net . . . . . . . . . . . . . . . . (16.9) (16.7) (34.1) (36.9)
--------- -------- ---------- ----------
EARNINGS BEFORE INCOME TAXES . . . . . . . . . . . . 141.1 68.2 291.5 227.7
Income tax provision . . . . . . . . . . . . . . . . (58.0) (29.0) (113.0) (78.1)
--------- -------- ---------- ----------
NET EARNINGS . . . . . . . . . . . . . . . . . . . . 83.1 39.2 178.5 149.6
Preferred dividends . . . . . . . . . . . . . . . . . (2.4) (2.4) (4.7) (4.7)
--------- -------- ---------- ----------
EARNINGS APPLICABLE TO COMMON SHARES . . . . . . . . $ 80.7 $ 36.8 $ 173.8 $ 144.9
========= ======== ========== ==========
Primary earnings per common share . . . . . . . . . . $ 1.77 $ .82 $ 3.81 $ 3.22
========= ========= =========== ===========
Fully diluted earnings per common share . . . . . . . $ 1.50 $ .71 $ 3.23 $ 2.73
========= ========= =========== ===========
Weighted average primary shares outstanding . . . . . 45.7 45.1 45.6 45.0
========= ======== ========== ==========
Weighted average fully diluted shares outstanding . . 55.3 54.9 55.2 54.8
========= ======== ========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
-2-
<PAGE> 3
ALUMAX INC.
CONDENSED STATEMENTS OF FINANCIAL POSITION
(UNAUDITED)
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
----------- --------------
(Millions of Dollars,
Except per Share Amounts)
<S> <C> <C>
ASSETS
Current Assets:
Cash and equivalents . . . . . . . . . . . . . . . . . . . . . . . . . $ 24.2 $ 205.9
Proceeds receivable . . . . . . . . . . . . . . . . . . . . . . . . . 140.0 -
Accounts receivable, less allowance for doubtful accounts
(1996-$24.6, 1995-$17.7) . . . . . . . . . . . . . . . . . . . . . 513.5 437.8
Inventories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614.3 558.3
Other current assets . . . . . . . . . . . . . . . . . . . . . . . . . 103.8 89.0
--------- ----------
Total current assets . . . . . . . . . . . . . . . . . . . . . . . 1,395.8 1,291.0
--------- ----------
Noncurrent Assets:
Property, plant and equipment at cost, less accumulated
depreciation and amortization (1996-$1,065.5; 1995-$1,051.3) . . . 2,049.0 1,611.9
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171.8 232.1
--------- ----------
Total noncurrent assets . . . . . . . . . . . . . . . . . . . . . . 2,220.8 1,844.0
--------- ----------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 3,616.6 $ 3,135.0
========= ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable . . . . . . . . . . . . . . . . . . . . . . . . . . $ 199.2 $ 148.8
Accrued liabilities . . . . . . . . . . . . . . . . . . . . . . . . . 299.3 237.3
Current maturities of long-term debt . . . . . . . . . . . . . . . . . 38.4 137.0
Short-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 290.0 -
--------- ----------
Total current liabilities . . . . . . . . . . . . . . . . . . . . . 826.9 523.1
--------- -----------
Noncurrent Liabilities:
Long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 692.6 708.9
Other noncurrent liabilities . . . . . . . . . . . . . . . . . . . . . 525.3 503.7
--------- ----------
Total noncurrent liabilities . . . . . . . . . . . . . . . . . . . 1,217.9 1,212.6
--------- ----------
Commitments and Contingencies
Stockholders' Equity:
Preferred stock of $1.00 par value . . . . . . . . . . . . . . . . . . 2.3 2.3
Common stock of $.01 par value . . . . . . . . . . . . . . . . . . . . .4 .4
Paid-in capital . . . . . . . . . . . . . . . . . . . . . . . . . . . 914.1 909.5
Retained earnings . . . . . . . . . . . . . . . . . . . . . . . . . . 657.4 483.6
Cumulative foreign currency translation adjustment . . . . . . . . . . (2.4) 3.5
---------- ----------
Total stockholders' equity . . . . . . . . . . . . . . . . . . . . 1,571.8 1,399.3
---------- ----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY . . . . . . . . . . . . . . . . $ 3,616.6 $ 3,135.0
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
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<PAGE> 4
ALUMAX INC.
CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
For the Six Months Ended
June 30,
-------------------------------------
1996 1995
------------ -----------
(Millions of Dollars)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings . . . . . . . . . . . . . . . . . . . . . . . . . . $ 178.5 $ 149.6
--------- --------
Reconciliation of net earnings to net cash provided by
operating activities:
Depreciation and amortization . . . . . . . . . . . . . . . . . 68.9 58.2
Provision for doubtful accounts . . . . . . . . . . . . . . . . 3.5 1.3
Gain on sales of assets . . . . . . . . . . . . . . . . . . . . (171.2) (132.8)
Deferred income taxes . . . . . . . . . . . . . . . . . . . . . (0.3) 17.2
Other noncash items . . . . . . . . . . . . . . . . . . . . . . 4.6 2.3
Changes in working capital, net of effects of acquisition . . . 37.6 (49.6)
Net change in other noncurrent assets and liabilities . . . . . 3.4 .4
--------- --------
Net cash provided by operating activities . . . . . . . . . . 125.0 46.6
--------- --------
INVESTING ACTIVITIES:
Proceeds from sales of assets . . . . . . . . . . . . . . . . . . 110.4 148.2
Capital expenditures . . . . . . . . . . . . . . . . . . . . . . . (109.1) (72.7)
Acquisition, net of cash acquired . . . . . . . . . . . . . . . . (436.5) -
--------- --------
Net cash provided by (used in) investing activities . . . . (435.2) 75.5
--------- --------
FINANCING ACTIVITIES:
Repayments of long-term and short-term debt . . . . . . . . . . . (241.8) (43.0)
Proceeds from short-term debt . . . . . . . . . . . . . . . . . . 375.0 -
Dividends paid on preferred stock . . . . . . . . . . . . . . . . (4.7) (4.7)
--------- --------
Net cash provided by (used in) financing activities . . . . . 128.5 (47.7)
---------- ----------
Net increase (decrease) in cash and equivalents . . . . . . . . . . . . (181.7) 74.4
Cash and equivalents at beginning of year . . . . . . . . . . . . . . . 205.9 93.0
---------- ----------
Cash and equivalents at end of period . . . . . . . . . . . . . . . . . $ 24.2 $ 167.4
========== ==========
Supplemental Cash Flow Information:
Income tax payments . . . . . . . . . . . . . . . . . . . . . . . $ 23.0 $ 31.8
Interest paid, net of amounts capitalized . . . . . . . . . . . . $ 37.6 $ 43.3
</TABLE>
The accompanying notes are an integral part of these financial statements.
-4-
<PAGE> 5
ALUMAX INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(MILLIONS OF DOLLARS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
NOTE 1. PRESENTATION
These unaudited interim condensed financial statements of Alumax Inc. ("Alumax"
or the "Company") should be read in conjunction with the audited financial
statements for the year ended December 31, 1995. In management's opinion, all
adjustments necessary for a fair presentation are reflected in the interim
periods presented.
NOTE 2. STRATEGIC TRANSACTIONS
The Company periodically implements strategic actions which it believes afford
it the opportunity to redeploy resources to enhance profitability and growth.
During the six months ended June 30, 1996 and 1995, the following has occurred:
Dispositions
On June 24, 1996, the Company signed a definitive agreement for the sale of
certain Fabricated Products businesses in Western Europe and in the United
States for $245, subject to adjustment for changes in working capital
occurring since December 31, 1995. This transaction is expected to close
in September 1996, subject to the fulfillment of certain conditions.
In June 1996, the Company sold its investment in mining interests for $160 in
cash. Of this amount, proceeds of $20 were collected in June with the
remaining balance received on July 1. The Company recorded an after-tax gain of
$55.1, net of a $37.7 tax provision, in the second quarter of 1996.
In January 1996, the Company sold a 23 percent undivided interest in its Mt.
Holly primary aluminum reduction facility for $89.3, which the Company applied
to the early retirement of a $90.7 promissory note due in May 1996. The
Company recorded an after-tax gain of $48.6, net of a $29.8 tax provision, in
connection with this transaction. This transaction reduced the Company's
ownership in the Mt. Holly facility to 50.33 percent.
In March 1995, the Company sold a 14 percent undivided interest in each of the
Company's Intalco and Eastalco primary aluminum reduction facilities for cash
proceeds of $147.6, resulting in an after-tax gain of $81.3, net of a $47.5 tax
provision. This transaction reduced the Company's ownership in each facility
to 61 percent.
Acquisition
On January 31, 1996, the Company purchased all of the common shares of
privately held Cressona Aluminum Company ("Cressona") for a cash cost,
including expenses, of $436.5, net of $3.1 of cash acquired. In conjunction
with the acquisition, liabilities of $87.4 were acquired. Cressona is a leading
manufacturer of extruded aluminum products.
The transaction has been accounted for as a purchase and the results of
operations of Cressona have been included in the consolidated financial
statements since January 31, 1996. The acquisition was financed with cash on
hand and $375 of borrowings obtained under available credit facilities. As of
July 31, 1996, $202.5 of these borrowings had been repaid.
The following summary presents Alumax's unaudited pro forma consolidated net
sales, net earnings, and primary earnings per common share for the quarters and
six months ended June 30, 1996 and 1995, respectively, as if the acquisition
occurred on January 1, 1996 and 1995, respectively.
-5-
<PAGE> 6
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------------------- ---------------------
1996 1995 1996 1995
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales . . . . . . . . . . . . . . . . . . . . . $ 851.4 $ 843.4 $ 1,686.1 $1,658.0
Net earnings . . . . . . . . . . . . . . . . . . . . $ 83.1 $ 45.5 $ 179.6 $ 162.5
Primary earnings per common share . . . . . . . . . $ 1.77 $ 0.96 $ 3.84 $ 3.51
</TABLE>
The pro forma results are based upon certain assumptions and estimates, which
the Company believes are reasonable. The pro forma results do not purport to
be indicative of results that actually would have been obtained had the
acquisition occurred on January 1, 1996 or 1995, nor are they intended to be a
projection of future results.
NOTE 3. INVENTORIES
Components of inventories at June 30, 1996 and December 31, 1995 are:
<TABLE>
<CAPTION>
1996 1995
--------- ----------
<S> <C> <C>
Raw materials . . . . . . . . . . . . . . . . . . . . . $ 389.6 $ 361.6
Work in process . . . . . . . . . . . . . . . . . . . . 112.0 105.9
Finished products . . . . . . . . . . . . . . . . . . . 112.7 90.8
------- --------
Total . . . . . . . . . . . . . . . . . . . . . . . . $ 614.3 $ 558.3
======= ========
</TABLE>
Approximately 73 percent and 72 percent of inventory at June 30, 1996 and
December 31, 1995, respectively, have been determined on the LIFO cost basis.
The excess of replacement cost over the LIFO basis of such inventory is
approximately $93.1 and $101.2 at June 30, 1996 and December 31, 1995,
respectively.
NOTE 4. INCOME TAX PROVISION
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------------------- ---------------------
1996 1995 1996 1995
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Federal . . . . . . . . . . . . . . . . . . . . . . $ 28.7 $ 23.7 $ 75.4 $ 64.3
Foreign . . . . . . . . . . . . . . . . . . . . . . 24.6 2.9 27.6 7.2
State . . . . . . . . . . . . . . . . . . . . . . . 4.7 2.4 10.0 6.6
-------- ------- -------- --------
Total . . . . . . . . . . . . . . . . . . . . . . $ 58.0 $ 29.0 $ 113.0 $ 78.1
======== ======= ======== ========
</TABLE>
The effective tax rates for these periods differ from statutory rates because
of provisions for prior years and provisions for state and foreign taxes.
Also, in the three months ended March 31, 1995, the Company reversed a $13.4
federal income tax asset valuation allowance in anticipation of utilization of
the asset due to the significant level of first quarter earnings.
NOTE 5. OTHER INCOME
The six months ended June 30, 1996 and 1995 include $18.7 and $7.9,
respectively, of dividend income received from investments in mining
operations.
-6-
<PAGE> 7
ALUMAX INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (CONTINUED)
NOTE 6. COMMITMENTS AND CONTINGENCIES
The Company and its affiliates have been named as defendants in lawsuits in
various matters relating to both current and former operations. In addition,
the Company and certain of its subsidiaries have been named as defendants in
lawsuits or as potentially responsible parties in state and federal
administrative and judicial proceedings seeking contribution for costs
associated with the investigation, analysis, correction and remediation of
environmental conditions at various hazardous waste disposal sites. The
Company continues to monitor these actions and proceedings and to vigorously
defend both its own interests as well as the interests of its affiliates.
The Company's ultimate liability in connection with present and future
environmental claims will depend on many factors, including its volumetric
share of the waste at a given site, the remedial action required, the total
cost of remediation, and the financial viability and participation of the other
entities involved with the site. Once it becomes probable that the Company
will incur costs in connection with remediation of a site and such costs can be
reasonably estimated, the Company establishes or adjusts its reserve for its
projected share of these costs. Based upon current law and information known
to the Company concerning the size of the sites known to it, anticipated costs,
their years of operations and the number of other potentially responsible
parties, Management believes that it has adequate reserves for the Company's
potential share of the estimated aggregate liability for the costs of remedial
actions and related costs and expenses. In addition, the Company establishes
reserves for remedial measures required from time to time at its own
facilities. The Company's environmental reserves totalled $27.4 and $22.8
at June 30, 1996, and December 31, 1995 ($27.2 with the inclusion of Cressona),
respectively. Management believes that the reasonably probable outcomes of
these matters will not materially exceed established reserves. Although the
Company believes it has coverage for some environmental claims under certain
insurance policies, insurance recoveries are not considered in estimating the
Company's share of remediation costs at a site unless an insurance carrier has
agreed to pay a portion of such costs. Insurance recoveries were not
considered in establishing reserves for any of these sites absent an agreement
between the carriers and the Company.
The Internal Revenue Service (the "IRS") has asserted that Alumax and certain
of its subsidiaries were improperly included in the 1984, 1985 and 1986
consolidated income tax returns of AMAX Inc. and on that basis has asserted a
federal income tax deficiency against Alumax of approximately $129. Interest
on the deficiency through June 30, 1996, would be approximately $255. In
response to the IRS' notice of deficiency, the Company filed a petition in the
United States Tax Court (the "Court") seeking a redetermination in respect of
the purported deficiency. The parties have waived their rights to a trial and
the matter has been submitted to the Court for decision based upon the
pleadings, stipulations, memoranda and other documents submitted, or to be
submitted, to the Court by the parties. Payment of the deficiency with
interest thereon would provide certain tax benefits to the Company that would
offset in part the cost of paying the deficiency and interest. The Company
believes that it has adequate reserves so that any unprovided for net
deficiency would not have a material adverse effect on the Company's financial
condition. For information regarding additional commitments and contingencies,
see Note 12 to the Financial Statements in the Company's 1995 Annual Report on
Form 10-K.
NOTE 7. STOCKHOLDER RIGHTS AGREEMENT
On February 22, 1996, the Executive Committee of the Board of Directors of the
Company declared a dividend distribution of one right (a "Right") for each
outstanding share of the Company's Common Stock, par value $0.01 per share (the
"Common Stock"), held of record at the close of business on February 22, 1996.
The Rights attach automatically to each share of Common Stock outstanding as of
February 22, 1996, and to each share of Common Stock issued after February 22,
1996.
Each Right entitles the holder to purchase from the Company one one-hundredth
of a share of the Company's Participating Preferred Stock at an exercise price
of $130, subject to certain adjustments. The Rights will not be
-7-
<PAGE> 8
ALUMAX INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (CONCLUDED)
exercisable or transferable apart from the Common Stock until either the tenth
business day after the announcement by a person or group of the commencement of
a tender or exchange offer for 15 percent or more of the Voting Stock or the
first date of announcement by the Company that a person or group has acquired
beneficial ownership of 15 percent or more of the Voting Stock (an "Acquiring
Person"). "Voting Stock" means shares of capital stock of the Company entitled
to vote generally in the election of directors. If the Company is consolidated
or merged with another company or 50 percent or more of its consolidated assets
or earning power are sold and, at the time, an Acquiring Person controls the
Company's Board of Directors, each holder of a Right will have the right to
receive, upon exercise at the then current exercise price of the Right, that
number of shares of common stock of the acquiring company which have a market
value of twice the then current exercise price of the Right. If any person
becomes an Acquiring Person, each holder of a Right other than the Acquiring
Person (whose Rights will be void) will have the right to receive, upon
exercise at the then current exercise price of the Right, that number of shares
of Common Stock having a market value of twice the exercise price of the Right.
The Rights will expire on February 22, 2006 and may be redeemed for $.01 per
Right at any time prior to the time an Acquiring Person becomes such. Until a
Right is exercised, the record holder will have no rights as a stockholder of
the Company.
After the announcement that an Acquiring Person has become such and prior to
the acquisition by an Acquiring Person of 50 percent or more of the outstanding
Voting Stock, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such Acquiring Person) at an exchange ratio of one
share of Common Stock, or one one-hundredth of a share of the Company's
Participating Preferred Stock, per Right, subject to adjustment.
The Company's Board of Directors may amend the Rights Agreement, in any
respect, until the time an Acquiring Person becomes such. Thereafter, the
Company's Board of Directors may amend the Rights Agreement in any respect not
materially adverse to Rights holders generally.
-8-
<PAGE> 9
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Unaudited; millions of dollars, except per
share and per tonne amounts)
INTRODUCTION
Net earnings totalled $83.1 and $178.5, or $1.77 and $3.81 per common share,
for the three and six months ended June 30, 1996, respectively, compared to net
earnings of $39.2 and $149.6, or $.82 and $3.22 per common share, in the
comparable 1995 periods. The 1996 results include a second quarter after-tax
gain of $55.1 ($1.21 per common share) on the sale of mining interests and a
first quarter after-tax gain of $48.6 ($1.07 per common share) on the sale of a
23 percent interest in the Mt. Holly primary aluminum reduction facility. The
1995 first half results include a first quarter after-tax gain of $81.3 ($1.81
per common share) on the sale of a 14 percent interest in each of the Intalco
and Eastalco primary aluminum reduction facilities.
RESULTS OF OPERATIONS
Earnings from operations for the three and six months ended June 30, 1996
totalled $64.4 and $139.5, respectively, compared to operating earnings of
$76.5 and $128.0 for the three and six months ended June 30, 1995,
respectively.
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
---------------------- --------------------
1996 1995 1996 1995
------- -------- ------ ------
(unaudited)
<S> <C> <C> <C> <C>
NET SALES
Primary aluminum products . . . . . . . . . . . . . . $ 164.4 $ 148.5 $ 361.6 $ 301.7
Semi-fabricated products . . . . . . . . . . . . . . . 409.7 306.7 763.3 578.1
Fabricated products . . . . . . . . . . . . . . . . . 277.3 266.0 529.1 540.0
-------- -------- --------- ---------
$ 851.4 $ 721.2 $ 1,654.0 $ 1,419.8
======== ======== ========= =========
EARNINGS FROM OPERATIONS
Aluminum processing . . . . . . . . . . . . . . . . . $ 75.3 $ 84.8 $ 160.0 $ 144.5
Corporate . . . . . . . . . . . . . . . . . . . . . . (10.9) (8.3) (20.5) (16.5)
-------- -------- --------- ---------
$ 64.4 $ 76.5 $ 139.5 $ 128.0
======== ======== ========= =========
PRODUCTION AND SHIPMENTS (THOUSANDS OF TONNES)
Sources of metal
Primary aluminum production . . . . . . . . . . . . . 169.8 154.5 343.2 330.1
Aluminum purchases . . . . . . . . . . . . . . . . . . 121.3 93.9 229.6 182.5
-------- -------- --------- ---------
291.1 248.4 572.8 512.6
======== ======== ========= =========
Metal shipments
Aluminum processing (including tolling)
Primary aluminum products . . . . . . . . . . . . . . 95.2 90.8 207.3 190.4
Semi-fabricated products . . . . . . . . . . . . . . . 144.5 102.4 267.1 207.4
Fabricated products(1) . . . . . . . . . . . . . . . . 43.6 39.7 83.2 84.8
-------- -------- --------- ---------
283.3 232.9 557.6 482.6
======== ======== ========= =========
</TABLE>
(1) Included in Fabricated products' metal shipments for the three and six
months ended June 30, 1996, are billet shipments of 8.2 and 14.8 thousand
tonnes, respectively, compared to 8.4 and 18.0 thousand tonnes in the same
1995 periods.
-9-
<PAGE> 10
NET SALES AND SHIPMENTS
The Company generated record quarterly sales of $851.4 on record aluminum
shipments of 283,300 tonnes in the second quarter of 1996 compared with sales
of $721.2 on aluminum shipments of 232,900 tonnes in the second quarter of
1995. As further described below, the 18 percent increase in net sales is a
result of a 22 percent growth in total shipments partially offset by lower
average realized selling prices. For the first half of 1996, the Company
generated record sales of $1,654.0 on record aluminum shipments of 557,600
tonnes, compared with sales of $1,419.8 on aluminum shipments of 482,600 tonnes
in the first half of 1995.
The London Metals Exchange (the "LME") cash price averaged $1,575 per tonne in
the first six months of 1996 versus $1,862 per tonne in the first six months of
1995. The Company's net sales are sensitive to changes in the world pricing of
primary aluminum. This price sensitivity impacts substantially all of the
Company's products to varying degrees, with less impact on the more specialized
and value-added products. As previously disclosed, during the first and second
quarters of 1995, the Company settled forward sales contracts on 110,000 tonnes
entered into in late 1993 at then prevailing market prices. The Company had not
purchased call options to cover these forward sales. Purchase of call options in
late 1993 to cover these forward sales would have favorably impacted the 1995
first and second quarter earnings from operations by approximately $64 and $18,
respectively.
The Company's shipments increased 22 percent and 16 percent in the three and
six months ended June 30, 1996, respectively, as compared to the same periods
in 1995. The increases are substantially related to the Company's primary and
semi-fabricated extrusions operations. The acquisition of Cressona Aluminum
Company ("Cressona") more than doubled the capacity of the Company's extrusions
business, creating the largest extrusions company in the United States.
Shipment levels in the fabricated products North America operations
strengthened in the second quarter and year to date while volumes in the
European operations decreased compared to the same 1995 periods mainly due to
sluggish business conditions in major European economies.
COST AND EXPENSES
The Company's cost and expenses were $787.0 and $1,514.5 for the three and six
months ended June 30, 1996, respectively, compared with cost and expenses of
$644.7 and $1,291.8 for the three and six months ended June 30, 1995,
respectively. The increase is largely attributable to the growth of the
Company's extrusions business, principally from the acquisition of Cressona,
combined with higher primary volumes and increased raw material costs.
OTHER ITEMS AFFECTING NET EARNINGS
Other Income, Net
Other income, net for the three and six months ended June 30, 1996 was $0.8 and
$14.9, respectively, compared with $8.4 and $7.8 of income over the same
periods in 1995. The six months ended June 30, 1996 and 1995 include $18.7 and
$7.9, respectively, of dividend income received from investments in mining
operations.
Interest Expense, Net
Net interest expense was $16.9 and $34.1 for the three and six months ended
June 30, 1996, respectively. Gross interest expense of $19.7 and $40.4 for the
three and six months ended June 30, 1996, respectively, decreased compared to
$20.5 and $43.5 in the same 1995 periods as a result of lower average interest
rates partially offset by higher average borrowings. Interest income for the
first six months was $2.4 in 1996 as compared to $5.2 for the first six months
of 1995. Capitalized interest was $3.9 for the six months ended June 30, 1996,
compared with $1.4 for the six months ended June 30, 1995.
-10-
<PAGE> 11
Income Taxes
The income tax provision for the three and six months ended June 30, 1996 was
$58.0 and $113.0, respectively, compared to $29.0 and $78.1 for the same 1995
periods. The effective tax rates for these periods differ from statutory rates
because of provisions for prior years and provisions for state and foreign
taxes. Also, in the three months ended March 31, 1995, the Company reversed a
$13.4 federal income tax asset valuation allowance in anticipation of
utilization of the asset due to the significant level of first quarter
earnings.
STRATEGIC TRANSACTIONS
The Company periodically implements strategic actions which it believes afford
it the opportunity to redeploy resources to enhance profitability and growth.
During the six months ended June 30, 1996 and 1995, the following has occurred:
Dispositions
On June 24, 1996, the Company signed a definitive agreement for the sale of
certain Fabricated Products businesses in Western Europe and in the United
States for $245, subject to adjustment for changes in working capital
occurring since December 31, 1995. This transaction is expected to close
in September 1996, subject to the fulfillment of certain conditions.
In June 1996, the Company sold its investment in mining interests for $160 in
cash. Of this amount, proceeds of $20 were collected in June with the
remaining balance received on July 1. The Company recorded an after-tax gain of
$55.1, net of a $37.7 tax provision, in the second quarter of 1996.
In January 1996, the Company sold a 23 percent undivided interest in its Mt.
Holly primary aluminum reduction facility for $89.3, which the Company applied
to the early retirement of a $90.7 promissory note due in May 1996. The
Company recorded an after-tax gain of $48.6, net of a $29.8 tax provision, in
connection with this transaction. This transaction reduced the Company's
ownership in the Mt. Holly facility to 50.33 percent.
In March 1995, the Company sold a 14 percent undivided interest in each of the
Company's Intalco and Eastalco primary aluminum reduction facilities for cash
proceeds of $147.6, resulting in an after-tax gain of $81.3, net of a $47.5 tax
provision. This transaction reduced the Company's ownership in each facility
to 61 percent.
Acquisition
On January 31, 1996, the Company purchased all of the common shares of
privately held Cressona for a cash cost, including expenses, of $436.5, net of
$3.1 of cash acquired. In conjunction with the acquisition, liabilities of
$87.4 were acquired. Cressona is a leading manufacturer of extruded aluminum
products.
The transaction has been accounted for as a purchase and the results of
operations of Cressona have been included in the consolidated financial
statements since January 31, 1996. The acquisition was financed with cash on
hand and $375 of borrowings obtained under available credit facilities. As of
July 31, 1996, $202.5 of these borrowings had been repaid.
The following summary presents Alumax's unaudited pro forma consolidated net
sales, net earnings, and primary earnings per common share for the quarters and
six months ended June 30, 1996 and 1995, respectively, as if the acquisition
occurred on January 1, 1996 and 1995, respectively.
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------------------- ---------------------
1996 1995 1996 1995
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales . . . . . . . . . . . . . . . . . . . . . $ 851.4 $ 843.4 $ 1,686.1 $1,658.0
Net earnings . . . . . . . . . . . . . . . . . . . . $ 83.1 $ 45.5 $ 179.6 $ 162.5
Primary earnings per common share . . . . . . . . . $ 1.77 $ 0.96 $ 3.84 $ 3.51
</TABLE>
-11-
<PAGE> 12
The pro forma results are based upon certain assumptions and estimates, which
the Company believes are reasonable. The pro forma results do not purport to
be indicative of results that actually would have been obtained had the
acquisition occurred on January 1, 1996 or 1995, nor are they intended to be a
projection of future results.
LIQUIDITY AND CAPITAL RESOURCES
Operating Activities
Operations provided $125.0 and $46.6 of cash during the first half of 1996 and
1995, respectively. Higher cash flows are directly related to lower working
capital net of the effects of the Cressona acquisition, increased earnings
from operations, and the $18.7 dividend received in the first quarter of 1996
from investments in mining operations.
Investing Activities
Cash used by investing activities was $435.2 for the six months ended June 30,
1996 compared to $75.5 of cash provided in the first half of 1995. As
described under "Strategic Transactions", the Company expended $436.5, net of
$3.1 of cash acquired, in connection with the acquisition of Cressona and
received $110.4 from the sale of non-strategic assets during the first half of
1996. Additional proceeds of $140 from the sale of such assets were received
on July 1, 1996. In the first quarter of 1995, the Company received $147.6
from the sale of a 14 percent interest in each of the Intalco and Eastalco
primary aluminum reduction facilities. Capital expenditures were $109.1 during
the first half of 1996 compared to $72.7 in the first half of 1995.
Financing Activities
Financing activities provided $128.5 and used $47.7 of cash in the first half
of 1996 and 1995, respectively. The Company borrowed $375 under available
credit facilities in January 1996 to finance the acquisition of Cressona.
During the first six months of 1996, $85 of the Cressona acquisition borrowing
was repaid. An additional $117.5 was repaid during July 1996. Total debt
repayments of $241.8 in the first half of 1996 also included the early
retirements of $39.3 of Cressona debt acquired and a $90.7 promissory note due
in May 1996. At June 30, 1996, the Company's total debt to capital ratio was
39.4 percent (36.5 percent subsequent to the July repayments) down from 42.3
percent in the first quarter, which is attributable to continued emphasis on
debt reduction combined with a year-to-date increase in stockholder's equity of
$172.5. (See Note 8 to Financial Statements in the Company's 1995 Annual Report
on Form 10-K).
Also, $4.7 in dividends were paid to holders of Alumax $4.00 Series A
Convertible Preferred Stock in the first half of both 1996 and 1995. In April
1996, the Company withdrew its shelf registration with the Securities and
Exchange Commission covering the issuance of up to 9.2 million shares of common
stock (see Note 13 to Financial Statements in the Company's 1995 Annual Report
on Form 10-K).
Risk Management
The Company utilizes certain financial instruments in connection with its risk
management. The risk of loss related to counterparty nonperformance under
financial instrument agreements at June 30, 1996 is not significant.
The Company enters into forward fixed price arrangements that are required by
certain customers and suppliers. The Company may utilize futures contracts
which effectively convert forward fixed price sales to market prices in order
to meet overall strategic objectives. Such contracts covered approximately
120,650 tonnes at June 30, 1996 and mature at various dates through 1999.
Gains or losses with respect to these positions are reflected in earnings
concurrently with consummation of the underlying fixed price transaction.
Periodic value fluctuations of the futures contracts approximately offset the
value fluctuations of the underlying fixed price transaction.
The Company also may, from time to time, establish a floor selling price for
varying quantities of future production, while preserving the opportunity to
participate in upward price movements. This may be accomplished by purchasing
put options, or by entering into forward sales of primary aluminum and
purchases of call options, which together provide the same price protection as
purchasing put options, in a manner which correlates with the
-12-
<PAGE> 13
Company's production and sales of primary aluminum. The strategy may be
modified from time to time. At June 30, 1996, the Company's commitments with
respect to the above described financial instruments covered 113,250 tonnes of
future production. The Company would have received $2.6 to terminate these
contracts at June 30, 1996.
Certain of the Company's foreign operating expenditures are denominated in
currencies other than the operations' functional currencies, which expose the
Company to exchange rate risks. In order to mitigate its exposure to exchange
rate risk where these conditions exist, the Company has a program to utilize
forward foreign currency contracts, substantially all in Canadian dollars, to
fund its firm commitments and operating requirements. These contracts
principally mature during 1996. At June 30, 1996, the Company had outstanding
$90.2 in forward foreign currency contracts. The gains or losses related to
these contracts are deferred and included in the measurement of the related
foreign currency denominated transactions. If these contracts had been
terminated at June 30, 1996, the Company would have received approximately
$2.1.
The Company's debt instruments and related interest rate hedges are susceptible
to market fluctuations based on changes in the cost of borrowing. At June 30,
1996, the fair value of total debt approximated book value. The Lauralco
credit facility, which has a variable interest rate, required the Company to
establish facilities to effectively limit the interest rate exposure of the
commitment. To meet this requirement, the Company has obtained interest rate
swaps with a notional amount of $400 through October 26, 2000 and a series of
interest rate caps having notional amounts of $225 and $150 through October 26,
1996 and 1998, respectively, which decline with projected loan balances. The
Company would have paid approximately $38.9 to terminate these agreements at
June 30, 1996.
For further information regarding the Company's risk management, see
Management's Discussion and Analysis of Financial Condition and Results of
Operations and Note 20 to the Financial Statements in the Company's 1995 Annual
Report on Form 10-K.
Income Taxes
The Internal Revenue Service (the "IRS") has asserted that Alumax and certain
of its subsidiaries were improperly included in the 1984, 1985 and 1986
consolidated income tax returns of AMAX Inc. and on that basis has asserted a
federal income tax deficiency against Alumax of approximately $129. Interest
on the deficiency through June 30, 1996, would be approximately $255. In
response to the IRS' notice of deficiency, the Company filed a petition in the
United States Tax Court (the "Court") seeking a redetermination in respect of
the purported deficiency. The parties have waived their rights to a trial and
the matter has been submitted to the Court for decision based upon the
pleadings, stipulations, memoranda and other documents submitted, or to be
submitted, to the Court by the parties. Payment of the deficiency with
interest thereon would provide certain tax benefits to the Company that would
offset in part the cost of paying the deficiency and interest. The Company
believes that it has adequate reserves so that any unprovided for net
deficiency would not have a material adverse effect on the Company's
financial condition.
Environmental Matters
The Company has been named as a defendant or identified as a potentially
responsible party under the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA") and similar state laws by governmental agencies
and private parties at 38 pending waste disposal sites which, in most
instances, were owned and operated by third parties. Management periodically
evaluates such matters and records or adjusts liability reserves for
remediation and other costs and potential damages when expenditures are
considered probable and can be reasonably estimated.
The Company's ultimate liability in connection with present and future
environmental claims will depend on many factors, including its volumetric
share of the waste at a given site, the remedial action required, the total
cost of remediation and the financial viability and participation of the other
entities involved with the site. Based upon current law and information known
to the Company concerning the size of the sites known to it, their years of
-13-
<PAGE> 14
operation, and the number of other past users, Management believes that it has
adequate reserves for the Company's probable share of the estimated aggregate
liability for the costs of remedial actions and related costs and expenses and
that such liability and related costs and expenses should not have a material
adverse effect on the financial condition or results of operations of the
Company. In addition, the Company establishes reserves for remedial measures
required from time to time at its own facilities. Any expenditures for
remediation programs it may be required to undertake, either individually or in
the aggregate, are not expected to have a material adverse effect on the
financial condition or results of operations of the Company. The Company's
environmental reserves totaled $27.4 at June 30, 1996 and $22.8 at December 31,
1995 ($27.2 million with the inclusion of Cressona).
Management does not anticipate that commitments, operating expenses or capital
expenditures for environmental compliance through and including the next fiscal
year will have a material adverse effect on the Company's financial condition
or results of operations. Based on historical trends toward stricter
environmental standards, however, it appears likely that the Company will incur
additional expenditures to remain in compliance with federal and state
environmental laws.
-14-
<PAGE> 15
Part II. Other Information
Item 1. Legal Proceedings
STRINGFELLOW
In 1983, the United States and the State of California commenced an action
under CERCLA in the United States District Court for the Central District of
California against the Company and 30 other potentially responsible parties in
connection with the Stringfellow disposal site at Glen Avon, California. In a
proceeding in the United States District Court for the Central District of
California, it was determined that both the defendants and the State of
California are responsible for certain costs associated with the cleanup of the
Stringfellow site. The issue of the allocation of liability among the
defendants and the State was tried before a Special Master who filed his
Findings of Fact, Conclusions of Law and Report and Recommendation of the
Special Master Regarding the State Share Fact Finding Hearing on November 30,
1993. On January 23, 1995, the United States District Court entered an order
adopting the findings, conclusions and recommendations of the Special Master
with certain modifications, which do not adversely impact the Company. The
order allocates liability on the basis of two different legal claims, each of
which has a different legal standard of apportionment. As to CERCLA claims, the
order allocates liability as follows: 65 percent to the State, ten percent to
Stringfellow Quarry Company and 25 percent to all other parties (including the
Company). As to the claims asserted against the State under state law theories
such as negligence and breach of a mandatory duty, the order allocates 100
percent of the liability to the State. Reconsideration or appellate review of
the order may be sought by one or more of the parties and the State may assert
protection of the Eleventh Amendment to the United States Constitution, which
limits suits against states in federal courts.
On March 27, 1996, the United States Supreme Court issued its decision in
SEMINOLE TRIBE OF FLORIDA V. FLORIDA, which reversed an earlier Supreme Court
decision that had held that Congress had the authority to abrogate protections
of the Eleventh Amendment barring certain suits against states in federal
courts, including under CERCLA. On July 16, 1996, the State of California
filed a motion for reconsideration of the District Court's liability rulings
against the State, based upon the Seminole Tribe decision. In that motion, the
State contends that the Eleventh Amendment is a jurisdictional bar which cannot
be waived through conduct in litigation and that the State has not expressly
waived its Eleventh Amendment immunity. Consequently, the State argues that
the liability rulings against the State must be reversed or the defendants'
counterclaims limited to defensive recoupment. The defendants filed an
opposition to that motion on August 2, 1996, which maintains that Seminole
Tribe does not alter prior law by recognizing the Eleventh Amendment as a
jurisdictional bar nor does the case address the doctrine of defensive
recoupment. The opposition also asserts that Seminole Tribe does not affect
the question of waiver of Eleventh Amendment immunity by conduct in litigation
or the District Court's prior finding that the State waived its Eleventh
Amendment immunity through its conduct of the lawsuit. Following the filing of
the State's reply brief, the parties will present oral argument to the Special
Master, who will submit his recommendation to the District Court for ruling on
the State's motion.
Based on the present circumstances, the Company does not believe that any
liability imposed in connection with the Stringfellow site will have a material
adverse effect on the Company's financial condition or results of operations
given the nature and extent of its involvement at the site and available
reserves. See "Legal Proceedings--Stringfellow" in the Company's Annual Report
on Form 10-K for the year ended December 31, 1995.
HAMMONS V. ALCAN, ET AL.
Alumax and four other producers of primary aluminum, together with The Aluminum
Association, an industry trade association, were served with a Summons and
Complaint in March 1996, alleging violations of California's State antitrust
act (the Cartwright Act). The suit was originally filed in the Superior Court
for Los Angeles County, but was removed by the defendants to the United States
District Court for the Central District of California. Plaintiff alleges that
the defendants conspired, together with the United States Government and the
governments of several other sovereign nations, to fix the prices of primary
aluminum by agreeing to reduce production. The allegations arise from the
Memorandum of Understanding Concerning the Aluminum Market ("MOU") negotiated
by the United States and other governments in 1993 and 1994, and executed by
them in Brussels in 1994, and the actions of the defendants alleged to have
been undertaken in accordance with the terms of the MOU.
The complaint was brought by a California bicycle manufacturer as a purported
class action on behalf of all direct and indirect purchasers of primary
aluminum and aluminum products produced during the period January 1, 1994 to
March 5, 1996. The complaint seeks injunctive relief and recovery of damages
that, when trebled, are alleged to be in excess of $26 billion. Following
removal of the action to the District Court, the defendants filed a motion to
dismiss. Upon considering that motion, plaintiff's opposition and the
defendants' reply, the court by order dated May 28, 1996, converted the motion
to dismiss to a motion for summary judgment by the defendant-aluminum
producers. In the same order, the court granted The Aluminum Association's
motion to dismiss for lack of personal jurisdiction. Following the filing of
briefs in support and in opposition to summary judgment, the court granted
summary judgment in favor of the defendant-aluminum producers and dismissed the
complaint with prejudice by order dated July 1, 1996. The court denied
plaintiff's subsequent motion for reconsideration by order entered on July 16,
1996.
On July 17, 1996, the plaintiff filed a notice of appeal to the United States
Court of Appeals for the Ninth Circuit from the United States District Court's
orders granting The Aluminum Association's motion to dismiss and the aluminum
producers' motion for summary judgment and the order denying the plaintiff's
motion for reconsideration. A scheduling order has not yet issued from the
United States Court of Appeals for the Ninth Circuit.
Item 4. Submission of Matters to a Vote of Security Holders
The Company held its Annual Meeting of Stockholders on May 2, 1996, at which
security holders: (a) re-elected three directors, each for a term of three
years; (b) ratified the selection of Coopers & Lybrand L.L.P. as auditors for
the fiscal year 1996; (c) approved an amendment to the Alumax Inc. Non-Employee
Directors' Stock Compensation Plan to increase the number of shares of the
Company's Common Stock awarded annually to each participant from 500 shares to
850 shares; and (d) approved a stockholder proposal requesting the
declassification of the Board of Directors.
Results of the voting in connection with each of the above matters were as
follows:
<TABLE>
<CAPTION>
Voting on Directors
- -------------------
For Withheld Total
--- -------- -----
<S> <C> <C> <C>
Allen Born 36,446,408 269,542 36,715,950
Paul W. MacAvoy 36,447,174 268,776 36,715,950
Anne Wexler 36,441,733 274,217 36,715,950
</TABLE>
Ratification of Independent Auditors
<TABLE>
<S> <C> <C>
In Favor - 36,500,993
Against - 139,317
Abstain - 75,640
Broker Non-Votes - -0-
Total - 36,715,950
</TABLE>
Approval of Amendment to the Non-Employee Directors' Stock Compensation Plan
<TABLE>
<S> <C> <C>
In Favor - 34,994,028
Against - 1,452,468
Abstain - 269,454
Broker Non-Votes - -0-
Total - 36,715,950
</TABLE>
Stockholder Proposal Requesting Declassification of the Board of Directors
<TABLE>
<S> <C> <C>
In Favor - 21,886,515
Against - 8,929,877
Abstain - 1,042,610
Broker Non-Votes - 4,856,948
Total - 36,715,950
</TABLE>
-15-
<PAGE> 16
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
10.01 Purchase Agreement, dated as of June 24, 1996, between Euramax International, Ltd. and Alumax Inc.
11.01 Calculation of Earnings per Common Share.
27.01 Financial Data Schedule.
</TABLE>
(b) Information concerning the Current Report on Form 8-K filed by the
Company during the quarter ended June 30, 1996 is presented below.
<TABLE>
<CAPTION>
Date of Report Matter Reported
- -------------- ---------------
<S> <C>
May 28, 1996 The announcement by the Company that it had agreed to sell its Mexican mining interests to its
partner, Industrias Penoles, S.A. de C.V., for U. S. $160 million (Item 5).
</TABLE>
-16-
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ALUMAX INC.
By /s/ Helen M. Feeney
---------------------------------
Helen M. Feeney
Vice President and
Corporate Secretary
By /s/ Michael T. Vollkommer
---------------------------------
Michael T. Vollkommer
Vice President and Controller
Date: August 13, 1996
-17-
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
- ------ ----------- ------
<S> <C>
10.01 Purchase Agreement, dated as of June 24, 1996, between
Euramax International, Ltd. and Alumax Inc.
11.01 Calculation of Earnings per Common Share.
27.01 Financial Data Schedule.
</TABLE>
-18-
<PAGE> 1
EXHIBIT 10.01
============================================================
PURCHASE AGREEMENT
between
EURAMAX INTERNATIONAL, LTD.
and
ALUMAX INC.
Dated as of June 24, 1996
============================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I ----
PURCHASE AND SALE OF SHARES
<S> <C> <C>
1.1 Purchase and Sale of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Consideration and Payment at the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 Certain Transactions to be Consummated Prior to or Concurrently with Closing . . . . . . . . . . . . . 4
ARTICLE II
PURCHASE PRICE AND ADJUSTMENTS
2.1 Share Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Purchase Price Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.2 Representations and Warranties of Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE IV
COVENANTS
4.1 Interim Operation of the Sale Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.2 No Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.3 Filings; Other Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.4 Access; Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.5 Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.6 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.7 Best Reasonable Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.8 Other Offers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.9 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.10 Notification of Certain Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.11 Employment Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.12 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.13 Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
4.14 Use of Certain Names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
4.15 Certain Bank Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4.16 Workers' Compensation Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
4.17 Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
4.18 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
4.19 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE V
CONDITIONS
5.1 Conditions to Obligations of the Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.2 Conditions to Obligations of Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE VI
TERMINATION
6.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.2 Certain Limitations on Indemnification Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.4 Special Indemnity for Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE VIII
TAX MATTERS
8.1 Section 338(h)(10) Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
8.3 Computation of Tax Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
8.4 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
8.5 Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.6 Contest Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.7 Post-Closing Actions Which May Affect the Seller's Liability for Taxes . . . . . . . . . . . . . . . . 80
8.8 Section 338(h)(10) Election and Determination and Allocation of Purchase Price and MADSP . . . . . . . 80
8.9 Purchaser's Claiming, Receiving or Using of Refunds and Overpayments . . . . . . . . . . . . . . . . . 81
</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C>
8.10 Termination of Tax Allocation Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8.11 Assistance and Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
8.12 Maintenance of Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
8.13 Characterization of Indemnification Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
8.14 Computation of Losses Subject to Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
8.15 Resolution of Calculation Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE IX
MISCELLANEOUS AND GENERAL
9.1 Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.2 Registration Under the Restrictive Trade Practices Act 1976 . . . . . . . . . . . . . . . . . . . . . . 84
9.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.4 Modification and Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.7 Arbitration; Submission to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
9.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.9 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.10 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.11 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.13 Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
</TABLE>
Annex A . . . . . . . . . . . . . . . . . Glossary of Defined Terms
Exhibit A . . . . . . . . . . . . . . . . Asset Purchase Agreement
Exhibit B . . . . . . . . . . . . . . . . Opinion of Counsel for Purchaser
Exhibit C . . . . . . . . . . . . . . . . Opinion of Counsel for Seller
Exhibit D . . . . . . . . . . . . . . . . Opinion of Special European Counsel
for Seller
Exhibit E . . . . . . . . . . . . . . . . Form of Distribution Agreement
Exhibit F . . . . . . . . . . . . . . . . Plan of Leasehold and Freehold
Property at Grangefield Estate
Exhibit G . . . . . . . . . . . . . . . . Form of Signing Press Release
Schedule 2.2(b) . . . . . . . . . . . . . Modifications to GAAP
Schedule 3.1(a) . . . . . . . . . . . . . Subsidiaries and Equity Investments
Schedule 3.1(d)(i) . . . . . . . . . . . Governmental Consents,
Registrations, Approvals, Permits
or Authorizations
Schedule 3.1(d)(ii) . . . . . . . . . . . Required Consents
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<TABLE>
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Schedule 3.1(f) . . . . . . . . . . . . . Changes in Business
Schedule 3.1(g) . . . . . . . . . . . . . Liabilities
Schedule 3.1(h) . . . . . . . . . . . . . Real Property
Annex to Schedule 3.1(h)
Schedule 3.1 (h)(x) . . . . . . . . . . . Property Lease Liabilities -
United Kingdom
Schedule 3.1(i) . . . . . . . . . . . . . Personal Property
Schedule 3.1(k) . . . . . . . . . . . . . Intellectual Property
Schedule 3.1(l) . . . . . . . . . . . . . Personnel
Schedule 3.1(m)(i) . . . . . . . . . . . Employee Benefit Plans
Schedule 3.1(m)(ii) . . . . . . . . . . . Certain Exceptions to ERISA
Compliance
Schedule 3.1(m)(iv) . . . . . . . . . . . Funding Deficiencies
Schedule 3.1(m)(vi) . . . . . . . . . . . Retiree Obligations
Schedule 3.1(m)(viii) . . . . . . . . . . Pension Schemes
Schedule 3.1(m)(x) . . . . . . . . . . . Contributions to the U.K. Pension
Scheme
Schedule 3.1(m)(xi) . . . . . . . . . . . Compliance: U.K. Pension Scheme
Schedule 3.1(m)(xii) . . . . . . . . . . Documents Relating to the UK
Pension Scheme
Schedule 3.1(m)(xiii) . . . . . . . . . . Objections to "Normal Retirement Age"
Schedule 3.1(m)(xiv). . . . . . . . . . . Changes to UK Pension Scheme Since
the Effective Date of the Last
Actuarial Valuation
Schedule 3.1(m)(xvi). . . . . . . . . . . Dutch Employees
Schedule 3.1(m)(xvii) . . . . . . . . . . Dutch Employees Not Covered by
Pension Scheme
Schedule 3.1(n) . . . . . . . . . . . . . Licenses, Permits and Registration;
Compliance with Laws
Schedule 3.1(o) . . . . . . . . . . . . . Lawsuits, Proceedings and
Investigations
Schedule 3.1(p) . . . . . . . . . . . . . Material Contracts
Schedule 3.1(q) . . . . . . . . . . . . . Tax Matters
Schedule 3.1(s) . . . . . . . . . . . . . Brokers and Finders
Schedule 3.1(t) . . . . . . . . . . . . . Sufficiency of Assets
Schedule 3.1(v) . . . . . . . . . . . . . Collective Bargaining Agreements
Schedule 3.1(w) . . . . . . . . . . . . . Environmental Matters
Schedule 3.1(x) . . . . . . . . . . . . . Customers and Suppliers
Schedule 3.1(y) . . . . . . . . . . . . . Books and Records
Schedule 3.2(c) . . . . . . . . . . . . . Governmental Filings by Purchaser
Schedule 4.1 . . . . . . . . . . . . . . Terminated Guarantees and
Obligations
Schedule 4.1(c) . . . . . . . . . . . . . Planned Capital Expenditures
Schedule 4.1(iii) . . . . . . . . . . . . Changes in Benefit Plans
Schedule 4.11(a) . . . . . . . . . . . . Employment Agreements
Schedule 4.11(c). . . . . . . . . . . . . Existing Employee Benefits of U.S.
Transferred Employees
Schedule 4.11(e). . . . . . . . . . . . . Existing Employee Benefits of
European Transferred Employees
Schedule 4.12 . . . . . . . . . . . . . . Assumed Benefit Plans
</TABLE>
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<TABLE>
<S> <C>
Schedule 4.13 . . . . . . . . . . . . . . Key Employees
Schedule 4.15(a) . . . . . . . . . . . . List of Bank Accounts
Schedule 4.15(b) . . . . . . . . . . . . Aggregate Balances in Bank Accounts
Schedule 4.17 . . . . . . . . . . . . . . Financing
Schedule 5.2(d) . . . . . . . . . . . . . List of Consents
Schedule 5.2(f) . . . . . . . . . . . . . Required Corporate or Other Actions
Schedule 5.2(l) . . . . . . . . . . . . . Intellectual Property to be
Assigned
Schedule 7.3(a) . . . . . . . . . . . . . Non-assumed Environmental Sites
Schedule 7.3(b) . . . . . . . . . . . . . Other Disposal Sites
Schedule 7.3(c) . . . . . . . . . . . . . Potential Compliance Issues
Schedule 7.3(d) . . . . . . . . . . . . . French Environmental Matters
Schedule 7.3(e) . . . . . . . . . . . . . Other Environmental Matters
Schedule 7.4 . . . . . . . . . . . . . . Indemnified Guarantees
Schedule 8.8 . . . . . . . . . . . . . . Allocation of Share Purchase Price
</TABLE>
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PURCHASE AGREEMENT
PURCHASE AGREEMENT (hereinafter called this "Agreement"),
dated as of June 24, 1996, between Euramax International, Ltd., a corporation
organized under the laws of England and Wales (the "Purchaser"), and ALUMAX
INC. (the "Seller"), a Delaware corporation and the sole stockholder of each of
Alumax Fabricated Products, Inc., a Delaware corporation ("AFP"), Alumax
Holdings Limited, a corporation organized under the laws of England and Wales
("Alumax Holdings") and Alumax Europe BV, a corporation organized under the
laws of the Netherlands ("Alumax Europe").
RECITALS
WHEREAS, the Seller owns (i) all of the issued and outstanding
shares of capital stock of AFP (the "AFP Shares"), (ii) all of the issued and
outstanding shares of capital stock of Alumax Holdings (the "Alumax Holdings
Shares") and (iii) all of the issued and outstanding shares of capital stock of
Alumax Europe (the "Alumax Europe Shares");
WHEREAS, Alumax Europe owns all of the issued and outstanding
shares of capital stock, other than nominee and directors' qualifying shares,
of Alumax Holdings S.A., a corporation organized under the laws of France
("Holdings S.A."), and Holdings S.A. owns all of the issued and outstanding
shares of capital stock (the "Alumax France Shares" and, collectively with the
AFP Shares, the Alumax Holdings Shares and the Alumax Europe Shares, the
"Shares"), other than nominee and directors' qualifying shares as set forth on
Schedule 3.1(a), of Alumax Industries S.A., a corporation organized under the
laws of France ("Alumax France");
WHEREAS one of AFP, Alumax Holdings, Alumax Europe or Alumax
France, as the case may be, owns (or, in the case of Home Products, as defined
in Section 1.4 hereof, will own upon consummation of the transactions
contemplated by Section 1.4 hereof), directly or indirectly, all of the
outstanding shares of capital stock (other than directors' qualifying shares as
set forth on Schedule 3.1(a)) of the subsidiaries identified in Schedule 3.1(a)
as being owned by it (the subsidiaries identified in said Schedule 3.1(a) as
being owned by AFP, Alumax Holdings, Alumax Europe and Alumax France, other
than those identified therein as "Retained Subsidiaries," are referred to as
the "AFP Subsidiaries," "Alumax Holdings Subsidiaries," the "Alumax
<PAGE> 8
Europe Subsidiary" and the "Alumax France Subsidiary," respectively, and are
collectively referred to as the "Subsidiaries"; AFP and the AFP Subsidiaries
are referred to as the "U.S. Sale Companies"; Alumax Holdings, Alumax Europe,
Alumax France, Alumax Holdings Subsidiaries, the Alumax Europe Subsidiary and
the Alumax France Subsidiary are collectively referred to as the "European Sale
Companies"; and the U.S. Sale Companies and the European Sale Companies are
collectively referred to as the "Sale Companies");
WHEREAS, the Purchaser desires to purchase or cause certain of
its direct or indirect wholly-owned subsidiaries to purchase, and the Seller
desires to sell, directly or, in the case of the Alumax France Shares, through
Holdings S.A., the Shares upon the terms and subject to the conditions of this
Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
Seller and Purchaser hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale of Shares. Upon the terms and subject
to the conditions of this Agreement, (a) the Seller agrees to sell, transfer
and assign to Purchaser and Purchaser agrees to purchase, all right, title and
interest in and to the Alumax Holdings Shares, (b) the Seller agrees to cause
Holdings S.A. and the minority stockholders of Alumax France to sell, transfer
and assign to a newly formed indirect wholly owned subsidiary of Purchaser to
be organized under the laws of France ("French Newco"), and Purchaser agrees to
cause French Newco (or designated nominees or directors in accordance with
Section 3.1(c)(iii)) to purchase, all right, title and interest in and to the
Alumax France Shares, (c) upon consummation of the transactions described in
clause (b) of this Section 1.1 and in Section 1.4(e) hereof, the Seller agrees
to sell, transfer and assign to a newly formed indirect wholly owned subsidiary
of Purchaser to be organized under the laws of the Netherlands ("Dutch Newco"),
and Purchaser agrees to cause Dutch Newco to purchase, all right, title and
interest in and to the Alumax Europe Shares, and (d) the Seller agrees to sell,
transfer and assign to a newly formed wholly owned subsidiary of Purchaser to
be organized under the laws
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<PAGE> 9
of the State of Delaware ("U.S. Newco" and, collectively with Dutch Newco and
French Newco, the "Subsidiary Purchasers"), and Purchaser agrees to cause U.S.
Newco to purchase, all right, title and interest in and to the AFP Shares, in
each case free and clear of any lien, claim, charge, encumbrance, pledge,
security interest or restriction on transfer, other than as provided in Section
3.1(c) hereof.
1.2 Closing. Subject to Article V and Section 6.1 hereof,
the closing of the purchase and sale of the Shares shall take place at the
offices of Sullivan & Cromwell, 125 Broad Street, New York, New York, (a) on
the business day on which all of the conditions set forth in Article V hereof
shall have been fulfilled or waived in accordance with this Agreement and
applicable law (but if such day is not immediately followed by another business
day, then on the next business day thereafter which is immediately followed by
another business day), or (b) at such other time, date and/or place as the
Seller and Purchaser may agree. The date and time at which such purchase and
sale actually occurs is referred to as the "Closing Date," and upon the actual
occurrence of such purchase and sale, the closing thereof ("Closing") shall be
deemed to have occurred on such date at 11:58 P.M. Paris time with respect to
the Alumax France Shares, at 11:59 P.M. New York time with respect to the AFP
Shares, at 10:59 P.M. London time with respect to the Alumax Holdings Shares
and at 11:59 P.M. Paris time with respect to the Alumax Europe Shares.
1.3 Consideration and Payment at the Closing. Upon the terms
and subject to the conditions of this Agreement, on the Closing Date:
(a) Purchaser shall as agent for French Newco, or shall cause
French Newco to, deliver to the Seller an amount in cash to be agreed upon
pursuant to Section 8.8 as the portion of the purchase price allocated to the
Alumax France Shares (the "Alumax France Purchase Price"), and Purchaser shall
(as agent for U.S. Newco to the extent of the portion of the purchase price
allocated to the Alumax France Shares pursuant to Section 8.8) deliver to the
Seller an aggregate amount in cash equal to the Initial Purchase Price (as
defined in Section 2.1 hereof) less the Alumax France Purchase Price, in each
case by means of wire transfers to the bank account or bank accounts designated
in writing by the Seller one business day prior to Closing, and Purchaser or a
Subsidiary Purchaser shall countersign any documents referred to in Section
1.3(b) which require execution by it.
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<PAGE> 10
(b) The Seller shall deliver or, in the case of the Alumax
France Shares, cause Holdings S.A. and the minority stockholders of Alumax
France to deliver, to Purchaser or one of the Subsidiary Purchasers (or
designated nominees or directors in accordance with Section 3.1(c)(iii), in the
case of Alumax France), as the case may be, (i) certificates representing the
AFP Shares duly endorsed in blank with stock powers attached duly executed in
blank, in proper form for transfer, (ii) in the case of the Alumax Holdings
Shares, duly executed stock transfer forms together with the share certificates
relating thereto, (iii) in the case of the Alumax France Shares, duly executed
share transfer forms ("ordres de mouvement de titres") and (iv) in the case of
the Alumax Europe Shares, a notarial deed of transfer executed by the Seller,
Purchaser or Dutch Newco and Alumax Europe effecting such sale and purchase of
the Alumax Europe Shares together with a certificate of the inscription of the
stock ledger ("aandeelhoudersregister") of Alumax Europe to record the transfer
of the shares of Alumax Europe from the Seller to Purchaser or Dutch Newco,
(duly signed by the management of Alumax Europe), and (v) all other documents
required to be delivered by the Seller or Holdings S.A. to Purchaser or any
Subsidiary Purchaser on the Closing Date pursuant to the terms hereof.
1.4 Certain Transactions to be Consummated Prior to or
Concurrently with Closing.
(a) The Seller shall, prior to the Closing Date, cause AFP to
form a corporation organized under the laws of the State of Delaware, to be
named "Euramax Home Products, Inc." ("Home Products"), and thereupon shall
cause each of Alumax Aluminum Corporation, a Delaware corporation wholly owned
by Seller ("AAC"), and Home Products to duly execute and deliver to the other
an Asset Purchase Agreement in the form of Exhibit A hereto (the "Asset
Purchase Agreement"), pursuant to which AAC shall sell and deliver to Home
Products all of the assets and liabilities referred to therein as comprising
AAC's Home Products Division.
(b) The Seller shall, prior to the Closing Date, cause each
of Alumax Holdings and Alumax Europe to declare as a dividend, sell or
otherwise transfer or cause to be transferred to the Seller (or any subsidiary
thereof designated by the Seller) all shares or other interests owned by it of
each of the corporations or other entities identified in Schedule 3.1(a) as the
"Retained Subsidiaries," other than Holdings S.A.
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<PAGE> 11
(c) Immediately prior to the Closing Date, (i) the Seller and
its subsidiaries other than the Sale Companies on the one hand and the Sale
Companies on the other shall execute and deliver to the other such instruments
and documents as may be necessary (x) to eliminate any intercompany balances
and obligations between the Sale Companies, on the one hand, and the Seller and
its subsidiaries other than the Sale Companies, on the other, and (y) to cancel
or otherwise eliminate all obligations under the Note of AFP referred to in the
Asset Purchase Agreement, and (ii) all insurance coverage maintained by the
Seller in respect of the Sale Companies, any of their assets or their
businesses will cease to be available to the Sale Companies.
(d) Immediately following the delivery of the Alumax
France Shares pursuant to Section 1.3(b) but prior to the delivery of the
Alumax Europe Shares pursuant to Section 1.3(b), the Seller shall cause Alumax
Europe to declare as a dividend, sell or otherwise transfer to the Seller or
any subsidiary of the Seller designated by the Seller all shares or other
interests owned by it of Holdings S.A., and all outstanding shares of Holdings
S.A. held by directors or nominees shall be transferred to persons designated
by the Seller.
ARTICLE II
PURCHASE PRICE AND ADJUSTMENTS
2.1 Share Purchase Price. The initial purchase price for the
Shares to be paid at the Closing Date pursuant to Section 1.3 hereof shall be
U.S. $245 million, plus (i) an amount equal to the sum of (a) all cash and cash
equivalents (other than cash in the Bank Accounts (as defined in Section
4.15(b)) on the books of any of the Sale Companies as of the Closing and (b)
the aggregate of the balances shown on Schedule 4.15(b), plus (ii) the
Estimated Combined Working Capital (as defined in Section 2.2(c) hereof), less
(iii) the Initial Combined Working Capital (as defined in Section 2.2(c)
hereof), less (iv) the Funded Debt (as defined below) of the Sale Companies
outstanding as of the Closing (the "Initial Purchase Price"), in cash. The
Initial Purchase Price shall be adjusted subsequent to the Closing under the
circumstances and by reference to the procedures described in Section 2.2
hereof. "Funded Debt" shall mean, without duplication, the aggregate amount of
all indebtedness for borrowed money, including, without limitation, all
principal and interest due and owing,
-5-
<PAGE> 12
together with any premiums, fees, expenses, overdrafts or penalties, under
revolving facilities, term loans or otherwise, all obligations under letters of
credit and guarantees with respect to any of the foregoing (other than letters
of credit issued or made by one Sale Company for the benefit of another Sale
Company or guarantees issued or made by one Sale Company to the extent so
issued or made for the benefit of any Sale Company and other than guarantees
for which the Seller has indemnified Purchaser under Section 7.4 hereof) and
all capitalized lease obligations, but excluding any indebtedness or
obligations to the Seller or any of its subsidiaries (other than the Sale
Companies) which will be eliminated at Closing and any indebtedness or
obligation to any other Sale Company.
2.2 Purchase Price Adjustments.
(a) If the Initial Purchase Price exceeds the Final Purchase
Price (as hereinafter defined), then the Seller shall pay to Purchaser the
amount by which the Initial Purchase Price exceeds the Final Purchase Price,
plus interest accruing thereon at the prime commercial lending rate (base rate)
announced from time to time by Citibank, N.A. (the "Prime Rate") from the
Closing to the date such payment is made. If the Final Purchase Price exceeds
the Initial Purchase Price, then Purchaser shall pay to the Seller the amount,
not exceeding U.S.$2,000,000, by which the Final Purchase Price exceeds the
Initial Purchase Price, plus interest accruing thereon at the Prime Rate from
the Closing to the date such payment is made. The adjustment payment required
by this Section 2.2(a) shall be made by the Seller or Purchaser, as the case
may be, within fifteen business days after the Final Purchase Price is
determined pursuant to Section 2.2(b) hereof.
(b) Determination of Final Purchase Price.
(i) As soon as practicable following the Closing Date, but in
any event within 60 business days thereafter, Coopers & Lybrand LLP
(Atlanta), acting in its capacity as the Seller's independent auditors
("C&L"), at the direction of the Seller, shall prepare and deliver to
Purchaser and Coopers & Lybrand LLP (New York), acting in its capacity
as Purchaser's independent auditors ("Purchaser Auditors"), an audited
combined balance sheet of the Sale Companies, as of the Closing (the
"Closing Balance Sheet"). Purchaser shall provide to the Seller and
C&L reasonable access to all necessary books and records to perform
such audit and to review or investigate disputes regarding the Closing
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<PAGE> 13
Balance Sheet, provided that Purchaser Auditors may be present at any
audit conducted by C&L of physical inventory so long as Purchaser
Auditors do not interfere with such audit. The Closing Balance Sheet
shall be prepared in accordance with United States generally accepted
accounting principles ("GAAP"), modified (A) to exclude all assets and
liabilities relating to income Taxes, (B) to include as payables all
payables for which checks were drawn but had not cleared as of the
relevant time of determination, and (C) otherwise as described in
Schedule 2.2(b) ("Modified GAAP") applied in a manner consistent with
the Balance Sheet, and shall be accompanied by a report thereon of
C&L, which report shall state that in C&L's opinion the Closing
Balance Sheet has been prepared in accordance with Modified GAAP, and
that the Closing Balance Sheet fairly presents, in all material
respects, the financial position of the Sale Companies as of the
Closing. In connection with the preparation of the Closing Balance
Sheet, (x) all known arithmetic errors in the Balance Sheet shall be
taken into account, and (y) no changes in accounting principles,
policies, practices, procedures or methodologies shall be made from
those utilized in preparing the Balance Sheet (other than with respect
to the cash in the Bank Accounts), including, without limitation, with
respect to the nature and classification of accounts or the
determination of the level of reserves, accruals or materiality. The
Seller, within 10 business days of acceptance of the Closing Balance
Sheet by Purchaser in accordance with the procedures set forth in
Section 2.2(b)(ii) hereof, shall based thereon prepare and deliver to
Purchaser a schedule setting forth the Final Purchase Price, to be
computed in accordance with the provisions of Section 2.2(c) hereof.
(ii) Purchaser and Purchaser Auditors may review the
Closing Balance Sheet and the Seller shall cause C&L to make its work
papers and all other documents used in preparation of the Closing
Balance Sheet available to Purchaser and Purchaser Auditors. The
Closing Balance Sheet reported upon by C&L shall be binding and
conclusive upon, and deemed accepted by, Purchaser unless Purchaser
shall have notified the Seller of any and all objections thereto not
later than 45 business days after delivery thereof. Any dispute
relating to the Closing Balance Sheet which cannot be resolved within
5 business days after the delivery of the notice referred to in this
Section 2.2(b)(ii) (the "Referral Date") shall, together with all
other such
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<PAGE> 14
disputes, be referred no later than 15 business days after the
Referral Date for decision by Robert Henley of Ernst & Young LLP
(Richmond, Virginia) or, if unavailable, a mutually agreeable auditor
with a nationally recognized accounting firm (the "Auditor"), whom the
parties agree shall be appointed to render final and binding
determinations with respect to such disputes. The Auditor shall
establish procedures giving due regard to the intention of the parties
to resolve disputes as quickly, efficiently and inexpensively as
possible. The parties shall then submit evidence in accordance with
the procedures so established and the Auditor shall decide the dispute
or disputes in accordance therewith by selecting from either the
Seller's position or the Purchaser's position with respect to each
such dispute. The Auditor's decision on all matters referred to the
Auditor shall be rendered in the form of a written opinion using the
definitions and terms used in this Agreement within 45 business days
following the date such matters are referred to the Auditor and
thereupon the Closing Balance Sheet, as modified to reflect the
Auditor's determinations, shall be deemed accepted by the Purchaser
and such determinations shall be final and binding on the parties
hereto and enforceable as an arbitration award pursuant to the Federal
Arbitration Act. The fee of the Auditor shall be borne by the parties
in such proportion as the Auditor may determine and, in the absence of
such determination, equally.
(c) As used in this Agreement, the "Final Purchase Price"
shall be an amount equal to (i) the Initial Purchase Price plus (ii) the Final
Combined Working Capital (as hereinafter defined), less (iii) the Estimated
Combined Working Capital (as hereinafter defined). "Combined Working Capital"
shall mean, at the relevant time of determination, an amount equal to the total
current assets (exclusive of cash, cash equivalents, and intercompany balances
between the Sale Companies, on the one hand, and the Seller and its
subsidiaries other than the Sale Companies, on the other) less the current
liabilities (excluding intercompany balances between the Sale Companies, on the
one hand, and the Seller and its subsidiaries other than the Sale Companies, on
the other, and excluding any Funded Debt reflected therein), in each case as
determined in accordance with Modified GAAP and as reflected in the applicable
balance sheet; for avoidance of doubt, the cash in the Bank Accounts shall be
excluded from the calculation of Combined Working Capital. "Initial Combined
Working Capital" shall mean the Combined Working Capital as determined based on
the
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Balance Sheet. "Final Combined Working Capital" shall mean the Combined
Working Capital as determined based on the Closing Balance Sheet. "Estimated
Combined Working Capital" shall mean the Combined Working Capital as of the
Closing, estimated in good faith by the Seller and set forth in a schedule
delivered to Purchaser not less than ten business days prior to the Closing
Date; provided, however, that if Purchaser, acting in good faith, objects to
such estimate by notice delivered to Seller not less than eight business days
prior to the Closing Date, and the parties cannot agree on an estimate by not
less than one business day prior to the Closing Date, the "Estimated Combined
Working Capital" shall be deemed to be equal to the Combined Working Capital
based on the latest available interim balance sheets for the Sale Companies
prepared at month-end in accordance with Modified GAAP, it being understood
that the Seller shall not be required to prepare any such combined balance
sheet as of any end of the month occurring less than 20 days before the Closing
Date. Notwithstanding the foregoing, however, Purchaser may elect, by written
notice to the Seller given not less than seven business days prior to the
Closing Date, to limit the Estimated Combined Working Capital and Final
Combined Working Capital to an amount not to exceed the Initial Combined
Working Capital by more than U.S.$2,000,000.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to Purchaser as follows:
(a) Organization and Qualification. Each of the Seller, AAC
and the U.S. Sale Companies is (or, in the case of Home Products, at the
Closing Date will be) a corporation duly organized, validly existing and in
good standing, to the extent such concepts are recognized in such
jurisdictions, under the laws of its jurisdiction of incorporation. Each of
the European Sale Companies has been duly incorporated and is validly existing
and no order has been made or petition presented or resolution passed for the
winding up of any of such entities or for an administration order in respect
thereof or for the statutory merger of such entities with other entities, and
no receiver or administrative receiver has been appointed and no voluntary
arrangement has been proposed under Section 1 of the Insolvency Act 1986 nor
any other bankruptcy, moratorium or
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insolvency proceeding in respect thereof. Each of the European Sale Companies
has complied in all material respects with its statutory obligations to prepare
and file accounts in the jurisdiction in which it is registered. The Sale
Companies are (or, in the case of Home Products, at the Closing Date will be)
each qualified to do business and in good standing as a foreign corporation in
each jurisdiction, to the extent such concepts are recognized in such
jurisdictions, where the properties owned, leased or operated, or the business
conducted, by it require such qualification, except for any such failure which
when taken together with all other such failures is not reasonably likely to
have a material adverse effect on the financial condition, business or
operations of (i) the U.S. Sale Companies, taken as a whole (as to matters
relating to any of the U.S. Sale Companies), or (ii) the European Sale
Companies, taken as a whole (as to matters relating to any of the European Sale
Companies). The Sale Companies have no subsidiaries or equity investments
other than those set forth on Schedule 3.1(a). Each of the Sale Companies has
(or, in the case of Home Products, at the Closing Date will have) the requisite
corporate (and other) power and authority to own its properties and carry on
its business as it is now being conducted by such Sale Company (or, in the case
of Home Products, by AAC). The Seller has made available to Purchaser a
complete and correct copy of the certificate of incorporation and by-laws or
memorandum and articles of association (or other comparable governing
instruments), each as amended to date, of each of the Seller, AAC and the Sale
Companies (other than Home Products). Each of the certificates of
incorporation and by-laws, memoranda and articles of association and other
comparable governing instruments, if any, so delivered are in full force and
effect. Neither Alumax Holdings nor any of the Alumax Holdings Subsidiaries
has given any "financial assistance" as defined in Section 152(1) of the
Companies Act 1985 in any manner which amounts to a criminal offense under the
U.K. Companies Act 1985.
(b) Authority. Subject to the approval of the Board of
Directors of the Seller at its meeting scheduled to be held on June 27, 1996
(the "Board Approval"), the execution and delivery of this Agreement have been
duly authorized by the Board of Directors of the Seller and/or by a committee
thereof duly authorized to act on its behalf. Subject to the Board Approval,
the Seller has the legal capacity and authority to enter into this Agreement
and to consummate the transactions herein contemplated and otherwise carry out
its obligations hereunder. Subject to the Board Approval, the Seller has, and
each of AAC,
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Holdings S.A. and the Sale Companies has or will have, the legal capacity and
authority to enter into each other agreement or instrument to be executed in
connection herewith and to consummate the transactions therein contemplated and
otherwise carry out its obligations thereunder. Subject to the Board Approval,
this Agreement has been, and such other agreements and instruments will be,
duly and validly executed by the Seller, AAC, Holdings S.A. or one or more Sale
Companies, as the case may be; and, subject to the Board Approval, this
Agreement constitutes, and each such other agreement and instrument (to the
extent intended by the parties to be a binding agreement) will constitute, a
valid and binding agreement of the Seller, AAC, Holdings S.A. or such Sale
Company or Companies, as the case may be, enforceable in accordance with its
terms.
(c) Authorized Capital of AFP, Alumax Holdings, Alumax Europe
and Alumax France.
(i) The authorized capital stock of AFP as of the date
hereof consists of 1000 shares of Common Stock, U.S. $10.00 par value
per share, of which 100 shares, comprising all of the AFP Shares, are
issued and outstanding. The authorized capital stock of Alumax
Holdings as of the date hereof consists of 1,000,000 shares of Common
Stock, L.1 par value per share, of which 1,000,000 shares, comprising
all of the Alumax Holdings Shares, are issued and outstanding. The
authorized capital stock of Alumax Europe as of the date hereof
consists of 50,000 shares of Common Stock, NLG 100 par value per
share, of which 10,002 shares, comprising all of the Alumax Europe
Shares, are issued and outstanding. The capital stock of Alumax
France as of the date hereof consists of 60,000 shares of Common
Stock, FF 100 par value per share, of which 60,000 shares, comprising
all of the Alumax France Shares, are issued and fully paid up. The
Shares have been duly authorized and are validly issued, fully paid
and nonassessable, and all of the Shares are owned of record and
beneficially by the Seller (except with respect to the Alumax France
Shares, which are owned of record and beneficially by Holdings S.A.
other than to the extent set forth in Schedule 3.1(a) with respect to
nominee and directors' qualifying shares), free and clear of any lien,
claim, charge, encumbrance, pledge, security interest or restriction
on transfer, except as expressly provided in the applicable governing
documents of the Sale Companies heretofore provided to Purchaser in
accordance with Section 3.1(a) hereof. Upon delivery of the Shares
and payment therefor
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<PAGE> 18
pursuant hereto, good and valid title to such Shares, free and clear
of any lien, claim, charge, encumbrance, pledge, security interest or
restriction on transfer, except as expressly provided in the
applicable governing documents of the Sale Companies heretofore
provided to Purchaser in accordance with Section 3.1(a) hereof, will
pass to Purchaser or a Subsidiary Purchaser, as applicable, or a
nominee thereof as set forth in paragraph (iii) of this Section 3.1(c)
and subject to the payment of any Transfer Taxes (as defined in
Section 8.5 hereof).
(ii) All of the issued and outstanding shares of capital
stock of each of the Subsidiaries have been (or, with respect to the
issued and outstanding shares of capital stock of Home Products (the
"Home Products Shares"), at the Closing Date will be) duly authorized
and are (or, with respect to the Home Products Shares, at the Closing
Date will be) validly issued, fully paid and nonassessable, and are
(or, with respect to the Home Products Shares, at the Closing Date
will be) owned (except as indicated on Schedule 3.1(a)) by AFP, Alumax
Holdings, Alumax Europe or Alumax France, as the case may be, in each
case free and clear of any lien, claim, charge, encumbrance, pledge,
security interest or restriction on transfer, except as expressly
provided in the applicable governing documents of the Sale Companies
heretofore provided to Purchaser in accordance with Section 3.1(a)
hereof. There are no existing options, warrants, calls, rights or
commitments of any character of the Sale Companies relating to the
issuance of capital stock thereof or to the issuance of any securities
or obligations convertible into or exchangeable for, or giving any
person any right to subscribe for or acquire from any of the Sale
Companies, any shares of capital stock or other securities or
obligations of any of the Sale Companies convertible into capital
stock, and no such securities or obligations, or other securities or
obligations relating to the capital stock of any of the Sale
Companies, including without limitation stock appreciation rights,
phantom stock or similar rights, are outstanding. Neither the Seller
nor any of the Sale Companies has granted any proxies with respect to
any shares of capital stock of the Sale Companies, deposited any such
shares into a voting trust or entered into any voting agreement with
respect to any such shares.
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<PAGE> 19
(iii) Upon the Closing Date, all Shares and shares of
Subsidiaries indicated on Schedule 3.1(a) as being held by nominees or
directors will be delivered to Purchaser or a Subsidiary Purchaser or
its designated nominee or director, free and clear of any lien, claim,
charge, encumbrance, pledge, security interest or restriction on
transfer, except as expressly provided in the applicable governing
documents of the Sale Companies heretofore provided to Purchaser in
accordance with Section 3.1(a) hereof.
(d) Governmental Filings and Consents; No Violations.
(i) Except as set forth on Schedule 3.1(d)(i), to the
Seller's best knowledge, no notices or other filings are required to
be made by the Seller, Holdings S.A. or any of the Sale Companies
with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by the Seller, Holdings S.A. or
any of the Sale Companies from, any governmental or regulatory
authorities in connection with the execution and delivery by the
Seller of this Agreement and the execution and delivery by Seller or,
if applicable, AAC, Holdings S.A. or any Sale Company, of each other
agreement or instrument to be executed in connection herewith, and the
consummation by the Seller or, if applicable, any Sale Company, of the
transactions contemplated hereby or thereby, the failure to make or
obtain any or all of which is (A) reasonably likely to have a material
adverse effect on the financial condition, business or operations of
(x) the U.S. Sale Companies, taken as a whole (as to matters relating
to any of the U.S. Sale Companies), or (y) the European Companies,
taken as a whole (as to matters relating to any of the European Sale
Companies), or (B) is reasonably likely to prevent, materially delay
or materially burden the transactions contemplated by this Agreement.
(ii) Except as set forth in Schedule 3.1(d)(ii), the
execution and delivery of this Agreement by the Seller do not, and the
consummation by the Seller, AAC, Holdings S.A. and the Sale Companies
of the transactions contemplated by this Agreement will not,
constitute or result in (A) any breach or violation of, or a default
under, the acceleration of or the creation of a lien, pledge, security
interest or other encumbrance on assets (with or without the giving of
notice or the lapse of time) pursuant to any Leases (as
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defined in Section 3.1(h) hereof) or Material Contracts (as defined in
Section 3.1(p) hereof) of the Sale Companies or any law, rule,
ordinance or regulation or judgment, decree, order, award or
governmental permit or license to which the Seller, AAC, Holdings S.A.
or any of the Sale Companies is subject, except, in any such case, for
such as is not reasonably likely to have a material adverse effect on
the financial condition, business or operations of (x) the U.S. Sale
Companies, taken as a whole (as to matters relating to any of the U.S.
Sale Companies), or (y) the European Sale Companies, taken as a whole
(as to matters relating to any of the European Sale Companies), and is
not reasonably likely to prevent, materially delay or materially
burden the transactions contemplated by this Agreement, or (B) a
breach or violation of, or default under, the certificate of
incorporation or by-laws of the Seller, Holdings S.A., AAC or any of
the Sale Companies. Schedule 3.1(d)(ii) sets forth, to the Seller's
best knowledge, a list of any consents required under any Leases or
Material Contracts to be obtained prior to consummation of the
transactions contemplated by this Agreement.
(e) Financial Statements. The Seller has prior to the date
hereof delivered to Purchaser a copy of the audited combined special purpose
statement of net operating assets of the Sale Companies, as of December 31,
1995 (the "Balance Sheet"), and the related special purpose statements of
operating earnings and of operating cash flows for the year then ended
(together with the Balance Sheet, the "Financial Statements"), together with
the report thereon of C&L. The Financial Statements have been prepared in
accordance with the accounting books and records of the Sale Companies; the
Balance Sheet has been prepared in accordance with Modified GAAP and the Income
Statement and Statement of Cash Flows included in the Financial Statements have
been prepared in accordance with GAAP, except as disclosed in the auditor's
report thereon or in the Financial Statements (including the footnotes
thereto); and the Financial Statements present fairly the combined financial
condition of the Sale Companies as of December 31, 1995 and the combined
results of operations for the period then ended.
(f) Material Adverse Change. Since December 31, 1995, there
has been no material adverse change in the combined financial condition,
business or operations of (A) the U.S. Sale Companies, taken as a whole (as to
matters relating to any of the U.S. Sale Companies), or (B) the European Sale
Companies, taken as a whole (as to matters
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relating to any of the European Sale Companies). Without limiting the
generality of the foregoing, except (i) as set forth in Schedule 3.1(f), (ii)
as disclosed in or contemplated by the monthly Interim Operations Report of the
Sale Companies and interim financial statements with respect to the Sale
Companies heretofore delivered to Purchaser, and (iii) in furtherance of or in
connection with the transactions contemplated by Sections 1.4 and 4.1 hereof,
since December 31, 1995, (x) the Sale Companies have conducted their business
only in, and have not engaged in any material transaction other than in
accordance with, the ordinary course of such business, consistent with past
practice, and (y) there has not been:
(i) any amendment to any Sale Company's certificate of
incorporation, bylaws or memorandum or articles of association (or
other comparable governing instruments), as applicable;
(ii) any incurrence of indebtedness or guarantees of
indebtedness (x) by any U.S. Sale Company that is material to the U.S.
Sale Companies, taken as a whole, or (y) by any European Sale Company
that is material to the European Sale Companies, taken as a whole,
other than (A) purchase money mortgages granted in the ordinary course
of business consistent with past practice and (B) accounts payable
arising in the ordinary course of business, consistent with past
practice;
(iii) any granting of a material increase in compensation
payable, or to become payable, to any employee who, pursuant to
Section 4.11 or otherwise with respect to the European Sale Companies,
continues in the employment of Purchaser or one of the Sale Companies
after Closing (a "Transferred Employee"), except for scheduled annual
increases in accordance with past practice (which shall not exceed, in
the aggregate, six percent of the aggregate salaries of all
Transferred Employees); except under existing employment agreements or
severance plans or other existing arrangements, any granting of any
severance or termination pay (other than for accrued vacation pay) to,
or entering into any employment or severance agreement with, any
Transferred Employee; the establishment, adoption, entry into or
amendment of any bonus, profit sharing, thrift, compensation, stock
option, restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust or
fund for the benefit of
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any Transferred Employee in any way that materially increases the
liability of any of the Sale Companies thereunder;
(iv) any issuance, sale or transfer of, or any agreement
to issue, sell or transfer, any stock, bond, debenture, option,
warrant, right or other similar corporate security of any of the Sale
Companies or Subsidiaries, except as contemplated by this Agreement;
(v) any declaration or payment of any dividend or other
distribution, or the transfer of any assets, to the Seller, except in
the ordinary course of business;
(vi) any change by the Seller or any of the Sale Companies
in accounting principles, practices or methods (other than in
connection with the preparation of the Balance Sheet and the Closing
Balance Sheet, as described in Sections 2.2 and 3.1(e) hereof) or cash
management practices;
(vii) any forgiveness of any material debt of another party
due to the Sale Companies (other than as contemplated by this
Agreement);
(viii) except in the ordinary course of business, consistent
with past practice, (A) any sale, transfer or other disposal of any
properties or assets, real, personal or mixed, which have an aggregate
book value in excess of U.S. $250,000, or (B) any mortgaging or
encumbering of any properties or assets, real, personal or mixed,
which have an aggregate book value in excess of U.S. $100,000;
(ix) any material adverse changes in relationships with
the customers and suppliers listed on Schedule 3.1(x), or any material
adverse changes in relationships with other customers and suppliers
that are material to (i) the U.S. Sale Companies, taken as a whole (as
to matters relating to any of the U.S. Sale Companies), or (ii) the
European Sale Companies, taken as a whole (as to matters relating to
any of the European Sale Companies);
(x) except in the ordinary course of business, consistent
with past practice, or as necessary to consummate the transactions
contemplated hereby, the entering into or amending of any Material
Contract; or
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(xi) except in the ordinary course of business, consistent
with past practice, any oral or written directive issued by the Seller
or any of its subsidiaries to any of the Sale Companies restricting
capital expenditures in accordance with the ordinary course of
business, consistent with past practice; or
(xii) any commitment by the Seller, AAC, Holdings S.A. or
any of the Sale Companies to do any of the foregoing.
(g) Undisclosed Liabilities. There exist no liabilities or
obligations, secured or unsecured (whether absolute, accrued, contingent or
otherwise), of (i) any of the U.S. Sale Companies that are material to the U.S.
Sale Companies, taken as a whole, or (ii) any of the European Sale Companies
that are material to the European Sale Companies, taken as a whole, except such
as were taken account of in the Balance Sheet or are disclosed in Schedule
3.1(f) or Schedule 3.1(g).
(h) Real Property.
(i) Schedule 3.1(h) sets forth all real property in which
any of the Sale Companies has legal or equitable title or a leasehold
interest. Except as set forth in Schedule 3.1(h), the Seller has
delivered true and complete copies of all Leases and all deeds or
other similar title documents related to the Owned Realty (as defined
below).
(ii) Each lease (collectively, the "Leases") respecting
the real property leased by any of the Sale Companies (the "Leased
Realty") that is material to (i) the U.S. Sale Companies, taken as a
whole (as to matters relating to any of the U.S. Sale Companies), or
(ii) the European Sale Companies, taken as a whole (as to matters
relating to any of the European Sale Companies), in each case as set
forth on Schedule 3.1(h), is valid and effective in accordance with
its terms and, to the Seller's knowledge, there is not under any of
such Leases any existing material default by any other party thereto
or any condition, event or act which with notice or lapse of time or
both would constitute such a default by any other party thereto. No
interest of a Sale Company in or to any Leased Realty has been
pledged, assigned, encumbered or otherwise transferred, except (A) as
reflected on Schedule 3.1(h) hereto; (B) mechanics', carriers',
worker's, repairmen's or other like liens arising or
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incurred in the ordinary course of business, liens for taxes,
assessments and other governmental charges which are not due and
payable or which may thereafter be paid without penalty; (C)
easements, covenants, rights-of- way and other encumbrances or
restrictions of record that are not material to the Leased Realty,
considered as a whole; (D) zoning, building and other similar
restrictions; and (E) those that, individually or in the aggregate, do
not materially adversely affect the title to or the present use of the
property subject thereto (collectively the "Permitted Real Property
Encumbrances").
(iii) Except as described in Schedule 3.1(h), each of the
Sale Companies has good and marketable title in fee simple to the real
property that is described on Schedule 3.1(h) as being the real
property owned by such Sale Company (the "Owned Realty"), free and
clear of all interests, mortgages or other encumbrances, rights of
way, building or use restrictions, exceptions, variances, reservations
or limitations of any nature whatsoever, except for Permitted Real
Property Encumbrances. There is no condemnation pending or, to the
Seller's best knowledge, threatened with respect to any Owned Realty.
(iv) All material restrictions, conditions, and covenants
affecting the UK Properties (as defined below) have been or are being
substantially performed and observed and no notice of any material
breach of the same has been received by any Sale Company with an
interest in real property within the United Kingdom of Great Britain
and Northern Ireland ("UK Properties").
(v) Except for Leases, tenancies or licenses granted to
providers of electricity or gas, each Sale Company with an interest in
any UK Properties is the beneficial owner of such UK Properties and is
entitled to vacant possession of such UK Properties, and no lease,
tenancy or license has been granted or agreed to be granted to any
third party in respect of the whole or part of any UK Properties.
(vi) The existing uses of the UK Properties are lawfully
permitted uses, whether under applicable planning legislation (and in
the case of leasehold property under the terms of the lease under
which that property is held) or otherwise, and are not temporary uses.
All necessary consents to the existing uses have been obtained and are
valid and subsisting.
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(vii) The existing uses of the UK Properties substantially
comply with all relevant provisions of legislation applicable to them
and with all relevant permissions, by-laws, regulations, consents,
notices, and orders made by any local or central government, legal
authority, or other regulatory body (whether made by or under
statutory powers or otherwise).
(viii) There are no materially onerous conditions attached
to any of the consents and permissions affecting the UK Properties and
there are no material conditions to any planning consent which have
not been fully satisfied in all material respects so that no
continuing liability remains under them.
(ix) All buildings and other erections on the UK
Properties or any part thereof are substantially fit for the purpose
for which they are presently used.
(x) Except as set forth on Schedule 3.1(h)(x) none of the
Sale Companies is actually or contingently liable as (or as guarantor
of) an original contracting party to any lease of property within the
United Kingdom of Great Britain and Northern Ireland other than the UK
Properties.
(xi) No construction on or cultivation of the Owned Realty
which is located in the Netherlands (the "Dutch Owned Realty") has
taken place without the necessary licenses and permits.
(xii) To the Seller's best knowledge, neither public law
nor private law prohibits or restricts the present use of the Owned
Realty in any material respect. To the Seller's best knowledge, no
Dutch municipality has adopted any urban renewal plan or any ordinance
under the Dutch Act Urban and Village Renewal affecting Owned Realty
located in the Netherlands.
(i) Personal Property. Except as set forth in Schedule
3.1(i), one or another of the Sale Companies has good and marketable title to
all personal property reflected on the Balance Sheet and to all personal
property acquired by any of the Sale Companies since the date of such Balance
Sheet (except such personal property as has been disposed of in the ordinary
course of business consistent with past practice), free and clear of all liens,
interests or other encumbrances or limitations of any nature whatsoever, except
liens, interests, encumbrances or limitations that are not material in amount
and do not materially detract from the
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value or materially interfere with the present use of any of the properties
subject thereto or affected thereby or otherwise have a material adverse effect
upon the financial condition, business or operations of the (i) U.S. Sale
Companies, taken as a whole (as to matters relating to any of the U.S. Sale
Companies), or (ii) the European Sale Companies, taken as a whole (as to
matters relating to any of the European Sale Companies).
(j) Inventory. The inventories included on the Balance Sheet
consist of items of quality and quantity usable and saleable in the ordinary
course of business, calculated at the lower of cost or market in accordance
with GAAP, and the Sale Companies have provided for adequate reserves for slow
moving and obsolete material calculated in accordance with GAAP.
(k) Intellectual Property. Set forth on Schedule 3.1(k) is a
list and brief description or identification of all copyrights, trade names,
patents and patent rights, trademarks or service marks applied for and/or
registered in the name of any of the Sale Companies, and which are used in the
business of any of the Sale Companies (collectively referred to herein as
"Intellectual Property"). Except as set forth on Schedule 3.1(k), none of the
Sale Companies is a licensor in respect of any Intellectual Property. The Sale
Companies own the right, title and interest to or possess adequate licenses or
other rights to use all Intellectual Property and trade secrets necessary to
operate their business in all material respects as now conducted. Except as
set forth in Schedule 3.1(k), no claim is pending or, to the best knowledge of
the Seller, threatened claiming that (x) the operations of any of the Sale
Companies infringe upon or conflict with the asserted rights of any other
person in a manner that reasonably could be expected to have a material adverse
effect on the business of (i) the U.S. Sale Companies, taken as a whole (as to
matters relating to any of the U.S. Sale Companies), or (ii) the European Sale
Companies, taken as a whole (as to matters relating to any of the European Sale
Companies), or (y) any of such Intellectual Property and trade secrets material
to the business of (i) the U.S. Sale Companies, taken as a whole (as to matters
relating to any of the U.S. Sale Companies), or (ii) the European Sale
Companies, taken as a whole (as to matters relating to any of the European Sale
Companies), is invalid or unenforceable. To the Seller's best knowledge, no
third party has infringed upon or misappropriated any Intellectual Property or
trade secrets that are material to the business of (i) the U.S. Sale Companies,
taken as a whole (as to matters relating to any U.S. Sale Companies), or (ii)
the European Sale Companies, taken as a whole (as to matters relating to
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any of the European Sale Companies).
To the Seller's knowledge, the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby will not
result in any loss or impairment of any of the Intellectual Property of any of
the Sale Companies material to the business of (i) the U.S. Sale Companies,
taken as a whole (as to matters relating to any U.S. Sale Companies), or (ii)
the European Sale Companies, taken as a whole (as to matters relating to any of
the European Sale Companies).
(l) Personnel, etc. Set forth on Schedule 3.1(l) is a list
setting forth:
(i) the name of each officer of each of the U.S. Sale
Companies and the supervisory board members, directors and officers of
each of the European Sale Companies, specifying the title and job
classification of each such person; and
(ii) the name of each director of each of the Sale Companies.
The Seller has heretofore provided Purchaser with a complete and
accurate schedule of compensation which each of the officers referred to in
clause (i) above who is a Transferred Employee is currently entitled to
receive.
(m) Employee Benefit Plans.
(i) (A) Schedule 3.1(m)(i) lists or describes: (x) each
"employee benefit plan" (as such term is defined in Section 3(3) of
ERISA) maintained or contributed to by (or required to be maintained
or contributed to by) any U.S. Sale Company or any entity that
together with any U.S. Sale Company is treated as a single employer
under Section 414 of the Code (each such entity, an "ERISA
Affiliate"), for the benefit of any employee or former employee of any
of the U.S. Sale Companies (the "AFP Employees"); and (y) each other
plan, arrangement, policy or understanding relating to retirement,
compensation, deferred compensation, bonus, severance, fringe benefits
or any other employee benefits, maintained or contributed to by (or
required to be maintained or contributed to by) any of the U.S. Sale
Companies or any ERISA Affiliate for the benefit of any AFP Employee
or any director of any of the U.S.
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Sale Companies. Each such item listed on Schedule 3.1(m)(i) is
referred to herein as an "AFP Benefit Plan." Schedule 3.1(m)(i) hereto
also contains an accurate and complete list of each collective
bargaining agreement to which any of the U.S. Sale Companies is
subject or which pertains to any AFP Employee.
(B) The Seller has, with respect to each AFP Benefit
Plan, provided to the Purchaser complete and correct copies of, as
applicable: (i) all plan documents and amendments thereto and any
related trust agreements, insurance and annuity contracts and
policies; (ii) any collective bargaining agreements pursuant to which
such plan is maintained; (iii) the most recent determination letter
received from the Internal Revenue Service (the "IRS"); (iv) the
Annual Report (Form 5500 Series) and accompanying schedules, as filed,
for the two (2) most recently completed plan years; and (v) the
current summary plan description.
(ii) Except as set forth on Schedule 3.1(m)(ii), each AFP
Benefit Plan (other than any "multiemployer plan" as such term is
defined in Section 3(37) of ERISA) (the "AFP Plans") has been
maintained in all material respects in accordance with its terms and
with the applicable provisions of ERISA, the Code, and any other
applicable laws and collective bargaining agreements. Each AFP Plan
which is an "employee pension benefit plan" within the meaning of
Section 3(2) of ERISA ("AFP Pension Plan") and which is intended to be
qualified under Section 401(a) of the Internal Revenue Code of 1986,
as amended (the "Code") has received a favorable determination letter
from the IRS, and to the Seller's knowledge, nothing has occurred
since the date of such letter that cannot be cured within the remedial
amendment period provided by Section 401(b) of the Code which would
prevent any such AFP Plan from remaining so qualified. There is no
material pending or, to the Seller's knowledge, threatened litigation
relating to the AFP Plans. None of the U.S. Sale Companies nor (to
the Seller's knowledge) any other "disqualified person" (within the
meaning of Section 4975 of the Code) nor any "party in interest"
(within the meaning of Section 3(14) of ERISA) has engaged in a
transaction with respect to any AFP Plan that, assuming the taxable
period of such transaction expired as of the date hereof, could
subject any U.S. Sale Company or any officer, director or employee
thereof to a tax or penalty imposed by either Section 4975 of the Code
or
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Section 502(i) of ERISA in an amount which would be material.
(iii) No liability under Subtitle C or D of Title IV of
ERISA has been or is expected to be incurred by any of the U.S. Sale
Companies with respect to any ongoing, frozen or terminated
"single-employer plan," within the meaning of Section 4001(a)(15) of
ERISA. None of the U.S. Sale Companies has incurred or expects to
incur any withdrawal liability with respect to a "multiemployer plan"
within the meaning of Section 3(37) of ERISA (a "Multiemployer Plan")
under Subtitle E of Title IV of ERISA. To the Seller's knowledge,
each Multiemployer Plan that is an AFP Benefit Plan complies in form
and has been administered in accordance with the requirements of ERISA
and, where applicable, the Code, and is qualified under Section 401(a)
of the Code as amended to the date hereof. With respect to any
Multiemployer Plan to which any of the U.S. Sale Companies or any
ERISA Affiliate has an obligation to contribute, to the Seller's
knowledge, no proceeding has been initiated to terminate such
Multiemployer Plan, no such Multiemployer Plan is in reorganization as
described in Section 4241 of ERISA, and no such Multiemployer Plan is
insolvent as described in Section 4245 of ERISA. Neither any U.S.
Sale Company nor any ERISA Affiliate has failed to make any required
contribution to any Multiemployer Plan, and none of the U.S. Sale
Companies is bound by any contract or agreement or has any obligation
or liability described in Section 4204(a) of ERISA. No notice of a
"reportable event," within the meaning of Section 4043 of ERISA, for
which the 30-day reporting requirement has not been waived has been
required to be filed for any AFP Pension Plan within the 12-month
period ending on the date hereof.
(iv) All contributions required to be made under the terms
of any AFP Benefit Plan or ERISA or the Code have been timely made or
have been reflected on the Financial Statements. Except as set forth
on Schedule 3.1(m)(iv), no AFP Pension Plan has an "accumulated
funding deficiency" (whether or not waived) within the meaning of
Section 412 of the Code or Section 302 of ERISA. None of the U.S.
Sale Companies has provided, or is required to provide, security to
any AFP Pension Plan pursuant to Section 401(a)(29) of the Code.
(v) None of the U.S. Sale Companies has any obligations
for retiree health and life benefits under
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any AFP Benefit Plan or otherwise. Any AFP Benefit Plan that provides
retirees health and life benefits provides that it may be amended or
terminated at any time. Each of the U.S. Sale Companies and the ERISA
Affiliates have complied in all material respects with the health care
continuation requirements of Part 6 of Title I of ERISA.
(vi) Except as set forth on Schedule 3.1(m)(vi), none of
the U.S. Sale Companies has any obligation to pay any separation,
severance, termination or similar benefit solely as a result of any
transaction contemplated by this Agreement or solely as a result of a
change in control or ownership within the meaning of Section 280G of
the Code.
(vii) None of the U.S. Sale Companies has any material
liability of any kind whatsoever, whether direct, indirect, contingent
or otherwise, on account of (A) any violation of the health care
continuation requirements of Part 6 of Title I of ERISA or Section
4980B of the Code, (B) under Section 502(i) or Section 502(l) of ERISA
or Section 4975 of the Code, (C) under Section 302 of ERISA or Section
412 of the Code, or (D) under Title IV of ERISA, in each case solely
by reason of being treated as a single employer under Section 414 of
the Code with any trade, business or entity other than the U.S. Sale
Companies.
(viii) Other than the pension schemes set forth on Schedule
3.1(m)(viii) (the "Pension Schemes"), there are no pension, retirement
benefit, contractual or discretionary benefits or similar schemes or
arrangements for the current employees of any of the European Sale
Companies.
(ix) Neither Alumax Holdings nor any of the Alumax
Holdings Subsidiaries has any legally binding obligation, other than
those under the Pension Schemes or the CLA (as defined in Section
3.1(m)(xviii)), to pay any pension or make any other payment after
retirement or death or otherwise to provide "relevant benefits" within
the meaning of section 612 of the U.K. Income and Corporation Taxes
Act 1988 to or in respect of any current or former employee of Alumax
Holdings or the Alumax Holdings Subsidiaries.
(x) All contributions and other amounts which have fallen
due for payment to the trustees of the "UK Pension Scheme" identified
in Schedule 3.1(m)(viii)
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have been paid and the UK Pension Scheme has been fully funded in
accordance with the actuary's report of April 6, 1996 (applying the
accumulated benefit obligations basis) in the last formal valuation of
the UK Pension Scheme, except as set forth in Schedule 3.1(m)(x).
(xi) To the Seller's best knowledge, except as set forth
in Schedule 3.1(m)(xi) or otherwise ascertainable from the documents
listed in Schedule 3.1(m)(xii), the UK Pension Scheme complies with
the relevant legislation and the requirements of the Pension Schemes
Office and the Occupational Pensions Board affecting schemes approved
under Chapter I of Part XIV of the Income and Corporation Taxes Act
1988 and is contracted-out under the Pension Schemes Act 1993. Except
as set forth in Schedule 3.1(m)(xi) or ascertainable from the
documents listed in Schedule 3.1(m)(xii), there has been no material
breach of the trusts of the UK Pension Scheme and there are no
material actions, suits or claims (other than routine claims for
benefits) outstanding or, to the Seller's best knowledge, threatened
against the trustees or administrators of the UK Pension Scheme or
against Alumax Holdings or Alumax Holdings Subsidiaries in respect of
the UK Pension Scheme.
(xii) Except as otherwise set forth in Schedule
3.1(m)(xii), the Seller has supplied to Purchaser copies of all
material trust deeds, rules and booklets relating to the UK Pension
Scheme, together with copies of all other documents listed in Schedule
3.1(m)(xii).
(xiii) Except as set forth in Schedule 3.1(m)(xiii), no
female members of the UK Pension Scheme who were members of the UK
Pension Scheme as of November 16, 1993 have objected to management to
the change in their "Normal Retirement Date" (as such term is defined
in the governing documentation of the UK Pension Scheme) with effect
from November 17, 1993.
(xiv) To the Seller's best knowledge, except as set forth
in Schedule 3.1(m)(xiv) or ascertainable from the documents listed in
Schedule 3.1(m)(xii), since the effective date of the last actuarial
valuation of the UK Pension Scheme, no discretion or power has been
exercised under the UK Pension Scheme to:
(a) augment benefits or to provide benefits on early
retirement discounted for early payment
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on a basis which is not cost-neutral to the fund of
the UK Pension Scheme;
(b) admit to membership any individual who would not
otherwise have been eligible for admission to
membership; or
(c) admit to membership any individual on terms which
provided for the payment of a transfer value or a
transfer of assets from another scheme in a case in
which the payment or transfer has not been made or
has not been made in full.
(xv) None of Alumax Holdings and the Alumax Holdings
Subsidiaries has been or, to the Seller's best knowledge, is liable to
account for income tax or national insurance contributions in respect
of any payment made to any of their respective employees by any third
party under Section 203B of the U.K. Taxes Act 1988.
(xvi) Alumax Europe and Alumax Coated Products B.V. (the
"Dutch Sale Companies") have no employees in the Netherlands other
than the employees set forth on Schedule 3.1(m)(xvi) hereto (the
"Dutch Employees"). Apart from the Dutch Employees, no person can
claim to have a full-time or part-time employment relationship with a
Dutch Sale Company. The Seller has, with respect to the Dutch
Employees, provided to Purchaser complete and correct copies of (x) a
standard form of an employment agreement for employees with a salary
below a certain maximum and a standard form of an employment agreement
for employees with a salary above a certain maximum, and (y) all
collective labour agreements which are applicable, by operation of law
or otherwise, to the Dutch Employees, including, without limitation,
the current collective labour agreements, for (a) the Metal and
Electrotechnical Industry, (b) high ranking employees in the Metal and
Electrotechnical Industry, (c) the application of the System for
Function Ranking and the System for Employment Conditions, (d) Early
Retirement in the Metal and Electrotechnical Industry, and (e) the
financing of education for employees in the Metal and Electrotechnical
Industry (all such collective labour agreements are collectively
referred to herein as the "CLA").
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(xvii) Except as set forth in Schedule 3.1(m)(xvii) hereto,
all Dutch Employees are covered by a pension scheme through the
pension fund for the Metal Industry pursuant to the CLA (as defined in
Section 3.1(m)(xviii)). With respect to all Dutch Employees (as
defined in Section 3.1(m)(xviii) whose salary exceeds the maximum
amount covered by the pension fund of the CLA, the relevant Dutch Sale
Company (as defined in Section 3.1(m)(xviii) has entered into
supplemental pension insurance in respect of the part of the salary
which exceeds the maximum amount that is covered by the pension fund
of the CLA (determined applying the accumulated benefit obligations
basis). All contributions or payments required to be made on the
basis of the salaries as of January 1, 1995, by the relevant Dutch
Sale Company or the Dutch Employees under the CLA or the supplemental
pension insurance referred to above have been made or have been
reflected on the Financial Statements. Except pursuant to the CLA or
in respect of the supplemental pension insurance, the Dutch Sale
Companies have no obligation to pay any pension or make any other
payment by reason of retirement or death in respect of any person who
is a Dutch Employee or who has been an employee of any of the Dutch
Sale Companies.
(xviii) All material requirements which must be met in
respect of the Dutch Employees under applicable employment agreements,
the CLA and Netherlands law (except for any obligations which result
from the execution of this Agreement and all transactions described
herein as contemplated hereby) have been in the past and are now met
by the relevant Dutch Sale Company. All payments to the Dutch
Employees and all contributions toward third parties in respect of the
Dutch Employees which were required to have been made under any
applicable employment agreements, the CLA or Netherlands law as of
December 31, 1995, have been made or reflected on the Financial
Statements.
(n) Licenses and Registration; Compliance with Laws.
(i) Except as set forth in Schedule 3.1(n) or Schedule
3.1(w), the Sale Companies have (or, with respect to Home Products, at
the Closing Date will have) all permits, governmental licenses,
registrations and approvals necessary to carry on the businesses of
the Sale Companies in all material respects as presently conducted as
required by applicable law or by
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the rules and regulations of any governmental entity having
jurisdiction over any of the Sale Companies, all of which are in full
force and effect and have not been violated, except to the extent the
lack or violation of, or the failure by the Company to maintain in
full force and effect, any such permits, licenses, registrations or
approvals would not have a material adverse effect on the financial
condition, business or operations of (i) the U.S. Sale Companies,
taken as a whole (as to matters relating to any of the U.S. Sale
Companies), or (ii) the European Sale Companies, taken as a whole (as
to matters relating to any of the European Sale Companies).
(ii) Except as set forth in Schedule 3.1(n) or 3.1(w)
hereto, each of the Sale Companies has complied with all laws, rules,
decrees, regulations, ordinances and orders, as well as directives of
the European Union (to the extent such directives have been adopted,
implemented and are applicable in the United Kingdom, the Netherlands
and France) applicable to its business, properties, assets and
operations (including, without limitation, those relating to wages and
hours, occupational health and safety, record keeping, customs or
zoning) and have filed with the proper authorities all statements and
reports required by all such laws, rules, decrees, regulations,
ordinances and orders, except for violations and failures to file
which, alone or in the aggregate, do not have a material adverse
effect on the financial condition, business or operations of (i) the
U.S. Sale Companies, taken as a whole (as to matters relating to any
of the U.S. Sale Companies), or (ii) the European Sale Companies,
taken as a whole (as to matters relating to any of the European Sale
Companies).
(iii) There are no written agreements to which the Sale
Companies are party which are, or to the Seller's best knowledge
should be, registered under the Restrictive Trade Practices Acts 1976
or 1977 or which have been or, to the Seller's best knowledge, should
be notified to the European Commission under or pursuant to Article 85
of the Treaty of Rome 1957 or Article 65 of the Treaty of Paris 1951
or which, to the Seller's best knowledge, contravene any of the
provisions of those Acts or Treaties or which have been notified to
the European Commission for an exemption or in respect of which
applications have been made to the European Commission for clearances.
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(o) Litigation and Liabilities. Schedule 3.1(o) hereto sets
forth a complete list of all lawsuits, complaints, proceedings or
investigations, as well as written charges alleging unfair labor practices or
employment discrimination, pending or, to the best knowledge of the Seller,
threatened against the Seller or any of the Sale Companies or any of their
respective properties or assets which (A) relate to or involve liability or
potential liability on the part of any of the Sale Companies of more than U.S.
$100,000, (B) seek material injunctive relief, (C) challenge the transactions
contemplated by this Agreement or (D) are reasonably likely to adversely affect
the Seller's performance under, or the consummation of the transactions
contemplated by, this Agreement. Except as set forth on Schedule 3.1(o)
hereto, neither the Seller, AAC nor any of the Sale Companies is a party to or
bound by any judgment, decree, injunction or other order materially restricting
the acquisition or disposition of any property or the conduct of any business.
(p) Material Contracts. Set forth on Schedule 3.1(p) is a
list of all contracts (which are referred to herein as the "Material
Contracts") to which any of the Sale Companies is a party or by which it or its
property is bound and that:
(i) are mortgages, indentures, loan or credit agreements,
security agreements or other agreements or instruments relating to the
borrowing of money or extension of financing credit, or providing for
the guarantee of any such obligations of any party;
(ii) are collective bargaining or union contracts or
written employment or consulting contracts;
(iii) are joint venture, partnership or similar contracts;
(iv) limit the freedom of any of the Sale Companies to
compete in any line of business or with any person or in any area,
including, without limitation, non-competition and nondisclosure
agreements (except to the extent listing or identification of such
agreements in the good faith judgment of counsel to the Seller would
constitute a breach of the terms of any such agreement); or
(v) obligate any of the Sale Companies to pay more than
U.S. $100,000 in any fiscal year or entitle
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any of the Sale Companies to receive more than U.S. $100,000 in any
fiscal year.
With respect to all Material Contracts, none of the Sale
Companies is in breach thereof or in default thereunder in any regard that
would enable or permit the other party thereto to terminate its obligations or
to accelerate the obligations of the applicable Sale Company thereunder, and
the Company has not received written notice of intent by any party to a
Material Contract to terminate its obligations or to accelerate the obligations
of the applicable Sale Company thereunder, in either case excluding any such
breach or default or termination or acceleration that would not, in the
aggregate, have a material adverse effect on the financial condition, business
or operations of (i) the U.S. Sale Companies, taken as a whole (as to matters
relating to any of the U.S. Sale Companies), or (ii) the European Sale
Companies, taken as a whole (as to matters relating to any of the European Sale
Companies).
(q) Tax Matters. Except as set forth on Schedule 3.1(q)
hereto,
(i) all Tax Returns (as hereinafter defined) required to be
filed on or before the date of this Agreement (taking into account applicable
extensions) with respect to any of the Sale Companies or any of their income,
properties or operations have been duly filed, other than returns as to which
the failure to file, when taken together with all other such failures, would
not have a material adverse effect on the financial condition, business or
operations of (A) the U.S. Sale Companies, taken as a whole (as to matters
relating to any of the U.S. Sale Companies), or (B) the European Sale
Companies, taken as a whole (as to matters relating to any of the European Sale
Companies);
(ii) the information reflected on those Tax Returns referred
to in the preceding subclause (i) which relate to the European Sale Companies
are accurate and complete except to the extent of inaccuracies or omissions
which, when taken together, would not have a material adverse effect on the
financial condition, business or operations of the European Sale Companies,
taken as a whole;
(iii) the Sale Companies have paid all Taxes (as defined in
this Section 3.1(q)) for which they are responsible that are due or have
provided for such Taxes in a reserve which is adequate for the payment of such
Taxes and is identified on Schedule 3.1(q), other than Taxes as to which the
failure to pay or so provide for, when taken
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together with all other such failures, would not have a material adverse effect
on the financial condition, business or operations of (A) the U.S. Sale
Companies, taken as a whole (as to matters relating to any of the U.S. Sale
Companies), or (B) the European Sale Companies, taken as a whole (as to matters
relating to any of the European Sale Company);
(iv) the Sale Companies have maintained adequate provision on
their books for all Taxes payable by the Sale Companies that have accrued but
are not yet due;
(v) no deficiencies for any Taxes of any of the Sale Companies
have been proposed, asserted, or assessed (and are currently pending);
(vi) there are no claims for Taxes in excess of U.S. $100,000
asserted against any of the Sale Companies (except for real property taxes not
yet due and payable), and such claims are not reasonably anticipated;
(vii) no Sale Company is currently the subject of any Tax
audit or examination;
(viii) there are no outstanding waivers or agreements
extending the applicable statute of limitations for any period with respect to
any Taxes of the Sale Companies;
(ix) none of the Sale Companies will be required, as a result
of (A) a change in accounting method for a Tax period beginning on or before
the Closing, to include any adjustment under Section 481(c) of the Code (or any
similar provision of state, local or foreign law) in taxable income for any Tax
period beginning on or after the Closing Date, or (B) any "closing agreement"
as described in Section 7121 of the Code (or any similar provision of state,
local or foreign Tax law), to include any item of income in or exclude any item
of deduction from any Tax period beginning on or after the Closing;
(x) no claim has ever been made by an authority in a
jurisdiction where any of the Sale Companies does not file Tax Returns that it
is or may be subject to taxation by that jurisdiction; other than such claims
which, when taken together with all other such claims, would not have a
material adverse effect on the financial condition, business or operations of
(A) the U.S. Sale Companies, taken as a whole (as to matters relating to any
U.S. Sale Companies),
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<PAGE> 38
or (B) the European Sale Companies, taken as a whole (as to matters relating to
any European Sale Companies);
(xi) there are no liens on any of the assets of any of the
Sale Companies that arose in connection with any failure (or alleged failure)
to pay any Tax other than such liens which, when taken together with all other
such liens, would not have a material adverse effect on the financial
condition, business or operations of (A) the U.S. Sale Companies, taken as a
whole (as to matters relating to any U.S. Sale Companies) or (B) the European
Sale Companies, taken as a whole (as to matters relating to any European Sale
Companies);
(xii) none of the Sale Companies has filed a consent under
Section 341(f) of the Code (or any similar provision of state, local or foreign
law) concerning collapsible corporations;
(xiii) none of the Sale Companies has made any payments, is
obligated to make any payments, or is a party to any agreement that under
certain circumstances could obligate it to make any payments that will not be
deductible under Section 280G of the Code (or any similar provision of state,
local or foreign law);
(xiv) none of the Sale Companies is a party to any Tax
allocation or sharing agreement;
(xv) Seller is not a foreign person subject to withholding
under Section 1445 of the Code;
(xvi) none of the property owned or used by any Sale Company
is subject to a tax benefit transfer lease executed in accordance with Section
168(f)(8) of the Internal Revenue Code of 1954, as amended by the Economic
Recovery Tax Act of 1981;
(xvii) none of the property owned by any Sale Company is
"tax-exempt use property" within the meaning of Section 168(h) of the Code;
(xviii) none of the Sale Companies has been a member of (A) an
affiliated group filing a consolidated U.S. Federal income Tax Return (other
than a group the common parent of which was AFP, the Seller or Amax Inc., a New
York corporation (prior to its merger with and into Cyprus Minerals Company
(renamed Cyprus Amax Minerals Company)), or (B) a fiscal unity ("fiscale
eenheid") for Dutch corporate
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income tax purposes other than the fiscal unity of which Alumax Europe is the
parent;
(xix) for purposes of corporate income tax, capital tax and
real estate transfer tax, no tax-free reorganizations and mergers have taken
place with respect to any of the Dutch Sale Companies in their respective
current or five immediately preceding financial years;
(xx) No Dutch Sale Company has capital that is tainted by
reason of Article 44 of the Netherlands Income Tax Act of 1964 or Article 3,
paragraph 2, of the Netherlands Dividend Withholding Tax Act except to an
extent as would not have a material adverse effect on the financial condition,
business or operations of the European Sales Companies taken as a whole;
(xxi) No Dutch Sale Company is subject to any special regime
regarding Taxes, and no tax ruling is in effect except to an extent as would
not have a material adverse effect on the financial condition, business or
operations of the European Sales Companies taken as a whole;
(xxii) Since January 1, 1990, no Sale Company has acted as
contractor or subcontractor as defined in the Netherlands Chain Liability Act
("Wet Ketenaansprakelijkheid" or the Netherlands Collection Act of 1990
("Invorderingswet 1990") except to an extent as would not have a material
adverse effect on the financial condition, business or operations of the
European Sales Companies taken as a whole;
(xxiii) Alumax France and the Alumax France Subsidiary (the
"French Companies") are members of a tax consolidated group as defined by
sections 233A to 234C of the French General Tax Code (Code General des Impots);
and
(xxiv) No adverse consequences to the French Companies with
respect to corporate income tax, including but not limited to imposition
forfeitaire annuelle, precompte, as well as any interest penalties or corporate
tax payable on intercompany transactions during the tax consolidation period
and for which a Tax effect has been postponed, will arise from the transactions
contemplated hereby, pursuant either to a tax reassessment, a refund provided
for by any agreement, including but not limited to convention d'integration
fiscale, or for any other reason or commitment, except to an extent as would
not have a material adverse effect on the financial condition, business or
operations of the European Sales Companies taken as a whole.
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With respect to the European Sale Companies, each is
registered for the purposes of value added tax and has been so registered at
all times that it has been required to be registered, and it has complied in
all material respects with all statutory requirements, orders, provisions,
directions or conditions relating to value added tax.
"Taxes", as used in this Agreement, shall mean any U.S.
federal, state or local or foreign taxes, including, without limitation,
income, gross receipts, windfall profits, gains, excise, severance, property,
production, sales, value added, use, transfer, license, franchise, employment,
withholding, capital, wage or similar taxes, custom duties or social security
(or similar) contributions together with any interest, additions, or penalties
with respect thereto and any interest in respect of such penalties. "Tax
Returns", as used in this Agreement, shall mean any return, declaration,
report, claim for refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any amendment
thereof and all applications for WIR.
(r) Transactions with Affiliates. At the Closing Date, none
of the Sale Companies will be a party to any contract, agreement or business
arrangement with the Seller or any of its subsidiaries, directors or officers
(other than the Sale Companies) that are on terms and conditions materially
more burdensome to such Sale Company than would be usual and customary in
similar contracts, agreements or business arrangements negotiated on an arm's
length basis between parties that are not affiliated with each other.
(s) Brokers and Finders. Except as set forth in Schedule
3.1(s), the Seller has not employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finders' fees in connection
with the transactions contemplated hereby.
(t) Sufficiency of Assets. The assets currently owned by the
Sale Companies (after giving effect to the transactions contemplated by the
Asset Purchase Agreement) or leased by the Sale Companies pursuant to any lease
agreement entered into in the ordinary course of business or otherwise
disclosed to Purchaser in writing, together with the rights to be assigned to
the Sale Companies as provided in Section 5.2(l), constitute all of the
material assets which were used as of the date of the Financial Statements to
conduct the businesses of the Sale Companies, except for such assets as have
been disposed of as set forth in Section 3.1(f) hereof or in Schedule 3.1(f).
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(u) Disclosure. The representations and warranties contained
in this Section 3.1 do not, and all information delivered by the Seller in any
schedule or exhibit hereto is complete and does not, contain any untrue
statement of fact or omit to state any fact necessary in order to make the
statements and information made or provided in such representations and
warranties or in such schedules or exhibits not misleading.
(v) Labor Matters. Except as set forth on Schedule 3.1(v)
hereto, none of the Sale Companies is a party to any collective bargaining
agreement with any labor organization or any collective bargaining agreement
which has been made mandatorily applicable to any Sale Company in any European
jurisdiction nor, to the Seller's knowledge, have any formal written covenants
or agreements been made or entered into with any work council of any Sale
Company or any labor organization. As of the date of this Agreement there is
not pending, or to the Seller's best knowledge threatened, (i) any labor
dispute between any of the Sale Companies and any labor organization, (ii) any
strike or work stoppage involving the employees of any of the Sale Companies or
(iii) any union organizing, decertification or deauthorization activities at
any of the U.S. Sale Companies in each case except as set forth in Schedule
3.1(v). Any material notice required under law or collective bargaining
agreement, domestic or foreign, has been given, and all material bargaining
obligations with any employee representative have been satisfied. Neither the
Seller nor any of the Sale Companies has implemented any plant closing or mass
layoff of employees of the Sale Companies as those terms are defined in the
Worker Adjustment Retraining and Notification Act of 1988, as amended ("WARN"),
in any United States jurisdiction where WARN or any similar state or local law
or regulation is applicable, and none will be implemented in such jurisdictions
before Closing without advance notification to the Purchaser.
(w) Environmental Matters. Except for matters listed on
Schedule 3.1(w) or as would not reasonably be expected to have a material
adverse effect on the financial condition, business or operations of (i) the
U.S. Sale Companies, taken as a whole (in the case of matters relating to any
U.S. Sale Company), or (ii) the European Sale Companies, taken as a whole (in
the case of matters relating to any European Sale Company):
(i) Each of the Sale Companies complies and, during the
period such Sale Company was directly or
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indirectly owned by the Seller, has complied with all Environmental
Laws (as defined in Section 4.9).
(ii) Each of the Sale Companies is in compliance and,
during the period such Sale Company was directly or indirectly owned
by the Seller, has complied with all permits, licenses and other
authorizations that are required pursuant to Environmental Laws for
the operation of the business as presently conducted (collectively,
"Environmental Permits"). A list of all Environmental Permits held by
the Sale Companies is set forth on the attached Schedule 3.1(w).
(iii) Except with respect to the matters set forth on
Schedule 7.3, Seller and the Sale Companies have not received any
written notification alleging any violation of or liability under any
Environmental Laws on the part of the Sale Companies (whether accrued,
absolute, contingent, unliquidated or otherwise), including written
notification of any investigatory, remedial or corrective obligations
relating to the Sale Companies or their current or former properties
arising under any Environmental Laws.
(iv) Except as referenced on the attached Schedule 3.1(w),
none of the following exists at any property of the Sale Companies:
1) underground storage tanks; 2) friable asbestos-containing material;
3) electrical equipment containing polychlorinated biphenyls in excess
of 50 ppm; or 4) landfills, surface impoundments or waste disposal
areas.
(v) None of the Sale Companies has, during the period
such Sale Company was directly or indirectly owned by the Seller,
treated, stored, disposed of, arranged for or permitted the disposal
of, transported, handled, or released any Hazardous Substance in
violation of applicable Environmental Laws, or owned or operated any
property or facility (and no such property is contaminated by any
Hazardous Substance) in such a manner that has resulted in written
claims alleging, or that Seller (Alumax Inc.) has reason to believe
will result in, liability for response costs, corrective action costs,
personal injury, property damage, natural resources damages, attorney
fees or any remedial obligations pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or the Solid Waste Disposal Act, as amended
("SWDA") or any other Environmental Law, in
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each case except as set forth in Schedule 3.1(w) or Schedule 7.3.
For the avoidance of doubt in respect of this Section 3.1(w),
the capital expenditures required to comply with Environmental Laws after
Closing, unless required to bring a Sale Company into compliance with
Environmental Laws as to which compliance by a Sale Company is currently
required as of the Closing Date, shall be the sole responsibility of Purchaser
and the Sale Companies, and the Seller and its subsidiaries (other than the
Sale Companies) shall not be required to indemnify Purchaser or the Sale
Companies with respect to any such capital expenditures.
(x) Customers and Suppliers. Set forth on Schedule 3.1(x)
hereto is a list of the fifteen largest customers and ten largest suppliers
based on the U.S. dollar value of materials sold or purchased, respectively, of
the Sale Companies for the year ended December 31, 1995.
(y) Books and Records. Except as disclosed in Schedule
3.1(y), all books of account and other Records (as defined in Section 4.5
hereof) of the Seller relating to the Sale Companies delivered or made
available to the Purchaser in connection with the transactions contemplated
hereby have been accurate and complete in all material respects. Without
limiting the foregoing, the stock ledgers for the Sale Companies made available
to Purchaser constitute all of the stock records of the Sale Companies and
accurately reflect in all material respects the record ownership of all of the
outstanding shares of capital stock of the Sale Companies.
3.2 Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to the Seller as follows:
(a) Organization and Qualification. Purchaser is, and each
Subsidiary Purchaser at Closing and thereafter will be, a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation; Purchaser has, and each Subsidiary Purchaser at
the Closing Date and thereafter will have, the requisite corporate (and other)
power and authority to own its properties and to carry on its business as it is
now being conducted; and Purchaser and each Subsidiary Purchaser is or at the
Closing Date and thereafter will be, as the case may be, duly qualified to do
business and is or at the Closing Date and thereafter will be, as the case may
be, in good standing in each jurisdiction, to the extent such concepts
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are recognized in such jurisdictions, where the properties owned, leased or
operated, or the business conducted, by it require such qualification, except
for any such failure which when taken together with all other such failures is
not reasonably likely to have a material adverse effect on the financial
condition, business or operations of Purchaser and its subsidiaries, taken as a
whole.
(b) Authority. The execution and delivery of this
Agreement have been duly authorized by the Board of Directors of the Purchaser.
Purchaser has the legal capacity and authority to enter into this Agreement and
to consummate the transactions herein contemplated and otherwise carry out its
obligations hereunder. Each Subsidiary Purchaser at the Closing Date will have
the legal capacity and authority to consummate the transactions herein
contemplated, and Purchaser has, and each Subsidiary Purchaser at the Closing
Date will have, the legal capacity and authority to enter into each other
agreement or instrument to be executed in connection herewith and to consummate
the transactions therein contemplated and otherwise carry out its obligations
thereunder. This Agreement has been, and such other agreements and instruments
will be, duly and validly executed by the Purchaser or a Subsidiary Purchaser,
as the case may be; and this Agreement constitutes, and each such other
agreement and instrument (to the extent intended by the parties to be a binding
agreement) will constitute, a valid and binding agreement of Purchaser or a
Subsidiary Purchaser, as the case may be, enforceable in accordance with its
terms.
(c) Governmental Filings; No Violations.
(i) Except as set forth on Schedule 3.2(c) hereto, to the
Purchaser's best knowledge, no notices or other filings are required
to be made by Purchaser or any Subsidiary Purchaser with, nor are any
consents, registrations, approvals, permits or authorizations required
to be obtained by Purchaser or any Subsidiary Purchaser from, any
governmental or regulatory authorities in connection with the
execution and delivery of this Agreement, the execution and delivery
by Purchaser or any Subsidiary Purchaser of each other agreement or
instrument to be executed in connection herewith, and the consummation
by the Purchaser or any Subsidiary Purchaser of the transactions
contemplated hereby or thereby, the failure to make or obtain any or
all of which could prevent, materially delay or materially burden the
transactions contemplated by this Agreement.
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(ii) The execution and delivery of this Agreement by
Purchaser do not, and the consummation of the transactions
contemplated hereby by Purchaser or any Subsidiary Purchaser will not,
constitute or result in (x) a breach or violation of, or a default
under, the acceleration of or the creation of a lien, pledge, security
interest or other encumbrance on assets (with or without the giving of
notice or the lapse of time) pursuant to, any provision of any
material agreement, lease, contract, note, mortgage or indenture of
Purchaser or any of its subsidiaries or any law, ordinance, rule or
regulation or judgment, decree, order, award or governmental permit or
license to which Purchaser or any of its subsidiaries is subject,
except, in any such case, for such as is not reasonably likely to
prevent or materially delay or materially burden the transactions
contemplated by this Agreement, or (y) a breach or violation of, or
default under, the certificate of incorporation or the by-laws of
Purchaser or any Subsidiary Purchaser.
(d) Litigation. There are no lawsuits, proceedings or
investigations pending or, to Purchaser's best knowledge, threatened against
the Purchaser or any of its subsidiaries or any of their respective properties
or assets which challenge the transactions contemplated by this Agreement or
which are reasonably likely to adversely affect Purchaser's performance under,
or the consummation by Purchaser or any Subsidiary Purchaser of the
transactions contemplated by, this Agreement. None of Purchaser or any of its
subsidiaries is a party to or bound by any judgment, decree, injunction or
other order materially restricting the acquisition of any property or the
conduct of any business.
(e) Securities Act, Etc.. The Shares purchased by Purchaser
or a Subsidiary Purchaser pursuant to this Agreement are being acquired for
investment only and not with a view to any public distribution thereof, and
Purchaser will not, and will cause the Subsidiary Purchasers not to, offer to
sell or otherwise dispose of the Shares so acquired by Purchaser or a
Subsidiary Purchaser in violation of any of the registration requirements of
the United States Securities Act of 1933, as amended, or any comparable laws of
other applicable jurisdictions.
(f) Financing. Purchaser has heretofore received two letters
of commitment with respect to a capital contribution from Citicorp Venture
Capital, Ltd. ("CVC") and CVC European Equity Partners, L.P. (collectively, the
"Investor Group") in the aggregate amount of U.S.
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$35 million, a letter commitment with respect to a bank loan (the "Bank Loan")
in the amount of U.S.$125 million from Banque de Paris et des Pays Bas and a
"highly confident" letter from J.P. Morgan Inc. with respect to a financing
(the "Mezzanine Financing") through an offering of securities of Purchaser in
the amount of U.S. $125 million, and such letters (the "Financing Letters")
from the Investor Group and the institutions referred to herein have heretofore
been delivered to the Seller. Assuming the financings contemplated by the
Financing Letters are consummated in accordance with the terms thereof, the
amounts to be received thereunder by Purchaser will provide Purchaser and the
Subsidiary Purchasers with sufficient funds to (i) make the payments required
to be made by Purchaser in connection with the transactions under this
Agreement, including without limitation the Initial Purchase Price, any
adjustment to be made thereto under Section 2.2 hereof and all fees and
expenses, including those of counsel and accountants, bank commitment fees and
underwriting fees, and (ii) fund necessary working capital requirements of the
Sale Companies. Purchaser is not aware of any facts or circumstances which
either (a) contradict or are in conflict with the terms and conditions set
forth in the Financing Letters or (b) create a reasonable basis for Purchaser
to believe it will not be able to obtain financing in accordance with the terms
of the Financing Letters or to consummate the transactions contemplated in this
Agreement within 90 days of the date hereof.
(g) Brokers and Finders. The Purchaser has not employed any
broker or finder or incurred any liability for any brokerage fees, commissions
or finders' fees in connection with the transactions contemplated hereby.
(h) Disclosure. The representations and warranties contained
in this Section 3.2 do not, and all information delivered by Purchaser in any
schedule or exhibit hereto is complete and does not, contain any untrue
statement of fact or omit to state any fact necessary in order to make the
statements and information made or provided in such representations and
warranties or in such schedules or exhibits not misleading.
(i) Hart-Scott-Rodino Act. Purchaser is its own "ultimate
parent entity" as such term is defined by the rules promulgated in connection
with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Rules"). Purchaser does not have a regularly prepared balance sheet and
does not have annual net sales or total
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assets of ten million dollars or more as defined by Section 801.11(e) of the
HSR Rules.
ARTICLE IV
COVENANTS
4.1 Interim Operation of the Sale Companies. From the date
hereof until the Closing, except as otherwise contemplated or permitted by
Articles I, II and VIII and Sections 4.1, 4.12, 4.15, 5.2(k), 5.2(l) and 9.12
of this Agreement, the Seller will cause the Sale Companies to: (a) preserve
their respective business organization substantially intact and use their best
efforts to preserve the good will of the suppliers, customers and others having
material business relations with any of them; (b) continue the operation of the
collective business of the Sale Companies in the ordinary course consistent
with past practice, (c) continue in good faith with the planned capital
expenditures of the Sale Companies described in Schedule 4.1(c) in the ordinary
course of business, consistent with past practice, and (d) maintain their
material assets and properties in at least as good order and condition as
exists on the date hereof, subject to ordinary wear and tear; and the Seller
will promptly notify Purchaser of any material developments in connection with
any of the foregoing. Without limiting the generality of the foregoing, except
as otherwise contemplated or permitted by Articles I, II and VIII and Sections
4.1, 4.12, 4.15, 5.2(k), 5.2(l) and 9.12 of this Agreement or consented to in
writing by Purchaser, which consent shall not be unreasonably withheld, from
the date hereof to the Closing the Seller will cause the Sale Companies to
refrain from:
(i) amending any Sale Company's certificate of
incorporation, bylaws or memorandum or articles of association (or
other comparable governing instruments), as applicable; provided,
however, that each of AFP, Alumax Holdings and Alumax Europe may, and
may cause their respective Subsidiaries to, amend its and their
certificates of incorporation or memoranda or articles of association
to effect (A) corporate name changes prior to the Closing Date and (B)
changes in the fiscal year end to the Closing for tax purposes;
(ii) incurring any indebtedness or guarantees of
indebtedness that is material to the Sale Companies, taken as a whole,
other than (A) purchase money mortgages granted in the ordinary course
of business
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consistent with past practice, (B) accounts payable arising in the
ordinary course of business, consistent with past practice and (C) the
assumption by Home Products of obligations and liabilities as
contemplated by the Asset Purchase Agreement, and guarantees thereof by
AFP, to the extent necessary in connection with the securing of
consents from third parties or otherwise;
(iii) except in all cases to the extent required by
relevant legislation, U.K. Inland Revenue practice in the United
Kingdom or Europe or applicable collective bargaining or other labor
agreements, granting any material increase in compensation payable, or
to become payable, to any Transferred Employee, except for scheduled
annual increases in accordance with past practice (which shall not
exceed, in the aggregate, six percent of the aggregate salaries of all
Transferred Employees); except under existing employment agreements or
severance plans or other existing arrangements, granting any severance
or termination pay (other than for accrued vacation pay) to, or
entering into any employment or severance agreement with, any
Transferred Employee; or establishing, adopting, entering into or
amending any bonus, profit sharing, thrift, compensation, stock
option, restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust or
fund for the benefit of any Transferred Employee in any way that
materially increases the liability of Purchaser or any of the Sale
Companies thereunder, except as set forth in Schedule 4.1(iii);
(iv) issuing, selling or transferring or agreeing to
issue, sell or transfer, any stock, bond, debenture, option, warrant,
right or other similar corporate security of any of the Sale
Companies, except as contemplated by this Agreement;
(v) declaring or paying any dividend or other
distribution, or transferring any assets, to the Seller or any
subsidiary of the Seller, except (A) in the ordinary course of
business or (B) if Purchaser elects to limit the Estimated Combined
Working Capital and Final Combined Working Capital pursuant to Section
2.2(c), as necessary, in the good faith judgment of the Seller, to
ensure that the Estimated Combined Working Capital shall not exceed
the Initial Combined Working Capital by more than U.S.$2,000,000, it
being understood as to this clause (B) that the nature or type of any
assets so to be transferred shall be
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subject to the consent of Purchaser, such consent not to be
unreasonably withheld;
(vi) forgiving any material debt of another party due to
the Sale Companies (other than as contemplated by this Agreement);
(vii) except in the ordinary course of business, consistent
with past practice, (A) selling, transferring or otherwise disposing
of any properties or assets, real, personal or mixed, which have an
aggregate book value in excess of U.S. $250,000, or (B) mortgaging or
encumbering any properties or assets, real, personal or mixed, which
have an aggregate book value in excess of U.S. $100,000;
(viii) except in the ordinary course of business, consistent
with past practice, or as necessary to consummate the transactions
contemplated hereby, and except as otherwise set forth in Schedule
3.1(p), entering into or amending any Material Contract;
(ix) except in the ordinary course of business, consistent
with past practice, and other than any action or the failure to take
any action which the Seller or a Sale Company determines in good faith
to be in the best interests of the Sale Companies, taking any action
or failing to take any action that has a reasonable likelihood of
having a material adverse effect on relationships with the customers
and suppliers listed on Schedule 3.1(x) or other customers and
suppliers that are material to (x) the U.S. Sale Companies, taken as a
whole (as to matters relating to any of the U.S. Sale Company), or (y)
the European Sale Companies, taken as a whole (as to matters relating
to any of the European Sale Company);
(x) making any changes to the cash management practices
of the Sale Companies, except for the institution of disbursement
controls with respect to the Bank Accounts (as defined in Section 4.15
hereof) necessary to ensure that cash management will be conducted by
the Sale Companies in the ordinary course of business, consistent with
past practice, as required by this Section 4.1; or
(xi) committing to do any of the foregoing.
4.2 No Encumbrances. Except as contemplated or permitted by
this Agreement, the Seller shall not, and shall
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cause AAC and Holdings S.A. not to, (a) sell, transfer, pledge, assign or
otherwise dispose of or otherwise encumber any of the Shares; (b) enter into
any contract, agreement or option for the sale, transfer, pledge, assignment or
other disposition or encumbrance of any of the Shares; or (c) grant any proxies
with respect to the Shares, deposit any Shares into a voting trust or enter
into any voting agreement with respect to any of the Shares.
4.3 Filings; Other Action. Subject to the terms and
conditions herein provided, the Seller and Purchaser shall, and shall cause
their respective subsidiaries to: (a) promptly make their respective filings
and thereafter make any other required submissions under any applicable laws
with respect to the purchase of the Shares by the Purchaser or a Subsidiary
Purchaser; (b) use their best efforts to obtain, and cooperate with other
parties in obtaining, all authorizations, consents, orders and approvals of
governmental entities and third parties necessary for the performance of their
obligations pursuant to this Agreement and the consummation of the transactions
contemplated hereby and take all reasonable actions to avoid the entry of any
Order (as defined in Section 5.1(b) hereof); and (c) use their best efforts to
take promptly, or cause to be taken, all other actions and do, or cause to be
done, all other things necessary, proper or appropriate under applicable laws
and regulations to consummate and make effective the transactions contemplated
by this Agreement as soon as practicable, including, without limitation (if
required) registration of this Agreement under the UK Restrictive Trade
Practices Acts 1976 and 1977.
4.4 Access; Confidentiality. Upon reasonable notice, the
Seller shall cause AAC, Holdings S.A. and each of the Sale Companies to afford
Purchaser's directors, officers, employees, counsel, accountants and other
authorized representatives ("Representatives") and Representatives of banks and
other institutions to the extent necessary in connection with the financing of
the purchase of the Shares hereunder ("Financing Representatives") reasonable
access, upon reasonable notice during normal business hours throughout the
period prior to the Closing, to the properties, books, contracts, personnel and
records relating to the Sale Companies and, during such period, the Seller
shall cause AAC, Holdings S.A. and each of the Sale Companies to furnish
promptly to Purchaser all information concerning the business, properties and
personnel of the Sale Companies as Purchaser may reasonably request. Purchaser
confirms that all information obtained pursuant to this Section 4.4 is subject
to the Confidentiality
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Agreement, dated December 11, 1995 (the "Confidentiality Agreement"), between
CVC and the Seller, and agrees and acknowledges that it shall, and shall cause
the Subsidiary Purchasers, its and their Representatives and any Financing
Representatives to, comply with all provisions of the Confidentiality Agreement
by which CVC is bound as though it and they were parties to said
Confidentiality Agreement; provided, however, that Purchaser may, with the
prior written consent of the Seller as to the information desired to be used by
Purchaser (which consent shall not be unreasonably withheld or unduly delayed),
use such information obtained pursuant to this Section 4.4 as may be necessary
to prepare a registration statement, prospectus, offering circular, offering
memorandum or other similar document for purposes of completing the financings
described in Section 3.2(f) of this Agreement.
4.5 Records.
(a) On the Closing Date the Seller will deliver or cause to
be delivered to Purchaser all original agreements, documents, books, records
and files (collectively, the "Records") in the possession of the Seller
relating to the business and operations of the Sale Companies to the extent not
then in the possession of one of the Sale Companies, subject to the following
exceptions:
(i) The Seller may retain all Records prepared in
connection with the sale of the Shares or all or any part of the
business of the Sale Companies, including bids received from other
parties and analyses relating to the Sale Companies, or any part
thereof, provided that the Seller shall use reasonable best efforts to
provide that all confidential information received by any other
parties bidding for the purchase of the Shares or all or any part of
the business of the Sale Companies shall have been returned or
destroyed;
(ii) The Seller may retain (x) all Records (including Tax
Returns) relating to U.S. Federal income taxes and to any state or
local income taxes with respect to jurisdictions that recognize the
Section 338(h)(10) election (as defined in Section 8.1 hereof) and (y)
all Records relating to Taxes which relate solely to any of the
Retained Subsidiaries. With respect to all other Records (including
Tax Returns) relating to Taxes, (x) if such Records relate to both one
or more Sale Company and one or more Retained Subsidiary, the Seller
shall retain the original and Purchaser shall be provided with copies
and (y) if such
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Records relate solely to the Sale Companies (exclusive of the Retained
Subsidiaries), the Seller shall retain copies and Purchaser shall be
provided with the original; and
(iii) Except as provided in paragraph (ii) above, the
Seller may retain or cause the Retained Subsidiaries to retain all
Records relating solely to any of the Retained Subsidiaries and may
retain the originals of all Records that relate both to the Sale
Companies and the Retained Subsidiaries, provided that the Seller
shall make copies thereof available to Purchaser to the extent
reasonably requested by Purchaser.
(b) Subject to the provisions of Article VIII of this
Agreement, after the Closing, upon reasonable written notice, Purchaser and the
Seller agree to provide or cause to be provided to each other and their
Representatives, employees, counsel and accountants access, during normal
business hours, to such information (including Records pertinent to any of the
Sale Companies) and assistance relating to any of the Sale Companies as is
reasonably necessary for financial reporting and accounting matters, the
preparation and filing of any returns, reports or forms or the defense of any
lawsuit, proceeding or tax, environmental or other claim or assessment;
provided, however, that such access does not unreasonably disrupt the normal
operations of the Seller, Purchaser or any of their respective subsidiaries.
4.6 Publicity. The Seller and Purchaser agree that no public
release or announcement concerning the transactions contemplated hereby shall
be issued by either party without the prior consent of the other party, except
as such release or announcement may be required by law, in which case the party
required to make the release or announcement shall, to the extent reasonably
feasible, allow the other party reasonable time to comment on such release or
announcement in advance of such issuance and all reasonable comments of such
other party shall be reflected therein. Subject to compliance by Purchaser
with Section 4.4 of this Agreement, the parties acknowledge that the provisions
of this Section 4.6 shall not apply to any registration statement, prospectus,
offering circular, offering memorandum or other similar document prepared in
connection with the financings contemplated by Section 3.2(f) of this
Agreement. Notwithstanding the foregoing, the Seller and Purchaser agree to
issue or cause to be issued a joint press release announcing the execution and
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delivery of this Agreement, in the form set forth on Exhibit G, upon the
occurrence of the Board Approval.
4.7 Best Reasonable Efforts. Subject to the terms and
conditions of this Agreement, each party will use its best reasonable efforts
to cause the Closing to occur at the earliest practicable date. The Seller
will pay reasonable expenses and fees with respect to any third party consents
that may be necessary in connection with the consummation of the transactions
contemplated by this Agreement.
4.8 Other Offers. From the date hereof until the termination
of this Agreement or the Closing Date, whichever first occurs, the Seller will
not, and will cause its directors, officers, agents and other Representatives
not to, directly or indirectly, take any action to solicit or initiate any
offer or indication of interest from any person with respect to any Acquisition
Proposal (as hereinafter defined). The Seller will not furnish any information
relating to, participate in any negotiations or discussions concerning, or
enter into any agreement with respect to any Acquisition Proposal or assist or
participate in, or facilitate in any other manner any effort or attempt by any
other Person to do or seek to do, any of the foregoing. The Seller shall, and
shall cause each of its directors, officers, agents and other Representatives
to, immediately cease and cause to be terminated any existing activities,
including discussions or negotiations with any parties, conducted prior to the
date hereof with respect to any Acquisition Proposal other than as contemplated
by this Agreement. The Seller represents that neither it nor any of its
directors, officers, agents or other Representatives is a party to or bound by
any agreement with respect to an Acquisition Proposal other than under this
Agreement. For purposes hereof, "Acquisition Proposal" means any proposal for
a merger or other business combination involving any or all of the Sale
Companies, Holdings S.A. and/or AAC's Home Products Division or the acquisition
of any equity interest in, or a substantial portion of the assets of, any or
all of the Sale Companies, Holdings S.A. and/or AAC's Home Products Division,
other than the transactions contemplated by this Agreement.
4.9 Environmental Matters.
(i) Except as specifically provided in Article VII of
this Agreement, it is expressly agreed that effective as of the
Closing, Purchaser assumes all responsibility for compliance with
Environmental Laws
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and for environmental liabilities resulting from or associated with
the operations of the Sale Companies or from the use or ownership of
any property by the Sale Companies on or after the Closing, and
Purchaser's sole and exclusive remedy as against the Seller or its
subsidiaries relating to any environmental matters shall be limited to
Article VII of this Agreement. Any liability relating to an
Environmental Claim that the Seller may incur pursuant to Article VII,
other than liability pursuant to Section 7.3(a) and (d), shall be
subject to Purchaser producing evidence and documents describing in
reasonable detail any injury, damage or other Environmental Claim
alleged to have been caused by a Sale Company while the Sale Companies
were directly or indirectly owned by the Seller.
(ii) Purchaser shall maintain and safeguard, in accordance with
the prior practice of the Sale Companies and the Seller with respect
to the Sale Companies and in accordance with all applicable laws and
regulations, relevant material information and records regarding
premises utilized by the Sale Companies, uses of such premises made by
the Sale Companies, waste disposal practices, procedures and services
utilized by the Sale Companies, compliance and noncompliance of the
Sale Companies with Environmental Laws, and other material information
and documents relevant to the matters described in Section 3.1(w) of
this Agreement. Purchaser shall not knowingly destroy or dispose of
any such information or records without notifying the Seller of its
intent to destroy or dispose of such records, affording the Seller the
right to inspect and review such information and records, and if the
Seller requests, delivering such information and records to the
Seller. Purchaser shall also make any such information and records
available for review and/or copying by the Seller promptly upon the
Seller's reasonable request. Purchaser's agreement to this Section
4.9 shall not be construed as a waiver of any applicable privilege,
except between the parties hereto.
(iii) The Seller shall not be required to indemnify Purchaser or
its Indemnified Persons (as defined in Section 7.1 of this Agreement)
pursuant to Sections 3.1(w), 7.1 or 7.3, to the extent Purchaser's or
the Sale Companies' failure to maintain records following the Closing
as required by 4.9(ii) materially prejudices the Seller's defense of
such claim for indemnity.
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(iv) The parties acknowledge that nothing set forth in this
Section 4.9 shall be construed to alter or modify the application of
the survival provisions of Section 7.2(c) or Section 9.3 of this
Agreement as they relate to environmental matters and that the Seller
makes no representation or warranty as to, and assumes no
responsibility for, any environmental matter other than as set forth
in Section 3.1(w) and Article VII of this Agreement and this Section
4.9.
(iv) "Environmental Claim," as used in this Agreement,
shall mean any claim, action, cause of action or notice (written or
oral) by any person or entity alleging potential liability (including,
without limitation, potential liability for cleanup costs, corrective
action, governmental response costs, natural resources damages or
penalties) resulting from (A) the presence, or release into the
environment, of any Hazardous Substance at any location, or (B) the
violation, or alleged violation, of any Environmental Law.
(v) "Environmental Laws" means all laws, regulations,
ordinances, judicial and administrative orders and determinations and
all common law relating to pollution or protection of human health or
the environment (including, without limitation, ambient air, surface
water, ground water, land surface or subsurface strata) in effect in
applicable jurisdictions as of the date of this Agreement, including,
without limitation, Part IIA of the U.K. Environmental Protection Act
of 1990 (to the extent the Secretary of State has exercised powers
conferred on him to bring into force prior to the date of this
Agreement regulations, orders or directives that are currently in
effect and as to which compliance by a Sale Company is currently
required) and all those relating to emissions, discharges, releases or
threatened releases, control or clean-up of Hazardous Substances, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport and handling of Hazardous
Substances.
(vi) "Hazardous Substance" means any substance defined,
designated or classified as hazardous, toxic, radioactive or dangerous
or otherwise regulated under any law, ordinance, regulation, judicial
or administrative order or determination or common law relating to
pollution or protection of the environment
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(including without limitation CERCLA or SDWA). Hazardous Substance
includes, without limitation, any toxic waste, pollutant, contaminant,
hazardous substance, toxic substance, hazardous waste or petroleum or
any derivative or by-product thereof, radioactive material, friable
asbestos-containing material and polychlorinated biphenyl.
4.10 Notification of Certain Matters. The Seller shall give
prompt notice to Purchaser of: (a) any notice by a third party of a material
default or event that, with notice or lapse of time or both, would become a
material default, received by the Seller, AAC or any of the Sale Companies
subsequent to the date of this Agreement and prior to the Closing Date, under
any Material Contract; and (b) any material adverse change in the financial
condition, business or operations of (i) the U.S. Sale Companies, taken as a
whole (as to matters relating to any of the U.S. Sale Companies), or (ii) the
European Sale Companies, taken as a whole (as to matters relating to any of the
European Sale Companies), or the occurrence of any event which, so far as
reasonably can be foreseen at the time of its occurrence, is reasonably likely
to result in any such change. Each of the Seller and Purchaser shall give
prompt notice to the other party of any notice from any third party alleging
that the consent of such third party is or may be required in connection with
the transactions contemplated by this Agreement. The Seller shall give prompt
notice to Purchaser upon obtaining knowledge that any of its representations
and warranties under Section 3.1 were not correct when made, and Purchaser
shall give prompt notice to the Seller upon obtaining knowledge that any of its
representations and warranties under Section 3.2 were not correct when made.
4.11 Employment Matters.
(a) Following the Closing Date, notwithstanding any other
provision to the contrary herein, Purchaser shall, and shall cause the
applicable Sale Company to, honor the terms and provisions of all employment
agreements and arrangements in effect with the Sale Companies as listed in
Schedule 4.11(a).
(b) Except as specifically provided in this Section
4.11(b) or Section 4.11(c) or in any applicable collective bargaining
agreement, persons who are employed by any of the U.S. Sale Companies
(including those employees of AAC who become employees of Home Products
pursuant to the Asset Purchase Agreement) shall continue in the employ of
Purchaser or one of the U.S. Sale Companies on terms and
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conditions substantially comparable to those applicable to such employees
immediately prior to the Closing Date. All such employees (including employees
on leave of absence, whether medical, disability, maternity or paternity,
military or otherwise) who are or become employees, directly or indirectly, of
Purchaser or one of the U.S. Sale Companies immediately after the Closing Date
are referred to herein as "United States Transferred Employees." Except as
otherwise provided for in any applicable collective bargaining agreements,
Purchaser shall cause such United States Transferred Employees to be reviewed
for performance and salary increases on a basis recognizing their prior service
with the Seller or any of its subsidiaries, including the U.S. Sale Companies,
and shall, for one year following the Closing Date, provide reviews and salary
increases consistent with the policies applicable to such United States
Transferred Employees as of the Closing Date and in compliance with any
applicable collective bargaining agreement. Notwithstanding the foregoing, the
first review applicable to such United States Transferred Employees during the
one year period following the Closing Date shall occur no later than the review
date established under policies of the Seller or the applicable subsidiary of
the Seller in effect prior to the Closing Date. Nothing in this Agreement
shall limit the Purchaser's ability to terminate the employment of any United
States Transferred Employee at any time following the Closing Date for any
reason, including without cause.
(c) Except as specifically set forth herein, for a period of at least
one year following the Closing Date Purchaser shall provide, or cause to be
provided, employee benefits to the United States Transferred Employees that are
substantially similar in the aggregate to the existing benefits available to
the United States Transferred Employees immediately prior to the Closing Date
(as such existing benefits are listed in Schedule 4.11(c) hereto) and shall
take into account all service with the Seller or any of its subsidiaries,
including the U.S. Sale Companies, prior to the Closing Date for purposes of
making any determinations with respect to such benefits, other than for
purposes of benefit accrual under a "defined benefit plan" within the meaning
of Section 3(36) of ERISA, to the same extent as such service was taken into
account by the Seller or the applicable subsidiary of the Seller for similar
purposes or under a similar plan immediately prior to the Closing Date.
Notwithstanding the foregoing, for a period of at least one year following the
Closing Date, Purchaser shall provide, or cause to be provided, to the United
States Transferred Employees severance pay and benefits that are no
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less favorable than what each United States Transferred Employee would have
received under the applicable severance plans, programs and policies of Seller
and the U.S. Sale Companies as in effect on the date of this Agreement.
(d) Except as specifically provided in Section 4.11(d),
(e) or (f) or in any applicable collective bargaining agreement or by law,
persons who are employed by any of the European Sale Companies shall continue
in the employ of Purchaser or one of the European Sale Companies on terms and
conditions substantially comparable to or, to the extent required by applicable
law, the same as those applicable to such employees immediately prior to the
Closing Date, and their prior service with the Seller or the European Sale
Companies shall be recognized by the Purchaser. All such employees (including
employees on leave of absence, whether medical, disability, maternity or
paternity, military or otherwise) who are or become employees, directly or
indirectly, of Purchaser or one of the European Sale Companies immediately
after the Closing are referred to herein as "European Transferred Employees".
The Purchaser shall cause such European Transferred Employees to be reviewed
for performance and salary increases on a basis recognizing their prior service
with the Seller or any of its subsidiaries, including the European Sale
Companies, and shall, for one year following the Closing Date, provide reviews
and salary increases consistent with the policies applicable to such European
Transferred Employees as of the Closing Date and in compliance with any
applicable collective bargaining agreement. Notwithstanding the foregoing, the
first review applicable to such European Transferred Employees during the one
year period following the Closing Date shall occur no later than the review
date established under policies of the Seller or the applicable subsidiary of
the Seller in effect prior to the Closing Date. Nothing in this Agreement
shall limit the Purchaser's ability to terminate the employment of any European
Transferred Employee at any time following the Closing Date for any reason,
including without cause.
(e) Except as specifically set forth herein, for a period
of at least one year following the Closing Date, Purchaser shall provide or
cause to be provided pension and employee benefits to the European Transferred
Employees that are substantially comparable to or, to the extent required by
applicable law, the same as the existing benefits available to the European
Transferred Employees immediately prior to the Closing Date (as such benefits
are listed in Schedule 4.11(e) hereto) and shall take into account for the
purposes of such existing benefits and any calculation
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thereunder all service with the Seller or any of its subsidiaries prior to the
Closing Date for the purposes of making any determinations with respect to such
benefits (accrual or otherwise) to the same extent as such service was taken
into account by the Seller or the applicable subsidiary of the Seller
immediately prior to the Closing Date. Purchaser recognizes that as a matter
of law the employment conditions, as far as the European Sale Companies are
concerned, are not to be changed by the sale of the Shares.
(f) Notwithstanding any other provision of this
Agreement, nothing in this Agreement shall limit the Purchaser's ability to
amend such terms and conditions of the Transferred Employees who are employed
immediately prior to Closing by Alumax Holdings Limited or Alumax Holdings
Subsidiaries ("the UK Transferred Employees") by consent, or for some other
substantial reason pursuant to Section 57(2) of the Employment Protection
(Consolidation) Act 1978, or the Purchaser's ability to dismiss any such UK
Transferred Employee with or without notice or by way of summary dismissal with
cause.
(g) Following the Closing Date, notwithstanding any other
provision to the contrary herein, Purchaser shall, and shall cause the
applicable employer of the UK Transferred Employees to, honor the terms and
provisions of all written employment agreements and written arrangements,
including pension and death and service benefits in effect on the date hereof
with respect to the employees of the UK Sale Companies, copies of which have
been provided to Purchaser.
4.12 Employees. (a) Purchaser shall not assume any
liability under any AFP Benefit Plan, including, without limitation,
administrative obligations under Section 4980B of the Code, and the Seller
shall indemnify and hold harmless, in accordance with Article VII, Purchaser
and its affiliates from and against (i) all liabilities under any AFP Benefit
Plan, (ii) all liabilities relating to, and claims made by, Transferred
Employees with respect to periods prior to the Closing Date, other than any
such liability arising as a result of the failure by Purchaser to comply with
its covenants under Section 4.11 hereof or this Section 4.12, (iii) all
liabilities relating to, and claims made by, employees of the Seller or any of
its subsidiaries who are not Transferred Employees with respect to all periods,
and (iv) any liability or obligation arising with respect to any "employee
benefit plan" (as such term is defined in Section 3(3) of ERISA) at any time
maintained or
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contributed to by (or required to be maintained or contributed to by) any ERISA
Affiliate. Except as provided in the preceding sentence, Purchaser shall
indemnify and hold harmless, in accordance with Article VII, the Seller and its
affiliates from and against liabilities to the Transferred Employees arising as
a result of the failure by Purchaser to comply with its covenants under Section
4.11 hereof or this Section 4.12 or related to the employment of the
Transferred Employees by Purchaser with respect to periods from and after the
Closing Date, including any severance or other payments which may become due
and payable to any Transferred Employee by reason of Purchaser terminating such
employees (but not including any severance or other payments which may become
due and payable under existing agreements, arrangements or policies by the
Seller to any of its employees in connection with the transactions contemplated
by this Agreement).
(b) Salaried Defined Benefit Plan. The Seller shall retain
all obligations under the "Retirement Plan for Salaried Employees of Alumax
Inc. and its Subsidiaries" (the "Seller's Salaried Retirement Plan"), which is
an AFP Benefit Plan, for benefits accrued thereunder as of the Closing Date by
the United States Transferred Employees. Each United States Transferred
Employee shall be fully vested in his accrued benefit under the Seller's
Salaried Retirement Plan as of the Closing Date. The amount of any pension
payable under the Seller's Salaried Retirement Plan shall be determined for the
United States Transferred Employees based on the length of continuous service
and earnings of such United States Transferred Employees as defined under the
Seller's Salaried Retirement Plan determined as of the Closing Date.
(c) Hourly Defined Benefit Plans. The Seller shall retain
all obligations under the "Alumax Fabricated Products, Inc. Retirement Income
Plan" (the "Fabricated Retirement Plan"), "Alumax Aluminum Corporation Combined
Pension Plan" and "Kawneer Company, Inc. Retirement Plan for Hourly Employees"
(the "Seller's Hourly Retirement Plans"), each of which is an AFP Benefit Plan
for benefits accrued thereunder as of the Closing Date by the United States
Transferred Employees. No later than the Closing Date, the Seller shall cause
the Fabricated Retirement Plan to be amended, effective as of the Closing Date,
to make Seller or one of its ERISA Affiliates other than one of the Sale
Companies the "plan sponsor" under the meaning of Section 3(16)(B) of ERISA of
the Fabricated Retirement Plan. Each United States Transferred Employee shall
be fully vested in his accrued benefit under the Seller's Hourly Retirement
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Plan as of the Closing Date. The amount of any pension payable under the
Seller's Hourly Retirement Plan shall be determined for the United States
Transferred Employees based on the length of continuous service and earnings of
such United States Transferred Employees as defined under the Seller's Hourly
Retirement Plan determined as of the Closing Date.
(d) Medical, Dental, Life, Accidental Death and
Dismemberment, and Disability Insurance (Active Employees). Effective as of
the Closing Date, the United States Transferred Employees shall cease being
covered under each employee welfare benefit plan (as such term is defined in
Section 3(1) of ERISA) maintained by the Seller that provides medical, dental,
life, accidental death and dismemberment, or disability insurance benefits. On
and after the Closing Date, the Seller shall retain and have sole
responsibility for the payment of any and all medical, dental, life, accidental
death and dismemberment, and disability insurance benefits to all employees and
former employees of the Seller, AFP and the AFP Subsidiaries (and the eligible
dependents of such employees and former employees) attributable to expenses
incurred on or prior to the Closing Date by such employees and former employees
of the Seller, AFP and the AFP Subsidiaries (and the eligible dependents of
such employees and former employees). For such purpose, an expense is deemed
incurred when the services that are the subject of the claim are performed,
when the death occurs (in the case of life insurance), when the disability
occurs (in the case of disability insurance), and based on the dates services
are provided in the case of a hospital stay.
(e) Medical and Life Insurance (Retired Employees). On and
after the Closing Date, the Seller shall retain and have sole responsibility
for all liabilities, obligations and commitments of the Seller, AFP or the AFP
Subsidiaries to provide retiree medical and life insurance benefits to any
employee of the Seller, AFP, or the AFP Subsidiaries who is: (i) receiving
such benefits as of the Closing Date; or (ii) eligible or entitled to receive
such benefits as of the Closing Date, regardless of whether such individual has
in fact elected to receive retirement benefits as of the Closing Date.
Notwithstanding any other provision of this Agreement, the Purchaser shall have
no obligation to establish a retiree medical or life insurance plan for the
benefit of, or provide retiree medical or life insurance benefits to, any
retired or former employee of the Seller, AFP or the AFP Subsidiaries or their
dependents (including spouses) who are receiving retiree medical or
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life insurance coverage, or are eligible to receive retiree medical or life
insurance coverage, as of the Closing Date; nor shall the Purchaser have any
obligation to establish a retiree medical or life insurance plan for the
benefit of, or provide retiree medical or life insurance benefit to, any United
States Transferred Employee or any dependent thereof.
(f) COBRA. The Seller shall be responsible for satisfying
the continuation coverage requirements for group health plans under Section
4980B of the Code or Part 6 of Title I of ERISA ("COBRA") for all employees or
former employees of the Seller, AFP or the AFP Subsidiaries (and any dependents
of such employees and former employees) who are receiving COBRA continuation
coverage as of the Closing Date or who are entitled to elect such coverage on
account of a qualifying event occurring on or before the Closing Date. The
Purchaser shall have no obligation or liability with respect to any person who
is receiving or entitled to elect to receive COBRA continuation coverage as of
the Closing date.
(g) Long-Term Disability and Unemployment Compensation
Insurance. On and after the Closing Date, the Seller shall retain and have
sole responsibility for all liabilities, obligations and commitments of the
Seller, AFP and the AFP Subsidiaries arising in connection with any long-term
disability and unemployment compensation insurance claims which relate to or
arise from incidents occurring on or prior to the Closing Date.
Notwithstanding any other provision of this Agreement, the Seller shall be
solely responsible for providing any and all long-term disability benefits (and
all other pension and/or welfare benefits to which any such person is entitled
on account of disability after becoming eligible for such long-term disability
benefits) which become payable on or after the Closing Date to any employee or
former employee (or any dependent thereof) of the Seller, AFP or any of the AFP
Subsidiaries who was disabled or was in a disability waiting period as of the
Closing Date.
(h) Executive and Deferred Compensation Arrangements. The
Seller shall be solely responsible for the payment of any and all amounts due
under the "Alumax Inc. Deferred Compensation Plan," the "Alumax Inc. Excess
Benefit Plan," the "Alumax Inc. 1993 Annual Incentive Plan," the "Alumax Inc.
1993 Long-Term Incentive Plan," and any other deferred compensation
arrangements or stock option plans maintained by the Seller with respect to any
Transferred Employee.
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4.13 Competition. The Seller covenants and agrees that it
and its subsidiaries shall not: (a) at any time within the five-year period
immediately following the Closing acquire a stand-alone business or start a new
business which engages in the sale of products currently manufactured and sold
by any of the Sale Companies, in any geographic areas where such Sale Company
currently operates or sells such products, so long as Purchaser or its assigns
remains engaged in such business; (b) at any time within the three-year period
immediately following the Closing acquire any business (an "Acquired
Business"), a significant portion (a portion being determined to be significant
if it represents both $10 million or more in sales and twenty percent (20%) or
more of the acquired business' revenue during the last fiscal year preceding
such acquisition) of which derives its revenues from the sale of products
currently manufactured and sold by any of the Sale Companies in any geographic
areas where such Sale Company currently operates or sells such products, so
long as such Sale Company or its assigns remains engaged in such business in
such areas, unless the Seller or its subsidiary which consummates any such
acquisition promptly thereafter (x) makes an Offer (as defined below) to sell
to Purchaser, at a price and on other material terms determined by the Seller,
the business or businesses or portions thereof (the "Competing Portion")
engaged in the sale of products currently manufactured and sold by any of the
Sale Companies in any geographic areas where such Sale Company currently
operates or sells such products and (y) if Purchaser declines such Offer,
undertakes good faith efforts to divest the Competing Portion (provided that if
the Seller determines to make such divestiture at a price lower than or on
terms more favorable than originally offered to Purchaser, the Seller shall
make an Offer to sell the Competing Portion to Purchaser at such lower price
and/or other terms first), provided that the Seller shall not be obligated to
make any such divestiture at a loss (a loss being determined to be the result
if the highest price offered by any prospective purchaser of the Competing
Portion is less than an amount equal to that portion of the purchase price paid
by Seller to purchase the Acquired Business allocable to the Competing Portion,
determined by reference to a third party appraisal of the Competing Portion or,
if no such appraisal is available, determined in proportion to the proportion
of net income of the Acquired Business contributed by the Competing Portion as
compared to the remainder for the fiscal year ended immediately prior to the
date of acquisition of the Acquired Business); and (c) at any time within the
five-year period immediately following the Closing disclose confidential
information
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regarding the Sale Companies to any third parties (not including the Seller and
its subsidiaries), except as required by law, regulation, a court order, in the
defense of litigation for which the Seller or any of its subsidiaries may be
liable, or in any actions relating to this Agreement, including the schedules
and exhibits hereto, and shall not solicit directly or indirectly management
personnel currently employed by the Sale Companies for employment with the
Seller and its subsidiaries; provided, that with respect to any of the matters
covered in this Section 4.13 (i) to the extent that any restriction set forth
in this Section 4.13 is adjudicated to be invalid or unenforceable in any
jurisdiction, the court making such determination shall have the power to
limit, construe or reduce the duration, scope, activity or area of such
provision to the extent necessary to render such provision enforceable to the
maximum extent permitted by applicable law, such limited form to apply only
with respect to the operation of such provision in the particular jurisdiction
in which such adjudication is made, (ii) the Seller may continue to own and
operate all of its existing subsidiaries and businesses (other than the Sale
Companies), market products that it or its subsidiaries (other than the Sale
Companies) currently market (which may include products also manufactured or
sold by any of the Sale Companies) and may make product line extensions of
existing product lines and make product improvements and enhancements of
existing products, in each case of all such businesses and subsidiaries in the
geographic areas and markets where the Seller or any of its subsidiaries (other
than the Sale Companies) currently operates or sells its products, (iii) MIC-6
toolplate and other products currently manufactured or sold by the Seller and
its existing subsidiaries and businesses (other than the Sale Companies) shall
not be treated as products currently manufactured or sold by the Sale Companies
under the provisions of Section 4.13, (iv) the provisions of this Section 4.13
shall not be binding upon a third party purchaser of the Seller or any of its
subsidiaries or businesses other than the Seller or any subsidiary of the
Seller at the time of acquisition, and (v) the Seller and its subsidiaries
shall not be prevented from offering employment to management employees of the
Sale Companies who seek employment with the Seller or its subsidiaries on their
own initiative or through recruiters or employment agencies, except for certain
key management employees of the Sale Companies identified on Schedule 4.13 of
this Agreement. An "Offer" as used in this Section 4.13 shall be an offer
which includes the purchase price and all material terms reasonably necessary
for Purchaser to evaluate and make a determination with respect thereto and
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provides Purchaser a period of at least 30 days (in the case of the initial
offer made with respect to any Competing Portion of an Acquired Business) or 15
days (in the case of subsequent offers) to accept or decline such offer and an
opportunity during such period, subject to the execution and delivery of a
mutually agreeable confidentiality agreement, to obtain reasonable access to
the Records and other reasonably necessary information relating to the
Competing Portion being offered.
4.14 Use of Certain Names. Purchaser acknowledges that the
Seller will cause AFP, Alumax Holdings and Alumax Europe to effect changes to
their and their Subsidiaries' names prior to the Closing Date to remove
therefrom the name "Alumax". Upon the Closing Date, Purchaser shall not, and
shall procure that none of its subsidiaries from time to time shall, use either
such name or the name "Kawneer" or any substantially similar name, or any
trademark, logo or other symbol that includes or is otherwise associated with
such name, for any purpose, including without limitation in connection with the
marketing of any products produced by any of the Sale Companies. Insofar as
changes to such names have not been effected at or prior to the Closing Date,
Purchaser shall procure that all necessary steps are taken to complete such
changes of names within 14 days from the Closing Date. Notwithstanding the
foregoing, Purchaser may, for a period not exceeding 180 days immediately
following the Closing Date, use materials, including items of inventory, office
supplies, packaging materials and equipment, that have affixed thereto either
such name or any such trademark, logo or symbol to the extent such materials
cannot be replaced and such name, trademark, logo or symbol cannot be erased,
covered or otherwise removed without undue expense to the Purchaser. Purchaser
shall indemnify and hold harmless, in accordance with the provisions of Article
VII hereof, the Seller and its subsidiaries from and against any loss,
liability, damage or claim that the Seller or its subsidiaries may suffer as a
result of the use by Purchaser of such names, trademarks, logos or symbols or
as a result of the use by Purchaser of the name "Euramax."
4.15 Certain Bank Accounts. (a) The parties agree that the
bank accounts (the "Bank Accounts") of the Sale Companies identified on
Schedule 4.15(a) will be retained by the Sale Companies after the Closing and,
accordingly, the Seller and Purchaser shall each cooperate with the other and
take or cause to be taken, whether before, at or after the Closing, such
actions as may be necessary to cause Purchaser or its designee(s) to assume
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control over such Bank Accounts, including without limitation the power to
write checks thereon, to withdraw funds therefrom and to deposit funds therein,
by not later than 30 days after the Closing Date; provided, however, that
during such period after the Closing, the Seller shall not, and shall direct
its officers, employees and Representatives not to, write checks on the Bank
Accounts, withdraw any funds therefrom or otherwise exercise any control over
the Bank Accounts unless requested by Purchaser or a Subsidiary Purchaser. The
Seller shall agree to maintain sufficient funds in the Bank Accounts prior to
Closing such that all checks issued in the ordinary course prior to Closing by
any of the Sale Companies will be duly paid upon presentment.
(b) The parties agree that the Bank Accounts shall have
aggregate balances, on a regional basis, as of the close of business on the day
immediately preceding the Closing Date as set forth on a schedule to be agreed
upon ten business days prior to Closing by the Seller and Purchaser (such
schedule being referred to as "Schedule 4.15(b)"). Upon the confirmation of
the actual closing bank ledger balances as of such date with respect to each
Bank Account on the business day immediately following the Closing Date, the
Seller and Purchaser shall agree upon a schedule of such actual closing bank
ledger balances (the "Final Account Balances"). If the aggregate of the Final
Account Balances exceeds the aggregate of the balances shown on Schedule
4.15(b), Purchaser shall pay the amount of such excess to the Seller, and if
the aggregate of the balances shown on Schedule 4.15(b) exceeds the aggregate
of the Final Account Balances, the Seller shall pay the amount of such excess
to Purchaser, in either case within ten days of the Closing Date in immediately
available funds. Further procedures necessary to effect the intent of this
Section 4.15 shall be mutually agreed to between the Seller and Purchaser by
not later than the date Schedule 4.15(b) is required to be agreed upon pursuant
to this Section 4.15(b).
4.16 Workers' Compensation Claims. From and after the
Closing Date, Purchaser and the U.S. Sale Companies shall assume responsibility
for administration, management and payment of all sums due or which may become
due in connection with workers' compensation claims made by employees of the
U.S. Sales Companies ("Fabricated Products Claims") wherever and whenever
arising, provided the Seller shall make available and promptly pay to Purchaser
any sums received by the Seller in connection with any applicable insurance
coverage maintained by the Seller in respect of Fabricated Products Claims made
or arising from events occurring prior to the Closing Date. The Seller shall
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assist Purchaser and the U.S. Sale Companies in administering, managing and
processing payments which are due or which may become due for workers'
compensation claims for a period of up to thirty days after the Closing Date.
Purchaser and the U.S. Sale Companies shall hold harmless, in accordance with
the provisions of Article VII hereof, and promptly reimburse the Seller for all
reasonable and necessary payments made to third parties (other than payments
made to insurance carriers as premiums for prospective coverage) in connection
with the administration and management of the Fabricated Products Claims and
shall hold harmless and promptly reimburse the Seller for all payments which
the Seller may be required to make on behalf of Purchaser or the U.S. Sale
Companies in connection with the Fabricated Products Claims after the Closing
Date.
4.17 Financing. Purchaser shall use its reasonable best
efforts to consummate the financings described in the Financing Letters,
including, without limitation, the acceptance of any reasonable modifications
or changes to the terms of such financings requested by the other parties
thereto. Purchaser shall notify the Seller promptly of the termination of any
of the Financing Letters, any material changes or modifications to the terms
and conditions set forth therein or the discovery or development of any facts
or circumstances which would render the statements in Section 3.2(f) hereof
false or misleading in any respect or otherwise would either (a) contradict or
conflict with the terms and conditions set forth in the Financing Letters or
(b) create a reasonable basis for Purchaser to believe it will not be able to
obtain financing in accordance with the Financing Letters or to consummate the
transactions contemplated in this Agreement within 90 days of the date hereof.
At the Seller's reasonable request, Purchaser shall provide the Seller with
additional or updated information with respect to such financings, including,
without limitation, copies of draft definitive agreements relating thereto. In
the event of termination of any of the Financing Letters, Purchaser shall use
its reasonable best efforts to arrange for satisfactory substitute financing,
having terms which would not have a material adverse effect on the ability of
Purchaser to consummate the transactions contemplated by this Agreement. The
parties acknowledge that, as used in this Section 4.17, Purchaser's agreement
to use its "reasonable best efforts" shall not require Purchaser to agree to
economic terms in respect of any financing that are materially more burdensome
than those set forth in the Financing Letter relating to the Bank Loan and
those set forth in Schedule 4.17 with respect to the Mezzanine Financing.
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4.18 Financial Statements. The Seller shall make available
to Purchaser and the Purchaser Auditors such Records and all other reasonably
necessary information as they may reasonably request for the purpose of
preparing Purchaser's registration statement, prospectus, offering circular or
offering memorandum for the Mezzanine Financing and the pro forma financial
statements to be included therein which give effect to the consummation of the
transactions contemplated by this Agreement, and the Seller shall otherwise
provide such assistance as may reasonably be requested by Purchaser in its
preparation of such registration statement, prospectus, offering circular or
offering memorandum and pro forma financial statements. The Seller and
Purchaser shall cooperate fully in the preparation of such pro forma financial
statements and Purchaser shall use its reasonable best efforts to complete such
pro forma financial statements for inclusion in the offering materials for the
financings contemplated by the Financing Letter for the Mezzanine Financing (or
other similar financing) by not later than 45 days after the date hereof;
provided Purchaser or Purchaser Auditors were provided full access to
information required by it for this purpose within 15 days of the date hereof.
Purchaser shall indemnify and hold harmless, in accordance with the provisions
of Article VII hereof, the Seller and its officers, directors, employees and
affiliates from and against any loss, liability, damage or claim that any of
them may suffer as a result of the Seller's providing assistance to Purchaser
in the preparation of such pro forma financial statements or the registration
statement in accordance with this Section 4.18 or as a result of the use by
Purchaser of information contained in or derived from such Records (other than
any information furnished in writing by the Seller to Purchaser and expressly
authorized by the Seller to be included in such registration statement),
including without limitation with respect to any such loss, liability, damage
or claim arising under the United States Securities Act of 1933, as amended.
4.19 Capital Expenditures. Except in the ordinary course of
business, consistent with past practice, the Seller will not, and will cause
its subsidiaries not to, issue any oral or written directive to any of the Sale
Companies relating to capital expenditures in accordance with the ordinary
course of business, consistent with past practice, and the Sale Companies shall
be permitted to continue to make capital expenditures as set forth in Schedule
4.1(c) in the ordinary course of business, consistent with past practice.
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ARTICLE V
CONDITIONS
5.1 Conditions to Obligations of the Seller. The obligations
of the Seller as contemplated by this Agreement are subject to the fulfillment
of each of the following conditions, any or all of which may be waived in whole
or in part by the Seller to the extent permitted by applicable law:
(a) Governmental and Regulatory Consents. Prior to the
Closing Date, all governmental or regulatory notices or filings, consents,
registrations, approvals, permits or authorizations set forth on Schedules
3.1(d)(i) and (ii) and 3.2(c) shall have been obtained or made to the extent
required by law;
(b) Litigation. As of the Closing Date, no action, suit or
proceeding shall be pending before any court or governmental or regulatory
authority of competent jurisdiction whereby an unfavorable statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) would prohibit the consummation of the transactions
contemplated by this Agreement or impose material restrictions on the Purchaser
or the Seller or any of their respective subsidiaries in connection with the
consummation of the purchase and sale of Shares hereunder or with respect to
their business operations (collectively, an "Order") and no such Order shall be
in effect;
(c) Compliance. The representations and warranties contained
in Section 3.2 shall be true and correct in all material respects as of the
Closing Date as though made at and as of the Closing Date and Purchaser shall
have performed in all material respects its covenants set forth in Article IV;
and the Seller shall have received on the Closing Date a certificate to the
foregoing effect executed by an officer of Purchaser;
(d) Opinion of Counsel. The Seller shall have received
on the Closing Date an opinion, dated the Closing Date, of Kirkland & Ellis,
counsel for Purchaser, with respect to matters of New York law and the Delaware
General Corporation Law relating to Purchaser in the form set forth in Exhibit
B hereto;
(e) Certification. The Seller shall have received on the
Closing Date certificates from the Secretary
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(or other appropriate officer) of the Purchaser with respect to (A) its
certificate of incorporation, (B) its memorandum and articles of association,
(C) resolutions of its Board of Directors and, if necessary, its stockholders
with respect to the authorization of this Agreement and the transactions
contemplated hereby and (D) the incumbency of executing officers; and the
Seller shall have received a certificate from the Secretary (or other
appropriate officer) of the Purchaser, in form reasonably satisfactory to the
Seller, acknowledging its consent to the releases (in form theretofore agreed
upon between Purchaser and the Seller) delivered by the Sale Companies to the
resigning directors and officers referred to in Section 5.2(f) releasing such
officers and directors from any and all claims, damages or liabilities arising
from such service as an officer or director with any of the Sale Companies;
(f) Consultation. Prior to the Closing Date, Alumax
Europe, the Alumax Europe Subsidiary, Alumax France and the Alumax France
Subsidiary shall have complied to the reasonable satisfaction of the Seller and
Purchaser with any or all obligations to consult with employees and, if
applicable, the Works Councils of Alumax Europe, the Alumax Europe Subsidiary,
Alumax France and the Alumax France Subsidiary or, if applicable, the Retained
Subsidiaries (or their representatives), and shall have obtained the positive
advice, if required, of such Works Councils in connection with the sale of the
Shares contemplated by this Agreement and the transfers contemplated by Section
1.4(b) of this Agreement; and
(g) MIC-6 Tool Plate. On the Closing Date, a subsidiary
of Seller shall have entered into a distribution agreement, in the form of
Exhibit E hereto, with one or more of the Sale Companies providing for the sale
and distribution of the "MIC-6 Tool Plate" in England or France.
5.2 Conditions to Obligations of Purchaser. The obligations
of Purchaser as contemplated by this Agreement are subject to the fulfillment
of each of the following conditions, any or all of which may be waived in whole
or in part by Purchaser to the extent permitted by applicable law:
(a) Governmental and Regulatory Consents. Prior to the
Closing Date, all governmental or regulatory notices or filings, consents,
registrations, approvals, permits or authorizations set forth on Schedules
3.1(d)(i) and (ii) and 3.2(c) shall have been obtained or made to the extent
required by law;
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(b) Litigation. As of the Closing Date, there shall be no
action, suit or proceeding pending before any court or governmental or
regulatory authority of competent jurisdiction that could result in an Order,
and there shall be in effect no Order;
(c) Compliance. The representations and warranties contained
in Section 3.1 shall be true and correct in all material respects as of the
Closing Date as though made at and as of the Closing Date, the Seller shall
have performed in all material respects its covenants set forth in Article IV
and all transactions contemplated by Section 1.4 shall have been consummated;
and Purchaser shall have received on the Closing Date a certificate to the
foregoing effect executed on behalf of the Seller;
(d) Consents. Prior to the Closing Date, Seller shall
have obtained the consents of third parties listed on Schedule 5.2(d);
(e) Opinion of Counsel. Purchaser shall have received on
the Closing Date opinions, each dated the Closing Date, (i) of Sullivan &
Cromwell, counsel for the Seller, with respect to matters of New York law and
the Delaware General Corporation Law relating to Seller in the form set forth
in Exhibit C hereto and (ii) of Baker & McKenzie, special European Counsel for
the Seller, with respect to certain matters relating to the laws of the United
Kingdom, France and the Netherlands, in the form set forth in Exhibit D hereto;
(f) Resignations, etc.. Purchaser shall have received on the
Closing Date the resignations, effective as of the Closing Date, of each
director and officer (other than any Transferred Employee) of each of the Sale
Companies, as specified by Purchaser prior to the Closing Date, and, with
respect to Alumax Holdings, Alumax Europe and Alumax France (and their
respective Subsidiaries), evidence of such corporate or other action as are
specified in Schedule 5.2(f); and each such resigning officer or director shall
have delivered on the Closing Date a release reasonably acceptable to Purchaser
releasing Purchaser and the Sale Companies from any and all claims, damages or
liabilities arising from such service as an officer or director with any of the
Sale Companies.
(g) Minute Books and Seals. On the Closing Date, the Seller
shall have delivered, or shall have caused to be delivered, all minute books,
share registers and corporate
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or common seals (or other similar or equivalent documents or instruments) of
each of the Sale Companies;
(h) Certifications. Purchaser shall have received on the
Closing Date (i) good standing certificates with respect to each of the U.S.
Sale Companies, together with certified charter documents, from the secretary
of state (or other appropriate official) of their respective states of
incorporation (to the extent such concepts of good standing status are
recognized in such states), and (ii) certificates from the Secretary (or other
appropriate officer) of the Seller, AAC and each of the Sale Companies with
respect to (A) its certificate of incorporation or memorandum of association,
(B) its by-laws or articles of association, and (C) with respect to the Seller,
the continued effectiveness of the resolutions of its Board of Directors
referred to in Section 3.1(b) of this Agreement with respect to the
authorization of this Agreement and the transactions contemplated hereby and
the incumbency of executing officers;
(i) Bank Accounts. Purchaser shall have received on the
Closing Date a schedule, certified as true and correct by an officer of the
Seller, listing the name of each bank with which the Sale Companies have an
account or safe deposit box, the identifying numbers or symbols thereof and the
name of each person authorized to draw thereon or to have access thereto;
(j) Material Adverse Change. Between the date of this
Agreement and the Closing Date, there shall have occurred no material adverse
change in the combined financial condition, business or operations of (i) the
U.S. Sale Companies, taken as a whole (as to matters relating to any of the
U.S. Sale Companies) or (ii) the European Sale Companies, taken as a whole (as
to matters relating to any of the European Sale Companies);
(k) MIC-6 Tool Plate. On the Closing Date, a subsidiary
of Seller shall have entered into a distribution agreement, in the form of
Exhibit E hereto, with one or more of the Sale Companies providing for the sale
and distribution of the "MIC-6 Tool Plate" in England or France;
(l) Intellectual Property. The Seller shall have
assigned to the Sale Companies in writing in an instrument reasonably
satisfactory to Purchaser the right, title and interest in and to the
Intellectual Property identified in Schedule 5.2(l) registered in the name of
Seller;
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(m) Consultation. Prior to the Closing, Alumax Europe,
the Alumax Europe Subsidiary, Alumax France and the Alumax France Subsidiary
shall have complied to the reasonable satisfaction of the Seller and Purchaser
with any or all obligations to consult with employees and, if applicable, the
Works Councils of Alumax Europe, the Alumax Europe Subsidiary, Alumax France
and the Alumax France Subsidiary or, if applicable, the Retained Subsidiaries
(or their representatives) and shall have obtained the positive advice, if
required, of such Works Councils in connection with the sale of the Shares
contemplated by this Agreement and the transfers of shares contemplated by
Section 1.4(b) of this Agreement; and
(n) Financing. Purchaser shall have received the funds
necessary to consummate the transactions contemplated by this agreement through
financing arrangements described in Sections 3.2(f) and 4.17 hereof.
ARTICLE VI
TERMINATION
6.1 Termination. (a) This Agreement may be terminated at
any time prior to the Closing Date: (i) by the mutual written consent of the
Seller and Purchaser to terminate this Agreement; (ii) by either party, upon
the entry of a final, nonappealable and permanent Order; or (iii) if the
Closing shall not have occurred by the date which is 90 days from and after the
date hereof, by written notice by Purchaser or the Seller to the other party,
provided that a termination pursuant to clause (iii) shall not relieve any
party from any liability it may have to another party as a result of a breach
of this Agreement. In the event this Agreement is terminated pursuant to
clause (iii) of the immediately preceding sentence and the Seller has fulfilled
or demonstrated its ability to satisfy the conditions to Purchaser's
obligations set forth in Sections 5.2(a), (b), (c), (d), (j), (k) and (l) at or
prior to the date and time of such termination, Purchaser shall reimburse the
Seller for all of the Seller's reasonable out-of-pocket expenses incurred in
connection with the negotiation, execution, delivery and performance of this
Agreement, including without limitation reasonable fees and expenses of its
counsel and accountants, provided that Purchaser's reimbursement obligations
under this sentence shall not exceed $500,000.
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(b) Either the Seller or Purchaser may terminate this
Agreement upon ten business days' prior written notice in the event of the
breach or failure to comply by the other party in any material respect at or
prior to the Closing Date of or with any representation, warranty, agreement or
covenant made by such other party unless any such breach or failure to comply
is cured within such ten business day period after such notice, to the
satisfaction of the party giving such notice, but nothing herein will relieve
any party from liability for any breach of this Agreement. Nothing herein
shall be construed to extend the 90 day period set forth in Section 6.1(a).
(c) The Seller may terminate this Agreement if, within 20
business days after notice from Purchaser pursuant to Section 4.17 hereof that
the Financing Letters have been terminated or that the transactions thereunder
will not be consummated, Purchaser fails to deliver to the Seller a letter or
letters, in effect and reasonably satisfactory to the Seller, providing for
commitments from other financial institutions to provide financing upon terms
and in amounts sufficient for Purchaser to otherwise be in compliance with the
terms of Section 3.2(f) hereof, but nothing herein will relieve any party from
liability for any breach of this Agreement. Nothing herein shall be construed
to extend the 90 day period set forth in Section 6.1(a).
6.2 Effect of Termination. In the event of termination of
this Agreement as provided in Section 6.1, this Agreement shall forthwith
become void and neither party hereto (or the directors or officers of Purchaser
or the Seller) shall have any liability or further obligation to the other
party to this Agreement, except as provided in Sections 4.4, 4.6, 6.1 and 9.1
and Article VII hereof.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification.
(a) The Seller agrees, subject to the provisions of Section
4.9 hereof, to indemnify and hold Purchaser and its affiliates, officers,
directors, employees, agents and representatives (collectively, "Indemnified
Persons") harmless from and against any and all claims, liabilities, losses,
costs and damages wherever arising or incurred (including, without limitation,
amounts paid in settlement and reasonable and necessary costs of investigation,
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reasonable and necessary attorneys' fees and expenses and reasonable and
necessary costs of remediation or corrective action in respect of Environmental
Claims) (individually, a "Loss", and collectively, "Losses") arising out of the
consummation of the transactions pursuant to Section 1.4 of this Agreement
(other than with respect to liabilities specifically assumed by the purchaser
under the Asset Purchase Agreement), any inaccuracy in or breach or
nonfulfillment by the Seller of any representation or warranty, or any breach
of a covenant or agreement contained herein (including its agreements to hold
Purchaser harmless as provided in Article IV hereof) or in any schedule,
exhibit, certificate, opinion or agreement delivered pursuant to this
Agreement. Purchaser agrees to indemnify and hold the Seller and its
Indemnified Persons harmless from and against any and all Losses arising out of
any material inaccuracy in or material breach or nonfulfillment by Purchaser of
any representation or warranty, or any material breach of a covenant or
agreement contained herein (including its agreements to hold the Seller
harmless as provided in Article IV hereof) or in any schedule, exhibit,
certificate, opinion or agreement delivered pursuant to this Agreement.
(b) In the event that any Indemnified Person receives
written notice of the commencement of any action or proceeding, the assertion
of any claim by a third party or the imposition of any penalty or assessment
for which indemnity may be sought pursuant to this Section 7.1 (a "Third Party
Claim"), and such Indemnified Person intends to seek indemnity pursuant to this
Section 7.1, such Indemnified Person shall promptly provide the indemnifying
party with notice of such action, proceeding, claim, penalty or assessment.
Such indemnifying party shall, upon receipt of such notice, be entitled to
participate in or, at the indemnifying party's option, provided that the
indemnifying party has acknowledged in writing its indemnification obligation
with respect to such Third Party Claim and will conduct such defense diligently
and actively, assume the defense, appeal or settlement of such action,
proceeding, claim, penalty or assessment with respect to which such indemnity
has been invoked with counsel of its choosing, and such Indemnified Person will
fully cooperate (but without incurring any out-of-pocket expense) with the
indemnifying party in connection therewith; provided, that such Indemnified
Person shall be entitled to employ one counsel to represent such Indemnified
Person if, in the written opinion of counsel reasonably satisfactory to the
indemnifying party, there exists a conflict of interest between the
indemnifying party and the Indemnified Person in
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respect of such claim and in that event the reasonable fees and expenses of
such separate counsel shall be paid by the indemnifying party; and provided,
further, that the failure of the Indemnified Person to provide prompt notice to
the indemnifying party of a Third Party Claim shall not result in any waiver of
rights to indemnification with respect to such Third Party Claim under this
Section 7.1 unless the indemnifying party is materially prejudiced thereby. In
the event that the indemnifying party fails to assume the defense, appeal or
settlement of such action, proceeding, claim, penalty or assessment within 20
days after receipt of notice thereof from such Indemnified Person, such
Indemnified Person shall have the right to undertake the defense or appeal of
such action, proceeding, claim, penalty or assessment on behalf of and for the
account and risk of the indemnifying party, and the indemnifying party shall
also be responsible for the reasonable fees and expenses of one counsel for the
Indemnified Person. In no event may an Indemnified Person compromise or settle
any claim, penalty, judgment, consent or action without the written consent of
the indemnifying party (which consent shall not be unreasonably withheld).
Notwithstanding anything in this paragraph (b) to the contrary, the
indemnifying party shall not, without the written consent of the Indemnified
Person, (i) settle or compromise any action, suit or proceeding or consent to
the entry of any judgment which does not include as an unconditional term
thereof the delivery by the claimant or plaintiff to the Indemnified Person of
a written release from all liability in respect of the indemnified portion of
any such action, suit or proceeding or (ii) settle or compromise any action,
suit or proceeding which involves any injunction or equitable relief beyond
money damages or other money payments. The indemnifying party shall pay all
expenses, including fees and expenses of one counsel for the Indemnified
Person, that may be incurred by any Indemnified Person in enforcing the
indemnity provided for in this Section 7.1.
(c) Any indemnifiable claim that is not a Third Party Claim
shall be asserted by written notice to the indemnifying party. If the
indemnifying party does not respond to such notice within 60 days, it shall
have no further right to contest the validity of such claim. A claim under
Section 7.1(a) in respect of the breach or alleged breach of a representation
or warranty must be made during the period that the respective representation
or warranty survives the Closing pursuant to Section 9.3.
7.2 Certain Limitations on Indemnification Obligations.
Obligations. (a) The indemnification obligations of the
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Seller under Section 7.1 (other than with respect to breaches of
representations, warranties, agreements or covenants under Articles I, II and
VIII and Sections 3.1(c), (m)(iv), (vi), (x) and (xi), (q) and (s), 4.2, 4.3,
4.4, 4.5, 4.6, 4.7, 4.8, 4.10, 4.12, 4.15, 4.16 and 9.1) shall not apply until
aggregate Losses relating to all claims for which Purchaser or any of its
Indemnified Persons is entitled to payment under Section 7.1 exceed U.S.
$750,000 in the aggregate, and thereafter only such Losses in excess of the
first U.S. $750,000 shall be indemnifiable. For avoidance of doubt, any Losses
referred to in Section 7.3(e) shall not be included in the aggregation of
Losses pursuant to the immediately preceding sentence.
(b) The indemnification obligations of Purchaser under
Section 7.1 (other than with respect to breaches of representations,
warranties, agreements or covenants under Articles I, II and VIII and Sections
3.2(g), 4.3, 4.4, 4.5, 4.6, 4.7, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16,
4.17, 4.18 and 9.1) shall not apply until aggregate Losses relating to all
claims for which the Seller or any of its Indemnified Persons is entitled to
payment under Section 7.1 exceed U.S. $750,000 in the aggregate, and thereafter
only such Losses in excess of the first U.S. $750,000 shall be indemnifiable.
(c) The indemnification obligations of the parties under
Section 7.1 (other than with respect to representations and warranties
contained in Sections 3.1(a), (b), (c), (g), (q), (s) and (w) hereof) shall
terminate 18 months after the Closing Date; the indemnification obligations of
Seller under Section 7.1 with respect to representations and warranties under
Section 3.1(q) hereof shall terminate six months after the expiration of the
applicable statutes of limitations; the indemnification obligations of Seller
under Section 7.1 with respect to representations and warranties under Section
3.1(g) shall terminate 12 months after the Closing Date; the indemnification
obligations of Seller under Section 7.1 with respect to representations and
warranties under Section 3.1(s) shall terminate 3 years after the Closing Date;
the indemnification obligations of Seller under Section 7.1 with respect to
representations and warranties under Section 3.1(w) hereof shall terminate 6
years after the Closing Date; and the indemnification obligations of Seller
under Section 7.1 with respect to representations and warranties under Sections
3.1(a), (b) and (c) shall survive without any time limitation; except in each
such case (except as to indemnification with respect to Sections 3.1(a), (b)
and (c)) with respect to any claims for indemnification as to
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which an Indemnified Person shall have given an indemnifying party written
notice setting forth its claim on or prior to the applicable date specified in
this paragraph.
(d) The collective liability of an indemnifying party
pursuant to the provisions of Section 7.1 (other than for breaches of Section
3.1(q) or Article VIII) shall not exceed $125 million. The parties agree and
acknowledge that, other than with respect to claims of fraud or to the extent
covered by Section 8.6, the provisions of this Article VII are intended to
provide, and shall constitute, the sole and exclusive rights and remedies of
the parties under this Agreement for any inaccuracies in or breaches of any
representations or warranties, any breach or failure to perform any covenants
or the nonfulfillment of any condition to Closing hereunder.
7.3 Special Environmental Indemnity. (a) The Seller hereby
agrees to indemnify, defend and hold Purchaser and the Sale Companies harmless
from, against and in respect of any and all Losses in connection with the Sale
Companies' use of the eleven waste sites listed on Schedule 7.3(a) prior to the
Closing Date.
(b) The Seller also hereby agrees to indemnify, defend and
hold Purchaser and Sale Companies harmless from, against and in respect of any
and all Losses in connection with the Sale Companies' use of the nine waste
disposal sites listed on Schedule 7.3(b) during the period in which the Seller
owned, directly or indirectly, each of the respective Sale Companies.
(c) The Seller hereby agrees to take the actions specified on
Schedule 7.3(c), prior to Closing if possible or as soon as practicable
thereafter, and to indemnify, defend and hold Purchaser and the Sale Companies
harmless from and against any and all Losses relating to the issues listed on
Schedule 7.3(c) for actions or failures to take actions during the period in
which the Seller owned, directly or indirectly, each of the respective Sale
Companies.
(d) The Seller hereby agrees to take the actions specified,
within the time periods specified, and to indemnify, defend and hold Purchaser
and the Sale Companies harmless from and against any and all Losses as
specified on Schedule 7.3(d).
(e) The Seller hereby agrees to indemnify, defend and hold
Purchaser and the Sale Companies harmless from and
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against any and all Losses relating to the environmental issues listed on
Schedule 7.3(e) to the extent such Losses relate to events which occurred
during the period the Seller owned, directly or indirectly, each of the
respective Sale Companies and the aggregate Losses with respect to items listed
on Schedule 7.3(e) exceed U.S.$500,000, but only with respect to such Losses in
excess of the first U.S.$500,000. For avoidance of doubt, losses under
U.S.$500,000 shall not be applied against the amount specified in Section
7.2(a) of this Agreement.
(f) The indemnity provided in this Section 7.3 shall operate
independently of the provisions of Sections 7.1(a) and 7.2 hereof (but not
Section 7.1(b) and (c), which shall apply to such indemnity), which shall not
apply to such indemnity. Purchaser and the Sale Companies hereby assign to the
Seller all of their rights and interest of any kind and nature with respect to
claims, rights to recovery and recoveries arising from (i) contracts of any
kind and nature, entered prior to Closing (exclusive of any contracts entered
into by Purchaser after the date of this Agreement), including, but not limited
to, contracts for insurance or indemnity, relating to the Seller's ownership of
the Sale Companies or the period or periods in which the Seller owned each of
the respective Sale Companies, and (ii) contribution, indemnity and similar
rights from third parties, in each of cases (i) and (ii) relating to the
matters listed on Schedules 7.3(a), (b), (c), (d) or (e); provided that if
Purchaser or the Sale Companies have liability for which they are not
indemnified under this Agreement, rights against and recoveries from third
parties under (ii) above shall be shared pro rata between the Seller and
Purchaser or the Sale Companies on the basis of the portion of such aggregate
liability for which the Seller indemnifies Purchaser and the portion for which
Purchaser or the Sale Companies are not indemnified. Purchaser covenants to
provide, and to cause the Sale Companies to provide, reasonable cooperation and
assistance to the Seller (without incurring out-of-pocket expense) in the
prosecution or defense of any claims in connection with the Seller's or the
Sale Companies' activities at those sites or in respect of those matters
referenced in Schedule 7.3(a), (b), (c), (d) or (e). This Section 7.3 shall
survive indefinitely, inure to the benefit of each of the parties and shall be
binding upon the respective parties, successors and permitted assigns. Except
as specifically provided in this Section 7.3, all other Environmental Claims
will be subject to Section 3.1(w).
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7.4 Special Indemnity for Guarantees. The Seller hereby
agrees to retain at Closing all obligations and liabilities in respect of the
guarantees listed on Schedule 7.4 ("Indemnified Guarantees") and shall
indemnify, defend and hold Purchaser and the applicable guarantor Sale Company
harmless from, against and in respect of any obligation to make payment or
otherwise perform under any of such Indemnified Guarantees. This indemnity
shall operate independently of the provisions of Sections 7.1 (a) and 7.2
hereof (but not Section 7.1(b) and (c), which shall apply to this indemnity),
which shall not apply to this indemnity. Purchaser hereby covenants to (i)
provide the Seller with immediate notice of any claim or demand for payment
made under any Indemnified Guarantee and shall not make any such payment
without the prior written consent of the Seller (which shall not be
unreasonably withheld or delayed) (it being understood that any such payment
made without such consent shall constitute a waiver of Purchaser's rights under
this Section 7.4 with respect to the subject Indemnified Guarantee) and (ii)
provide reasonable cooperation and assistance to the Seller in the event the
Seller determines in good faith to dispute or challenge any claim made under
any of such guarantees. Notwithstanding any provision of this Agreement, the
Seller shall not be obligated to indemnify and hold harmless Purchaser and any
party otherwise entitled to indemnification under or pursuant to this Agreement
in the event that losses arise under or in respect to the joint and several
liability statement pursuant to article 403 volume 2 of the Dutch Civil Code
issued by Alumax Europe in respect of the obligations of the Alumax Europe
Subsidiary.
7.5 Certain Covenants of Purchaser with Respect to
Indemnities. (a) To the extent Purchaser or its Indemnified Persons becomes
aware of any Loss for which indemnification may be sought from the Seller under
the terms of this Agreement, Purchaser shall and shall cause its Indemnified
Persons and Representatives (including Transferred Employees) to act and
conduct themselves in a commercially reasonable manner with respect to the
subject matter of any such Loss and to cooperate fully (but without incurring
out-of-pocket expense) with Seller in the defense of any action relating to
such Loss.
(b) Purchaser agrees that the indemnification provisions of
Sections 7.3(a) and 7.3(b) shall not be enforceable against the Seller with
respect to a particular site if, on or after the Closing, Purchaser or any of
the Sale Companies uses such site for the purposes of waste disposal and has
failed to either (i) maintain the Records
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of the Sale Companies existing as of the Closing Date with respect to such site
or (ii) retain sufficient Records regarding post-Closing waste disposal with
respect to such site necessary to establish the allocation of responsibilities
as between Purchaser and the Seller.
7.6 Special Indemnity Relating to U.K Pension Scheme. The
Seller hereby agrees to indemnify, defend and hold Purchaser and the Sale
Companies harmless from and against any and all Losses arising as a result of
the change or attempted change on the Normal Retirement Date (as such term is
defined in the governing documentation of the UK Pension Scheme) of the UK
Pension Scheme, occurring with effect from November 17, 1993; provided,
however, that the Seller shall be permitted, notwithstanding anything to the
contrary in Section 4.1 of this Agreement, to take such actions prior to
Closing as may be necessary to prevent or eliminate such Losses from being
incurred so long as neither the Sale Companies nor Purchaser shall incur any
post-Closing out-of-pocket expenses with respect thereto; and provided further,
that following the Closing, Purchaser shall and shall cause its Representatives
(including Transferred Employees) and the Sale Companies to cooperate fully
(but without incurring out-of-pocket expense) with the Seller in the defense of
any action relating to such Loss.
7.7 Certain Covenants of Seller with Respect to Indemnities.
To the extent Seller or its Indemnified Persons becomes aware of any Loss for
which indemnification may be sought from the Purchaser under the terms of this
Agreement, Seller shall and shall cause its Indemnified Persons and
Representatives to act and conduct themselves in a commercially reasonable
manner with respect to the subject matter of any such Loss and to cooperate
fully (but without incurring out-of-pocket expense) with Purchaser in the
defense of any action relating to such Loss.
ARTICLE VIII
TAX MATTERS
8.1 Section 338(h)(10) Elections. The Seller shall, and
Purchaser shall cause U.S. Newco to, jointly make an election under Section
338(h)(10) of the Code and any comparable U.S. state or local (but not foreign)
law (the "Section 338(h)(10) election") with respect to U.S. Newco's
acquisition, pursuant to this Agreement, of the stock of the U.S. Sale
Companies. Except as provided in Section 8.5, the Seller will pay any Taxes
imposed upon any of the U.S. Sale
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Companies as a result of making such Section 338(h)(10) election and will
indemnify Purchaser and its Indemnified Persons against all such Taxes. None
of Seller, Purchaser or any affiliate of either shall make any election under
Section 338 of the Code or a similar law of any other country or taxing
jurisdiction with respect to the acquisition by Purchaser or any of its
affiliates of the stock of any European Sale Company.
8.2 Indemnification. (a) The Seller's Indemnification of
Purchaser. The Seller shall indemnify and hold harmless Purchaser and its
Indemnified Persons from, against and in respect of (A) any Taxes, except to
the extent such Taxes (other than income Taxes) are reflected as current
liabilities on the Closing Balance Sheet, imposed with respect to any of the
Sale Companies (including any Taxes imposed pursuant to Treas. Regs. Section
1.1502-6 or a similar provision of any state, local or foreign income tax law
imposing joint and several liability upon the members of a consolidated,
combined, affiliated or unitary group or imposed on any of the Sale Companies
as a result of its being a member of a consolidated, combined, or affiliated
group on any day on or before the Closing Date) for the taxable periods, or
portions thereof, ended on or before the Closing Date and (B) any Transfer
Taxes for which the Seller is liable pursuant to Section 8.5 hereof.
(b) Purchaser's Indemnification of the Seller. Purchaser
shall indemnify and hold harmless the Seller and its Indemnified Persons from,
against and in respect of (A) any Taxes (other than income Taxes) reflected as
current liabilities on the Closing Balance Sheet, (B) any Taxes imposed with
respect to any of the Sale Companies for any taxable period, or portion
thereof, beginning after the Closing Date, and (C) any Transfer Taxes for which
Purchaser is liable pursuant to Section 8.5 hereof.
(c) For purposes of this Article VIII, the term Taxes shall
include Losses directly or indirectly relating to or arising out of any
liability for Taxes.
8.3 Computation of Tax Liabilities; Proration of Taxes.
Whenever it is necessary to determine the liability for Taxes for a portion of
a taxable year or period that begins before and ends after the Closing Date or
the earnings and profits of any European Sale Company for purposes of Section
8.7(b), the determination of the Taxes or such earnings and profits for the
portion of the year or period ending on, and the portion of the year or period
beginning after, the Closing Date shall be determined by
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assuming that the taxable year or period ended at the close of business on the
Closing Date, except that Taxes, exemptions, allowances or deductions that are
calculated on an annual basis (other than net operating losses and tax credits
carried forward from years ending prior to the Closing Date) shall be prorated
on the basis of the number of days in the annual period elapsed through the
Closing Date as compared to the number of days in the annual period elapsing
after the Closing Date.
8.4 Tax Returns. (a) Regardless of whether a Section
338(h)(10) election is available for purposes of any U.S. state or local tax
reporting, the taxable years of each Sale Company shall be closed at the close
of business on the Closing Date for purposes of filing U.S. state and local and
foreign Tax Returns and determining U.S. state and local and foreign tax
liabilities for the taxable year in which Closing occurs, except to the extent
such a position is prohibited by the applicable law. The Seller will take such
actions as are necessary and reasonable to cause the taxable years of the
European Sale Companies to close at such time.
(b) Except to the extent otherwise provided herein, the
Seller shall file or cause to be filed when due (i) all Tax Returns for the
Sale Companies that are due on or before the Closing Date and (ii) all Tax
Returns relating to any Sale Company that is included in a consolidated,
combined or unitary group (include the tax group including Alumax Holdings and
the Alumax Holdings Subsidiaries) that includes the Seller, or any Retained
Subsidiary, and one or more of the Sale Companies for all periods (or portions
thereof) ending on or prior to the Closing Date.
(c) Purchaser shall file or cause to be filed when due all
Tax Returns with respect to the Sale Companies due to be filed after the
Closing Date other than the Returns referred to in Section 8.4(b) or covered
elsewhere in this Article VIII.
(d) (i) The Seller shall deliver a copy of each Tax Return
to be filed by Seller as described in this Article 8 to Purchaser for its
review and approval, which may not be unreasonably withheld, not less than
sixty (60) days prior to the date on which such Tax Return is due to be filed
(taking into account any applicable extensions) (the "Due Date"). Purchaser
will be given access to any schedules, work papers, and other documentation
then available that are relevant to the preparation of such Tax Returns during
regular business hours at Seller's offices. If Purchaser objects to any items
reflected on such returns,
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the parties shall attempt to resolve the disagreement, provided that any
transaction taking place prior to the Closing shall be reflected on such return
in the manner reasonably determined by the Seller to be consistent with the
prior practice of the Sale Companies.
(ii) If the Seller may be liable for any portion of the Tax
payable in connection with any Tax Return to be filed by Purchaser, Purchaser
shall cause such return to be prepared on a basis which is consistent with such
previously filed returns and in accordance with past practice. Purchaser shall
deliver a copy of each such Tax Return and any schedules, work papers and other
documentation then available that are relevant to the preparation of such
return to the Seller for its review and approval (which shall not be
unreasonably withheld) not less than sixty (60) days prior to the Due Date. If
the Seller so objects to any items reflected on such returns, the parties shall
attempt to resolve the disagreement, provided that any transaction taking place
after the Closing shall be reflected on such return in a manner reasonably
determined by Purchaser and any transaction taking place prior to Closing shall
be reflected in a manner reasonably determined by Seller.
(e) Information to be Provided by Purchaser. With
respect to Tax Returns to be filed by the Seller pursuant to Section 8.4(b)
hereof, Purchaser shall, at least ninety (90) days before the due date of the
Tax Return (but in no event less than sixty (60) days after the Closing Date),
prepare and provide to the Seller for the taxable years ended on or before the
Closing Date a package of tax information materials (the "Tax Package"), which
shall be completed in accordance with past practice, including past practice as
to providing the information, schedules and work papers and as to the method of
computation of separate taxable income, tax credits, and other relevant
measures of income and credits of each of the Sale Companies.
(f) Foreign Tax Receipts. To the extent not contained in the
Tax Package, Purchaser shall deliver to the tax director of the Seller
certified copies of all receipts for any foreign Tax with respect to which the
Seller or any of its affiliates could claim a foreign tax credit, and any other
documentation required in connection with the Seller or any of its affiliates
claiming or supporting a claim for such foreign tax credits promptly following
either a request by the Seller for such receipts or documentation or payment of
any such foreign Taxes by Purchaser, any affiliate of Purchaser or any other
person to whom Purchaser or an affiliate of Purchaser transfers any of the Sale
Companies
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or (other than in the ordinary course of business) any portion of their assets.
8.5 Transfer Taxes. All excise, sales, use, transfer
(including real property transfer or gains), stamp, documentary, filing,
recordation and other similar Taxes and fees which may be imposed or assessed
as a result of the transactions effected pursuant to this Agreement (excluding
the transactions described in Section 1.4 hereof other than Section 1.4(d)),
together with any interest, additions or penalties with respect thereto and any
interest in respect of such additions or penalties ("Transfer Taxes"), shall be
borne equally by the Seller and Purchaser. Any Tax Returns that must be filed
in connection with Transfer Taxes shall be prepared and filed when due by the
party primarily or customarily responsible under the applicable local law for
filing such Tax Returns, and such party will use its reasonable efforts to
provide each such Tax Return to the other party at least 10 days prior to the
applicable Due Date. Any such Taxes or fees resulting from any subsequent
transfer of any of the Sale Companies or any of their properties, assets or
liabilities on or subsequent to the Closing Date shall be borne entirely by the
Purchaser.
8.6 Contest Provisions. (a) Notice Requirement. Each of
Purchaser and its affiliates, on the one hand, and the Seller, on the other
hand (in either case, the "Recipient"), shall promptly notify the tax director
of the other party in writing upon receipt by the Recipient of notice of any
pending or threatened audits, adjustments, assessments or deficiencies (a "Tax
Audit") which may affect the liability for Taxes of such other party. If the
Recipient fails to give such prompt notice to the other party it shall not be
entitled to indemnification for any Taxes arising in connection with such Tax
Audit only if such failure to give notice materially adversely prejudices the
other party's ability to contest the item.
(b) Which Party Controls Defense. If such Tax Audit may
require either party (the "Indemnifying Party") to indemnify the other party
(the "Indemnified Party") for Taxes under this Article VIII, the Indemnifying
Party shall have the right to control the defense and settlement of the Tax
Audit and any related proceedings to the extent provided below in this Section
8.6, provided that the Indemnifying Party (i) notifies the Indemnified Party
promptly, but in no event later than thirty (30) days, after receiving notice
of such Tax Audit that it acknowledges its duty to indemnify and intends to
assume such control and (ii) conducts the
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defense and/or settlement of the Tax Audit and related proceedings actively and
diligently.
(iii) (A) The Seller's Items. If such Tax Audit relates
solely to any period ending on or prior to the Closing or any Taxes for which
the Seller is liable in full hereunder (including any Taxes arising from the
Section 338(h)(10) election), the Seller shall at its expense control the
defense and settlement of such Tax Audit.
(B) Purchaser's Items. If such Tax Audit relates solely to
any period beginning after the Closing or any Taxes for which Purchaser is
liable in full hereunder, Purchaser shall at its expense control the defense
and settlement of such Tax Audit.
(C) Combined and Mixed Items. If such Tax Audit relates to
Taxes for which both the Seller and Purchaser are liable hereunder, to the
extent possible such Taxes will be distinguished and the portions of Tax Audit
relating thereto separated and each party will control the defense and
settlement of the portion of the Tax Audit relating to the Taxes for which it
is so liable.
If any Tax items or the portions of the Tax Audit relating
thereto cannot be so distinguished or separated, the party which has the
greater potential liability for those Tax items shall control the defense and
settlement of the portions of the Tax Audit relating thereto, provided that
such party defends the items as reported on the relevant Tax Return. In
defending the item as reported on the relevant Tax Return, the party may
negotiate any settlement that is reasonable provided that it does not increase
the liability of the other party in an amount that is greater than such other
party's pro rata share of those items and does not trade any item for which the
other party has a greater liability for any item for which it has a lesser
liability, unless it obtains the other's party consent thereto.
(D) Participation Rights. Any party whose liability for Taxes
may be affected by a Tax Audit shall be entitled to participate at its expense
in such defense and to employ counsel of its choice at its expense.
8.7 Post-Closing Actions Which May Affect the Seller's
Liability for Taxes. (a) Purchaser shall not take or permit any Sale Company
to take any action on or after the Closing Date outside of the ordinary course
of business
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which increases the Seller's liability for Taxes for periods ending on or
before the Closing.
(b) During the taxable year (or years) of each European Sale
Company beginning before the Closing Date and ending on the following December
31, Purchaser shall not permit such European Sale Company to (A) sell
(including a deemed sale pursuant to Section 338 of the Code or a similar law
of any other country), exchange, distribute, reorganize or otherwise dispose of
the stock of any foreign subsidiary corporation, or dispose of any other
property the sale of which produces personal holding company income within the
meaning of Section 954(a)(1) of the Code or a similar law of any other country
or (B) make or cause any distribution (including a deemed distribution) to
shareholders in excess of current earnings and profits (as computed for U.S.
Federal income tax purposes) derived during the period beginning after the
Closing and ending at the end of that taxable year (which is referred to
above.)
(c) Except to the extent required by law, neither Purchaser
nor any of its affiliates shall, without the prior written consent of the
Seller (not to be unreasonably withheld), amend or take any position on any Tax
Return filed by, or with respect to, any Sale Company for or with respect to
any taxable period, or portion thereof, beginning before the Closing Date.
8.8 Section 338(h)(10) Election and Determination and
Allocation of Purchase Price and MADSP. The Share Purchase Price shall be
allocated in accordance with the relative fair market values of the AFP Shares,
Alumax Holdings Shares, Alumax Europe Shares and Alumax France Shares (which
may be set forth in Schedule 8.8), and with respect to U.S. Newco's acquisition
(or deemed acquisition) of each U.S. Sale Company, the "modified aggregate
deemed sale price" as defined in Treas. Regs. Section 1.338(h)(10)-1 (the
"MADSP") shall be determined and allocated in accordance with the requirements
of Section 338(h)(10) of the Code and the Treasury Regulations thereunder.
Purchaser shall provide the Seller with one or more schedules allocating the
Share Purchase Price and the MADSPs. Seller agrees to accept and be bound by
the determination of U.S. Newco if such determination and allocation is
reasonable. If the Seller delivers an objection in writing to such
determination and allocation, as unreasonable in whole or in part, the parties
shall attempt to mutually agree on an allocation. If the parties are unable to
agree, the dispute shall be referred to the Tax Arbitrator whose determination
shall be binding upon the parties. The Seller agrees, and
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Purchaser agrees to cause U.S. Newco to agree, to prepare and file an Internal
Revenue Service Form 8023-A in a timely fashion in accordance with the rules
under Section 338 of the Code and the following: prior to Closing, Purchaser
shall, or shall cause U.S. Newco to, prepare, with the assistance and
cooperation of the Seller, the Form 8023-A with all attachments (except that
the schedule required under Section E. Lines 7 and 8 of the Instructions to the
Form 8023-A (relating to the determination and allocation of the MADSP) may be
finalized after the Closing in accordance with this Section 8.8) and Purchaser
shall deliver, or cause U.S. Newco to deliver, an executed original of such
form to Seller at the Closing. To the extent that the Share Purchase Price or
any MADSP is adjusted after the Closing Date, the parties agree to revise and
amend the schedule or schedules and the Internal Revenue Service Form 8023-A in
the same manner and according to the same procedure as the original schedules
and form are to be prepared pursuant to this Section 8.8. The determination
and allocations derived pursuant to this section shall be binding on the
Seller, Purchaser and U.S. Newco for all Tax reporting purposes.
8.9 Purchaser's Claiming, Receiving or Using of Refunds and
Overpayments. If, after the Closing, Purchaser or any of its affiliates (i)
receive any refund (other than through the application of net operating losses,
tax credits, or other tax attributes generated after the Closing) or identify
any overstatement of a tax liability reflected on the Closing Balance Sheet to
the extent reflected as a current liability, or (ii) utilize the benefit of any
tax assets (including any prepayment or overpayment of Taxes) (except to the
extent reflected on the Closing Balance Sheet as a current asset) which, in
either case (i) and (ii), relates to a Tax period with respect to which the
Seller has an obligation to indemnify Purchaser under Section 8.2(a) or any
amount paid by Seller or any of its subsidiaries, Purchaser shall promptly
transfer, or cause to be transferred, to the Seller the amount of the refund,
overpayment or excess accrued amount (including interest) received or utilized
by Purchaser or its affiliates net of any tax cost to Purchaser or its
affiliates arising therefrom. Purchaser agrees to use reasonable efforts to
claim any such refund or to utilize any such overpayments of which it becomes
aware.
8.10 Termination of Tax Allocation Agreements. Any agreement
or arrangement with respect to the allocation or sharing of Taxes, whether or
not written, that may have been entered into by the Seller or any of its
subsidiaries (other than the Sale Companies) with any of the Sale
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Companies shall be terminated as between the Seller (or any such subsidiary)
and any such Sale Companies as of the Closing, and no further payments shall be
made by any of the Sale Companies or the Seller (or any such subsidiary)
pursuant thereto.
8.11 Assistance and Cooperation. The parties agree that,
after the Closing Date:
(A) Each party shall assist (and cause its affiliates to
assist) the other party in preparing any Tax Returns which such other
party is responsible for preparing and filing;
(B) The parties shall cooperate in preparing for any audits
of, or disputes with taxing authorities regarding, any Tax Returns and
payments in respect thereof;
(C) The parties shall make available to each other and to any
taxing authority as reasonably requested all relevant Records relating
to Taxes;
(D) Each party shall provide timely notice to the other in
writing of any pending or proposed audits or assessments with respect
to Taxes for which the other may have an indemnification obligation
under this Agreement;
(E) Each party shall furnish the other with copies of all
relevant correspondence received from any taxing authority in
connection with any audit or information request with respect to any
Taxes referred to in subsection (D) above;
(F) Except as otherwise provided herein, the party requesting
assistance or cooperation shall bear the other party's out-of-pocket
expenses in complying with such request to the extent that those
expenses are attributable to fees and other costs of unaffiliated
third-party service providers;
(G) Each Sale Company shall make all claims, disclaimers
and elections necessary to give full effect to any matters taken into
account in preparing the Closing Balance Sheet and included in any Tax
Return relating in whole or in part to pre-Closing periods within the
appropriate time limitations; and
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(H) If Seller has been informed as provided for in this
Agreement of a dispute with the French tax authorities relating to a
Tax liability for which Seller would be liable hereunder and requests
deferral of payment in the context of a tax reassessment within the
meaning of Article L-277 for the Fiscal Procedure Book (Livre de
Procedures Fiscales), then the setting up of guarantees referred to in
said article shall be borne entirely by the Seller.
8.12 Maintenance of Books and Records. Until the applicable
statute of limitations (including, to the extent the Seller notifies Purchaser,
periods of waiver) has run for any Tax Returns filed or required to be filed
covering the periods up to and including the Closing Date, Purchaser shall
retain all Records in existence on the Closing Date and after the Closing
Date will provide the Seller access to such Records for inspection and copying
by the Seller and its representatives during normal business hours upon
reasonable request and upon reasonable notice. After the expiration of such
period, Seller may request that such Records be delivered to Seller, after
which Purchaser shall cause such Records to not be destroyed and to be
delivered to Seller.
8.13 Characterization of Indemnification Payments. All
amounts paid by the Seller to Purchaser or by Purchaser to the Seller pursuant
to this Agreement shall be treated as adjustments to the Share Purchase Price
for all Tax purposes.
8.14 Computation of Losses Subject to Indemnification. The
amount of any Loss for which indemnification is provided under this Agreement
shall be computed net of the present value of any marginal Tax benefit or
savings realized by the party seeking indemnification or any of its Indemnified
Parties with respect to such Loss.
8.15 Resolution of Calculation Disputes. In the event that
the Seller and Purchaser cannot agree on any calculation or determination
required with respect to any matter covered by Section 3.1(q) or this Article
VIII, the dispute shall be resolved by KPMG Peat Marwick (or if not independent
or available, another accounting firm of international reputation mutually
agreed to by Seller and Purchaser (the "Tax Arbitrator"), acting as an expert
and not as an arbitrator, whose decision shall be final and binding and whose
expenses shall be shared equally by the Seller and Purchaser.
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ARTICLE IX
MISCELLANEOUS AND GENERAL
9.1 Payment of Expenses. Whether or not the purchase and
sale of Shares shall be consummated, each party hereto shall, except as set
forth in Section 6.1 and 7.1 hereof, pay its own expenses incident to preparing
for, entering into and carrying out this Agreement and the transactions
contemplated hereby. Unless this agreement has been terminated in accordance
with the terms hereof, the Seller shall not cause any of the Sale Companies to
pay for or otherwise become liable for any such expenses required to be paid by
the Seller pursuant to the preceding sentence.
9.2 Registration Under the Restrictive Trade Practices Act
1976. Any provision of this Agreement by virtue of which it (or any agreement
or arrangement of which it forms part) is subject to registration under the
Restrictive Trade Practices Acts 1976 and 1977 (the "Acts") shall not take
effect until the day next following that upon which the required particulars of
this Agreement have been furnished to the Director General of Fair Trading in
accordance with the requirements of those Acts.
9.3 Survival. The representations and warranties made or
deemed made herein or in any certificate or other writing delivered pursuant
hereto (other than the representations and warranties of the Seller contained
in Section 3.1(a), (b), (c), (g), (q), (s) and (w) hereof) shall terminate 18
months after the Closing Date; the representations and warranties of the Seller
under Section 3.1(q) hereof shall terminate six months after the expiration of
the applicable statutes of limitations; the representations and warranties of
the Seller under Section 3.1(g) hereof shall terminate 12 months after the
Closing Date; the representations and warranties of the Seller under Section
3.1(s) hereof shall terminate 3 years after the Closing Date; the
representations and warranties of the Seller under Section 3.1(w) hereof shall
terminate 6 years after the Closing Date; and the representations and
warranties of the Seller under Sections 3.1(a), (b) and (c) hereof shall
survive without any time limitation.
9.4 Modification and Amendment. Subject to applicable law,
at any time prior to the Closing Date, the parties hereto may modify or amend
this Agreement, by written agreement between the Seller and Purchaser.
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9.5 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed an original instrument and all such counterparts shall
together constitute the same agreement.
9.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9.7 Arbitration; Submission to Jurisdiction. Other than as
set forth in Section 2.2 and Article VIII, the parties agree that any dispute
relating to the interpretation, performance or breach of this Agreement or of
the Confidentiality Agreement shall be determined by arbitration, such
arbitration to be conducted in the City of New York, New York, in accordance
with the Commercial Arbitration Rules of the American Arbitration Association
("AAA") and the Supplementary Procedures for International Commercial
Arbitration, except as provided herein. Any party seeking arbitration shall
serve on the other party, with the demand for arbitration, the name of an
arbitrator selected by the demanding party; the other party shall serve on the
demanding party, with its answer to the demand, the name of an arbitrator
selected by such party; the two arbitrators so selected shall themselves select
a third arbitrator who may be, but need not be, from a panel proposed by the
AAA. The arbitrators shall award to the prevailing party the costs of the
arbitration, including the fees of the AAA, the arbitrators and counsel fees of
the prevailing party. Judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. In the event that, the
foregoing provisions of this Section 9.7 notwithstanding, any legal proceeding
shall be brought by either of the parties hereto, each party hereby submits to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York for the purposes of all legal proceedings arising
out of or relating to this Agreement or the transactions contemplated hereby.
Each party hereto irrevocably waives, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
9.8 Notices. Any notice, request, instruction or other
document to be given hereunder by any party to the other shall be in writing
and delivered personally or sent by registered or certified mail, postage
prepaid, or by
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facsimile, if to the Seller, at Alumax Inc., 5655 Peachtree Parkway, Norcross,
Georgia 30092-2812, facsimile number (770) 246-6641, Attention: Senior Vice
President and Chief Financial Officer (with copies to Alumax Inc., 5655
Peachtree Parkway, Norcross, Georgia 30092-2812, facsimile number (770)
246-6660, Attention: Vice President and General Counsel, and to Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004, facsimile number (212)
558-3588, Attention: Robert M. Thomas, Jr., Esq.), and if to Purchaser,
addressed to Purchaser, c/o Citicorp Venture Capital, Ltd., 399 Park Avenue,
14th Floor, New York, New York 10043, facsimile number (212) 888-2940,
Attention: Joseph M. Silvestri (with a copy to Kirkland & Ellis, Citicorp
Center, 153 East 53rd Street, New York, New York 10022, facsimile number (212)
446-4900, Attention: Kirk A. Radke, Esq.), or to such other persons or
addresses as may be designated in writing by the party to receive such notice.
Any such notice shall be deemed given when actually received by the party to
whom notice is being given, when receipt is confirmed by telephone or answer
back of any notice given by telecopier, or on the fifth day after mailing by
registered or certified mail.
9.9 Entire Agreement. This Agreement, including the
Exhibits, Annexes and Schedules hereto (each of which are intended to be and
are specifically incorporated by reference herein and made a part hereof) and
the documents, certificates and instruments referred to herein, constitutes the
entire agreement, and supersedes all other prior agreements, understandings,
representations and warranties both written and oral, among the parties, with
respect to the subject matter hereof; provided that the Confidentiality
Agreement shall remain in full force and effect until the Closing Date.
9.10 Assignment. This Agreement and the rights hereunder
shall not be assignable or transferable by Purchaser or the Seller (including
by operation of law in connection with a merger or sale of substantially all
the assets) without the prior written consent of the other party hereto.
Notwithstanding the foregoing, Purchaser may assign its rights to purchase the
Shares hereunder to any subsidiary of Purchaser or other entity controlled by,
controlling or under common control with Purchaser, without the prior written
consent of the Seller, provided that no such assignment shall, except as
otherwise consented to in writing by Seller, limit or affect Purchaser's
obligations hereunder and all references to Purchaser hereunder shall be deemed
to also include the party to which Purchaser has assigned its right to purchase
the Shares hereunder.
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Purchaser may assign its rights under this Agreement to any subsequent
purchaser of all (but not less than all) of (i) the U.S. Sale Companies and/or
(ii) the European Sale Companies, or in connection with the pledge of the
Shares or the rights under this Agreement as collateral in connection with the
financing (or refinancing) of the purchase of the Shares hereunder (but such
rights shall be subject to the terms and provisions of this Agreement and the
rights of the Seller hereunder, including without limitation any defenses and
counterclaims that the Seller may assert as against the Purchaser in respect of
any claims made under this Agreement by any such assignee), provided that any
person or entity who takes title to any of the Shares pursuant to this sentence
shall agree in writing with the Seller to be bound by this Agreement and to
perform all its obligations hereunder as fully as if such person or entity were
the Purchaser hereunder. This Agreement shall be binding upon and inure to the
benefit of the respective successors, heirs, executors and other legal
representatives and permitted assigns of the parties hereto.
9.11 Captions. The Article, Section and Paragraph captions
herein are for convenience of reference only, do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
9.12 Further Assurances. From time to time, as and when
requested by any party hereto, the other party shall execute and deliver, or
cause to be executed and delivered, all such documents and instruments and
shall take, or cause to be taken, all such further or other actions, as such
other party may reasonably deem necessary or desirable to consummate the
transactions contemplated by this Agreement. Without limiting the generality
of the foregoing, whether before or after the Closing, the Seller shall
transfer or cause to be transferred to the Sale Companies all assets and
property held by the Seller or any of its subsidiaries other than the Sale
Companies that Seller determines, acting in good faith, are principally used in
the business of the Sale Companies and the Purchaser shall transfer or cause to
be transferred to the Seller and its subsidiaries other than the Sale Companies
all assets and property held by the Sale Companies that Purchaser determines,
acting in good faith, are principally used in the business of the Seller and
its subsidiaries other than the Sale Companies.
9.13 Injunctive Relief. The parties agree and acknowledge
that it will be impossible to measure in money
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the damages that would be suffered if the parties fail to comply with any of
the obligations herein imposed on them and that in the event of any such
failure, an aggrieved party will be irreparably damaged and will not have an
adequate remedy at law. Any such party shall, therefore, in addition to any
other remedies available under applicable law, be entitled to injunctive
relief, including specific performance, to enforce such obligations, without
the posting of any bond, and if any action should be brought in equity to
enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at law.
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<PAGE> 96
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by duly authorized officers of Purchaser and the Seller, on the date
first hereinabove written.
EURAMAX INTERNATIONAL, LTD.
By: /s/ Joseph Silvestri
---------------------------------
Name: Joseph Silvestri
Title: Director
ALUMAX INC.
By: /s/ R.P. Wolf
---------------------------------
Name: R.P. Wolf
Title: Vice President
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Annex A
Glossary of Defined Terms
<TABLE>
<CAPTION>
Defined in
----------
Term Section:
---- --------
<S> <C>
AAA 9.7
AAC 1.4(a)
Acquired Business 4.13
Acquisition Proposal 4.8
Acts 9.2
AFP Preamble
AFP Benefit Plan 3.1(m)(i)
AFP Employees 3.1(m)(i)
AFP Pension Plan 3.1(m)(ii)
AFP Plans 3.1(m)(ii)
AFP Shares Recitals
AFP Subsidiaries Recitals
Agreement Preamble
Alumax Europe Preamble
Alumax Europe Shares Recitals
Alumax Europe Subsidiary Recitals
Alumax France Recitals
Alumax France Purchase Price 1.3(a)
Alumax France Shares Recitals
Alumax France Subsidiary Recitals
Alumax Holdings Preamble
Alumax Holdings Shares Recitals
Alumax Holdings Subsidiaries Recitals
Asset Purchase Agreement 1.4(a)
Auditor 2.2(b)(ii)
Balance Sheet 3.1(e)
Bank Accounts 4.15(a)
</TABLE>
A-1
<PAGE> 98
<TABLE>
<CAPTION>
Defined in
----------
Term Section:
---- --------
<S> <C>
Bank Loan 3.2(f)
Board Approval 3.1(b)
CERCLA 3.1(w)(v)
C&L 2.2(b)(i)
CLA 3.1(m)(xvi)
Closing 1.2
Closing Balance Sheet 2.2(b)(i)
Closing Date 1.2
COBRA 4.12(f)
Code 3.1(m)(ii)
Combined Working Capital 2.2(c)
Competing Portion 4.13
Confidentiality Agreement 4.4
CVC 3.2(f)
Due Date 8.4(d)(i)
Dutch Newco 1.1
Dutch Employees 3.1(m)(xvi)
Dutch Owned Realty 3.1(h)(xi)
Dutch Sale Companies 3.1(m)(xvi)
Environmental Claim 4.9(iv)
Environmental Laws 4.9(v)
Environmental Permits 3.1(w)(ii)
ERISA Affiliate 3.1(m)(i)
Estimated Combined Working Capital 2.2(c)
European Sale Companies Recitals
European Transferred Employees 4.11(d)
Fabricated Products Claims 4.16
Fabricated Retirement Plan 4.12(c)
Final Account Balances 4.15(b)
</TABLE>
A-2
<PAGE> 99
<TABLE>
<CAPTION>
Defined in
----------
Term Section:
---- --------
<S> <C>
Final Combined Working Capital 2.2(c)
Final Purchase Price 2.2(c)
Financial Statements 3.1(e)
Financing Letters 3.2(f)
Financing Representatives 4.4
French Companies 3.1(q)(xxiii)
French Newco 1.1
Funded Debt 2.1
GAAP 2.2(b)(i)
Hazardous Substance 4.9(vi)
Holdings S.A. Recitals
Home Products 1.4(a)
Home Products Shares 3.1(c)(ii)
HSR Rules 3.2(i)
Indemnified Guarantees 7.4
Indemnified Persons 7.1(a)
Indemnified Party 8.6(b)
Indemnifying Party 8.6(b)
Initial Combined Working Capital 2.2(c)
Initial Purchase Price 2.1
Intellectual Property 3.1(k)
Investor Group 3.2(f)
IRS 3.1(m)(i)
Leased Realty 3.1(h)(ii)
Leases 3.1(h)(ii)
Loss 7.1(a)
Losses 7.1(a)
MADSP 8.8
Material Contracts 3.1(p)
Mezzanine Financing 3.2(f)
</TABLE>
A-3
<PAGE> 100
<TABLE>
<CAPTION>
Defined in
----------
Term Section:
---- --------
<S> <C>
Modified GAAP 2.2(b)(i)
Multiemployer Plan 3.1(m)(iii)
Offer 4.13
Order 5.1(b)
Owned Realty 3.1(h)(iii)
Pension Schemes 3.1(m)(viii)
Permitted Real Property Encumbrances 3.1(h)(ii)
Prime Rate 2.2(a)
Purchaser Preamble
Purchaser Auditors 2.2(b)(i)
Recipient 8.6(a)
Records 4.5(a)
Referral Date 2.2(b)(ii)
Representatives 4.4
Retained Subsidiaries 1.4(b)
Sale Companies Recitals
Section 338(h)(10) election 8.1
Seller Preamble
Seller's Hourly Retirement Plans 4.12(c)
Seller's Salaried Retirement Plan 4.12(b)
Shares Recitals
Subsidiaries Recitals
Subsidiary Purchasers 1.1
SWDA 3.1(w)(v)
Tax Arbitrator 8.15
Tax Audit 8.6(a)
Tax Package 8.4(e)
Tax Returns 3.1(q)
Taxes 3.1(q)
Third Party Claim 7.1(b)
</TABLE>
A-4
<PAGE> 101
<TABLE>
<CAPTION>
Defined in
----------
Term Section:
---- --------
<S> <C>
Transfer Taxes 8.5
Transferred Employee 3.1(f)(iii)
UK Pension Scheme 3.1(m)(x)
UK Properties 3.1(h)(iv)
UK Transferred Employees 4.11(f)
United States Transferred Employees 4.11(b)
U.S. Newco 1.1
U.S. Sale Companies Recitals
WARN 3.1(v)
</TABLE>
A-5
<PAGE> 102
EXHIBIT A
ASSET PURCHASE AGREEMENT
Asset Purchase Agreement (hereinafter called "Agreement"), dated as of
___________ ____, 1996, by and between Alumax Aluminum Corporation ("AAC"), a
Delaware corporation, and Euramax Home Products, Inc. ("Home Products"), a
Delaware corporation and a wholly-owned subsidiary of Alumax Fabricated
Products, Inc. ("AFP").
R E C I T A L S
WHEREAS, AAC has conducted business through a division of AAC known as the Home
Products Division (the "Division");
WHEREAS, AAC desires to sell and assign, and Home Products desires to purchase
and assume, substantially all of AAC's assets and liabilities which comprise
the Division on the terms and subject to the conditions of this Agreement;
WHEREAS, the execution, delivery and performance of this Agreement by the
parties hereto are among the transactions contemplated by that certain Purchase
Agreement, dated June 24, 1996, between Alumax Inc., a Delaware corporation and
the sole stockholder of each of AFP and AAC, and SC Processing, Inc. (the
"Purchase Agreement");
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants, and agreements contained herein, AAC and Home Products
hereby agree as follows:
ARTICLE I
PURCHASE OF ASSETS AND LIABILITIES
1.1 Transfer of Assets. Upon the terms and subject to the
conditions of this Agreement, AAC agrees to grant, assign, transfer, convey,
and deliver to Home Products all of the assets, properties, rights, titles, and
interests of AAC used or related solely or primarily in or to the business of
the Division, wherever located and described as follows, as of the Closing (as
defined in Section 1.3 hereof):
(i) all real property and real estate owned or leased by AAC and
used or relating solely or primarily in or to the business of the
Division and all buildings and improvements thereon, including,
without limitation, such items having a net book value of $25,000 or
more
<PAGE> 103
listed and described on Schedule 1.1(i) (collectively, "Division Real
Property");
(ii) all furniture, fixtures, machinery, equipment, and other
tangible personal property owned or leased by AAC and used or relating
solely or primarily in or to the business of the Division, including,
without limitation, such items having a net book value of $25,000 or
more listed on Schedule 1.1(ii) (collectively, "Division Personal
Property");
(iii) all raw material inventories, warehouse stock, parts,
inventories, material, supplies, work-in-progress, and finished
products owned by AAC and used or relating solely or primarily in or
to the business of the Division (collectively, the "Division
Inventories");
(iv) all easements, rights of way, servitudes, leases, permits,
licenses, or options used or held by AAC and used or relating solely
or primarily in or to the business of the Division (collectively, the
"Division Easements");
(v) all automobiles, trucks, trailers, forklift trucks, and other
vehicles owned by AAC and used or relating solely or primarily in or
to the business of the Division, including, without limitation, the
items listed and described on Schedule 1.1(v) (collectively, "Division
Vehicles");
(vi) all accounts (excluding cash and intercompany receivables) and
notes receivable arising solely from the operation of the Division on
or prior to the Closing (collectively, the "Division Accounts
Receivable");
(vii) all prepaid rentals, deposits, advances, and other prepaid
expenses arising from payments made by AAC and relating solely to the
Division prior to the Closing for goods and services where such goods
and services have not been received in full by the Division, as of the
Closing and any prepaid Taxes to the extent such Taxes relate to any
taxable period, or portion thereof, beginning after the Closing Date
(collectively, the "Division Prepaid Expenses");
(viii) all right, title, and interest of AAC in mortgages,
indentures, promissory notes, evidences of indebtedness, other debt,
deeds of trust, loan, or credit agreements or similar agreements or
instruments evidencing indebtedness by customers or others to the
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Division, other than Division Accounts Receivable (collectively, the
"Division Customer Credit Instruments");
(ix) all rights and claims of AAC, whether mature, contingent, or
otherwise, against third parties, whether in tort, contract, or
otherwise, including, without limitation, causes of action,
unliquidated rights and claims under or pursuant to all warranties,
representations, and guarantees made by manufacturers, suppliers, or
vendors for the Division, other than any such rights or claims
relating to a Division Non-Assumed Liability (as defined in Section
1.2 hereof) and pursuant to which AAC may seek recovery from a third
party in respect of such Division Non-Assumed Liability;
(x) all authorizations, consents, approvals, licenses, orders,
permits, or exemptions of, or filings or registrations with, any court
or administrative or governmental authority in any jurisdiction to the
extent such permits are transferable and relate solely to the Division
(collectively, the "Division Governmental Permits");
(xi) all rights and interests in and to any United States or
foreign patents or patent applications, trade names, trademark, or
service mark registrations or applications, common law trademarks,
copyrights, or copyright registrations or applications owned by AAC
and used solely by the business of the Division (including reissues,
divisions, or continuations, continuations-in-part and extensions and
renewals thereof) and all the goodwill associated therewith
(collectively, the "Division Patent and Trademark Rights"); provided,
however, that the Division Patent and Trademark Rights to be included
in the Division Assets shall not include any right, license, or other
interest in or to the name "Alumax" or any substantially similar name
or any trademark, logo, or symbol that includes or is otherwise
associated with such name;
(xii) all processes, trade secrets, confidential, or proprietary
know-how (to the extent that such know-how can be conveyed), design,
manufacturing, engineering, and other drawings, technology,
intellectual property rights, agent agreements, technical information,
software, engineering data, design and engineering specifications, in
each case to the extent owned by AAC and used solely by the Division,
including, without
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limitation, the computer software relating thereto (collectively, the
"Division Expertise");
(xiii) all rights and interests to any pending or executory contracts
or agreements to which AAC is a party that are specified in Schedule
1.1(xiii) (collectively, the "Assigned Contracts"), and all leases
specified in Schedule 1.1(xiii) by which AAC leases any Division Real
Property or Division Personal Property (the "Assigned Leases");
(xiv) subject to the terms and provisions of Section 3.3 hereof, all
books, records, files, and papers in the possession of the Division
relating solely or primarily to, or necessary to the conduct of, the
business of the Division, including, without limitation, business
permits (to the extent such permits are transferable) or licenses,
drawings, engineering, manufacturing and assembly information,
computer programs, manuals, and data, catalogues, quotations, sales
and advertising materials, sales and purchase correspondence and
histories, trade association memberships (to the extent such
memberships can be conveyed), research and development records,
prototypes and models, lists of present and former customers and
suppliers, customer credit information, customers' pricing
information, business plans prepared by or relating primarily to the
Division, books of account, accounting records, and personnel,
employment, and other records principally relating to the business of
the Division, but excluding any documents or information which is
subject to a claim of attorney-client or similar privilege
(collectively, the "Division Books"); and
(xv) all intangible assets, including, without limitation,
goodwill, attributable to the business of the Division (collectively,
the "Division Intangibles").
All of the rights, properties, and other assets described herein which
are being transferred to Home Products pursuant to this Agreement and Plan of
Reorganization are collectively referred to herein as the "Division Assets."
1.2 Assumption of Liabilities.
(a) As of the Closing, Home Products shall assume and
thereafter pay, perform, or discharge when due the following obligations
(collectively, the "Division Assumed Liabilities") of AAC:
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(i) the accounts payable and accrued Liabilities (as defined in
Section 1.2(c) hereof) of AAC arising from the operation in the
ordinary course of the business of the Division;
(ii) obligations or Liabilities under contracts, commitments,
purchase orders, warranties, and other executory obligations of AAC to
be paid or performed by their terms on or after the Closing and which
relate solely or primarily to the business of the Division, including
those that are set forth on Schedule 1.2(xiii) which obligate AAC to
pay more than $100,000 in any fiscal year, and the obligation to
accept any inventory returned by customers of the Division in the
ordinary course of the business of the Division and consistent with
past experience;
(iii) any Liability arising out of or in connection with any
third-party claim (including product liability claims) for damages,
reimbursement, or compensation resulting directly or indirectly from
any accident or event relating to the Division Assets or the business
of the Division;
(iv) obligations or Liabilities to employees of AAC employed solely
or primarily in the business of the Division, including without
limitation, any obligations accrued or earned prior to the Closing
which are not due or payable until after the Closing; and
(v) all other Liabilities, contingent or otherwise, that arise out of
or are related to the operation of the business of the Division and
the ownership of the Division Assets described in Section 1.1 before,
on, or after the Closing, including, without limitation, all such
Liabilities arising by reason of any violation or claimed violation
(by acts or events or omissions occurring on or after the Closing) of
any federal, state, local, or foreign law, rule, regulation,
ordinance, or any requirement with government authority, including,
without limitation, all such Liabilities arising by reason of any
violation or claimed violation (by acts or events or omissions
occurring on or after the Closing) of any federal, state, local, or
foreign law, rule, regulation, ordinance, or any requirement with
government authority, including any Liability in connection with
environmental laws or any environmental claim; provided, however, that
Division Assumed Liabilities shall not include any Liabilities,
contingent or otherwise, arising on or before the Closing, to the
extent AAC has recourse against any third party to
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<PAGE> 107
recover, in whole or in part, through contribution, indemnification,
reimbursement, by contract or operation of law.
Except as set forth in this Section 1.2, Home Products will
assume no other Liabilities in connection with the Division Assets. (The
Liabilities of AAC which are not assumed pursuant to this Agreement are
hereinafter collectively referred to as the "Division Non-Assumed
Liabilities.")
(b) Notwithstanding Section 1.2(a), each of the following
is a Division Non-Assumed Liability:
(i) any of AAC's obligations hereunder;
(ii) any Liability of AAC arising from indebtedness for borrowed
money and long term debt of AAC, except to the extent Home Products
has expressly assumed such Liability as a Division Assumed Liability;
(iii) except to the extent Home Products has expressly assumed such
Liability as a Division Assumed Liability, any Liability of AAC
arising from or in connection with the conduct of the business of the
Division or the ownership of the Division Assets by AAC prior to the
Closing;
(iv) except as set forth in Section 4.2 hereof, any Liability of AAC
for Taxes (as defined in Section 1.2(d) hereof) incurred in connection
with the business or assets of the Division with respect to any
taxable period, or portion thereof, ending on or before the Closing.
For this purpose, the determination of the Taxes incurred with respect
to the portion of the year or period ending on, and the portion of the
year or period beginning after, the Closing Date shall be determined
by assuming that the taxable year or period ended at the close of
business on the Closing Date, except that any real property taxes,
exemptions, allowances or deductions that are calculated on an annual
basis shall be prorated on the basis of the number of days in the
annual period elapsed through the Closing Date as compared to the
number of days in the annual period elapsing after the Closing Date.
(v) any Liability in respect of any contract or agreement to which
AAC is a party or beneficiary which is not an Assigned Contract (a
"Retained Contract") or an Assigned Lease (a "Retained Lease").
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<PAGE> 108
(c) "Liabilities," as used in this Agreement, shall mean,
as to any person or entity, all debts, adverse claims, liabilities and
obligations, direct, indirect, absolute, or contingent, of such person or
entity, whether accrued, vested, or otherwise, whether in contract, tort,
strict liability, or otherwise and whether or not actually reflected, or
required by generally accepted accounting principles applied on a consistent
basis ("GAAP") to be reflected, in such person's or entity's balance sheets or
other books and records.
(d) "Taxes", as used in this Agreement, shall mean any
U.S. federal, state or local or foreign taxes, including, without limitation,
income, gross receipts, windfall profits, gains, excise, severance, property,
production, sales, use, transfer, license, franchise, employment, withholding,
or similar taxes together with any interest, additions, or penalties with
respect thereto and any interest in respect of such additions or penalties.
1.3 Purchase Price. The purchase price for the Division Assets,
taking into account the Assumed Liabilities, shall be $________________ (the
"Purchase Price"), to be paid in the form of a promissory note in such amount
from Home Products to AAC (the "Note").
1.4 Closing. The closing of the sale, purchase, assignment and
assumption of the Division Assets and the Division Assumed Liabilities (the
"Closing") shall take place at such time and place as is mutually agreed to by
the parties hereto.
1.5 Consideration and Payment at Closing. Upon the terms and
subject to the conditions of this Agreement, at the closing:
(a) Home Products shall deliver to AAC (i) the Note in
the amount of the Purchase Price and (ii) an instrument of assumption in
substantially the form set forth as Exhibit A hereto.
(b) AAC shall deliver to Home Products (i) special warranty
deeds, or the equivalent thereof, in recordable form with respect to owned
Division Real Property to be transferred to Home Products pursuant hereto; (ii)
appropriate bills of sale, endorsements or assignments or other appropriate
instruments of transfer, conveyance and assignment with respect to Division
Personal Property, Division Inventories, Division Receivables, Division Prepaid
Expenses, Division Patents and Trademarks, Division Vehicles and Division
Easements to be transferred to Home Products pursuant hereto; (iii) such
assignments of leasehold
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<PAGE> 109
interests in Division Real Property, Division Personal Property or Division
Vehicles to be transferred to Home Products pursuant hereto, as shall transfer
to Home Products valid and subsisting leasehold interests in accordance with
the terms of this Agreement; (iv) all documents in its possession containing or
relating to Division Expertise to be transferred to Home Products pursuant
hereto; (v) all Division Books to be transferred to Home Products pursuant
hereto; (vi) all such other deeds, endorsements, assignments and other
instruments as may be reasonably satisfactory to Home Products and its counsel
to vest in Home Products title to the Division Assets in accordance with the
terms of this Agreement; and (vii) copies of all consents of third parties to
the transfer of the Division Assets. At the Closing, Home Products will take
actual possession of the Division Assets and title to and risk of loss or
damage to the Division Assets shall pass to Home Products.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of AAC. AAC hereby represents
and warrants to Home Products as follows:
(a) Organization and Qualification. AAC is a corporation
duly organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation.
(b) Authority. AAC has the legal capacity and authority
to enter into this Agreement and to consummate the transactions herein
contemplated and otherwise carry out its obligations hereunder. This agreement
has been duly and validly executed by AAC and constitutes a valid and binding
agreement of AAC enforceable in accordance with its terms.
2.2 Representations and Warranties of Home Products. Home
Products hereby represents and warrants to AAC as follows:
(a) Organization and Qualification. Home Products is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware.
(b) Authority. Home Products has the legal capacity and
authority to enter into this Agreement and to consummate the transactions
herein contemplated and otherwise carry out its obligations hereunder. This
agreement has been duly and validly executed by Home
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<PAGE> 110
Products and constitutes a valid and binding agreement of Home Products
enforceable in accordance with its terms.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1 Employees. Home Products shall employ all persons who are
employed by AAC principally in connection with the business of the Division
immediately prior to the Closing on terms and conditions as set forth in
Section 4.11 of the Purchase Agreement.
3.2 Consents. AAC and Home Products shall use their reasonable
best efforts to obtain the consent of the lessors to assignment of the leases
and other contracts to be transferred to Home Products hereunder. In addition,
AAC and Home Products shall execute and file or join in the execution and
filing of any applications or other documents which may be necessary in order
to obtain any authorizations, approvals, or consent of any governmental bodies
which may be required in connection with the consummation of the transaction
hereby contemplated, and shall use their reasonable best efforts to obtain all
such authorizations, approvals, and consents.
3.3 Records.
(a) At Closing, AAC will deliver or cause to be delivered
to Home Products all original agreements, documents, books, records, and files,
including, without limitation, the Division Books (collectively, the
"Records"), in the possession of AAC relating to the business and operations of
the Division, subject to the following exceptions:
(i) AAC may retain all Records prepared in connection with the
transfer of the Division Assets;
(ii) AAC may retain any Records relating to Taxes, including tax
returns, reports, or forms.
(b) After the Closing, upon reasonable written notice,
Home Products and AAC agree to provide or cause to be provided to each other
and their representatives, employees, counsel, and accountants access, during
normal business hours, to such information (including Records pertinent to the
Division) and assistance to relating to the Division as is reasonably necessary
for financial reporting and accounting matters, the preparation and filing of
any returns, reports, or forms or the defense of any tax or
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<PAGE> 111
other claim or assessment; provided, however, that such access does not
unreasonably disrupt the normal operations of AAC or Home Products.
ARTICLE IV
MISCELLANEOUS AND GENERAL
4.1 Assigned Contracts. To the extent that any of the Assigned
Contracts is not assignable without the consent of another party, this
Agreement shall not constitute an assignment or an attempted assignment
thereof. If AAC shall be unable to obtain a consent necessary for the
assignment of its title to, interest in, or rights under any such Assigned
Contract, AAC shall continue to use reasonable best efforts to cause such
assignment at the earliest practicable date and, for such period of time, AAC
and Home Products shall fully cooperate in any reasonable arrangement designed
to enable Home Products to obtain the benefits as well as accept the burdens of
any such Assigned Contract, including enforcement against the other party
thereto arising out of the future cancellation thereof after the Closing by
such other party.
4.2 Transfer, Sales, and Property Taxes. Home Products will pay
all excise, sales, use, transfer (including real property transfer or gains),
stamp, documentary, filing, recordation and other similar taxes and fees,
together with any interest, additions or penalties with respect thereto and any
interest in respect of such additions or penalties ("Transfer Taxes"), which
may be imposed or assessed as a result of the transfer of Division Assets and
assumption of Division Assumed Liabilities contemplated by this Agreement.
Home Products shall prepare and file the required tax returns and other
required documents with respect to taxes and fees required to be paid by it
pursuant to the preceding sentence consistent with the allocation determined
pursuant to Section 8.8 of the Purchase Agreement and shall promptly provide
AAC with copies of such tax returns and other documents with evidence of the
payment of such taxes and fees.
4.3 Bulk Sales Laws. AAC and Home Products hereby waive
compliance by AAC prior to the Closing with the applicable bulk sales law of
any state where the Uniform Commercial Code has been adopted in which the
business of the Division is conducted or the Division Assets are located.
4.4 Modification and Amendment. Subject to applicable law, at any
time prior to the Closing, the parties hereto
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may modify or amend this Agreement, by written agreement between them.
4.5 Counterparts. For the convenience of the parties hereto, this
Agreement may be executed in any number of counterparts, each such counterpart
being deemed an original instrument, and all such counterparts shall together
constitute the same agreement.
4.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
4.7 Arbitration. The parties agree that any dispute relating to
the interpretation, performance, or breach of this Agreement shall be
determined by arbitration, such arbitration to be conducted in the City of New
York, New York, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA") and the Supplementary Procedures for
International Commercial Arbitration, except as provided herein. Any party
seeking arbitration shall serve on the other party, with the demand for
Arbitration, the name of an arbitrator selected by the demanding party; the
other party shall serve on the demanding party, with its answer to the demand,
the name of an arbitrator selected by such party; the two arbitrators so
selected shall themselves select a third arbitrator who may be, but need not
be, from a panel proposed by the AAA. The arbitrators shall award to the
prevailing party the costs of the arbitration, including the fees of the AAA,
the arbitrators and counsel fees of the prevailing party. Judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
4.8 Notices. Any notice, request, instruction, or other document
to be given hereunder by any party to the other shall be in writing and
delivered personally or sent by registered or certified mail, postage prepaid,
or by facsimile, if to AAC, at Alumax Inc., 5655 Peachtree Parkway, Norcross,
Georgia 30092, facsimile number (770) 246-6660, Attention: Vice President and
General Counsel, and if to Home Products, addressed to Euramax Home Products,
Inc., 450 Richardson Drive, P.O. Box 4515, Lancaster, Pennsylvania 17604,
facsimile number (717) 299-3014, Attention: Neil Bashore, or to such other
persons or addresses as may be designated in writing by the party to receive
such notice.
4.9 No Third-Party Beneficiaries. No provision of this Agreement
is intended to benefit any Person other than the parties hereto, nor shall any
such provision be enforceable by any other Person. As used herein, "Person"
-11-
<PAGE> 113
means any natural person, a sole proprietorship, a corporation, a partnership,
a joint venture, an association, a trust, or any other entity or organization,
including a government or political subdivision, agency, or instrumentality.
4.10 Schedules and Exhibits. All Schedules and Exhibits referred
to in this Agreement are intended to be and are specifically incorporated by
reference herein and made a part hereof. Inclusion of information in any
Schedule or Exhibit shall not be construed as an admission that such
information is material to the operations or financial or other condition of
the Division.
4.11 Entire Agreement. This Agreement, including the Exhibits,
Annexes, and Schedules hereto and the documents, certificates, and instruments
referred to herein, constitutes the entire agreement and supersedes all other
prior agreements, understandings, representations, and warranties both written
and oral, among the parties, with respect to the subject matter hereof.
4.12 Assignment. This Agreement and the rights hereunder shall not
be assignable or transferable by AAC or Home Products (including by operation
of law in connection with a merger or sale of substantially all the assets)
without the prior written consent of the other party hereto.
4.13 Captions. The Article, Section, and Paragraph captions herein
are for convenience of reference only, do not constitute a part of this
Agreement, and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
4.14 Further Assurances. From time to time, as and when requested
by any party hereto, the other party shall execute and deliver, or cause to be
executed and delivered, all such documents and instruments and shall take, or
cause to be taken, all such further or other actions, as such other party may
reasonably deem necessary or desirable to consummate the transactions
contemplated by this Agreement. Without limiting the generality of the
foregoing, whether before or after the "Closing" under the Purchase Agreement,
AAC shall transfer or cause to be transferred to Home Products all assets and
property held by AAC or any of its subsidiaries that are principally used in
the business or operations of the Division, and Home Products shall transfer or
cause to be transferred to AAC or its subsidiaries all assets and property held
by it that are principally used in the business or operations of AAC and its
subsidiaries other than the business of the Division.
-12-
<PAGE> 114
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly
authorized officers of AAC and Home Products on the date first hereinabove
written.
ALUMAX ALUMINUM CORPORATION
By:
------------------------------------
Name:
Title:
EURAMAX HOME PRODUCTS, INC.
By:
------------------------------------
Name:
Title:
-13-
<PAGE> 115
SCHEDULE 1.1(i)
DIVISION REAL PROPERTY
Leased
Service Center 6235 W. 73rd Street, Bedford Park, Illinois
Service Center 1025 Avenue S, Suite 150, Grand Prairie, Texas
Service Center 3701-A Pell Circle, Sacramento, California
Service Center 4777 Stone Drive, Tucker, Georgia
Owned
Plant 450 Richardson Drive, Lancaster, Pennsylvania
<PAGE> 116
SCHEDULE 1.1(ii)
DIVISION PERSONAL PROPERTY
Please see attached Schedule of Fixed Assets by Location.
<PAGE> 117
SCHEDULE OF FIXED ASSETS BY LOCATION
Home Products Division
1995 Asset Summary - Internal Books
<TABLE>
<CAPTION>
Internal books Internal books Internal books Internal books Internal books
Asset Cost Asset Cost Asset Cost Asset Cost Asset Cost
Balance Additions Retirements Other Balance
12-31-94 1995 1995 1995 12-31-95
======================================================================================================================
<S> <C> <C> <C> <C> <C>
Land - Lancaster 240,980.00 240,980.00
Tools - Lancaster 405,049.66 65,700.00 470,749.66
Computers - Lancaster 93,087.08 93,087.08
Furn & Fix - Lancaster 84,591.31 84,591.31
M & E - Lancaster 5,326,747.81 1,414,948.89 (73,091.72) 6,668,604.98
Buildings - Lancaster 2,692,455.05 2,692,455.05
M & E - Atlanta 66,233.52 66,233.52
M & E - Chicago 313,480.84 26,260.00 339,740.84
M & E - Gr Prairie 154,185.87 (5,203.04) 148,982.83
M & E - Sacramento 209,391.77 209,391.77
Vintage Accounts 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------
Total Asset Cost 9,586,202.91 1,506,908.89 (78,294.76) 0.00 11,014,817.04
======================================================================================================================
======================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Internal books Internal books Internal books Internal books Internal books
Depreciation Depreciation Depreciation Depreciation Depreciation
Balance Additions Retirements Other Balance
12-31-94 1995 1995 1995 12-31-95
======================================================================================================================
<S> <C> <C> <C> <C> <C>
Land - Lancaster 0.00 0.00 0.00
Tools - Lancaster (397,066.33) (13,781.90) (410,848.23)
Computers - Lancaster (93,087.08) 0.00 (93,087.08)
Furn & Fix - Lancaster (84,591.31) 0.00 (84,591.31)
M & E - Lancaster (5,173,776.20) (193,027.21) 73,091.72 (0.02) (5,293,711.71)
Buildings - Lancaster (1,451,817.70) (107,698.21) (1,559,515.91)
M & E - Atlanta (64,925.16) (1,308.36) (66,233.52)
M & E - Chicago (289,164.44) (12,352.56) (301,517.00)
M & E - Gr Prairie (152,849.49) (1,336.38) 5,203.04 (148,982.83)
M & E - Sacramento (200,300.66) (6,945.43) (207,246.09)
Vintage Accounts 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------
Total Depreciation (7,907.578.37) (336,450.05) 78,294.76 (0.02) (8,165,733.68)
======================================================================================================================
======================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Internal books Internal books Internal books Internal books Internal books
Net Book Net Book Net Book Net Book Net Book
Balance Additions Retirements Other Balance
12-31-94 1995 1995 1995 12-31-95
======================================================================================================================
<S> <C> <C> <C> <C> <C>
Land - Lancaster 240,980.00 0.00 0.00 0.00 240,980.00
Tools - Lancaster 7,983.33 51,918.10 0.00 0.00 59,901.43
Computers - Lancaster 0.00 0.00 0.00 0.00 0.00
Furn & Fix - Lancaster 0.00 0.00 0.00 0.00 0.00
M & E - Lancaster 152,971.61 1,221,921.68 0.00 (0.02) 1,374,893.27
Buildings - Lancaster 1,240,637.35 (107,698.21) 0.00 0.00 1,132,939.14
M & E - Atlanta 1,308.36 (1,308.36) 0.00 0.00 0.00
M & E - Chicago 24,316.40 13,907.44 0.00 0.00 38,223.84
M & E - Gr Prairie 1,336.38 (1,336.38) 0.00 0.00 0.00
M & E - Sacramento 9,091.11 (6,945.43) 0.00 0.00 2,145.68
Vintage Accounts 0.00 0.00 0.00 0.00 0.00
- ----------------------------------------------------------------------------------------------------------------------
Total Net Book 1,678,624.54 1,170,458.84 0.00 (0.02) 2,849,083.36
======================================================================================================================
======================================================================================================================
</TABLE>
<PAGE> 118
January 19, 1996 Page 1
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
000138 7202010000 06/01/72 SLHY 01 06 992793.62 0.00 12/95 933226.02 0.00 59567.60 94.0
000139 7910010001 12/01/80 SLHY 09 06 780892.31 0.00 12/95 484153.23 0.00 296739.08 62.0
000140 7910010002 04/01/81 SLHY 10 06 11679.37 0.00 12/95 6774.05 0.00 4905.32 58.0
000178 8503010000 09/01/85 SLHY 14 06 48900.00 0.00 12/95 20538.00 0.00 28362.00 42.0
000192 8609010000 12/01/86 SLHY 15 06 94500.00 0.00 12/95 35910.00 0.00 58590.00 38.0
000310 9201010000 06/01/93 SLHY 22 05 763689.75 0.00 12/95 78914.61 0.00 684775.14 10.3
---------- ---- ----- ---------- ---- ----------
Department 01 Count= 6 2692455.05 0.00 1559515.91 0.00 1132939.14
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
---------- ---- ----- ---------- ---- ----------
Net 2692455.05 0.00 1559515.91 0.00 1132939.14
---------- ---- ----- ---------- ---- ----------
Class BL Count= 6 2692455.05 0.00 1559515.91 0.00 1132939.14
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net BUILDINGS - LANCASTER 2692455.05 0.00 155915.91 0.00 1132939.14
- -----------------------------------------------------------------------------------------------------------------------------------
000126 8701011335 07/01/87 SLHY 00 00 50848.20 0.00 12/92 50848.20 0.00 0.00 100.0
000183 8511010000 10/01/85 SLHY 00 00 14008.00 0.00 12/91 14008.00 0.00 0.00 100.0
000190 8605010000 12/01/86 SLHY 00 00 19735.11 0.00 12/92 19735.11 0.00 0.00 100.0
---------- ---- ----- ---------- ---- ----------
Department 01 Count= 3 84591.31 0.00 84591.31 0.00 0.00
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
---------- ---- ----- ---------- ---- ----------
Net 84591.31 0.00 84591.31 0.00 0.00
000006 V79110 02/01/79 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
---------- ---- ----- ---------- ---- ----------
Department VINTAG Count= 1 0.00 0.00 0.00 0.00 0.00
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
</TABLE>
<PAGE> 119
January 19, 1996 Page 2
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------- ---- ----- ---------- ---- ----------
Net 0.00 0.00 0.00 0.00 0.00
---------- ---- ----- ---------- ---- ----------
Class FF Count= 4 84591.31 0.00 84591.31 0.00 0.00
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net FURN & FIX - LANCASTER 84591.31 0.00 84591.31 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
000179 8505010000 12/01/85 SLHY 00 00 8836.04 0.00 12/94 8836.04 0.00 0.00 100.0 d
000191 8607010000 12/01/86 SLHY 00 00 89200.00 0.00 12/94 89200.00 0.00 0.00 100.0 d
000239 9105010000 11/01/91 SLHY 00 00 93087.08 0.00 12/94 93087.08 0.00 0.00 100.0
---------- ---- ----- ---------- ---- ----------
Department 01 Count= 3 191123.12 0.00 191123.12 0.00 0.00
Less disposals and transfers 98036.04 0.00 98036.04 0.00 0.00
---------- ---- ----- ---------- ---- ----------
Net 93087.08 0.00 93087.08 0.00 0.00
---------- ---- ----- ---------- ---- ----------
Class IS Count= 3 191123.12 0.00 191123.12 0.00 0.00
Less disposals and transfers 98036.04 0.00 98036.04 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net DP EQUIP - LANCASTER 93087.08 0.00 93087.08 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
000137 7201010000 06/01/72 NoDep 00 00 115980.00 0.00 12/95 0.00 0.00 115980.00 0.0
000304 9202010000 06/01/92 NoDep 00 00 125000.00 0.00 12/95 0.00 0.00 125000.00 0.0
Department 01 Count= 2 240980.00 0.00 0.00 0.00 240980.00
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
Net 240980.00 0.00 0.00 0.00 240980.00
</TABLE>
<PAGE> 120
January 19, 1996 Page 3
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
---------- ---- ----- ---------- ---- ----------
Class L Count= 2 240980.00 0.00 0.00 0.00 240980.00
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net LAND - LANCASTER 240980.00 0.00 0.00 0.00 240980.00
- -----------------------------------------------------------------------------------------------------------------------------------
000015 8706011300 12/01/87 SLHY 00 00 17015.00 0.00 12/92 17015.00 0.00 0.00 100.0
000016 8708011301 12/01/87 SLHY 00 00 17015.00 0.00 12/92 17015.00 0.00 0.00 100.0
000017 8705011315 12/01/87 SLHY 00 00 16755.00 0.00 12/92 16755.00 0.00 0.00 100.0
000020 7701017152 12/01/77 SLHY 00 00 9632.50 0.00 12/91 9632.50 0.00 0.00 100.0
000022 7801011277 04/01/78 SLHY 00 00 35000.00 0.00 12/91 35000.00 0.00 0.00 100.0
000023 7802010852 07/01/78 SLHY 00 00 15154.00 0.00 12/91 15154.00 0.00 0.00 100.0
000024 7803011293 08/01/78 SLHY 00 00 5885.00 0.00 12/91 5885.00 0.00 0.00 100.0
000028 7901013918 03/01/79 SLHY 00 00 9594.99 0.00 12/91 9594.99 0.00 0.00 100.0
000029 7928011048 02/01/79 SLHY 00 00 4000.00 0.00 12/91 4000.00 0.00 0.00 100.0
000034 7903011312 07/01/79 SLHY 00 00 11685.00 0.00 12/91 11685.00 0.00 0.00 100.0
000039 7904011313 09/01/79 SLHY 00 00 120927.60 0.00 12/91 120927.60 0.00 0.00 100.0
000045 7905011093 07/01/79 SLHY 00 00 40000.00 0.00 12/91 40000.00 0.00 0.00 100.0
000046 7906010853 09/01/79 SLHY 00 00 25751.00 0.00 12/91 25751.00 0.00 0.00 100.0
000047 8001011316 02/01/80 SLHY 00 00 42397.84 0.00 12/92 42397.84 0.00 0.00 100.0
000050 8003013920 02/01/80 SLHY 00 00 25450.71 0.00 12/92 25450.71 0.00 0.00 100.0
000056 8005010854 04/01/80 SLHY 00 00 27537.45 0.00 12/92 27537.45 0.00 0.00 100.0
000057 8006011047 05/01/80 SLHY 00 00 8585.00 0.00 12/92 8585.00 0.00 0.00 100.0
000061 8009014326 08/01/80 SLHY 00 00 10255.00 0.00 12/92 10255.00 0.00 0.00 100.0
000065 8013011261 09/01/80 SLHY 00 00 17608.00 0.00 12/91 1760.00 0.00 0.00 100.0
000066 8014011278 11/01/80 SLHY 00 00 32196.48 0.00 12/92 32196.48 0.00 0.00 100.0
000067 8015010801 11/01/80 SLHY 00 00 16354.97 0.00 12/92 16354.97 0.00 0.00 100.0
000071 8103013901 09/01/81 SLHY 00 00 20180.06 0.00 12/92 20180.06 0.00 0.00 100.0
000072 8104013923 03/01/81 SLHY 00 00 18763.49 0.00 12/92 18763.49 0.00 0.00 100.0
000075 8106011320 07/01/81 SLHY 00 00 20700.00 0.00 12/91 20700.00 0.00 0.00 100.0
</TABLE>
<PAGE> 121
January 19, 1996 Page 4
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
000076 8107011320 07/01/81 SLHY 00 00 9221.63 0.00 12/91 9221.63 0.00 0.00 100.0
000078 8109011187 08/01/81 SLHY 00 00 34606.47 0.00 12/92 34606.47 0.00 0.00 100.0
000079 8110011188 08/01/81 SLHY 00 00 6100.00 0.00 12/92 6100.00 0.00 0.00 100.0
000081 8112011329 12/01/81 SLHY 00 00 8505.82 0.00 12/92 8505.82 0.00 0.00 100.0
000082 8113010856 10/01/81 SLHY 00 00 28481.59 0.00 12/92 28481.59 0.00 0.00 100.0
000084 8115010814 12/01/81 SLHY 00 00 7679.90 0.00 12/92 7679.90 0.00 0.00 100.0
000085 8201011090 03/01/82 SLHY 00 00 44000.00 0.00 12/92 44000.00 0.00 0.00 100.0
000086 8202011082 03/01/82 SLHY 00 00 15740.00 0.00 12/92 15740.00 0.00 0.00 100.0
000087 8203014329 03/01/82 SLHY 00 00 10400.00 0.00 12/92 10400.00 0.00 0.00 100.0
000088 8204010817 01/01/82 SLHY 00 00 35540.00 0.00 12/92 35540.00 0.00 0.00 100.0
000089 8205013906 03/01/82 SLHY 00 00 33023.44 0.00 12/92 33023.44 0.00 0.00 100.0
000090 8206011204 07/01/82 SLHY 00 00 50368.20 0.00 12/92 50368.20 0.00 0.00 100.0
000093 8209011083 01/01/82 SLHY 00 00 16469.17 0.00 12/92 16469.17 0.00 0.00 100.0
000094 8210011084 01/01/82 SLHY 00 00 16469.17 0.00 12/92 16469.17 0.00 0.00 100.0
000095 8211011085 01/01/82 SLHY 00 00 16469.18 0.00 12/92 16469.18 0.00 0.00 100.0
000096 8212011081 01/01/82 SLHY 00 00 16469.16 0.00 12/92 16469.16 0.00 0.00 100.0
000097 8213011168 04/01/82 SLHY 00 00 195600.04 0.00 12/92 195600.04 0.00 0.00 100.0
000098 8214011032 09/01/82 SLHY 00 00 700573.54 0.00 12/92 700573.54 0.00 0.00 100.0
000099 8215011050 06/01/82 SLHY 00 00 19716.00 0.00 12/92 19716.00 0.00 0.00 100.0
000100 8216013933 09/01/82 SLHY 00 00 7895.00 0.00 12/92 7895.00 0.00 0.00 100.0
000101 8217013931 09/01/82 SLHY 00 00 9783.00 0.00 12/92 9783.00 0.00 0.00 100.0
000102 821801227V 10/01/82 SLHY 00 00 22327.62 0.00 12/92 22327.62 0.00 0.00 100.0
000103 8219013930 10/01/82 SLHY 00 00 6121.00 0.00 12/92 6121.00 0.00 0.00 100.0
000104 8220013908 03/01/82 SLHY 00 00 13333.31 0.00 12/92 13333.31 0.00 0.00 100.0
000105 8301011168 03/01/83 SLHY 00 00 27472.79 0.00 12/92 27472.79 0.00 0.00 100.0
000106 8302011168 03/01/83 SLHY 00 00 27472.79 0.00 12/92 27472.79 0.00 0.00 100.0
000109 6401011091 06/01/64 SLHY 00 00 16520.80 0.00 12/91 16520.80 0.00 0.00 100.0
000110 8305011050 08/01/83 SLHY 00 00 73091.72 0.00 12/95 73091.72 0.00 0.00 100.0 d
000112 8307011214 08/01/83 SLHY 00 00 69000.00 0.00 12/92 69000.00 0.00 0.00 100.0
000113 8308011086 08/01/83 SLHY 00 00 15352.00 0.00 12/92 15352.00 0.00 0.00 100.0
000114 8309013907 01/01/83 SLHY 00 00 8324.86 0.00 12/92 8324.86 0.00 0.00 100.0
</TABLE>
<PAGE> 122
January 19, 1996 Page 5
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
000116 8311011094 10/01/83 SLHY 00 00 18500.00 0.00 12/92 18500.00 0.00 0.00 100.0
000117 6201011002 09/01/62 SLHY 00 00 7000.00 0.00 12/91 7000.00 0.00 0.00 100.0
000118 5601011044 11/01/56 SLHY 00 00 8690.00 0.00 12/91 8690.00 0.00 0.00 100.0
000119 6801011131 08/01/68 SLHY 00 00 17861.70 0.00 12/91 17861.70 0.00 0.00 100.0
000120 8608010851 09/01/86 SLHY 00 00 18741.18 0.00 12/91 18741.18 0.00 0.00 100.0
000121 8601010857 12/01/86 SLHY 00 00 24575.00 0.00 12/91 24575.00 0.00 0.00 100.0
000122 8602010858 12/01/86 SLHY 00 00 17811.00 0.00 12/91 17811.00 0.00 0.00 100.0
000123 6901011147 11/01/69 SLHY 00 00 22568.32 0.00 12/91 22568.32 0.00 0.00 100.0
000124 8501011181 04/01/85 SLHY 00 00 3780.00 0.00 12/92 3780.00 0.00 0.00 100.0
000125 8701011183 01/01/87 SLHY 00 00 23385.00 0.00 12/92 23385.00 0.00 0.00 100.0
000143 7501011017 11/01/75 SLHY 00 00 26660.00 0.00 12/91 26660.00 0100 0.00 100.0
000144 7502010840 10/01/75 SLHY 00 00 9964.00 0.00 12/91 9964.00 0.00 0.00 100.0
000145 7601011269 02/01/76 SLHY 00 00 5451.66 0.00 12/91 5451.66 0.00 0.00 100.0
000151 7703011008 01/01/77 SLHY 00 00 32615.17 0.00 12/91 32615.17 0.00 0.00 100.0
000152 8604013921 05/01/86 SLHY 00 00 20957.86 0.00 12/91 20957.86 0.00 0.00 100.0
000153 8508013919 04/01/85 SLHY 00 00 12562.01 0.00 12/92 12562.01 0.00 0.00 100.0
000154 8603013919 07/01/86 SLHY 00 00 12250.39 0.00 12/91 12250.39 0.00 0.00 100.0
000157 8702010822 08/01/87 SLHY 00 00 25929.52 0.00 12/92 25929.52 0.00 0.00 100.0
000158 8704010825 07/01/87 SLHY 00 00 22192.16 0.00 12/92 22192.16 0.00 0.00 100.0
000159 8401011242 03/01/84 SLHY 00 00 58271.36 0.00 12/92 58271.36 0.00 0.00 100.0
000160 8404014437 10/01/84 SLHY 00 00 176109.50 0.00 12/91 176109.50 0.00 0.00 100.0
000161 8503011132 01/01/85 SLHY 00 00 12099.50 0.00 12/91 12099.50 0.00 0.00 100.0
000162 8418011168 03/01/84 SLHY 00 00 179326.19 0.00 12/92 179326.19 0.00 0.00 100.0
000166 8402011107 02/01/84 SLHY 00 00 11615.00 0.00 12/92 11615.00 0.00 0.00 100.0
000170 8408011168 12/01/64 SLHY 00 00 196545.37 0.00 12/92 196545.37 0.00 0.00 100.0
000171 8410011168 08/01/84 SLHY 00 00 14757.97 0.00 12/92 14757.97 0.00 0.00 100.0
000172 8412011051 09/01/84 SLHY 00 00 6294.25 0.00 12/92 6294.25 0.00 0.00 100.0
000173 8411011180 08/01/85 SLHY 00 00 58034.31 0.00 12/92 58034.31 0.00 0.00 100.0
000174 8415010000 06/01/85 SLHY 00 00 17725.00 0.00 12/92 17725.00 0.00 0.00 100.0
000175 8416014517 01/01/85 SLHY 00 00 13299.96 0.00 12/92 13299.96 0.00 0.00 100.0
000177 8502011111 07/01/85 SLHY 00 00 12385.00 0.00 12/92 12385.00 0.00 0.00 100.0
</TABLE>
<PAGE> 123
January 19, 1996 Page 6
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
000182 8509011168 11/01/85 SLHY 00 00 22820.00 0.00 12/92 22820.00 0.00 0.00 100.0
000188 8710010859 09/01/87 SLHY 00 00 18933.72 0.00 12/92 18933.72 0.00 0.00 100.0
000193 8610011092 12/01/86 SLHY 00 00 64414.00 0.00 12/91 64414.00 0.00 0.00 100.0
000202 8805011168 03/01/89 SLHY 00 00 28103.00 0.00 12/94 28103.00 0.00 0.00 100.0
000203 8806013922 11/01/88 SLHY 00 00 18571.20 0.00 11/93 18571.20 0.00 0.00 100.0
000208 8903010818 02/01/90 SLHY 00 00 48680.50 0.00 12/95 48680.50 0.00 0.00 100.0
000209 8904011343 09/01/90 SLHY 00 00 131715.63 0.00 12/95 131715.63 0.00 0.00 100.0
000215 8906011333 09/01/90 SLHY 00 00 28648.00 0.00 12/95 28648.00 0.00 0.00 100.0
000216 8907011131 09/01/90 SLHY 00 06 10415.91 0.00 12/94 10415.91 0.00 0.00 100.0
000217 8908010000 09/01/90 SLHY 00 00 44149.90 0.00 12/95 44149.90 0.00 0.00 100.0
000218 8909010860 02/01/90 SLHY 00 00 19283.51 0.00 12/95 19283.51 0.00 0.00 100.0
000220 9002011360 11/01/90 SLHY 00 00 12604.64 0.00 12/95 12604.64 0.00 0.00 100.0
000221 9002012300 11/01/90 SLHY 00 00 10782.45 0.00 12/95 10782.45 0.00 0.00 100.0
000222 9002011343 11/01/90 SLHY 00 00 10910.81 0.00 12/95 10910.81 0.00 0.00 100.0
000225 9005010823 09/01/90 SLHY 00 00 24949.76 0.00 12/95 24949.76 0.00 0.00 100.0
000228 9009013960 11/01/90 SLHY 00 00 43354.00 0.00 12/95 43354.00 0.00 0.00 100.0
000229 9010011355 08/01/91 SLHY 00 06 22031.77 0.00 12/95 19828.59 0.00 2203.18 90.0
000230 9011011052 08/01/91 SLHY 00 06 84850.00 0.00 12/95 76365.00 0.00 8485.00 90.0
000231 9012010842 11/01/90 SLHY 00 00 36301.82 0.00 12/95 36301.82 0.00 0.00 100.0
000232 9101011224 08/01/91 SLHY 00 06 95950.00 0.00 12/95 86355.00 0.00 9595.00 90.0
000234 9103011361 08/01/91 SLHY 00 06 6490.20 0.00 12/95 5841.18 0.00 649.02 90.0
000235 9103011362 08/01/91 SLHY 00 06 6490.20 0.00 12/95 5841.18 0.00 649.02 90.0
000236 9103011363 08/01/91 SLHY 00 06 6490.20 0.00 12/95 5841.18 0.00 649.02 90.0
000237 9103011364 08/01/91 SLHY 00 06 6490.20 0.00 12/95 5841.18 0.00 649.02 90.0
000238 9103011365 08/01/91 SLHY 00 06 6490.22 0.00 12/95 5841.19 0.00 649.03 90.0
000241 9107010842 11/01/91 SLHY 00 06 21995.50 0.00 12/95 19795.95 0.00 2199.55 90.0
000243 92XX010816 01/01/76 SLHY 00 00 25000.00 0.00 12/91 25000.00 0.00 0.00 100.0
000244 92XX010819 12/31/68 SLHY 00 00 25000.00 0.00 01/92 25000.00 0.00 0.00 100.0
000245 92XX010820 01/01/86 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000246 92XX010821 01/01/86 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000247 92XX010825 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
</TABLE>
<PAGE> 124
January 19, 1996 Page 7
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
000248 92XX010845 10/15/91 SLHY 00 06 10000.00 0.00 12/95 10000.00 0.00 0.00 100.0
000249 92XX011004 04/30/90 SLHY 00 06 30000.00 0.00 12/94 30000.00 0.00 0.00 100.0
000250 92XX011008 01/01/72 SLHY 00 00 30000.00 0.00 01/92 30000.00 0.00 0.00 100.0
000251 92XX011019 01/01/72 SLHY 00 00 20000.00 0.00 01/92 20000.00 0.00 0.00 100.0
000252 92XX011039 01/01/72 SLHY 00 00 20000.00 0.00 01/92 20000.00 0.00 0.00 100.0
000253 92XX011045 01/01/72 SLHY 00 00 20000.00 0.00 01/92 20000.00 0.00 0.00 100.0
000254 92XX011046 01/01/72 SLHY 00 00 20000.00 0.00 01/92 20000.00 0.00 0.00 100.0
000255 92XX011051 01/01/72 SLHY 00 00 20000.00 0.00 01/92 20000.00 0.00 0.00 100.0
000256 92XX011087 01/01/72 SLHY 00 00 30000.00 0.00 01/92 30000.00 0.00 0.00 100.0
000257 92XX011088 01/01/72 SLHY 00 00 30000.00 0.00 01/92 30000.00 0.00 0.00 100.0
000258 92XX011089 01/01/72 SLHY 00 00 20000.00 0.00 01/92 20000.00 0.00 0.00 100.0
000259 92XX011095 01/01/72 SLHY 00 00 30000.00 0.00 01/92 30000.00 0.00 0.00 100.0
000260 92XX011168 01/01/72 SLHY 00 00 200000.00 0.00 01/92 200000.00 0.00 0.00 100.0
000263 92XX011190 01/01/72 SLRY 00 00 50000.00 0.00 01/92 50000.00 0.00 0.00 100.0
000264 92XX011265 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000265 92XX011266 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000266 92XX011270 09/25/90 SLHY 00 06 10000.00 0.00 12/94 10000.00 0.00 0.00 100.0
000267 92XX011279 01/01/72 SLHY 00 00 30000.00 0.00 01/92 30000.00 0.00 0.00 100.0
000268 92XX011314 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
000269 92XX011334 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000270 92XX011336 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000271 92XX011337 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000272 92XX011401 01/01/72 SLHY 00 00 50000.00 0.00 01/92 50000.00 0.00 0.00 100.0
000273 92XX013924 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000274 92XX013957 10/01/91 SLHY 00 06 10000.00 0.00 12/95 10000.00 0.00 0.00 100.0
000275 92XX013959 10/01/91 SLHY 00 06 15000.00 0.00 12/95 15000.00 0.00 0.00 100.0
000276 92XX013966 02/15/91 SLHY 00 06 10000.00 0.00 12/95 10000.00 0.00 0.00 100.0
000277 92XX010826 06/01/91 SLHY 00 06 10000.00 0.00 12/95 10000.00 0.00 0.00 100.0
000278 92XX014011 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
000279 92XX014055 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
000280 92XX014133 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
</TABLE>
<PAGE> 125
January 19, 1996 Page 8
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
000281 92XX014138 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000282 92XX014139 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000283 92XX014142 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
000284 92XX014143 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
000285 92XX014148 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000286 92XX014158 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000287 92XX014159 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000288 92XX014162 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000289 92XX014169 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000290 92XX014171 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000291 92XX014174 10/01/88 SLHY 00 00 15000.00 0.00 06/93 15000.00 0.00 0.00 100.0
000292 92XX014175 10/01/88 SLHY 00 00 15000.00 0.00 06/93 15000.00 0.00 0.00 100.0
000293 92XX014176 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
000294 92XX014180 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
000295 92XX014181 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000296 92XX014182 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000297 92XX014184 01/01/72 SLHY 00 00 12000.00 0.00 01/92 12000.00 0.00 0.00 100.0
000298 92XX014437 01/01/72 SLHY 00 00 50000.00 0.00 01/92 50000.00 0.00 0.00 100.0
000299 92XX014438 01/01/72 SLHY 00 00 50000.00 0.00 01/92 50000.00 0.00 0.00 100.0
000300 92XX014441 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
000301 92XX014442 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000302 92XX014449 01/01/72 SLHY 00 00 15000.00 0.00 01/92 15000.00 0.00 0.00 100.0
000307 9104010000 03/01/92 SLHY 01 06 32000.00 0.00 12/95 22400.00 0.00 9600.00 70.0
000309 9112011191 06/01/92 SLHY 01 06 37300.00 0.00 12/95 26110.00 0.00 11190.00 70.0
000311 9401011168 06/01/95 SLHY 09 06 941000.00 0.00 12/95 47050.00 0.00 893950.00 5.0
000312 9402011244 08/15/95 SLHY 04 06 96900.00 0.00 12/95 9690.00 0.00 87210.00 10.0
000316 9504011055 12/01/95 SLHY 06 06 118000.00 0.00 12/95 8428.57 0.00 109571.43 7.1
000317 9505011053 07/01/95 SLHY 04 06 43300.00 0.00 12/95 4330.00 0.00 38970.00 10.0
000318 9506010000 12/01/95 SLHY 04 06 58248.89 0.00 12/95 5824.89 0.00 52424.00 10.0
000320 9510011020 12/15/95 SLHY 06 06 157500.00 0.00 12/95 11250.00 0.00 146250.00 7.1
---------- ---- ---------- ---- ----------
</TABLE>
<PAGE> 126
January 19, 1996 Page 9
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Department 01 Count= 178 6741696.70 0.00 5366803.43 0.00 1374893.27
Less disposals and transfers 73091.72 0.00 73091.72 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net MACH & EQUIP - LANCASTER 6668604.98 0.00 5293711.71 0.00 1374893.27
- -----------------------------------------------------------------------------------------------------------------------------------
000036 7907025035 05/01/79 SLHY 00 00 6483.00 0.00 12/91 6483.00 0.00 0.00 100.0
000129 7203025049 01/01/72 SLHY 00 00 1560.00 0.00 12/91 1560.00 0.00 0.00 100.0
000134 7204025007 01/01/72 SLHY 00 00 1322.00 0.00 12/91 1322.00 0.00 0.00 100.0
000135 7205025001 01/01/72 SLHY 00 00 1058.00 0.00 12/91 1058.00 0.00 0.00 100.0
000136 7206025004 01/01/72 SLHY 00 00 1058.00 0.00 12/91 1058.00 0.00 0.00 100.0
000187 8516020000 12/01/85 SLHY 00 00 20669.00 0.00 12/91 20669.00 0.00 0.00 100.0
000205 8808025052 09/01/88 SLHY 00 00 21000.00 0.00 11/93 21000.00 0.00 0.00 100.0
000210 8904022300 11/01/90 SLHY 00 00 13083.52 0.00 12/95 13083.52 0.00 0.00 100.0
---------- ---- ---------- ---- ----------
Department 02 Count= 8 66233.52 0.00 66233.52 0.00 0.00
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net MACH & EQUIP - ATLANTA 66233.52 0.00 66233.52 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
000018 8716038044 11/01/87 SLHY 00 00 24247.65 0.00 12/92 24247.65 0.00 0.00 100.0
000019 7704038005 12/01/77 SLHY 00 00 33933.70 0.00 12/91 33933.70 0.00 0.00 100.0
000048 8002038019 01/01/80 SLHY 00 00 27723.93 0.00 12/92 27723.93 0.00 0.00 100.0
000051 8016038001 01/01/80 SLHY 00 00 8500.00 0.00 12/91 8500.00 0.00 0.00 100.0
000128 6501038014 06/01/65 SLHY 00 00 3561.84 0.00 12/91 3561.84 0.00 0.00 100.0
000130 7207038004 01/01/72 SLHY 00 00 952.00 0.00 12/91 952.00 0.00 0.00 100.0
000142 7302038024 11/01/73 SLHY 00 00 8275.00 0.00 12/91 8275.00 0.00 0.00 100.0
000146 7602038019 06/01/76 SLHY 00 00 18942.45 0.00 12/91 18942.45 0.00 0.00 100.0
000150 7705030000 01/01/77 SLHY 00 00 20079.00 0.00 12/91 20079.00 0.00 0.00 100.0
000167 8403030000 06/01/84 SLHY 00 00 18026.00 0.00 12/92 18026.00 0.00 0.00 100.0
000168 8419038042 06/01/84 SLHY 00 00 12522.34 0.00 12/92 12522.34 0.00 0.00 100.0
000180 8506038043 04/01/85 SLHY 00 00 11569.50 0.00 12/92 11569.50 0.00 0.00 100.0
</TABLE>
<PAGE> 127
January 19, 1996 Page 10
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N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
000196 8714030000 12/01/87 SLHY 00 00 26113.50 0.00 12/92 26113.50 0.00 0.00 100.0
000198 8801030000 02/01/88 SLHY 00 00 15156.75 0.00 11/93 15156.75 0.00 0.00 100.0
000199 8802030000 03/01/88 SLHY 00 00 20869.38 0.00 11/93 20869.38 0.00 0.00 100.0
000207 8902030000 07/01/89 SLHY 00 00 14375.00 0.00 12/94 14375.00 0.00 0.00 100.0
000305 9108038045 03/01/92 SLHY 01 06 48632.80 0.00 12/95 34042.96 0.00 14589.84 70.0
000315 950303829 06/01/95 SIHY 04 06 26260.00 0.00 12/95 2626.00 0.00 23634.00 10.0
---------- ---- ---------- ---- ----------
Department 03 Count= 18 339740.84 0.00 301517.00 0.00 38223.84
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net MACHINERY & EQUIP - CHICAGO 339740.84 0.00 301517.00 0.00 38223.84
- -----------------------------------------------------------------------------------------------------------------------------------
000025 7001046002 01/01/70 SLHY 00 00 20500.00 0.00 12/91 20500.00 0.00 0.00 100.0
000026 6902040000 11/01/69 SLHY 00 00 24100.00 0.00 12/91 24100.00 0.00 0.00 100.0
000033 7908046013 04/01/79 SLHY 00 00 21663.61 0.00 12/91 21663.61 0.00 0.00 100.0
000035 7909046024 04/01/79 SLHY 00 00 6540.00 0.00 12/91 6540.00 0.00 0.00 100.0
000037 7911040000 05/01/79 SLHY 00 00 6974.19 0.00 12/91 6974.19 0.00 0.00 100.0
000038 7912040000 06/01/79 SLHY 00 00 26740.00 0.00 12/91 26740.00 0.00 0.00 100.0
000053 8017040000 05/01/80 SLHY 00 00 5203.04 0.00 04/95 5203.04 0.00 0.00 100.0 d
000068 8116046015 01/01/81 SLHY 00 00 6214.35 0.00 12/92 6214.35 0.00 0.00 100.0
000074 8117046008 07/01/81 SLHY 00 00 22886.80 0.00 12/92 22886.80 0.00 0.00 100.0
000212 8904042300 11/01/90 SLHY 00 00 13363.88 0.00 12/95 13363.88 0.00 0.00 100.0
---------- ---- ---------- ---- ----------
Department 04 Count= 10 154185.87 0.00 154185.87 0.00 0.00
Less disposals and transfers 5203.04 0.00 5203.04 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net MACH & EQUIP - GRAND PRAIRIE 148982.83 0.00 148982.83 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
000040 7913057008 04/01/79 SLHY 00 00 6540.00 0.00 12/91 6540.00 0.00 0.00 100.0
000041 7914057007 05/01/79 SLHY 00 00 20327.00 0.00 12/91 20327.00 0.00 0.00 100.0
000042 7915057016 06/01/79 SLHY 00 00 26740.00 0.00 12/91 26740.00 0.00 0.00 100.0
</TABLE>
<PAGE> 128
January 19, 1996 Page 11
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
000043 7916057004 07/01/79 SLHY 00 00 6530.00 0.00 12/91 6530.00 0.00 0.00 100.0
000044 7917057017 07/01/79 SLHY 00 00 6483.00 0.00 12/91 6483.00 0.00 0.00 100.0
000054 8018050000 05/01/80 SLHY 00 00 6293.11 0.00 12/92 6293.11 0.00 0.00 100.0
000127 8512057001 06/01/85 SLHY 00 00 13000.00 0.00 12/92 13000.00 0.00 0.00 100.0
000147 7603057001 05/01/76 SLHY 00 00 14567.83 0.00 12/91 14567.93 0.00 0.00 100.0
000148 7604057002 06/01/76 SLHY 00 00 7623.06 0.00 12/91 7623.06 0.00 0.00 100.0
000149 7605057003 07/01/76 SLHY 00 00 17690.01 0.00 12/91 17690.01 0.00 0.00 100.0
000197 8715050000 11/01/87 SLHY 00 00 19700.10 0.00 12/92 19700.10 0.00 0.00 100.0
000206 8901057050 07/01/89 SLHY 00 00 15900.00 0.00 12/94 15900.00 0.00 0.00 100.0
000211 8904052300 11/01/90 SLHY 00 00 13239.28 0.00 12/95 13239.28 0.00 0.00 100.0
000213 8904052300 11/01/90 SLHY 00 00 13301.58 0.00 12/95 13301.58 0.00 0.00 100.0
000240 9106050000 11/01/91 SLHY 00 06 21456.80 0.00 12/95 19311.12 0.00 2145.68 90.0
---------- ---- ---------- ---- ----------
Department 05 Count= 15 209391.77 0.00 207246.09 0.00 2145.68
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net MACH & EQUIP - SACRAMENTO 209391.77 0.00 207246.09 0.00 2145.68
- -----------------------------------------------------------------------------------------------------------------------------------
000001 V77340 01/01/77 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
000003 V78340 01/01/78 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
000004 V7901U 02/01/79 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
000007 V79340 07/01/79 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
000008 V8001U 01/01/80 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
000010 V80340 05/01/80 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
---------- ---- ---------- ---- ----------
Department VINTAG Count= 6 0.00 0.00 0.00 0.00 0.00
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net VINTAGE ASSETS 0.00 0.00 0.00 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
---------- ---- ---------- ---- ----------
</TABLE>
<PAGE> 129
January 19, 1996 Page 12
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Class MF Count= 235 7511248.70 0.00 6095985.91 0.00 1415262.79
Less disposals and transfers 78294.76 0.00 78294.76 0.00 0.00
---------- ---- ---------- ---- ----------
Net 7432953.94 0.00 6017691.15 0.00 1415262.79
000031 7919010000 07/01/79 SLHY 00 00 7500.00 0.00 12/91 7500.00 0.00 0.00 100.0
000049 8019010000 01/01/80 SLHY 00 00 31385.00 0.00 12/91 31385.00 0.00 0.00 100.0
000055 8020010000 02/01/80 SLHY 00 00 8250.00 0.00 12/91 8250.00 0.00 0.00 100.0
000077 8108014518 09/01/81 SLHY 00 00 8800.00 0.00 12/91 8800.00 0.00 0.00 100.0
000080 8111014106 12/01/81 SLHY 00 00 12100.00 0.00 12/91 12100.00 0.00 0.00 100.0
000083 8114014145 12/01/81 SLHY 00 00 15056.00 0.00 12/91 15056.00 0.00 0.00 100.0
000092 8208014182 01/01/82 SLHY 00 00 16950.00 0.00 12/91 16950.00 0.00 0.00 100.0
000155 8712014449 11/01/87 SLHY 00 00 19967.58 0.00 12/92 19967.58 0.00 0.00 100.0
000156 8709014519 12/01/87 SLHY 00 00 21800.00 0.00 12/92 21800.00 0.00 0.00 100.0
000194 8611010000 12/01/86 SLHY 00 00 12640.00 0.00 12/91 12640.00 0.00 0.00 100.0
000200 8803014503 12/01/88 SLHY 00 00 14500.00 0.00 12/92 14500.00 0.00 0.00 100.0
000201 8804014174 12/01/88 SLHY 00 00 33991.00 0.00 12/92 33991.00 0.00 0.00 100.0
000204 8807014132 05/01/90 SLHY 00 00 24600.00 0.00 11/93 24600.00 0.00 0.00 100.0
000214 8905014157 09/01/90 SLHY 00 00 29500.00 0.00 11/93 29500.00 0.00 0.00 100.0
000223 9003014507 11/01/90 SLHY 00 00 23500.00 0.00 11/93 23500.00 0.00 0.00 100.0
000224 9004014183 08/01/91 SLHY 00 00 25510.08 0.00 12/94 25510.08 0.00 0.00 100.0
000227 9008014160 08/01/91 SLHY 00 00 24800.00 0.00 12/94 24800.00 0.00 0.00 100.0
000242 9110010000 11/01/91 SLHY 00 00 16300.00 0.00 12/94 16300.00 0.00 0.00 100.0
000303 92XX014056 01/01/72 SLHY 00 00 10000.00 0.00 01/92 10000.00 0.00 0.00 100.0
000306 9109014500 03/01/92 SLHY 00 00 23400.00 0.00 12/95 23400.00 0.00 0.00 100.0
000308 9111014016 06/01/92 SLHY 00 00 24500.00 0.00 12/95 24500.00 0.00 0.00 100.0
000313 9501014017 12/01/95 SLHY 06 06 27000.00 0.00 12/95 1928.57 0.00 25071.43 7.1
000314 9502014131 12/01/95 SLHY 04 06 24500.00 0.00 12/95 2450.00 0.00 22050.00 10.0
000319 950801RA062 10/01/95 SLHY 04 06 14200.00 0.00 12/95 1420.00 0.00 12780.00 10.0
---------- ---- ---------- ---- ----------
Department 01 Count= 24 470749.66 0.00 410848.23 0.00 59901.43
</TABLE>
<PAGE> 130
January 19, 1996 Page 13
11:24 am AAC - HOME PRODUCTS
N E T B O O K V A L U E R E P O R T
for Int bk Books FY = 12
<TABLE>
<CAPTION>
===================================================================================================================================
Co asset In-Svc Dep Rem Adjusted Salvage Thru Current Accum Pct
SYS no no: Date Meth Life Basis + S179 Value Date Depreciation Sec 179 Net Bk Value Dep Key
- ------ ---------- -------- ---- ----- ------------ ------- ----- -------------- ------- ------------ ----- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net TOOLS - LANCASTER 470749.66 0.00 410848.23 0.00 59901.43
- -----------------------------------------------------------------------------------------------------------------------------------
000002 V78010 01/01/78 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
000005 V79010 03/01/79 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
000009 V80010 05/01/80 00 00 0.00 0.00 12/93 0.00 0.00 0.00 0.0
---------- ---- ---------- ---- ----------
Department VINTAG Count= 3 0.00 0.00 0.00 0.00 0.00
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
---------- ---- ---------- ---- ----------
Net 0.00 0.00 0.00 0.00 0.00
---------- ---- ---------- ---- ----------
Class TF Count= 27 470749.66 0.00 410848.23 0.00 59901.43
Less disposals and transfers 0.00 0.00 0.00 0.00 0.00
---------- ---- ---------- ---- ----------
Net 470749.66 0.00 410848.23 0.00 59901.43
---------- ---- ---------- ---- ----------
Grand Total Count= 277 11191147.84 0.00 8342064.48 0.00 2849083.36
Less disposals and transfers 176330.80 0.00 176330.80 0.00 0.00
- -----------------------------------------------------------------------------------------------------------------------------------
Net TOTAL HOME PRODUCTS 11014817.04 0.00 8165733.68 0.00 2849083.36
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 131
December 28. 1995 Page 1
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY-12
as of 12/95
<TABLE>
<CAPTION>
=========================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ---------- ---- ------------
<S> <C> <C> <C> <C> <C>
000138 06/01/72 992793.62 SLHY R 25 00 0.00 992793.62 12/94 893514.27
BUILDING-LANCASTER PLANT
000139 12/01/80 780892.31 SLHY R 25 00 0.00 780892.31 12/94 452917.54
BUILDING EXPANSION-LANCASTER PLANT
000140 04/01/81 11679.37 SLHY R 25 00 0.00 11679.37 12/94 6306.87
BUILDING EXPANSION-LANC PLANT-FINAL
000178 09/01/85 48900.00 SLHY R 25 00 0.00 48900.00 12/94 18582.00
EXPANSION ADMIN AREA
000192 12/01/86 94500.00 SLHY R 25 00 0.00 94500.00 12/94 32130.00
LANC OFFICE EXPANSION 1986-87
000310 06/01/93 763689.75 SLMM R 25 00 0.00 763689.75 12/94 48367.02
EXPANSION - LANCASTER PLANT
Count= 6 ---------- ---- ---------- ----------
Department 01
2692455.05 0.00 2692455.05 1451817.70
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
---------- ---- ---------- ----------
Net 2692455.05 0.00 2692455.05 1451817.70
Count= 6 ---------- ---- ---------- ----------
Class BL
2692455.05 0.00 2692455.05 1451817.70
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
==========================================================================================
Buildings - Lancaster
Net 2692455.05 0.00 2692455.05 1451817.70
==========================================================================================
000126 07/01/87 50848.20 SLHY P 05 00 0.00 50848.20 22/92 50848.20
PLANT HEATING SYSTEM 87-07
000183 10/01/85 14008.00 SLHY P 06 00 0.00 14008.00 12/91 14008.00
<CAPTION>
==================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
------------ ------------ ------------- --- ----------
<C> <C> <C> <C>
39711.75 39711.75 933226.02 59,567.60
31235.69 31235.69 484153.23 296,739.08
467.18 467.18 6774.05 4,905.32
1956.00 1956.00 20538.00 28,362.00
3780.00 3780.00 35910.00 58,590.00
30547.59 30547.59 78914.61 684,775.14
--------- --------- ----------
107698.21 107698.21 1559515.91
0.00
--------- --------- ----------
107698.21 107698.21 1559515.91
--------- --------- ----------
107698.21 107698.21 1559515.91
0.00
==================================================================
107698.21 107698.21 1559515.91 1,132,939.14
==================================================================
0.00 0.00 50848.20 0
0.00 0.00 14008.00 0
</TABLE>
<PAGE> 132
Page 2
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY-12
as of 12/95
<TABLE>
<CAPTION>
==========================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ----- ------ -------- ---- - ---- --------- ----------- ---- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
COMPUTER ROOM CUSTOMIZATION
000190 12/01/86 19735.11 SLHY P 05 00 0.00 19735.11 12/92 19735.11
WAREHOUSE LIGHTING
Count= 3 -------- ------ -------- ---------
Department 01
84591.31 0.00 84591.31 84591.31
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
-------- ------ -------- ---------
Net 84591.31 0.00 84591.31 84591.31
000006 02/01/79 0.00 P 0 0.00 0.00 12/93 0.00
OFFSET PRESS AB DICK S/N012197
Count= 1 -------- ------ -------- ---------
Department VINTAGE
0.00 0.00 0.00 0.00
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
-------- ------ -------- ---------
Net 0.00 0.00 0.00 0.00
Count= 4 -------- ------ -------- ---------
Class FF
84591.31 0.00 84591.31 84591.31
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
=========================================================================================
FURN & FIX - LANCASTER
Net 84591.31 0.00 84591.31 84591.31
=========================================================================================
000239 11/01/91 93087.08 SLHY P 03 00 0.00 93087.08 12/94 93087.08
IBM/CHESS COMPUTER SYSTEM
<CAPTION>
======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ---------------- ------------ -------------- --- -----
<C> <C> <C> <C>
0.00 0.00 19735.11 0
- ---------------- ------------ --------------
0.00 0.00 84591.31
0.00
- ---------------- ------------ --------------
0.00 0.00 84591.31
0.00 0.00 0.00
- ---------------- ------------ --------------
0.00 0.00 0.00
0.00
- ---------------- ------------ --------------
0.00 0.00 0.00
- ---------------- ------------ --------------
0.00 0.00 84591.31
0.00
======================================================================
0.00 0.00 84591.31 0
======================================================================
0.00 0.00 93087.08 0
</TABLE>
<PAGE> 133
Page 3
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
==========================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Count= 1 -------- --------- ----------- ------------
Department 01
93087.08 0.00 93087.08 93087.08
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
-------- --------- ----------- ------------
Net 93087.08 0.00 93087.08 93087.08
Count= 1 -------- --------- ----------- ------------
Class IS
93087.08 0.00 93087.08 93087.08
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
============================================================================================
DP EQUIP - LANCASTER
Net 93087.08 0.00 93087.08 93087.08
============================================================================================
000137 06/01/72 115980.00 NoDep R 00 00 0.00 115980.00 12/94 0.00
LAND-LANCASTER PLANT
000304 06/01/92 125000.00 NoDep R 00 00 0.00 125000.00 12/94 0.00
LANCASTER LAND PURCHASE
Count= 2 -------- --------- ----------- ------------
Department 01
240980.00 0.00 240980.00 0.00
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
-------- --------- ----------- ------------
Net 240980.00 0.00 240980.00 0.00
Count= 2 -------- --------- ----------- ------------
Class L
240980.00 0.00 240980.00 0.00
<CAPTION>
=================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- --------------- ------------ ------------- --- -----
<C> <C> <C> <C>
0.00 0.00 93087.08
0.00
- --------------- ------------ -------------
0.00 0.00 93087.08
- --------------- ------------ -------------
0.00 0.00 93087.08
0.00
===================================================================
0.00 0.00 93097.08 0
===================================================================
0.00 0.00 0.00 115,980.00
0.00 0.00 0.00 125,000.00
0.00 0.00 0.00
0.00
0.00 0.00 0.00
0.00 0.00 0.00
</TABLE>
<PAGE> 134
Page 4
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
===========================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
- -------------------------------------------------------------------------------------------
LAND-LANCASTER
- -------------------------------------------------------------------------------------------
Net 240980.00 0.00 240980.00 0.00
- -------------------------------------------------------------------------------------------
000015 12/01/87 17015.00 SLHY P 05 00 0.00 17015.00 12/92 17015.00
VALLEY PAYOFF 87-06
000016 12/01/87 17015.00 SLHY P 05 00 0.00 17015.00 12/92 17015.00
POWER PAYOFF 87-08
000017 12/01/87 16755.00 SLHY P 05 00 0.00 16755.00 12/92 16755.00
COIL TILTER 87-05
000020 12/01/77 9632.50 SLHY P 05 00 0.00 9632.50 12/91 9632.50
DRIP EDGE TOOLING-MICH ROLL FORM
000022 04/01/78 35000.00 SLHY P 05 00 0.00 35000.00 12/91 35000.00
EXPANDED METAL MACH WALLNER
000023 07/01/78 15154.00 SLHY P 05 00 0.00 15154.00 12/91 15154.00
FORK-LIFT DATSUN 6000LB S/NCPF02A30
000024 08/01/78 5885.00 SLHY P 05 00 0.00 5885.00 12/91 5885.00
COIL STREIGHTNER-LITTELL 312-7PDL
000028 03/01/79 9594.99 SLHY P 05 00 0.00 9594.99 12/91 9594.99
VERTICAL MILLING MACH WELLS 847
000029 02/01/79 4000.00 SLHY P 05 00 0.00 4000.00 12/91 4000.00
MICHIGAN CUTOFF PRESS 8 TON
000034 07/01/79 11685.00 SLHY P 05 00 0.00 11685.00 12/91 11685.00
COIL TILTER-BUSHMAN M-9604 15MLBCAP
000039 09/01/79 120927.60 SLHY P 05 00 0.00 120927.60 12/91 120927.60
ROLLFORMER 20STA S/N82217 W/PRESS
000045 07/01/79 40000.00 SLHY P 05 00 0.00 40000.00 12/91 40000.00
ROLLFORMER S/N91037 MPFMODEL RM1512
000046 09/01/79 25751.00 SLHY P 05 00 0.00 25751.00 12/91 25751.00
YALE FORKLIFT S/N 353649 PROPANE
<CAPTION>
===================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- --------------- ------------ ------------- ---- ----------
<C> <C> <C> <C>
0.00
- -------------------------------------------------------------------
0.00 0.00 0.00 240,980.00
- -------------------------------------------------------------------
0.00 0.00 17015.00 0
0.00 0.00 17015.00 0
0.00 0.00 16755.00 0
0.00 0.00 9632.50 0
0.00 0.00 35000.00 0
0.00 0.00 15154.00 0
0.00 0.00 5885.00 0
0.00 0.00 9594.99 0
0.00 0.00 4000.00 0
0.00 0.00 11685.00 0
0.00 0.00 120927.60 0
0.00 0.00 40000.00 0
0.00 0.00 25751.00 0
</TABLE>
<PAGE> 135
Page 5
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
=============================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
000047 02/01/80 42397.84 SLHY P 05 00 0.00 42397.84 12/92 42397.84
RECOILING MCH MRF MOD 36CLRL025
000050 02/01/80 25450.71 SLHY P 05 00 0.00 25450.71 12/92 25450.71
OKAMOTO 124N SURF GRINDER S/N 2216
000056 04/01/80 27537.45 SLHY P 05 00 0.00 27537.45 12/92 27537.45
YALE 10000 LB FK LIFT S/NP361614
000057 05/01/80 8585.00 SLHY P 05 00 0.00 8585.00 12/92 8585.00
LITTELL STK STRAIGHT MACH NO3187PDL
000061 08/01/80 10255.00 SLHY P 05 00 0.00 10255.00 12/92 10255.00
SAMCO ROTARY PIERCING UNIT W/K-ROLS
000065 09/01/80 17608.00 SLHY P 05 00 0.00 17608.00 12/91 17608.00
ARTOS 2X3 PIPE RP MACH W/COIL-UNWIN
000066 11/01/80 32196.48 SLHY P 05 00 0.00 32196.48 12/92 32196.48
GUTTER GUARD MACHINE-COMPLETE
000067 11/01/80 16354.97 SLHY P 05 00 0.00 16354.97 12/92 16354.97
REVOLVATOR GO-GETTER MDL55-22 W/BAT
000071 09/01/81 20180.06 SLHY P 05 00 0.00 20180.06 12/92 20180.06
RADIAL DRILL W/TBLE VISE CUCK CLMP
000072 03/01/81 18763.49 SLHY P 05 00 0.00 18763.49 12/92 18763.49
LATHE W/TAPER & (1/2 HP MOTOR & ATT
000075 07/01/81 20700.00 SLHY P 05 00 0.00 20700.00 22/91 20700.00
LPG STOR TANK-30000GAL-W/80GPH VAPR
000076 07/01/81 9221.63 SLHY P 05 00 0.00 9221.63 12/91 9221.63
FOUNDATION-PIERS-PIPE FOR LPG TANK
000078 08/01/81 34606.47 SLHY P 05 00 0.00 34606.47 12/92 34606.47
AIR COMPRESSOR-150HP-KRS-150-20LAA
000079 08/01/81 6100.00 SLHY P 05 00 0.00 6100.00 22/92 6100.00
DRYER F/AIR COMPRESSOR-MODEL D15A
000081 12/01/81 8505.82 SLHY P 05 00 0.00 8505.82 12/92 8505.82
SCALE-HOWE RICHARDSON LO-PRO MDLP20
000082 10/01/81 28481.59 SLHY P 05 00 0.00 28481.59 12/92 28481.59
<CAPTION>
=======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- --------------- ------------ ------------- ----- -------
<C> <C> <C> <C>
0.00 0.00 42397.84 0
0.00 0.00 25450.71 0
0.00 0.00 27537.45 0
0.00 0.00 8585.00 0
0.00 0.00 10255.00 0
0.00 0.00 17608.00 0
0.00 0.00 32196.48 0
0.00 0.00 16354.97 0
0.00 0.00 20180.06 0
0.00 0.00 18763.49 0
0.00 0.00 20700.00 0
0.00 0.00 9221.63 0
0.00 0.00 34606.47 0
0.00 0.00 6100.00 0
0.00 0.00 8505.82 0
0.00 0.00 28481.59 0
</TABLE>
<PAGE> 136
Page 6
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
============================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
YALE FORKLIFT M-L83F100SBT083 PROPA
000084 12/01/81 7679.90 SLHY P 05 00 0.00 7679.90 12/92 7679.90
AERIAL WORK PLATFORM-PAC CRAFT
000085 03/01/82 44000.00 SLHY P 05 00 0.00 44000.00 12/92 44000.00
ROLL FORMER 12 STATION
000086 03/01/82 15740.00 SLHY P 05 00 0.00 15740.00 12/92 15740.00
PRESS WITH ACCELERATOR
000087 03/01/82 10400.00 SLHY P 05 00 0.00 10400.00 12/92 10400.00
CORNERBEAD ROTARY PIERCING UNIT
000088 01/01/82 35540.00 SLHY P 05 00 0.00 35540.00 12/92 35540.00
LIFT TRUCK RAYMOND 4-D SN 041814238
000089 03/01/82 33023.44 SLHY P 05 00 0.00 33023.44 12/92 33023.44
LATHE WEBB SN 8108-6302 24 BY 100
000090 07/01/82 50368.20 SLHY P 05 00 0.00 50368.20 12/92 50368.20
ELBOW MACHINE WELTY EMM-1 2IN X 3IN
000093 01/01/82 16469.17 SLHY P 05 00 0.00 16469.17 12/92 16469.17
CUT OFF PRESS CO-150-2P MRF
000094 01/01/82 16469.17 SLHY P 05 00 0.00 16469.17 12/92 16469.17
CUT OFF PRESS CO-150-2P MRF
000095 01/01/82 16469.18 SLHY P 05 00 0.00 16469.18 12/92 16469.18
CUT OFF PRESS CO-150-2P MRF
000096 01/01/82 16469.16 SLHY P 05 00 0.00 16469.16 12/92 16469.16
CUT OFF PRESS CO-151-2P MRF
000097 04/01/82 195600.04 SLHY P 05 00 0.00 195600.04 12/92 195600.04
NO RINSE CONVERSION COATING SYSTEM
000098 09/01/82 700573.54 SLHY P 05 00 0.00 700573.54 12/92 700573.54
48 INCH SLITTING SYSTEM
000099 06/01/82 19716.00 SLHY P 05 00 0.00 19716.00 12/92 19716.00
24 INCH STRAIGHTENER ROWE A-24
000100 09/01/82 7895.00 SLHY P 05 00 0.00 7895.00 12/92 7895.00
TOOL ROOM GRINDER HARIG MODEL 618W
<CAPTION>
=======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- --------------- ----------- ------------- ----- ------
<C> <C> <C> <C>
0.00 0.00 7679.90 0
0.00 0.00 44000.00 0
0.00 0.00 15740.00 0
0.00 0.00 10400.00 0
0.00 0.00 35540.00 0
0.00 0.00 33023.44 0
0.00 0.00 50368.20 0
0.00 0.00 16469.17 0
0.00 0.00 16469.17 0
0.00 0.00 16469.18 0
0.00 0.00 16469.16 0
0.00 0.00 195600.04 0
0.00 0.00 700573.54 0
0.00 0.00 19716.00 0
0.00 0.00 7895.00 0
</TABLE>
<PAGE> 137
Page 7
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
=============================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
000101 09/01/82 9783.00 SLHY P 05 00 0.00 9783.00 12/92 9783.00
TOOL ROOM DRILL RADIAL MODEL DRT-28
000102 10/01/82 22327.62 SLHY P 05 00 0.00 22327.62 12/92 22327.62
SODIUM LIGHTING HIGH PRESSURE
000103 10/01/82 6121.00 SLHY P 05 00 0.00 6121.00 12/92 6121.00
MILLING MACHINE SN 12-BR-228524
000104 03/01/82 13333.31 SLHY P 05 00 0.00 13333.31 12/92 13333.31
IRON WORKER GEKA UNIVERSAL
000105 03/01/83 27472.79 SLHY P 05 00 0.00 27472.79 12/92 27472.79
HYDRAULIC REWIND
000106 03/01/83 27472.79 SLHY P 05 00 0.00 27472.79 12/92 27472.79
HYDRAULIC REWIND
000109 06/01/64 16520.80 SLHY P 05 00 0.00 16520.80 12/91 16520.80
MAPLEWOOD ROLL FORMER S/N721 MOD NR
000110 08/01/83 73091.72 SLHY P 05 00 0.00 73091.72 12/92 73091.72
CINCINNATI 1/0 HYDRAULIC PRESS
000112 08/01/83 69000.00 SLHY P 05 00 0.00 69000.00 12/92 69000.00
EMM-2 ELBOW PRODUCTION LINE
000113 08/01/83 15352.00 SLHY P 05 00 0.00 15352.00 12/92 15352.00
CO-151-2P PRESS
000114 01/01/83 8324.86 SLHY P 05 00 0.00 8324.86 12/92 8324.86
STARTRITE VERTICAL SAW SN84049
000116 10/01/83 18500.00 SLHY P 05 00 0.00 18500.00 12/92 18500.00
EMBOSSING MACHINE-USED
000117 09/01/62 7000.00 SLHY P 05 00 0.00 7000.00 12/91 7000.00
ARTOS 5IN K GUTTER MA
000118 11/01/56 8690.00 SLHY P 05 00 0.00 8690.00 12/91 8690.00
34OHNSON NO5 FLYWHL P
000119 08/01/68 17861.70 SLHY P 05 00 0.00 17861.70 12/91 17861.70
100 TON PUNCH PRESS
000120 09/01/86 18741.18 SLHY P 05 00 0.00 18741.16 12/91 18741.18
<CAPTION>
========================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
------------------- ------------ -------------- ----- ---------
<C> <C> <C> <C> <C>
0.00 0.00 9783.00 0
0.00 0.00 22327.62 0
0.00 0.00 6121.00 0
0.00 0.00 13333.31 0
0.00 0.00 27472.79 0
0.00 0.00 27472.79 0
0.00 0.00 16520.80 0
15227.43 0.00 73091.72 ad 0
0.00 0.00 69000.00 0
0.00 0.00 15352.00 0
0.00 0.00 8324.86 0
0.00 0.00 18500.00 0
0.00 0.00 7000.00 0
0.00 0.00 8690.00 0
0.00 0.00 17861.70 0
0.00 0.00 18741.18 0
</TABLE>
<PAGE> 138
Page 8
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
FORKLIFT 6000 86-08 S/NY430600
000121 12/01/86 24575.00 SLHY P 05 00 0.00 24575.00 12/91 24575.00
FORKLIFT 10000 YALE CCC100LCJ5BE85
000122 12/01/86 17811.00 SLHY P 05 00 0.00 17811.00 12/91 17811.00
FORKLIFT NO 6000 A/N 858
000123 11/01/69 22568.32 SLHY P 05 00 0.00 22568.32 12/91 22568.32
5IN OG GUTTER MACHINE
000124 04/01/85 3780.00 SLHY P 05 00 0.00 3780.00 12/92 3780.00
REPLACEMENT FEEDER SERIAL 2839 8418
000125 01/01/87 23385.00 SLHY P 05 00 0.00 23385.00 12/92 23385.00
AIR COMPRESSOR-QUINCY QSI
000143 11/01/75 26660.00 SLHY P 05 0.00 26660.00 12/91 26660.00
ARTOS 3IN SQ CONDUCTOR PIPE MCH S/N
000144 10/01/75 9964.00 SLHY P 05 00 0.00 9964.00 12/91 9964.00
YALE FORK LIFT TRK USED S/N200674
000145 02/01/76 5451.66 SLHY P 05 00 0.00 5451.66 12/91 5451.66
TRASH COMPACTOR -TRSF FR AIR MASTER
000151 01/01/77 32615.17 SLHY P 05 00 0.00 32615.17 12/91 32615.17
ARTOS 5IN K20FT GUTTER MCH S/N24896
000152 05/01/86 20957.86 SLHY P 05 00 0.00 20957.86 12/91 20957.86
SURFACE GRINDER S/N 242402
000153 04/01/85 12562.01 SLHY P 05 00 0.00 12562.01 12/92 12562.01
TOOL ROOM MILLING MACHINE 85-08
000154 07/01/86 12250.39 SLHY P 05 00 0.00 12250.39 12/91 12250.39
BRIDGPORT MILLING MACHINE S/N242402
000157 08/01/87 25929.52 SLHY P 05 00 0.00 25929.52 12/92 25929.52
DEEP REACH LIFT TRUCK - CROWN 87-02
000158 07/01/87 22192.16 SLHY P 05 00 0.00 22192.16 12/92 22192.16
FLOOR SCRUBBER 87-04
000159 03/01/84 58271.36 SLHY P 05 00 0.00 58271.36 12/92 58271.36
VALLEY MARM REPLACEMENT LANC
<CAPTION>
==========================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------- ------------ ------------- ------ -----------
<C> <C> <C> <C> <C>
0.00 0.00 24575.00 0
0.00 0.00 17811.00 0
0.00 0.00 22568.32 0
0.00 0.00 3780.00 0
0.00 0.00 23385.00 0
26660.00 0.00 26660.00 0
0.00 0.00 9964.00 0
0.00 0.00 5451.66 0
0.00 0.00 32615.17 0
0.00 0.00 20957.86 0
0.00 0.00 12562.01 0
0.00 0.00 12250.39 0
0.00 0.00 25929.52 0
0.00 0.00 22192.16 0
0.00 0.00 58271.36 0
</TABLE>
<PAGE> 139
Page 9
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
000160 10/01/84 176109.50 SLHY P 05 00 0.00 176109.50 12/91 176109.50
REPLACEMENT MITRE DIES
000161 01/01/85 12099.50 SLHY P 05 00 0.00 12099.50 12/91 12099.50
REPLACEMENT MITRE DIE-FINAL
000162 03/01/84 179326.19 SLHY P 05 00 0.00 179326.19 12/92 179326.19
PAINT COATER-DRIVE TENSION-TENSION
000166 02/01/84 11615.00 SLHY P 05 00 0.00 11615.00 12/92 11615.00
REPLACE STRIP FEEDERS
000170 12/01/84 196545.37 SLHY P 05 00 0.00 196545.37 12/92 196545.37
PAINT LINE ENTRY EQUIPMENT
000171 08/01/84 14757.97 SLHY P 05 00 0.00 14757.97 12/92 14757.97
MOTOR CONTROL CENTER-PAINT LINE
000172 09/01/84 6294.25 SLHY P 05 00 0.00 6294.25 12/92 6294.25
ELECTRICAL AND SAFETY PACKAGE
000173 08/01/85 58034.31 SLHY P 05 00 0.00 58034.31 12/92 58034.31
END WIDTH DROP SYSTEM 1180
000174 06/01/85 17725.00 SLHY P 05 00 0.00 17725.00 12/92 17725.00
F-SHAPE TOOLING
000175 01/01/85 13299.96 SLHY P 05 00 0.00 13299.96 12/92 13299.96
EXPANSION OF MAIN POWER DIST CTR
000177 07/01/85 12385.00 SLHY P 05 00 0.00 12385.00 12/92 12385.00
STRETCH WRAP MACHINE
000182 11/01/85 22820.00 SLHY P 05 00 0.00 22820.00 12/92 22820.00
18" FLYING SHEAR-PNT LINE
000188 09/01/87 18933.72 SLHY P 05 00 0.00 18933.72 12/92 18933.72
6000 LB FORKLIFT 87-10
000193 12/01/86 64414.00 SLHY P 05 00 0.00 64414.00 12/91 64414.00
16 STAT ROLL FORMER A/N 1092
000202 03/01/89 28103.00 SLHY P 05 00 0.00 28103.00 12/94 28103.00
PAINT LINE DRYING TOWER
000203 11/01/88 18571.20 SLHY P 05 00 0.00 18571.20 11/93 18571.20
<CAPTION>
=======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------ ------------ ------------- ----- ---------
<C> <C> <C> <C>
0.00 0.00 176109.50 0
0.00 0.00 12099.50 0
0.00 0.00 179326.19 0
0.00 0.00 11615.00 0
0.00 0.00 196545.37 0
0.00 0.00 14757.97 0
0.00 0.00 6294.25 0
0.00 0.00 58034.31 0
0.00 0.00 17725.00 0
0.00 0.00 13299.96 0
0.00 0.00 12385.00 0
0.00 0.00 22820.00 0
0.00 0.00 18933.72 0
0.00 0.00 64414.00 0
0.00 0.00 28103.00 0
0.00 0.00 18571.20 0
</TABLE>
<PAGE> 140
Page 10
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CLAUSING #8033 15X50 LATHE S/N37111
000208 02/01/90 48680.50 SLHY P 05 00 0.00 48680.50 12/94 43812.45
RAYMOND 4-D LIFT TRUCK
000209 09/01/90 131715.63 SLHY P 05 00 0.00 131715.63 12/94 118544.07
UPC LABELING
000215 09/01/90 28648.00 SLHY P 05 00 0.00 28648.00 12/94 25783.20
PAINT LINE HEAT RECOVERY UNIT
000216 09/01/90 10415.91 SLHY P 05 00 0.00 10415.91 12/94 10415.91
PC PACKAGE FOR MITRES
000217 09/01/90 44149.90 SLHY P 05 00 0.00 44149.90 12/94 39734.91
PAINT LINE COATER UPGRADE
000218 02/01/90 19283.51 SLHY P 05 00 0.00 19283.51 12/94 17355.16
YALE 6000 LB. FORKLIFT GLC060
000220 11/01/90 12604.64 SLHY P 05 00 0.00 12604.64 12/94 11344.17
LABEL APPLICATORS
000221 11/01/90 10782.45 SLHY P 05 00 0.00 10782.45 12/94 9704.21
UPC LABELER
000222 11/01/90 10910.81 SLHY P 05 00 0.00 10910.81 12/94 9819.73
UPC LABELER
000225 09/01/90 24949.76 SLHY P 05 00 0.00 24949.76 12/94 22454.79
CROWN DOUBLE REACH TRUCK
000228 11/01/90 43354.00 SLHY P 05 00 0.00 43354.00 12/94 39018.60
YARD TRACTOR
000229 08/01/91 22031.77 SLHY P 05 00 0.00 22031.77 12/94 15422.24
WILLETT LABEL APPLICATOR CORNERBEAD
000230 08/01/91 84850.00 SLHY P 05 00 0.00 84850.00 12/94 59395.00
80-TON PRESS
000231 11/01/90 36301.82 SLHY P 05 00 0.00 36301.82 12/94 32671.63
10,000-LB FORKLIFT
000232 08/01/91 95950.00 SLHY P 05 00 0.00 95950.00 12/94 67165.00
SHEET METAL ELBOW MACHINE
<CAPTION>
======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------ ------------ -------------- ------ -------
<C> <C> <C> <C>
4868.05 4868.05 48680.50 0
13171.56 13171.56 131715.63 0
2864.80 2864.60 28648.00 0
0.00 0.00 10415.91 0
4414.99 4414.99 44149.90 0
1928.35 1928.35 19283.51 0
1260.47 1260.47 12604.64 0
1078.24 1078.24 10782.45 0
1091.08 1091.08 10910.81 0
2494.97 2494.97 24949.76 0
4335.40 4335.40 43354.00 0
4406.35 4406.35 19828.59 2,203.18
16970.00 16970.00 76365.00 8,485.00
3630.19 3630.19 36301.82 0
19190.00 19190.00 86355.00 9,595.00
</TABLE>
<PAGE> 141
Page 11
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
000234 08/01/91 6490.20 SLHY P 05 00 0.00 6490.20 12/94 4543.14
QUADREL MODII LABEL APPLICATOR
000235 08/01/91 6490.20 SLHY P 05 00 0.00 6490.20 12/94 4543.14
QUADREL MODII LABEL APPLICATOR
000236 08/01/91 6490.20 SLHY P 05 00 0.00 6490.20 12/94 4543.14
QUADREL MODII LABEL APPLICATOR
000237 08/01/91 6490.20 SLHY P 05 00 0.00 6490.20 12/94 4543.14
QUADREL MODII LABEL APPLICATOR
000238 08/01/91 6490.22 SLHY P 05 00 0.00 6490.22 12/94 4543.15
QUADREL MODII LABEL APPLICATOR
000241 11/01/91 21995.50 SLHY P 05 00 0.00 21995.50 12/94 15396.85
PAINT LINE FORKLIFT-6000 LB YALE
000243 01/01/76 25000.00 SLHY P 05 00 0.00 25000.00 12/91 25000.00
RAYMOND ELECTRIC TRUCK
000244 12/31/68 25000.00 SLHY P 05 00 0.00 25000.00 01/92 25000.00
RAYMOND ELECTRIC TRUCK
000245 01/01/86 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
CROWN DOUBLE REACH FORK LIFT
000246 01/01/86 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
CROWN DOUBLE REACH FORK LIFT
000247 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
FLOOR SCRUBBER
000248 10/15/91 10000.00 SLHY P 05 00 0.00 10000.00 12/94 10000.00
LIQ PROPANE IND FORK LIFT
000249 04/30/90 30000.00 SLHY P 05 00 0.00 30000.00 12/94 30000.00
5" GUTTER ROLL FORM
000250 01/01/72 30000.00 SLHY P 05 00 0.00 30000.00 01/92 30000.00
5" GUTTER ROLL FORM
000251 01/01/72 20000.00 SLHY P 05 00 0.00 20000.00 01/92 20000.00
PRESS
000252 01/01/72 20000.00 SLHY P 05 00 0.00 20000.00 01/92 20000.00
<CAPTION>
====================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------ ------------ ------------- ------ ---------
<C> <C> <C> <C>
1298.04 1298.04 5841.18 649.02
1298.04 1298.04 5841.18 649.02
1298.04 1298.04 5841.18 649.02
1298.04 1298.04 5841.18 649.02
1298.04 1298.04 5841.19 649.03
4399.10 4399.10 19795.95 2,199.55
0.00 0.00 25000.00 0
0.00 0.00 25000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 30000.00 0
0.00 0.00 30000.00 0
0.00 0.00 20000.00 0
0.00 0.00 20000.00 0
</TABLE>
<PAGE> 142
Page 12
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PRESS
000253 01/01/72 20000.00 SLHY P 05 00 0.00 20000.00 01/92 20000.00
PRESS
000254 01/01/72 20000.00 SLHY P 05 00 0.00 20000.00 01/92 20000.00
PRESS
000255 01/01/72 20000.00 SLHY P 05 00 0.00 20000.00 01/92 20000.00
PRESS
000256 01/01/72 30000.00 SLHY P 05 00 0.00 30000.00 01/92 30000.00
ROLL FORM
000257 01/01/72 30000.00 SLHY P 05 00 0.00 30000.00 01/92 30000.00
ROLL FORM
000258 01/01/72 20000.00 SLHY P 05 00 0.00 20000.00 01/92 20000.00
ROLL FORM
000259 01/01/72 30000.00 SLHY P 05 00 0.00 30000.00 01/92 30000.00
ROLL FORM
000260 01/01/72 200000.00 SLHY P 05 00 0.00 200000.00 01/92 200000.00
CONTINUOUS STRIP PAINT LINE
000263 01/01/72 50000.00 SLHY P 05 00 0.00 50000.00 01/92 50000.00
PRESS
000264 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
PAYOFF REEL
000265 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
PAYOFF REEL
000266 09/25/90 10000.00 SLHY P 05 00 0.00 10000.00 12/94 10000.00
VERTICAL BALER
000267 01/01/72 30000.00 SLHY P 05 00 0.00 30000.00 01/92 30000.00
ALUMINUM GUTTER GUARD
000268 01/01/72 15000.00 SLHY P 05 00 0.00 15000.00 01/92 15000.00
CUT OFF PRESS
000269 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
PROPANE FIRED MAKE UP HEATER
<CAPTION>
=======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------- ------------ ------------- ----- ---------
<C> <C> <C> <C>
0.00 0.00 20000.00 0
0.00 0.00 20000.00 0
0.00 0.00 20000.00 0
0.00 0.00 30000.00 0
0.00 0.00 30000.00 0
0.00 0.00 20000.00 0
0.00 0.00 30000.00 0
0.00 0.00 200000.00 0
0.00 0.00 50000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 30000.00 0
0.00 0.00 15000.00 0
0.00 0.00 10000.00 0
</TABLE>
<PAGE> 143
Page 13
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
000270 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
PROPANE FIRED MAKE UP HEATER
000271 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
PROPANE FIRED MAKE UP HEATER
000272 01/01/72 50000.00 SLHY P 05 00 0.00 50000.00 01/92 50000.00
DOCK PLATES AND BUMPERS
000273 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
LATHE
000274 10/01/91 10000.00 SLHY P 05 00 0.00 10000.00 12/94 10000.00
MILLING MACHINE
000275 10/01/91 15000.00 SLHY P 05 00 0.00 15000.00 12/94 15000.00
SURFACE GRINDER
000276 02/15/91 10000.00 SLHY P 05 00 0.00 10000.00 12/94 10000.00
SQUARING SHEAR
000277 06/01/91 10000.00 SLHY P 05 00 0.00 10000.00 12/94 10000.00
FLOOR SWEEPER
000278 01/01/72 15000.00 SLHY P 05 00 0.00 15000.00 01/92 15000.00
FASCIA BRACKET
000279 01/01/72 15000.00 SLHY P 05 00 0.00 15000.00 01/92 15000.00
10" W/A HANGER STRAP
000280 01/01/72 15000.00 SLHY P 05 00 0.00 15000.00 01/92 15000.00
SNAP LOCK TOP BAR
000281 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
FASCIA BRACKET
000282 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
FASCIA BRACKET
000283 01/01/72 15000.00 SLHY P 05 00 0.00 15000.00 01/92 15000.00
5" W/A HANGER
000284 01/01/72 15000.00 SLHY P 05 00 0.00 15000.00 01/92 15000.00
5" W/A HANGER
000285 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
<CAPTION>
======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------- ------------ -------------- ----- --------
<C> <C> <C> <C>
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 50000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 15000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 15000.00 0
0.00 0.00 15000.00 0
0.00 0.00 15000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 15000.00 0
0.00 0.00 15000.00 0
0.00 0.00 10000.00 0
</TABLE>
<PAGE> 144
Page 14
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PERFORATED STRAINER
000286 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
5" SNAP LOCK BRACKET
000287 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
SNAP LOCK BRKT TOP BAR
000288 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
2 X 3 PIPE BAND
000289 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
AIR FORM STEEL B-DROP
000290 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
C FLANGE BLANK
000291 10/01/88 15000.00 SLHY P 05 00 0.00 15000.00 06/93 15000.00
4" INSIDE MITRE FORM
000292 10/01/88 15000.00 SLHY P 05 00 0.00 15000.00 06/93 15000.00
4" INSIDE MITRE FORM
000293 01/01/72 15000.00 SLHY P 05 00 0.00 15000.00 01/92 15000.00
4" FASCIA BRACKET
000294 02/01/72 15000.00 SLHY P 05 00 0.00 15000.00 01/92 15000.00
5" TOP BAR/10" STRAP HANGER
000295 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
2 X 3 PIPE BAND
000296 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
SNAP LOCK FASCIA BRACKET
000297 01/01/72 12000.00 SLHY P 05 00 0.00 12000.00 01/92 12000.00
12" SIDING CORNER
000298 01/01/72 50000.00 SLHY P 05 00 0.00 50000.00 01/92 50000.00
BIG OUTSIDE MITRE FORMING
000299 01/01/72 50000.00 SLHY P 05 00 0.00 50000.00 01/92 50000.00
BIG INSIDE MITRE FORMING
000300 01/01/72 15000.00 SLHY P 05 0 0.00 15000.00 01/92 15000.00
4" RH/LH END CAP 1988
<CAPTION>
========================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------ ------------ ------------- ------- ---------
<C> <C> <C> <C>
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 15000.00 0
0.00 0.00 15000.00 0
0.00 0.00 15000.00 0
0.00 0.00 15000.00 0
0.00 0.00 10000.00 0
0.00 0.00 10000.00 0
0.00 0.00 12000.00 0
0.00 0.00 50000.00 0
0.00 0.00 50000.00 0
0.00 0.00 15000.00 0
</TABLE>
<PAGE> 145
Page 15
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
000301 01/01/72 10000.00 SLHY P 05 00 0.00 10000.00 01/92 10000.00
END W/DROP FORMING
000302 01/01/72 15000.00 SLHY P 05 00 0.00 15000.00 01/92 15000.00
4" COMBO END CAP
000307 03/01/92 32000.00 SLHY P 05 00 0.00 32000.00 12/94 16000.00
VINYL ELBOWS
000309 06/01/92 37300.00 SLHY P 05 00 0.00 37300.00 12/94 18650.00
60 TON PRESS
000311 06/01/95 941000.00 SLHY P 10 00 0.00 941000.00 00/00 0.00
COIL COATING LINE
000312 08/15/95 96900.00 SLHY P 05 00 0.00 96900.00 00/00 0.00
ROLL VALLEY MACHINE
000316 12/01/95 118000.00 SLHY P 07 00 0.00 118000.00 00/00 0.00
125 TON OBS FLYWHEEL PRESS
000317 07/01/95 43300.00 SLHY P 05 00 0.00 43300.00 00/00 0.00
COIL STRIP STRAIGHTENER FEEDER
000318 12/01/95 58248.89 SLHY P 05 00 0.00 58248.89 00/00 0.00
SLITTER KNIFE REPLACEMENT
000320 12/15/95 157500.00 SLHY P 07 00 0.00 157500.00 00/00 0.00
PALLET DECOILERS (7)
Count= 178 ---------- ------- ---------- ----------
Department 01
6741696.70 0.00 6741696.70 5173776.22
Less disposals and intercompany transfers
73091.72 0.00 73091.72 73091.72
============================================================================================
MACH & EQUIP-LANCASTER
Net 6668604.98 0.00 6668604.98 5100684.50
============================================================================================
000036 05/01/79 6483.00 SLHY P 05 00 0.00 6483.00 12/91 6483.00
YALE PLATFORM TRK S/NML060C2M27-120
000129 01/01/72 1560.00 SLHY P 05 00 0.00 1560.00 12/91 1560.00
<CAPTION>
=====================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ---------------- ------------ ------------- ------ ------------
<C> <C> <C> <C>
0.00 0.00 10000.00 0
0.00 0.00 15000.00 0
6400.00 6400.00 22400.00 9,600.00
7460.00 7460.00 26110.00 11,190.00
47050.00 47050.00 47050.00 893,950.00
9690.00 9690.00 9690.00 87,210.00
8428.57 8428.57 8428.57 109,571.43
4330.00 4330.00 4330.00 38,970.00
5824.89 5824.89 5824.89 52,424.00
11250.00 11250.00 11250.00 146,250.00
--------- --------- ----------
208254.64 193027.21 5366803.43
73091.72
=====================================================================
208254.64 193027.21 5293711.71 1,374,893.27
=====================================================================
0.00 0.00 6483.00 0
0.00 0.00 1560.00 0
</TABLE>
<PAGE> 146
Page 16
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
3IN X 4IN PIPE MACHINE
000134 01/01/72 1322.00 SLHY P 05 00 0.00 1322.00 12/91 1322.00
6IN K GUTTER MACHINE
000135 01/01/72 1058.00 SLHY P 05 00 0.00 1058.00 12/91 1058.00
2IN X 3IN SQ PIPE MACHINE
000136 01/01/72 1058.00 SLHY P 05 00 0.00 1058.00 12/91 1058.00
3IN X 4IN SQ PIPE MACHINE
000187 12/01/85 20669.00 SLHY P 05 00 0.00 20669.00 12/91 20669.00
YALE 8000 LB FORKLIFT
000205 09/01/88 21000.00 SLHY P 05 00 0.00 21000.00 11/93 21000.00
ARTOS 5 IN. K GUTTER MACH S/N 15449
000210 11/01/90 13083.52 SLHY P 05 00 0.00 13083.52 12/94 11775.16
UPC LABELER-MODEL 2300T
Count= 8 -------- ------ -------- --------
Department 02
66233.52 0.00 66233.52 64925.16
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
- ---------------------------------------------------------------------------------------------
MACH & EQUIP
Net 66233.52 ATLANTA 0.00 66233.52 64925.16
- ---------------------------------------------------------------------------------------------
000018 11/01/87 24247.65 SLHY P 05 00 0.00 24247.65 12/92 24247.65
REACH TRUCK 87-16
000019 12/01/77 33933.70 SLHY P 05 00 0.00 33933.70 12/91 33933.70
GUTTER MCH ARTOS 5IN K20 S/N 25957
000048 01/01/80 27723.93 SLHY P 05 00 0.00 27723.93 12/92 27723.93
RAYD ELEC 4D LIFT TRK S/N 041793907
000051 01/01/80 8500.00 SLHY P 05 00 0.00 8500.00 12/91 8500.00
4 IN K-GUTTER ROLLFORMER S/N10660
000128 06/01/65 3561.84 SLHY P 05 00 0.00 3561.84 12/91 3561.84
LA DEAU TURNOVER CRAD
<CAPTION>
=========================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------- ------------ -------------- ------ -----------
<C> <C> <C> <C>
0.00 0.00 1322.00 0
0.00 0.00 1058.00 0
0.00 0.00 1058.00 0
0.00 0.00 20669.00 0
0.00 0.00 21000.00 0
1308.36 1308.36 13083.52 0
-------- -------- ---------
1308.36 1308.36 66233.52
0.00
- -------------------------------------------------------------------------
1308.36 1308.36 66233.52 0
- -------------------------------------------------------------------------
0.00 0.00 24247.65 0
0.00 0.00 33933.70 0
0.00 0.00 27723.93 0
0.00 0.00 8500.00 0
0.00 0.00 3561.84 0
</TABLE>
<PAGE> 147
Page 17
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
000130 01/01/72 952.00 SLHY P 05 00 0.00 952.00 12/91 952.00
31N ROUND PIPE MACHINE
000142 11/01/73 8275.00 SLHY P 05 00 0.00 8275.00 12/91 8275.00
YALE LIFT TRUCK S/N 235996
000146 06/01/76 18942.45 SLHY P 05 00 0.00 18942.45 12/91 18942.45
RAYMOND 4D ELEC TRK S/N 414 DR40 TN
000150 01/01/77 20079.00 SLHY P 05 00 0.00 20079.00 12/91 20079.00
RAYMOND 4-D ELEC TRUCK S/N0414DR40T
000167 06/01/84 18026.00 SLHY P 05 00 0.00 18026.00 12/92 18026.00
WAREHOUSE RACKING
000168 06/01/84 12522.34 SLHY P 05 00 0.00 12522.34 12/92 12522.34
STRETCHWRAP MACHINE
000180 04/01/85 11569.50 SLHY P 05 00 0.00 11569.50 12/92 11569.50
TENNANT SWEEPER SERIAL NO 2952
000196 12/01/87 26113.50 SLHY P 05 00 0.00 26113.50 12/92 26113.50
STACKABLE RACKS 87-14
000198 02/01/88 15156.75 SLHY P 05 00 0.00 15156.75 11/93 15156.75
STACKABLE STORAGE RACKS-VINYL 88-01
000199 03/01/88 20869.38 SLHY P 05 00 0.00 20869.38 11/93 20869.38
WAREHOUSE PALLET RACKS 88-02
000207 07/01/89 14375.00 SLHY P 05 00 0.00 14375.00 12/94 14375.00
STACKABLE RACKS
000305 03/01/92 48632.80 SLHY P 05 00 0.00 48632.00 12/94 24316.40
RAYMOND 4-D LIFT TRUCK
000315 06/01/95 26260.00 SLHY P 05 00 0.00 26260.00 00/00 0.00
CROW DOUBLE REACH LIFT
Count= 18 --------- ------- --------- ---------
Department 03
339740.84 0.00 339740.84 289164.44
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
<CAPTION>
=====================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------- ------------ ------------- ------- ---------
<C> <C> <C> <C>
0.00 0.00 952.00 0
0.00 0.00 8275.00 0
0.00 0.00 18942.45 0
0.00 0.00 20079.00 0
0.00 0.00 18026.00 0
0.00 0.00 12522.34 0
0.00 0.00 11569.50 0
0.00 0.00 26113.50 0
0.00 0.00 15156.75 0
0.00 0.00 2O869.38 0
0.00 0.00 14375.00 0
9726.56 9726.56 34042.96 14,589.84
2626.00 2626.00 2626.00 23,6343.00
-------- --------- ---------
12352.56 12352.56 301517.00
0.00
</TABLE>
<PAGE> 148
Page 18
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------
MACH & EQUIP CHICAGO
Net 339740.84 0.00 339740.84 289164.44
- -----------------------------------------------------------------------------------------------
000025 01/01/70 20500.00 SLHY P 05 00 0.00 20500.00 12/91 20500.00
ARTOS PIPE MACHINE
000026 11/01/69 24100.00 SLHY P 05 00 0.00 24100.00 12/91 24100.00
OG CUTTER MACHINE
000033 04/01/79 21663.61 SLHY P 05 00 0.00 21663.61 12/91 21663.61
YALE FORK-LIFT TRK S/N P339826
000035 04/01/79 6540.00 SLHY P 05 00 0.00 6540.00 12/91 6540.00
COIL UPENDER-BUSHMAN M9604 10MLBCAP
000037 05/01/79 6974.19 SLHY P 05 00 0.00 6974.19 12/91 6974.19
RACKS-ARMS-BRACES-UPRIGHTS-BASES
000038 06/01/79 26740.00 SLHY P 05 00 0.00 26740.00 12/91 26740.00
RAYMOND 4D TRUCK S/N041793722 ELECT
000053 05/01/80 5203.04 SLHY P 05 00 0.00 5203.04 04/95 5203.04
PALLET & CANTILEVER RACKS
000068 01/01/8l 6214.35 SLHY P 05 00 0.00 6214.35 12/92 6214.35
MOTORIZED HAND TRUCK W/BATTERY
000074 07/01/81 22886.80 SLHY P 05 00 0.00 22886.80 12/92 22886.80
FORKLIFT-YALE 6000LB HD PROPANE POW
000212 11/01/90 13363.88 SLHY P 05 00 0.00 13363.88 12/94 12027.50
UPC LABELER-MODEL 230045T
Count= 10 --------- ------- --------- ---------
Department 04
154185.87 0.00 154185.87 152849.49
Less disposals and intercompany transfers
5203.04 0.00 5203.04 5203.04
<CAPTION>
=======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------ ------------ ------------- ------ -------
<C> <C> <C> <C> <C>
- -----------------------------------------------------------------------
12352.56 12352.56 301517.00 38,223.84
- -----------------------------------------------------------------------
0.00 0.00 20500.00 0
0.00 0.00 24100.00 0
0.00 0.00 21663.61 0
0.00 0.00 6540.00 0
0.00 0.00 6974.19 0
0.00 0.00 26740.00 0
0.00 0.00 5203.04 d 0
0.00 0.00 6214.35 0
0.00 0.00 22886.80 0
1336.38 1336.38 13363.88 0
------- ------- ---------
1336.38 1336.38 154185.87
5203.04
- -----------------------------------------------------------------------
1336.38 1336.38 148982.83 0
- -----------------------------------------------------------------------
</TABLE>
<PAGE> 149
Page 19
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------
MACH & EQUIP
GRAND PRAIRIE
Net 148982.83 0.00 148982.83 147646.45
- --------------------------------------------------------------------------------------------
000040 04/01/79 6540.00 SLHY P 05 00 0.00 6540.00 12/91 6540.00
COIL UPENDER BUSHMAN M9604 10M CAP
000041 05/01/79 20327.00 SLHY P 05 00 0.00 20327.00 12/91 20327.00
YALE FORKLIFT S/N P339825 48IN FORK
000042 06/01/79 26740.00 SLHY P 05 00 0.00 26740.00 12/91 26740.00
RAYMOND 4D TRK S/N041793723 4000CAP
000043 07/01/79 6530.00 SLHY P 05 00 0.00 6530.00 12/91 6530.00
ARTOS 16.5 PORT FLYING SHEAR 28339
000044 07/01/79 6483.00 SLHY P 05 00 0.00 6483.00 12/91 6483.00
YALE PLATFORM TRK S/N347869
000054 05/01/80 6293.11 SLHY P 05 00 0.00 6293.11 12/92 6293.11
PALLET & CANTILEVER RACKS
000127 06/01/85 13000.00 SLHY P 05 00 0.00 13000.00 12/92 13000.00
2X3 PIPE MACHINE 85-12
000147 05/01/76 14567.83 SLHY P 05 00 0.00 14567.83 12/91 14567.83
ARTOS 3IN SQ 16FT COND PIPE MCH SN
000148 06/01/76 7623.06 SLHY P 05 00 0.00 7623.06 12/91 7623.06
ARTOS 4IN K 20FT GUTTER MCH S/N 926
000149 07/01/76 17690.01 SLHY P 05 00 0.00 17690.01 12/91 17690.01
ARTOS 5IN K 20 GUTTER MCH S/N 8369
000197 11/01/87 19700.10 SLHY P 05 00 0.00 19700.10 12/92 19700.10
WAREHOUSE RACKS 87-15
000206 07/01/89 15900.00 SLHY P 05 00 0.00 15900.00 12/94 15900.00
4 INCH ARTOS GUTTER MACHINE
000211 11/01/90 13239.28 SLHY P 05 00 0.00 13239.28 12/94 11915.36
UPC LABELER-MODEL 2300T
000213 11/01/90 13301.58 SLHY P 05 00 0.00 13301.58 12/94 11971.43
UPC LABELER-MODEL 2300T
000240 11/01/91 21456.80 SLHY P 05 00 0.00 21456.80 12/94 15019.76
6000 LB FORKLIFT
Count= 15 ------ -------- --------
<CAPTION>
======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------ ------------ ------------- ------ -------
<C> <C> <C> <C>
0.00 0.00 6540.00 0
0.00 0.00 20327.00 0
0.00 0.00 26740.00 0
0.00 0.00 6530.00 0
0.00 0.00 6483.00 0
0.00 0.00 6293.11 0
0.00 0.00 13000.00 0
0.00 0.00 14567.83 0
0.00 0.00 7623.06 0
0.00 0.00 17690.01 0
0.00 0.00 19700.10 0
0.00 0.00 15900.00 0
1323.92 1323.92 13239.28 0
1330.15 1330.15 13301.58 0
4291.36 4291.36 19311.12 2,145.68
</TABLE>
<PAGE> 150
Page 20
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Department 05
209391.77 0.00 209391.77 200300.66
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
- ------------------------------------------------------------------------------------------------
MACH & EQUIP
SACRAMENTO
Net 209391.77 0.00 209391.77 200300.66
- ------------------------------------------------------------------------------------------------
000001 01/01/77 0.00 P 0 0.00 0.00 12/93 0.00
MACHINERY & EQUIP
000003 01/01/78 0.00 P 0 0.00 0.00 12/93 0.00
MACHINERY & EQUIP
000004 02/01/79 0.00 P 0 0.00 0.00 12/93 0.00
MICHIGAN CUTOFF PRESS 18 TON
000007 07/01/79 0.00 P 0 0.00 0.00 12/93 0.00
INFRARED SAFETY CURTAINS 24IN EXRGE
000008 01/01/80 0.00 P 0 0.00 0.00 12/93 0.00
4 IN K-GUTTER ROLLFORMER S/N10660
000010 05/01/80 0.00 P 0 0.00 0.00 12/93 0.00
PALLET & CANTILEVER RACKS
Count= 6 --------- --------- --------- ---------
Department VINTAGE
0.00 0.00 0.00 0.00
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
--------- --------- --------- ---------
Net 0.00 0.00 0.00 0.00
Count= 235 --------- --------- --------- ---------
Class MF
7511248.70 0.00 7511248.70 5881015.97
Less disposals and intercompany transfers
<CAPTION>
===================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ------------------- ------------ -------------- ------ -------
<C> <C> <C> <C>
6945.43 6945.43 207246.09
0.00
- -------------------------------------------------------------------
6945.43 6945.43 207246.09 2,145.68
- -------------------------------------------------------------------
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
0.00 0.00 0.00
- -------------- ----------- -----------
0.00 0.00 0.00
0.00
- -------------- ----------- -----------
0.00 0.00 0.00
- -------------- ----------- -----------
230197.37 214969.94 6095985.91
</TABLE>
<PAGE> 151
Page 21
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
78294.76 0.00 78294.76 78294.76
---------- ------ ---------- ----------
Net 7432953.94 0.00 7432953.94 5802721.21
000031 07/01/79 7500.00 SLHY P 03 00 0.00 7500.00 12/91 7500.00
F ROLLS-4.5 IN STD ROOF EDGING
000049 01/01/80 31385.00 SLHY P 03 00 0.00 31385.00 12/91 31385.00
SET OF COMB ROLLS 10IN/12IN SOFFIT
000055 02/01/80 8250.00 SLHY P 03 00 0.00 8250.00 12/91 8250.00
SET OF COMB ROLLS C-BLDG SHAPE
000077 09/01/81 8800.00 SLHY P 03 00 0.00 8800.00 12/91 8800.00
ROLLER DIE SET FOR F SHAPE
000080 12/01/81 12100.00 SLHY P 03 00 0.00 12100.00 12/91 12100.00
DIE-PIPE BAND NO 4106
000083 12/01/81 15056.00 SLHY P 03 00 0.00 15056.00 12/91 15056.00
DIE-TOP BAR FASCIA BRKT NO 4145
000092 01/01/82 16950.00 SLHY P 03 00 0.00 16950.00 12/91 16950.00
DIE SNAP LOCK BRACKET
000155 11/01/87 19967.58 SLHY P 03 00 0.00 19967.58 12/92 19967.58
4" END CAP DIE 87-12
000156 12/01/87 21800.00 SLHY P 03 00 0.00 21800.00 12/92 21800.00
F SHAPE TOOLING 87-09
000194 12/01/86 12640.00 SLNY P 03 00 0.00 12640.00 12/91 12640.00
F SHAPE TOOLING
000200 12/01/88 14500.00 SLHY P 03 00 0.00 14500.00 12/92 14500.00
F 5 1/2 S SHAPE ROLLS
000201 12/01/88 33991.00 SLHY P 03 00 0.00 33991.00 12/92 33991.00
PROGRESSIVE 4 IN MITRE DIES
000204 05/01/90 24600.00 SLHY P 03 00 0.00 24600.00 11/93 24600.00
ONE-PIECE SLIP CONNECTORDIE
000214 09/01/90 29500.00 SLHY P 03 00 0.00 29500.00 11/93 29500.00
<CAPTION>
=======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
----------------- ------------ ------------- ----- --------
<C> <C> <C> <C>
78294.76
--------- --------- ----------
230197.37 214969.94 6017691.15
0.00 0.00 7500.00 0
0.00 0.00 31385.00 0
0.00 0.00 8250.00 0
0.00 0.00 8800.00 0
0.00 0.00 12100.00 0
0.00 0.00 15056.00 0
0.00 0.00 16950.00 0
0.00 0.00 19967.58 0
0.00 0.00 21800.00 0
0.00 0.00 12640.00 0
0.00 0.00 14500.00 0
0.00 0.00 33991.00 0
0.00 0.00 24600.00 0
0.00 0.00 29500.00 0
</TABLE>
<PAGE> 152
Page 22
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
REPLACEMENT END CAP DIE
000223 11/01/90 23500.00 SLHY P 03 00 0.00 23500.00 11/93 23500.00
REPLACEMENT FASCIA CAP TOOLING
000224 08/01/91 25510.08 SLHY P 03 00 0.00 25510.08 12/94 25510.08
ONE PC 4" SLIP CONNECTOR DIE
000227 08/01/91 24800.00 SLHY P 03 00 0.00 24800.00 12/94 24800.00
PROGRESSIVE END CAP DIE
000242 11/01/91 16300.00 SLHY P 03 00 0.00 16300.00 12/94 16300.00
TOOLING ROLLS CROWN FRIEZE MOLDING
000303 01/01/72 10000.00 SLHY P 03 00 0.00 10000.00 01/92 10000.00
HANGER STRAP DIE
000306 03/01/92 23400.00 SLHY P 03 00 0.00 23400.00 12/94 19500.00
TOOLING ROLLS-SHAPES
000308 06/01/92 24500.00 SLHY P 03 00 0.00 24500.00 12/94 20416.67
SNAP-LOK FASCIA BRACKET DIE
000313 12/01/95 27000.00 SLHY P 07 00 0.00 27000.00 00/00 0.00
HIDDEN HANGER DIE
000314 12/01/95 24500.00 SLHY P 05 00 0.00 24500.00 00/00 0.00
ONE PIECE GUTTER CONNECTOR
000319 10/01/95 14200.00 SLHY P 05 00 0.00 14200.00 00/00 0.00
F SHAPE TOOLONG REPLACEMENT
Count= 24 --------- -------- --------- ---------
Department 01
470749.66 0.00 470749.66 397066.33
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
- --------------------------------------------------------------------------------------------
TOOLS
- LANCASTER
Net 470749.66 0.00 470749.66 397066.33
- --------------------------------------------------------------------------------------------
000002 01/01/78 0.00 P 0 0.00 0.00 12/93 0.00
JIGS, DIES, & SPECIAL TOOLS
<CAPTION>
=======================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- ----------------- ------------ ------------- ------ -----------
<C> <C> <C> <C>
0.00 0.00 23500.00 0
0.00 0.00 25510.08 0
0.00 0.00 24800.00 0
0.00 0.00 16300.00 0
0.00 0.00 10000.00 0
3900.00 3900.00 23400.00 0
4083.33 4083.33 24500.00 0
1928.57 1928.57 1928.57 25,071.43
2450.00 2450.00 2450.00 22,050.00
1420.00 1420.00 1420.00 12,780.00
-------- -------- ---------
13781.90 13781.90 410848.23
0.00
- -----------------------------------------------------------------------
13781.90 13781.90 410848.23 59,901.43
- -----------------------------------------------------------------------
0.00 0.00 0.00
</TABLE>
<PAGE> 153
Page 23
December 28, 1995
4:07 PM AAC - HOME PRODUCTS
D E P R E C I A T I O N E X P E N S E R E P O R T
for Int bk Books FY=12
as of 12/95
<TABLE>
<CAPTION>
================================================================================================
In Svc Acquired Dep P Est Basis Depreciable Thru Prior Accum
SYS No Date Value Meth T Life Reduction Basis Date Depreciation
- ------ ------ -------- ---- - ---- --------- ----------- ---- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
000005 03/01/79 0.00 P 0 0.00 0.00 12/93 0.00
SLIDE FEED S/N CWP-18SRL-16273
000009 05/01/80 0.00 P 0 0.00 0.00 12/93 0.00
PROGRESSIVE DIE LH END CAP
Count= 3 -------- -------- -------- --------
Department VINTAGE
0.00 0.00 0.00 0.00
Less disposals and Intercompany transfers
0.00 0.00 0.00 0.00
-------- -------- -------- --------
Net 0.00 0.00 0.00 0.00
Count= 27 -------- -------- -------- --------
Class TF
470749.66 0.00 470749.66 397066.33
Less disposals and intercompany transfers
0.00 0.00 0.00 0.00
-------- -------- -------- --------
Net 470749.66 0.00 470749.66 397066.33
Count= 275 -------- -------- -------- --------
Grand Total
11093111.80 0.00 11093111.80 7907578.39
Less disposals and intercompany transfers
78294.76 0.00 78294.76 78294.76
- ---------------------------------------------------------------------------------------------
Net 11014817.04 0.00 11014817.04 7829283.63
- ---------------------------------------------------------------------------------------------
<CAPTION>
=============================================================================
NET
Depreciation Current Year Current Accum BOOK
This Run to Date Depreciation Key VALUE
- -------------------- ------------ ------------- ------ ---------
<C> <C> <C> <C> <C>
0.00 0.00 0.00
0.00 0.00 0.00
-------- -------- --------
0.00 0.00 0.00
0.00
-------- -------- --------
0.00 0.00 0.00
-------- -------- --------
13781.90 13781.90 410848.23
0.00
-------- -------- --------
13781.90 13781.90 410848.23
-------- -------- --------
351677.48 336450.05 8244028.44
78294.76
- ----------------------------------------------------------------------------------
351677.48 336450.05 8165733.68 2,849,083.36 TOTAL HPD
- ----------------------------------------------------------------------------------
</TABLE>
<PAGE> 154
SCHEDULE 1.1(v)
DIVISION VEHICLES
None owned except yard truck and forklifts. See Personal Property schedule.
<PAGE> 155
SCHEDULE 1.1(xiii)
ASSIGNED CONTRACTS AND LEASES
Contracts
Lowe's Master Standard Buying Agreement by and between Lowe's Companies, Inc.
and Alumax Aluminum Corporation, Home Products Division, entered into January
12, 1995.
Supply Agreement dated May 4, 1995, by and between Nichols Aluminum and Alumax
Aluminum Corporation, Home Products Division.
Letter Agreement between Home Products Division, Alumax Aluminum Corporation,
and GWS Thermoplastics Company, a division of GSW Inc., dated September 20,
1989. (Reinstating Distribution Agreement dated October 8, 1987.)
Agreement between Alumax Aluminum Corporation (for Home Products Division) and
Miscellaneous Warehousemen, Airline, Automotive Parts, Service, Tire, Rental,
Chemical and Petroleum, Ice, Paper, and Related Clerical and Production
Employees Union Local 781, affiliated with the International Brotherhood of
Teamsters, dated January 14, 1993, for the Chicago Service Center, expiring
January 14, 1999, covering approximately 22 employees.
Leases
Industrial Building Lease dated October 20, 1992, between LaSalle National
Trust, N.A. and Alumax Aluminum Corporation for property at 6235 West 73rd
Street, Bedford Park, Illinois -and- Agreement of Subordination, Nondisturbance
and Attornment dated January 29, 1993, between Allstate Life Insurance Company
and Alumax Aluminum Corporation.
Commercial Lease Agreement executed in January 1994 for 45,281 square feet
situated at 1025 Avenue S, Suite 150, Grand Prairie, Texas, between Alexander &
Baldwin, Inc. and Alumax Aluminum Corporation, Home Products Division.
Lease made as of April 12, 1984, by and between Northgate Investment Company
and Howmet Aluminum Corporation for 3701-A Pell Circle, Sacramento, California
- -and- Lease Extension Agreement dated July 5, 1994, between Florian F.
Dauenhauer, trustee of the Florian F. Dauenhauer and Edith A. Dauenhauer
Revocable Family Trust U/D/T December 17, 1986 and Florence M. Heck as
successors of Northgate Investment Company, and Alumax Aluminum Corporation.
<PAGE> 156
Schedule 1.1(xiii) (continued)
Lease Agreement executed July 28, 1972, between J.L. Williams and Co., Inc. and
Howmet Corporation for building at 4777 Stone Drive, Tucker, Georgia -and-
Lease Renewal Letter dated September 10, 1992, between Meadows Incorporated and
Alumax Aluminum Corporation, Home Products Division, extending the subject
lease for a period beginning on April 1, 1993, and expiring on March 31, 1998.
Agreement, dated June 17, 1994, by and between Wheels, Inc. and Alumax Inc.
(lease of vehicles).
[Preliminary]
<PAGE> 157
EXHIBIT B
[The following opinion is subject to being finalized using mutually agreeable
language, and is also subject to approval under Kirkland & Ellis opinion
practice. Certain of the opinions may also be allocated between Kirkland &
Ellis and Purchaser's European counsel.]
[Date]
Alumax Inc.
5655 Peachtree Parkway
Norcross, Georgia 30092
Dear Sirs:
In connection with the Purchase Agreement, dated as of June
24, 1996 (the "Purchase Agreement"), between Euramax International, Limited, a
corporation organized under laws of England and Wales, and Alumax Inc., a
Delaware corporation (the "Seller"), we, as counsel for the Purchaser, have
examined such corporate records, certificates and other documents, and such
questions of law, as we have considered necessary or appropriate for the
purposes of this opinion. Capitalized terms used but not defined herein have
the meanings ascribed to them in the Purchase Agreement. Upon the basis of
such examination, it is our opinion that:
(1) Each of the Purchaser and the Subsidiary Purchasers has
been duly incorporated and is an
<PAGE> 158
[SC Processing, Inc.]
existing corporation in good standing under the laws of the State of
Delaware.
(2) The Purchase Agreement has been duly authorized, executed
and delivered by the Purchaser and constitutes a valid and legally
binding obligation of the Purchaser enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
The foregoing opinion is limited to the Federal laws of the
United States, the laws of the State of New York and the General Corporation
Law of the State of Delaware, and we are expressing no opinion as to the effect
of the laws of any other jurisdiction. As to matters of law of England and
Wales, we have, with your approval, relied upon the opinion of __________,
special counsel for Purchaser, and we believe that both you and we are
justified in relying on such opinion.
Very truly yours,
<PAGE> 159
EXHIBIT C
[The following opinion is subject to being finalized using mutually agreeable
language, and is also subject to approval under Sullivan & Cromwell opinion
practice. Certain of the opinions may also be allocated between Sullivan &
Cromwell and Alumax in-house counsel.]
[Date]
Euramax International, Limited,
___________________,
___________________.
Dear Sirs:
In connection with the Purchase Agreement, dated as of June
24, 1996 (the "Purchase Agreement"), between Euramax International, Limited
("Purchaser") and Alumax Inc., a Delaware corporation (the "Seller"), we, as
counsel for the Seller, have examined such corporate records, certificates and
other documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion. Capitalized terms used but not
defined herein have the meanings ascribed to them in the Purchase Agreement.
Upon the basis of such examination, it is our opinion that:
(1) Each of the Seller, AFP, AAC and Home Products has been
duly incorporated and is an existing corporation in good standing
under the laws of the
<PAGE> 160
[Euramax International, Limited] -2-
State of Delaware. AFP and Home Products each has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction (it
being understood that such opinion is based solely on a review of
certificates issued by the Secretary of State (or other similar
official) of such jurisdictions in the United States).
(2) The AFP Shares have been duly authorized and validly
issued and are fully paid and nonassessable. Assuming that Purchaser
or a Subsidiary Purchaser purchases the AFP Shares in good faith and
without notice of any adverse claims as such term is used in Section
8-302 of the Uniform Commercial Code in effect in the State of New
York, the delivery of certificates representing the AFP Shares will
pass to Purchaser valid title to such AFP Shares, free and clear of
all security interests, liens, encumbrances, equities or other adverse
claims.
<PAGE> 161
[Euramax International, Limited] -3-
(3) The Purchase Agreement has been duly authorized, executed
and delivered by the Seller and constitutes a valid and legally
binding obligation of the Seller enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, except that we express no opinion as to the enforceability
of (i) Section 4.13 of the Purchase Agreement or (ii) Sections 7.1 and
7.3 of the Purchase Agreement with respect to the indemnification
from, against or in respect of any and all Losses arising from or
relating to Environmental Laws, including without limitation the
Comprehensive Environmental Response, Compensation and Liability Act,
the Solid Waste Disposal Act and similar state statutes.
(4) The Asset Purchase Agreement has been duly authorized,
executed and delivered by the parties thereto and constitutes a valid
and legally binding obligation of AAC enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general
<PAGE> 162
[Euramax International, Limited] -4-
applicability relating to or affecting creditors' rights and to
general equity principles.
(5) The Distribution Agreement has been duly authorized,
executed and delivered by Alumax Mill Products, Inc. ("Mill Products"), and
constitutes a valid and binding obligation of Mill Products, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles. [This opinion
may be expanded to cover other agreements contemplated by the Purchase
Agreement once the forms of such agreements are finalized.]
(6) There are no regulatory consents, authorizations,
approvals or filings required to be obtained or made by the Seller under the
laws of the State of New York for the execution, delivery and performance of
the Purchase Agreement by the Seller and such execution, performance and
delivery does not violate any provisions of the Seller's Restated certificate
of Incorporation or by-laws or any law, governmental rule or regulation of the
State of New York or any government or subdivision thereof.
The foregoing opinion is limited to the Federal laws of the United
States, the laws of the State of New York and the
<PAGE> 163
[Euramax International, Limited] -5-
General Corporation Law of the State of Delaware, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain matters on information obtained
from public officials, officers of the Seller and other sources believed by us
to be responsible, and we have assumed that the certificates for the AFP Shares
conform to the specimens thereof examined by us, that the Purchase Agreement
has been duly authorized, executed and delivered by Purchaser and that the
signatures on all documents examined by us are genuine, assumptions which we
have not independently verified.
Very truly yours,
<PAGE> 164
Exhibit D
[Opinions of Baker & McKenzie, special European Counsel to the Seller, will be
delivered in three separate letters covering matters of French, Dutch and U.K.
law, respectively. The forms of opinions appearing below are subject to being
finalized using mutually agreeable language, and are also subject to approval
under Baker & McZenzie's opinion practice.]
<PAGE> 165
DRAFT
[Name and Address of
opinion recipient]
[Date]
Dear Sirs:
RE: DESCRIPTION OF TRANSCRIPTION
1. INTRODUCTION
We have acted as special French counsel to Alumax, Inc., in connection
with the Purchase Agreement (the "Agreement") dated _____________ made
between [Purchaser] and Alumax, Inc., a Delaware corporation. [This
opinion is being given pursuant to Clause _______ of the Agreement.]
Words and expressions defined in the Agreement will, unless otherwise
defined herein, have the same meanings when used in this letter.
2. DOCUMENTS
For the purpose of giving this opinion we have examined the following
documents:
2.1 [an executed original of the Agreement;]
2.2 a copy of the Articles of Incorporation and By-laws ("Statuts")
of each of Alumax Industries S.A. and Alumax Coated Products
S.A. (the "Companies"), certified as being true and correct
copies as at _____________ by the [Chairman] of each of the
Companies;
2.3 a copy of a non-bankruptcy certificate ("certificat de
non-faillite") issued on __________, 1996 by the Clerk of the
Commercial Court ("greffier du Tribunal de Commerce) of each
of Alumax Industries S.A. and Alumax Coated Products S.A.;
2.4 a copy of the Commercial Registry K-bis extract ("Extrait
K-bis") issued on __________, 1996 by the Clerk of the
Commercial Court of each of Alumax Industries S.A. and Alumax
Coated Products S.A.;
2.5 a copy of a Lien Certificate ("Etat Relatif aux Inscriptions
des Privileges") issued on __________, 1996 by the Clerk of the
Commercial Court of each of Alumax Industries S.A. and Alumax
Coated Products S.A.
<PAGE> 166
DRAFT
3. ASSUMPTIONS
For the purposes of this opinion, we have assumed (without making any
investigation thereof):
3.1 the authenticity of all documents or instruments submitted to
us as originals;
3.2 the completeness and the conformity to original documents or
instruments of all documents or instruments submitted to us as
copies of originals;
3.3 the genuineness of all signatures and seals on the documents
and instruments submitted to us;
3.4 the capacity, power and authority of each of the Companies to
enter into the Agreement;
3.5 that there have been no amendments to the By-laws of either of
the Companies in the form examined by us;
3.6 that the Companies have not filed any voluntary bankruptcy
petitions, no bankruptcy proceedings have been initiated by a
court and no receivers have been appointed and no resolutions
have been taken to wind-up in relation to either of the
Companies or any of their assets or revenues.
We have made such examination of the laws of France as currently in
effect and applied by French courts as in our judgement is necessary
for the purposes of this opinion. We do not, however, purport to be
qualified to pass upon, and express no opinion herein as to, the laws
of any jurisdiction other than those of France. We do not express any
opinion on European Community law as it affects any jurisdiction other
than France. This opinion is governed by and shall be construed in
accordance with French law.
4. OPINIONS
Based upon and subject to the assumptions and qualifications set out
in this opinion and having regard to such legal considerations as we
have deemed relevant, we are of the opinion that:
4.1 each of the Companies are duly incorporated and validly
existing under the laws of France as corporations ("Societes
Anonymes").
4.2 the share capital of each of the Companies consists of ______
shares of ________ each; all of such shares have been validly
issued and are fully paid in.
2
<PAGE> 167
DRAFT
5. QUALIFICATIONS
The opinions expressed herein are subject to the following
qualifications:
5.1 the opinion expressed in paragraph 4.1 that the Companies are
corporations duly incorporated under French law is based
solely upon our examination of the Commercial Registry K-bis
extracts issued on __________, 1996 by the Clerk of the
Commercial Court. It should be noted that notice of the
appointment of a receiver may not be filed with the Clerk of
the Commercial Court immediately and there may be a delay in
the relevant notice appearing on the file of the company
concerned.
5.2 with regard to the opinion expressed in paragraph 4.2 that the
Companies' issued shares are fully paid, we have relied solely
upon oral statements to that effect made by local management
of the Companies (which statements we have assumed to be
correct), and we have not carried out any further
investigation thereof.
This opinion is given only on behalf of Baker & McKenzie, Paris and not on
behalf of any other office or associated firm of Baker & McKenzie. In this
opinion the expressions "we", "us", "our" and like expressions should be
construed accordingly.
This opinion is given for your sole benefit in connection with the transactions
contemplated by the Agreement. This opinion is not to be disclosed to any
other person nor is it to be relied upon by any other person or for any other
purpose or quoted or referred to in any public document without our prior
written consent.
Yours faithfully,
BAKER & McKENZIE
3
<PAGE> 168
Enclosure 3.
June 26, 1996
39-019721-8/BVB/mb
[Name and address of
opinion recipient]
Re: Alumax Europe B.V. and Alumax Coated Products B.V.
Dear Sirs,
You have requested our opinion with respect to (i) Alumax Europe B.V. ("AEBV"),
a closed limited liability company incorporated under the laws of The
Netherlands with its registered seat at Maastricht and with address at
Endepolsdomein 3 (6229 GW) Maastricht, The Netherlands, and (ii) Alumax
Coated Products B.V. ("ACP"), a closed limited liability company incorporated
under the laws of The Netherlands, with its registered seat in Roermond and
with address at Industrieweg 6 (6045 JG) Roermond, The Netherlands, in
connection with the purchase agreement dated ______, 1996 between [Euramax
International Ltd.] and Alumax Inc. (the "Agreement"). This opinion is being
given pursuant to article ________ of the Agreement.
For the purpose of rendering this opinion we have examined and relied on the
following documents:
(a) an excerpt ("uittreksel") dated ______, 1996 from the
Commercial Register of the Chamber of Commerce of Zuid-
Limburg, The Netherlands, regarding the registration of
AEBV with such Chamber of Commerce under number 632156
(the "AEVB-Excerpt");
<PAGE> 169
June 26, 1996
2
(b) a copy of the Deed of Incorporation of AEBV dated
December 23, 1987 ("the AEBV-Deed");
(c) a copy of the Articles of Association ("statuten") of
AEBV as they read since their amendment on March 3, 1995
(the "AEBV-Articles");
(d) a copy of the shareholders register of AEBV, with a last
entry dated _____, 19__ (the "AEBV-Register");
(e) an excerpt ("uittreksel") dated _______, 1996 from the
Commercial Register of the Chamber of Commerce of Midden
Limburg, The Netherlands, regarding the registration of
ACP with such Chamber of Commerce under number 13614
(the "ACP-Excerpt");
(f) a copy of the deed of incorporation of ACP dated October
22, 1969 (the "ACP-Deed");
(g) a copy of the Articles of Association ("statuten") of
ACP as they read since their amendment on August 18,
1994 (the "ACP-Articles"); and
(h) a copy of the shareholders register of ACP with a last
entry dated ________, 19___ (the "ACP-Register").
The AEBV-Excerpt, the AEBV-Deed, the AEBV-Articles, the AEBV-Register, the
ACP-Excerpt, the ACP-Deed, the ACP-Articles and the ACP-Register are
hereinafter also collectively referred to as the "Documents". AEBV and ACP are
hereinafter also collectively referred to as the "Companies".
We express no opinion regarding any law than the laws of The Netherlands in
force as at the date hereof and as applied and interpreted according to the
relevant published Dutch court decisions, administrative rulings and
authoritative literature and no opinion is given as to whether the matter,
opined herein will contravene such laws or the application or interpretation
thereof if altered in the future.
In examining and describing the Documents listed above and in giving this
opinion, we have assumed without having conducted any investigation of our own:
(i) The genuineness and validity of all signatures on
all documents or on the originals thereof, the
authenticity and completeness of all documents sub-
mitted to us as originals and the conformity of
copied, faxed or specimen documents to the originals
thereof;
(ii) That all acts, conditions and matters required to be
done, fulfilled and undertaken under any law
<PAGE> 170
June 26, 1996
3
(including any and all authorizations and consents
of any public authority of any jurisdiction), other
than that of The Netherlands, which may be required
in respect of the matters opined upon herein, have
been or will be done, fulfilled, undertaken or
obtained;
(iii) That the Companies have not passed a voluntary
winding-up resolution and that no petition has been
presented, nor an order made by a court, for the
bankruptcy ("faillissement"), dissolution or
moratorium of payments ("surseance van betaling") of
the Companies, and no receiver, trustee, administra-
tor or similar officer has been appointed in respect
of the Companies;
The District Courts of Maastricht (in respect of
AEBV) and Roermond (in respect of ACP) confirmed to
us by telephone on ________, 1996, without consti-
tuting conclusive evidence thereof, that the
Companies have not been declared bankrupt ("in staat
van faillissement") nor have been granted a mora-
torium of payments ("surseance van betaling
verleend");
(iv) That the contents of the Documents are correct and
complete as at the present date;
(v) That the Companies have timely paid their contribu-
tions to the Chambers of Commerce, have timely and
adequately published their annual accounts in
conformity with the articles 2:394, 2:396 and 2:397
of the Dutch Civil Code and have not disregarded a
summon from the Tax Authorities to file a return in
relation to Dutch corporate tax.
Based upon and subject to the foregoing and subject to the further
qualifications set out below and subject to any factual matters, documents or
events not disclosed and having regard to such legal considerations as we deem
relevant to us in the course of our examinations, we are of the opinion that
under the laws of The Netherlands at present in effect:
1. The Companies have been properly constituted and are
existing under the laws of The Netherlands;
2. The authorized share capital of AEBV amounts to NLG
5,000,000. --, consisting of 50,000 shares with a nominal
value of NLG 100.-- each, of which 10,002 shares have
been issued and are paid-up in full.
3. The authorized share capital of ACP amounts to NLG
30,000,000.--, consisting of 30,000 shares with a
<PAGE> 171
June 26, 1996
4
nominal value of NLG 1,000.-- each, of which 6,500
shares have been issued and are paid-up in full.
The opinion expressed above is subject to the following qualifications:
1. The enforcement of the rights and remedies set fourth in
the Documents may be limited by bankruptcy, reorganiza-
tion, insolvency, moratorium, or other laws affecting
the enforcement of creditor's rights generally;
2. This opinion is related to Dutch Law as it stands now
and we do not assume any obligation to inform you of any
development subsequent to this date that might render
its contents untrue or inaccurate wholly or in part at
such time;
3. The choice of a law as the law governing a document will
generally be recognized and applied by the courts of The
Netherlands, provided, however, that The Netherlands'
courts may give effect of the mandatory rules of the
laws of any country with which the case in question has
a close connection if, and to the extent that, pursuant
to such mandatory rules, the laws of the latter country
must be applied, regardless of the chosen law. When
determining whether such mandatory rules must be applied
the nature and intent of such rules are taken into
account as well as the consequences which might ensue
from the application or non-application of such rules.
The law that otherwise would govern the Documents need
not be applied by the Dutch Courts if it is obvious that
the application thereof could not be reconciled with the
public policy of The Netherlands;
4. The enforcement of a document may be subject to specific
remedies, including but not limited to, restrictions
based upon principles of reasonableness ("redelijkheid")
and fairness ("billijkheid"), good morals ("goede
zeden") and public order ("openbare orde") and may be
subject to the possibility of rescission of agreements
in case of so-called absence of consensus ad idem
("wilegebreken"), change of circumstances ("verandering
van omstandigheden") or the violation of creditor's
rights ("actio pauliana");
5. All powers of attorney (including powers of attorney
expressed to be irrevocable) terminate by operation of
law upon the bankruptcy ("faillissement") of the person
issuing the power of attorney (the "principal");
Powers of attorney which are expressed to be irrevocable
are not capable of being revoked insofar as they extend
to the performance of legal acts ("rechtschandelingen")
<PAGE> 172
June 26, 1996
5
which are in the interest of the attorney appointed
under such power of attorney or a third party. However,
upon the request of the person issuing the power of
attorney, an heir of such person or the liquidator
("curator") in case of the bankruptcy of such person,
the Netherlands District Court can modify or render
inoperative such irrevocability;
Furthermore, all powers of attorney terminate by
operation of law unless provided otherwise in such power
of attorney, upon the death of, the commencement of
legal guardianship over or the bankruptcy of the
attorney appointed under such power of attorney or by
notice of termination given by such attorney;
6. Save as set out herein, nothing is to be taken to
express an opinion in respect of any statement, repre-
sentation or warranty made or given by, or in respect
of, the Company in any of the documents above; you will
have to rely on your investigations in this respect.
7. The ACP-Register is not in conformity with the ACP-
Excerpt and the ACP-Articles in that it states that the
authorized capital of ACP amounts to NLG 25,000,000.--
only. Furthermore, the first entry in respect of ACP's
shareholders refers to a transfer by Alumax Inc. to Amax
Holding B.V. on December 30, 1987 and not to any other
shareholder(s) and/or transfers.
This opinion:
- - is issued on the basis that it is governed by, and that all
words and expressions used herein shall be construed and
interpreted in accordance with the laws of The Netherlands;
- - speaks as of its date;
- - is addressed to you and solely for your benefit;
- - is limited to the matters set forth herein and no opinion
may be inferred or implied beyond that expressly stated
herein. We express no opinion on tax law;
- - may not be relied upon or disclosed to or filed with any
other person, company, enterprise or institution or used for
any other purpose than in connection with your questions as
set out in this legal opinion.
Yours faithfully,
Baker & McKenzie
<PAGE> 173
[Name and address of
opinion recipient] [Date]
Dear Sirs
RE: DESCRIPTION OF TRANSACTION
1. INTRODUCTION
In our capacity as English solicitors to Alumax Inc. we have been asked
to give an opinion in connection with the Purchase Agreement ("the
Agreement") dated ____ made between [Purchaser] and Alumax Inc., a
Delaware corporation. This opinion is being given pursuant to Clause
____ of the Agreement.
Words and expressions defined in the Agreement will, unless otherwise
defined herein, have the same meanings when used in this letter.
2. DOCUMENTS
For the purpose of giving this opinion we have examined the following
documents:
2.1 an [executed original] of the Agreement;
2.2 a copy of the Memorandum of Association and Articles of Association of
each of Alumax Holdings Limited, Alumax Ellbee Limited and Alumax
Coated Products U.K. Limited (the "Companies"), certified as being true
and correct copies as at ____ by the company secretaries of each of the
Companies;
2.3 the minute books of directors' and shareholders' meetings of each of
the Companies and the register of members of each of the Companies;
2.4 our agent's report following their search on [date not earlier than
two business days prior to Closing] of the public records of each of
the Companies on file and available for inspection by the public
at the Companies Registry;
2.5 certificates dated ____ of the Registrar of Companies relating to
the Companies and such other documents, records and papers as we
think necessary or relevant as a basis for our opinions herein
contained.
3. ASSUMPTIONS
For the purpose of this opinion, we have assumed (without making
any investigation thereof):-
3.1 the authenticity of all documents or instruments submitted to us
as originals;
<PAGE> 174
3.2 the completeness and the conformity to original documents
or instruments of all documents or instruments submitted
to us as copies of originals;
3.3 the genuineness of all signatures and seals on the
documents and instruments submitted to us;
3.4 that there have been no amendments to the Memorandum of
Association or the Articles of Association of any of
the Companies in the form examined by us other than as
are revealed by the search referenced in paragraph 2.4;
3.5 that since _______ there have been no amendments to the
minute books and registers of members examined by us,
that the minute books contain and are an accurate and
complete record of all directors' and shareholders'
resolutions passed since the incorporation of the
Companies to the date hereof, that all such resolutions
were duly passed at properly convened meetings of the
directors or shareholders (as the case may be), or
otherwise in accordance with the Articles of Association
of the Companies, and have not been amended or rescinded
and are in full force and effect and that the registers
of members are accurate and up-to-date;
3.6 that, except as revealed by the search of the Companies
Registry referenced in paragraph 2.4 and the telephone
search made at the Central Registry of Winding Up
Petitions referenced in paragraph 5.1, the Companies have
not passed any voluntary winding-up resolutions, no
petitions have been presented or orders made by a court
for the winding-up, dissolution or administration of any
of the Companies and no receivers, trustees,
administrators, administrative receivers or similar
officers have been appointed in relation to any of the
Companies or any of their assets or revenues.
We have made such examination of the laws of England as
currently applied by English courts as in our judgment is
necessary for the purpose of this opinion. We do not,
however, purport to be qualified to pass upon, and
express no opinion herein as to, the laws of any
jurisdiction other than those of England. We do not
express any opinion on European Community law as it
affects any jurisdiction other than England and Wales.
This opinion is governed by and shall be construed in
accordance with English law.
4. OPINIONS
Based upon and subject to the assumptions and
qualifications set out in this opinion and having regard
to such legal considerations as we have deemed relevant,
we are of the opinion that: -
4.1 each of the Companies are companies duly incorporated
under the laws of England as private limited liability
companies and are in good standing; by "good standing" (a
phrase which has no recognised meaning under English law)
we mean that, according to the certificates of the
Registrar of Companies referred to in paragraph 2.5, the
Companies have, according to the documents on the files
of the Companies in the custody of the Registrar, been
in continuous and unbroken existence since the dates of
their incorporation and no action is currently being
taken by the Registrar for
-2-
<PAGE> 175
striking any of the Companies off the register and
dissolving them as defunct, and as far as the Registrar
is aware and except as revealed by the telephone search
of the Central Registry of Winding Up Petitions
referenced in paragraph 5.1 none of the Companies are in
liquidation or subject to an administration order and no
receiver or manager of the Companies' property has been
appointed;
4.2 the authorised share capital of each of the Companies
consists of [ordinary] shares of ______ each, [all] of
which [______] have been issued [and are outstanding]; all
of such shares have been duly authorised and [(in case of
the issued shares) have been] validly issued and are fully
paid [and "non-assessable"]; [by "non-assessable" (a
phrase which has no recogized meaning under English law)
we mean that the registered holders of such shares are not
liable under English law, solely by virtue of their
shareholding, for the payment of taxes, duties, wages or
other amounts for which the Company is liable];
.5 QUALIFICATIONS
The opinions expressed herein are subject to the
following qualifications: -
5.1 the opinion expressed in paragraph 4.1 that the
Companies are companies duly incorporated under English
law is based on the assumption set out in paragraph 3.6
and otherwise solely upon our examination of the
microfiche of the Companies available at the Companies
Registry on ________ [and a telephone search made by us at
the Central Registry of Winding-Up Petitions on ________].
It should be noted that: -
5.1.1 a search at the Companies Registry is not
capable of revealing whether or not a
winding-up petition or a petition for the making
of an administration order has been presented;
and
5.1.2 notice of a winding-up order or resolution,
notice of an administration order and notice of
the appointment of a receiver may not be filed at
the Companies Registry immediately and there may
be a delay in the relevant notice appearing on
the file of the company concerned;
5.2 with regard to the opinion expressed in paragraph 4.2
that the Companies' issued shares are fully paid, we
have relied soley upon statements to that effect in [the
relevant board minutes and in] the returns filed by the
Companies at the Companies Registry in connection with
the issue of shares (which statements we have assumed to
be correct), and we have not carried out any further
investigation thereof;
5.3 We express no opinion as to the validity or
enforceability or otherwise of any provision of the
Agreement.
This opinion is given only on behalf of Baker &
McKenzie, London and not on behalf of any other office or
associated firm of Baker and McKenzie. In this opinion the
expressions "we", "us", "our" and like expressions should be
contrued accordingly.
-3-
<PAGE> 176
This opinion is given for your sole benefit in connection with the transactions
contemplated by the Agreement. This opinion is not to be disclosed to any
other person nor is it to be relied upon by any other person or for any other
purpose or quoted or referred to in any public document without our prior
written consent.
Yours faithfully
BAKER & McKENZIE
________________
-4-
<PAGE> 177
EXHIBIT E
DISTRIBUTION AGREEMENT
FOR
PRECISION MACHINED CAST ALUMINUM PLATE
THIS DISTRIBUTION AGREEMENT FOR MIC-6 PRECISION CAST ALUMINUM PLATE
dated the ____ day of __________, 1996 between Alumax Mill Products, Inc.
("Alumax"), a Delaware Corporation having its main office at 12 Salt Creek
Lane, Hinsdale, Illinois 60521, and Euramax Coated Products U.K. Limited (the
"Distributor") having its principal place of business at Brunel Road,
Earlstrees Industrial Estate, Corby, Northants NN17 4JW, England.
In consideration of the covenants and agreements made herein by the
parties, and for other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereby agree as follows:
I
SALE OF PRODUCTS
This Distribution Agreement ("Agreement"), including the schedules
hereto, contains the terms and conditions pursuant to which Alumax may sell to
Distributor and Distributor may purchase from Alumax MIC-6 Precision Machined
Cast Aluminum Plate as set forth in Schedule I annexed hereto ("Products").
II
APPOINTMENT
Alumax hereby appoints Distributor as a non-exclusive distributor of
the Products in the United Kingdom. Notwithstanding such appointment, Alumax
agrees that it will not appoint or otherwise permit to exist another
distributor of the Products in the United Kingdom as long as Distributor has
purchased a net minimum of at least 400,000 pounds (lbs.) of Products during
the preceding contract year (twelve month period commencing as of the month and
day first set forth above are ending on the immediately preceding day of the
next calendar year) other than with respect to the first contract year as to
which there shall be no such requirement. Any return of Products, which may
only be made with prior written authorization of Alumax, shall be applied
against the contract year in which the applicable purchase was made. If
Distributor fails to purchase that minimum quantity during any contract year,
<PAGE> 178
Alumax/Euramax
Distribution Agreement
Page 2
Alumax may appoint other distributors in the United Kingdom. Nothing herein
shall in any manner restrict or limit Alumax's right, in its sole discretion,
to appoint distributors outside the United Kingdom. Distributor hereby accepts
such appointment on the terms and conditions set forth herein and agrees not to
solicit business outside the United Kingdom, France and Scandinavia. In
connection therewith, Distributor agrees to take all reasonable actions and
exercise such reasonable diligence as will (i) promote the acceptance and sale
of the Products, (ii) use its best efforts to obtain the maximum distribution
and sale of Products possible, and (iii) create, preserve and enhance the
goodwill and reputation of Alumax.
III
PRODUCT PRICE, TERMS OF SALE
AND MODIFICATION OF AGREEMENT
The purchase price for the Products covered by this Agreement shall be
Alumax's then current published list price less Alumax's then current published
distributor discount, if any, less five percent. A copy of the current Alumax
MIC-6 price sheet is annexed hereto as Schedule II and incorporated herein by
this reference. Distributor shall be invoiced for film applied to the Products
at a price equal to fifty percent (50%) of Alumax's then current price per
side. Distributor shall also be given a five cents (U.S. $.05) per pound
shipping allowance and Distributor agrees to accept Products FOB US port.
Alumax warrants and agrees that it shall not grant more favorable pricing to
any other unaffiliated distributor of the Products in Western Europe. The
terms and conditions of sale of the Products covered by this Agreement are as
set forth in this Agreement and in the schedules hereto, and such terms and
conditions shall govern each sale hereunder notwithstanding any language set
forth in any purchase order or other document sent by Distributor to Alumax.
Except for any changes in Alumax's list price or the reissuance of Schedule II
from time to time by Alumax, the terms and conditions of this Agreement
including the schedules attached hereto may only be modified and amended by the
mutual consent of Alumax and Distributor, which consent shall be evidenced by
an agreement in writing signed by both of the parties hereto. Alumax may
change its list price and distributor discount from time to time as Alumax in
its sole discretion may determine.
<PAGE> 179
Alumax/Euramax
Distribution Agreement
Page 3
IV
WARRANTY AND LIMITATION OF WARRANTY
Alumax warrants that the Products will conform to the description on
each release relating thereto and will be free from defects in material and
workmanship and subject to U.S. Aluminum Association standard commercial
tolerances and standard U.S. industry practices and that Seller will convey
good title thereto. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS
OR IMPLIED, AND ALUMAX EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY CLAIM BY
DISTRIBUTOR ON ACCOUNT OF BREACH OF WARRANTY SHALL BE CONCLUSIVELY WAIVED
UNLESS DISTRIBUTOR GIVES ALUMAX WRITTEN NOTICE THEREOF WITHIN THIRTY (30) DAYS
AFTER DISTRIBUTOR'S RECEIPT OF THE PRODUCTS IN THE CASE OF DEFECTS DISCOVERABLE
THROUGH INSPECTION, AND WITHIN THIRTY (30) DAYS AFTER DISCOVERY, IN THE CASE OF
DEFECTS NOT DISCOVERABLE THROUGH INSPECTION. ALUMAX SHALL NOT BE RESPONSIBLE
OR LIABLE TO DISTRIBUTOR OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, OR
INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR CONTINGENT DAMAGES FOR ANY
BREACH OF WARRANTY OR OTHER BREACH OF ALUMAX'S OBLIGATIONS HEREUNDER, ALUMAX'S
LIABILITY AND DISTRIBUTOR'S EXCLUSIVE REMEDY BEING LIMITED TO ALUMAX'S CHOICE
OF: (A) THE REPAIR OF DEFECTIVE PRODUCTS; (B) THE REPLACEMENT THEREOF WITH
CONFORMING PRODUCTS AT THE F.O.B. POINT PROVIDED HEREIN; (C) THE REPAYMENT OF
THE PURCHASE PRICE; OR (D) THE GRANTING OF A REASONABLE ALLOWANCE ON ACCOUNT OF
SUCH DEFECTS. REPLACEMENT OF DEFECTIVE PRODUCTS OR REPAYMENT OF THE PURCHASE
PRICE THEREFOR WILL BE MADE ONLY UPON RETURN OF THE DEFECTIVE PRODUCTS, WHICH
PRODUCTS SHALL NOT BE RETURNED UNTIL ALUMAX HAS CONSENTED THERETO AND HAS
DELIVERED TO DISTRIBUTOR WRITTEN SHIPPING INSTRUCTIONS. ALUMAX SHALL BE GIVEN
REASONABLE OPPORTUNITY TO INVESTIGATE ALL CLAIMS AND TO INSPECT ALLEGEDLY
DEFECTIVE PRODUCTS.
V
ASSIGNMENT
Neither party shall have the right to assign its rights or obligations
under this Agreement to any third party; provided, however, that Alumax shall
have the right to assign its rights and obligations under this Agreement to any
corporation owning fifty percent (50%) or more of Alumax capital stock or to
any subsidiary of which Alumax or its parent corporation owns fifty percent
(50%) or more of the capital stock of Alumax.
<PAGE> 180
Alumax/Euramax
Distribution Agreement
Page 4
VI
TERM AND TERMINATION
(a) This Agreement will be effective for a period of four (4)
years from the date first set forth above, subject to termination as provided
herein. Subject to earlier termination as provided herein, this Agreement
shall terminate at the end of such four (4) year term unless renewed or
extended by further written agreement of the parties. Distributor hereby
waives all rights to or claims for compensation if this Agreement is not
renewed or extended at that time.
(b) If Distributor fails to purchase a minimum of 250,000 pounds
(lbs.) of Products within any contract year (twelve month period commencing as
of the month and day first set forth above and ending on the immediately
preceding day of the next calendar year) other than the first contract year,
Alumax shall have the right to terminate this Agreement with immediate effect
by giving notice of termination to Distributor.
(c) Notwithstanding the foregoing, upon the occurrence of any
event of default as defined in this Agreement or any schedule attached hereto,
Alumax shall have the right, in addition to all other rights and remedies
provided by law or in equity, to terminate this Agreement at any time
thereafter. Upon termination of Agreement, Distributor shall pay to Alumax
within five (5) days, all amounts which it then owes to Alumax.
VII
NO AGENCY OR PARTNERSHIP
Alumax and the Distributor are independent companies and nothing
contained in this Agreement shall be deemed or construed to create any of the
following relationships: a partnership, a joint venture relationship of
principal and agent, or any other association or relationship between the
parties except that buyer and seller and/or that of Debtor and Secured Party if
a Security Agreement is executed contemporaneously herewith. Distributor
acknowledges that it does not have and shall not make any representation to a
third party either directly or indirectly indicating that Distributor has in
any way authority to act for or on behalf of Alumax or to obligate Alumax in
any way whatsoever.
<PAGE> 181
Alumax/Euramax
Distribution Agreement
Page 5
VIII
DEFAULT
Material misrepresentation or material misstatement by Distributor in
connection with, or material noncompliance with or nonperformance of any of
Distributor's obligations under this Agreement or under the provisions of any
Schedule attached hereto shall constitute a default hereunder (it being
understood that any misrepresentation, misstatement or nonperformance of a
covenant by Euramax International, Ltd., the direct or indirect parent of
Distributor ("Euramax"), under the Purchase Agreement, dated as of June 25,
1996, between Euramax and Alumax Inc. shall not constitute a default
hereunder). In addition, Distributor shall be in default hereunder if
bankruptcy or insolvency proceedings with respect to Distributor are instituted
by or against Distributor or if Distributor makes an assignment for the benefit
of creditors, or if Alumax shall determine in its sole judgment and at its
absolute discretion that Distributor is or will be unable to pay its debts as
they become due in the ordinary course of business.
IX
TRADEMARK
(a) Distributor may advertise the mark MIC-6 in relation to the
Product it distributes under this Agreement, so long as the use of the mark is
substantially as shown in Alumax's approved trademark form booklet. Such
advertising shall not convey the impression that Distributor owns the mark
MIC-6 or that the relationship between the parties is other than a
distributorship. Distributor acknowledges that the MIC-6 mark is the exclusive
property of Alumax.
(b) Any use of the mark MIC-6 by Distributor shall inure to the
benefit of Alumax, and Distributor shall make no claim of any right to own,
license or use the mark MIC-6 as provided herein.
<PAGE> 182
Alumax/Euramax
Distribution Agreement
Page 6
X
MISCELLANEOUS
(a) Captions.
The captions and headings of this Agreement are for convenience only
and are not a party of this Agreement and do not in any way limit or amplify
the terms of this Agreement.
(b) Governing Law.
This Agreement shall be construed and enforced in accordance with the
laws of the State of New York. The parties agree that the Federal Court for
the Southern District of New York shall have jurisdiction over any matter
arising under or related to this Agreement. The parties hereby consent to the
exclusive jurisdiction of the Federal Court for the Southern District of New
York, and Distributor hereby appoints the New York office of the law firm of
Kirkland & Ellis as its agent for any service of process.
(c) Notice.
Any notices hereunder shall be sufficient if in writing and if
delivered in person or if sent by registered mail, postage prepaid, by
facsimile or by prepaid courier service, addressed as follows:
Alumax: ALUMAX MILL PRODUCTS, INC.
12 Salt Creek Lane
Hinsdale, Illinois 60521
Attention: Vice President of Sales and Marketing
Facsimile No. 708-654-0129
with a copy to:
Alumax Inc.
5655 Peachtree Parkway
Norcross, Georgia 30092 U.S.A.
Attention: Vice President and General Counsel
Facsimile No. 770-246-6769
<PAGE> 183
Alumax/Euramax
Distribution Agreement
Page 7
Distributor: ALUMAX COATED PRODUCTS U.K. LTD.
Brunel Road, Earlstrees Industrial Estate
Corby, Northants NN17 4JW, England
Attention: Managing Director
Facsimile No: 011-44-1536-400101
or to such other address as the party addressed shall have furnished in writing
to the other party.
Any such notice shall be deemed given when actually received
by the party to whom notice is being given, when receipt is confirmed by
telephone or transmittal confirmation of any notice given by facsimile or
telecopier, on the day of delivery if by courier and on the tenth day after
proof of mailing by registered mail.
ENTIRE AGREEMENT
This Agreement, including the schedules hereto, constitutes the entire
agreement and supersedes all prior agreements, understanding, representations
and warranties both written and oral, between the parties with respect to the
subject matter hereof. No amendment or alteration of the terms of this
Agreement, except as otherwise expressly provided for herein, shall be valid or
binding except as may be set forth in a further written agreement duly executed
by the parties. No waiver of the terms of this Agreement, except for such
waivers as may be granted under the express terms of this Agreement, shall be
valid or binding unless in writing and executed by a duly authorized agent or
officer of the party against whom the waiver is asserted. Failure to insist or
assert a breach of the terms or conditions of this Agreement shall not
constitute or be deemed to be a waiver of a subsequent breach.
<PAGE> 184
Alumax/Euramax
Distribution Agreement
Page 8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
ALUMAX MILL PRODUCTS, INC.
By:
----------------------------------------------
Title:
-------------------------------------------
EURAMAX COATED PRODUCTS U.K. LIMITED
By: ----------------------------------------------
Title:
-------------------------------------------
<PAGE> 185
Alumax/Euramax
Distribution Agreement
Page 9
SCHEDULE I
PRODUCT DESCRIPTION AND LOGO GRAPHICS
(To be attached at time of execution)
<PAGE> 186
Alumax/Euramax
Distribution Agreement
Page 10
SCHEDULE II
CURRENT PRICE SHEET
(To be attached at time of execution)
<PAGE> 187
Alumax/Euramax
Distribution Agreement
Page 11
SCHEDULE III
SUPPLEMENTAL TERMS AND CONDITIONS
1. The Products shall be delivered to Distributor at the shipping
point (port) in the United States requested by Distributor and approved by
Alumax or selected by Alumax.
2. Delivery of Products by Alumax to the carrier at the shipping
point shall constitute delivery to Distributor, and with respect to the
Products being purchased by Distributor, upon delivery to the carrier title
shall pass to Distributor, subject to any applicable Alumax lien.
3. Upon arrival of the Products at Distributor's warehouse, or
any other location requested by Distributor and approved by Alumax at which the
Products are received to which the Distributor hub ordered the Products
delivered in accordance with paragraph 1 above, Distributor shall be under a
duty to do the following:
(a) Immediately inspect the Products to determine whether there
has been any damage to the Products in transit which is
reasonably ascertainable by visual inspection of the packaged
Products and shall give written notice to Alumax within thirty
days of receipt of the Products of any claim that they have
been so damaged (such claims for loss or damage will not be
considered unless supported by railroad agent's or other
carrier's acknowledgement on freight bill and a freight charge
claim must be accompanied by the original receipted freight
bill).
(b) Upon opening the packaging case in which the Products are
contained, inspect the Products to determine whether they
conform to the specifications or the terms of the Agreement.
If the goods do not so conform or there is a difference in
respect of quantity invoiced, Distributor shall notify Alumax
in writing within ten (10) days after receipt of any shipment.
In no event shall inspection under this paragraph 3(b) be made
later than six months after delivery of the Products to the
Distributor.
(c) If Distributor retains the Products in his possession after
delivery to Distributor's warehouse, without giving Alumax
such notice of claims as required by paragraph 3 above, such
<PAGE> 188
Alumax/Euramax
Distribution Agreement
Page 12
failure to give notice shall constitute irrevocable acceptance
of the Products by the Distributor.
(d) Distributor assumes all risks and liabilities resulting from
the use in its manufacturing or construction processes of any
of the Products, or by use of such Products in combination
with other substances.
(e) Risk of loss with respect to the Products passes to
Distributor when the goods are delivered to the carrier at the
shipping point, even though Distributor may have a right
pursuant to paragraph 3 to reject the Products.
4. Alumax objects to and rejects any terms and conditions
contained in an order or offer of Distributor that are additional to or
different from the terms and conditions herein.
5. Alumax may choose in its sole discretion to change any price
shown on Schedule II. Prices do not include sales, excise, use or other taxes
now in effect or hereafter levied by reason of a transaction. All such taxes
shall be paid by Distributor.
6. Payment terms are net 30 days from date of shipment. If there
is any discrepancy in respect of pricing, Distributor shall notify Alumax of
such discrepancy within ten (10) days of receipt of Alumax's invoice, or such
discrepancy shall be deemed to be waived. Whenever Alumax determines
reasonable grounds for insecurity arise with respect to due performance by
Distributor, Alumax may demand terms of payment different from those specified
herein, and may demand assurance of Distributor's due performance. Alumax may,
upon making such demand, suspend shipment and/or deliveries. If within the
period stated in such demand Distributor fails or refuses to agree to such
different terms of payment and/or fails or refuses to give adequate assurance
of due performance, Alumax may (i) by notice to Distributor, treat such failure
or refusal as a repudiation of the portion of the Agreement, whereupon Alumax
may cancel all further deliveries and any amounts unpaid hereunder shall
immediately become due and payable, or (ii) make shipments under reservation of
a security interest and demand payment against tender of documents of title.
If Alumax retains a collection agency and/or attorney to collect overdue
amounts, all collection costs, including attorneys' fees shall be payable by
Distributor.
<PAGE> 189
EXHIBIT F
Note: Exhibit F of the Purchase Agreement is a map, plotted April 12, 1996, of
the boundaries of ownership and occupation of certain real property of Alumax
Ellbee Limited at Grangefield Industrial Estate, Pudsey, England (Grangefield
Works), as referenced in Schedule 3.1(h). Pursuant to Rule 304 of Regulation
S-T under the Securities Act of 1933, the foregoing description is included in
this electronic filing via "EDGAR" in lieu of the actual map attached as
Exhibit F to the Purchase Agreement.
<PAGE> 190
Exhibit G
ALUMAX TO SELL CERTAIN OF ITS
FABRICATED PRODUCTS BUSINESSES
IN EUROPE AND THE UNITED STATES
NORCROSS, GA., June 27, 1996 -- Alumax Inc. (NYSE: AMX; Toronto: AXI) today
announced that it has signed a definitive agreement for the sale of Euramax
International, Ltd. of certain of Alumax's Fabricated Products businesses in
Western Europe and in the United States.
The sale will not include any Kawneer architectural aluminum operations in
Europe or the United States, nor will it include Alumax Magnolia Division in
the United States.
Alumax confirmed that it has agreed to sell the businesses for $245
million. The purchase price is subject to adjustment for working capital
changes occurring since December 31, 1995. Closing, which is subject to
various customary conditions, is expected to occur by September 1996.
The sale will include a group of five companies in Western Europe which
focuses on coil coating and fabricating aluminum and steel coils. Other
products include steel and aluminum entry doors, recreational vehicle
components, composite panels, vehicle components such as seat rails and
sunroof frames, and windows for modular construction.
These European companies, which serve the recreational vehicle, home center,
home improvement, residential construction and various original equipment
manufacturers markets, operate two plants in the United Kingdom, two in France
and one in The Netherlands.
The sale will also include more than 30 plants and service centers
throughout the United Sates operated by Alumax Fabricated Products, Inc.
Products produced and marketed by these operations include rain carrying
systems, roofing and roofing accessories, siding, appliance trims, steel
entry doors, vinyl windows and numerous recreational vehicle components.
(more)
<PAGE> 191
ALUMAX 22222
The businesses to be sold have total annual sales of approximately $500 million
and employ approximately 2,100 people. The group is a leader in aluminum and
steel coil coating and fabricating in Europe and in the United States. It is
strong in value-added products for the residential remodelling and new
construction markets and is an established leader in the large and growing
do-it-yourself market.
The divestiture will provide an opportunity for these businesses to grow and
prosper and will give Alumax Inc. an opportunity to redeploy resources to
further develop its core business, which is in keeping with the company's
strategic direction.
The businesses sold to Euramax International, Ltd. in Europe include: Alumax
Ellbee Limited and Alumax Coated Products U.K. Limited in England; Alumax
Coated Products B.V. in The Netherlands; and Alumax Coated Products S.A. and
Alumax Industries S.A. in France. The businesses sold to Euramax
International, Ltd. in North America include: Alumax Appliance and Specialty
Products, Inc., Alumax Building Products, Inc., Alumax Coated Products, Inc.,
Alumax Door Products, Inc., and Alumax Home Products Division.
Alumax Inc. is a world leader in aluminum with year-end 1995 assets of more
than $3.1 billion and 1995 revenues of more than $2.9 billion.
The company produces and markets primary aluminum ingot, billet and slab and is
a major fabricator of value-added aluminum products for the building and
construction, transportation, packaging and consumer durables industries.
Euramax International, Ltd. is a new company incorporated under the laws of
England and Wales by CVC European Equity Partners, LP. and certain Citicorp
entities.
*****
<PAGE> 192
SCHEDULE 2.2(b)
MODIFICATIONS TO GAAP
Modified GAAP is defined as a special-purpose presentation prepared in
accordance with this purchase agreement that does not constitute a complete
presentation of assets, liabilities, revenues and expenses, and cash flow, as
described below, but is otherwise prepared in conformity with generally
accepted accounting principles. The combined financial statements consist of a
statement of net operating assets, a statement of operating earnings, and a
statement of operating cash flow.
The special purpose statement of net operating assets shall exclude: cash and
cash equivalents, excluding negative cash representing outstanding checks which
have been reclassed to trade payables; intercompany balances between the Sale
Companies and the Seller and its subsidiaries other than the Sale Companies;
U.S. federal, state and local and foreign income tax assets or liabilities
(current and deferred); liability for postretirement health care and life
insurance benefits (SFAS No. 106); liability for postemployment benefits (SFAS
No. 112); prepaid (accrued) pension cost under U.S. plans; and environmental
liability associated with the waste sites and remedial measures listed on
Schedules 7.3(a), 7.3(b), 7.3(c), 7.3(d) and 7.3(e) of the purchase agreement
except with respect to costs incurred or accrued and unpaid prior to Closing
with respect to the actions specified on Schedules 7.3(c) and 7.3(d). Balances
related to these specific items, which resided on the Sale Companies balance
sheets, were effectively eliminated through an adjustment to equity.
<PAGE> 193
SCHEDULE 3.1(a)
SUBSIDIARIES AND EQUITY INVESTMENTS
United States
Alumax Appliance and Specialty Products, Inc.
Incorporated: Delaware
Stockholder: Alumax Fabricated Products, Inc. (100%)
Alumax Building Products, Inc.
Incorporated: Delaware
Stockholder: Alumax Fabricated Products, Inc. (100%)
Alumax Coated Products, Inc.
Incorporated: Delaware
Stockholder: Alumax Building Products, Inc. (100%)
Alumax Door Products, Inc.
Incorporated: Indiana
Stockholder: Alumax Fabricated Products, Inc. (100%)
Euramax Home Products, Inc.
Incorporated: Delaware
Stockholder: Alumax Fabricated Products, Inc.
Europe
Alumax S.A.(a)
Incorporated: Spain
Shareholder: Alumax Holdings S.A. (100%)(1)
Alumax Coated Products B.V.
Incorporated: The Netherlands
Shareholder: Alumax Europe B.V. (100%)
Alumax Coated Products S.A.
Incorporated: France
Shareholder: Alumax Industries S.A. (100%)(2)
Alumax Coated Products U.K. Limited
- -----------------------
(a) Subsidiary to be retained by Alumax Inc. (Retained Subsidiaries)
(1) One share held by Neil Davies as nominee of Alumax Holdings S.A.
(2) One share each held by the following individuals as directors: Guy
Blanc, Helen Feeney, J. David Smith, Jean Claude Bonnard, Neil Davies, Philippe
Berard.
-1-
<PAGE> 194
Schedule 3.1(a) (continued)
Incorporated: England and Wales
Shareholder: Alumax Holdings Limited (100%)
Alumax Ellbee Limited
Incorporated: England and Wales
Shareholder: Alumax Holdings Limited (100%)
Alumax Extrusions B.V.(a)
Incorporated: The Netherlands
Shareholder: Alumax Europe B.V. (100%)
Alumax Extrusions Limited(a)
Incorporated: England and Wales
Shareholder: Alumax Holdings Limited (100%)(3)
Alumax Holdings S.A.(a)
Incorporated: France
Shareholder: Alumax Europe B.V. (100%)(4)
Alumax Industries S.A.
Incorporated: France
Shareholder: Alumax Holdings S.(A). (100%)(5)
Alumax Polska Sp. z o.o.(a)
Incorporated: Poland
Shareholder: Alumax Europe B.V. (100%)
Alumax Recycling B.V.(a)
Incorporated: The Netherlands
Shareholder: Alumax Extrusions B.V. (100%)
Alumax U.K. Limiteda
Incorporated: England and Wales
Shareholder: Alumax Holdings Limited (100%)
- -----------------------
(3) One share held by R. P. Wolf as nominee of Alumax Holdings Limited.
(4) One share each held by the following individuals as directors: Dale
LaLonde, Daniel Fargier, Frans Kurvers, Helen Feeney, Jean Claude Bonnard,
Robert Wolf.
(5) One share each held by the following individuals as directors: Aloyse
R. Wagener, Helen M. Feeney, J. David Smith, Jean Lecloux, Neil P. Davies. One
share is held by Dale H. LaLonde and another is held by Alumax Holdings S.(A).
(transferred from Fred Farrar, although such transfer has not been recorded on
the Share Transfer Register).
-2-
<PAGE> 195
Schedule 3.1(a) (continued)
Kawneer Europe B.V.(a)
Incorporated: The Netherlands
Shareholder: Alumax Extrusions B.V. (100%)
Kawneer France S.A.(a)
Incorporated: France
Shareholder: Alumax Holdings S.A. (100%)(6)
Kawneer Maroc S.A.(a)
Incorporated: Morocco
Shareholder: Alumax Holdings S.A. (75%)
Kawneer Polska Sp. z o.o.(a)
Incorporated: Poland
Shareholder: Alumax Europe B.V. (55.5%)
Kawneer U.K. Limited(a)
Incorporated: England and Wales
Shareholder: Alumax Holdings Limited (100%)
- -----------------------------
(6) One share each held by the following individuals as directors: Dale H.
LaLonde, Daniel Fargier, Frans Th.H. Kurvers, Helen M. Feeney, Michael T.
Vollkommer, R. P. Wolf.
-3-
<PAGE> 196
SCHEDULE 3.1(d)(i)
GOVERNMENTAL CONSENTS, REGISTRATIONS,
APPROVALS, PERMITS OR AUTHORIZATIONS
1. Incorporation of Euramax Home Products, Inc. in Delaware
2. Qualification of Euramax Home Products, Inc. in California, Georgia,
Illinois, Pennsylvania, and Texas
3. Environmental permits and other permits and licenses required for
business of the Home Products Division of Alumax Aluminum Corporation
to be conducted by Euramax Home Products, Inc.
4. The Social Economical Merger Code ("SER besluit Fusiegedrags Regels
1975") notification in the Netherlands and the notification
requirements under the Collective Labor Agreement of the Metallurgic
and Electrochemical Industries.
5. Dutch requirement to consult with work councils:
The Works Councils of Alumax Coated Products B.V. and Alumax
Extrusions B.V. must give a positive advice.
Under the applicable collective labor agreement of Alumax
Coated Products B.V. there is a notification requirement (see
Article X.6 of the CLA).
6. The Works Councils of Alumax Industries SA and Alumax Coated Products
SA must have been consulted prior to the sale.
-1-
<PAGE> 197
SCHEDULE 3.1(d)(ii)
REQUIRED CONSENTS
1. Lease, dated March 20, 1990, by and between Peterson Properties
Limited and Alumax Aluminum Corporation.
2. Lease, dated October 20, 1992, by and between LaSalle National Trust
N.A., not individually but solely as Trustee under Trust Agreement
dated July 30, 1983 and known as Trust No. 106729, and Alumax Aluminum
Corporation.
3. Lease, dated January 28, 1994, by and between Alexander & Baldwin,
Inc. and Alumax Aluminum Corporation, Home Products Division.
4. Lease, dated April 12, 1984, by and between Northgate Investment
Company and Alumax Aluminum Corporation.
5. Lease, dated July 28, 1972, by and between J. L. Williams & Co., Inc.
and Howmet Corporation (predecessor in interest to Alumax Aluminum
Corporation, Home Products Division).
6. Lease, dated March 4, 1993, by and between Prudential Insurance
Company of America and Alumax Fabricated Products, Inc.
7. Supply Agreement, dated July 5, 1995, between (i) Atrak Limited, (ii)
Boomer Industries Limited and (iii) Alumax Ellbee Limited. Under
Clause 10.2 either Atrak or Ellbee may terminate the agreement if
there is any change in the beneficial ownership of any of the parties
other than as a result of a bona fide intra-group reorganization or
intra-family share transfer.
8. Master Standard Buying Agreement, dated January 12, 1995, by and
between Lowe's Companies, Inc. and Alumax Aluminum Corporation, Home
Products Division.
-1-
<PAGE> 198
SCHEDULE 3.1(f)
CHANGES IN BUSINESS
1. Alumax Severance Pay Plan, effective January 1, 1994, as amended May
1, 1996. The amendment is effective retroactive to January 1, 1996.
2. The Alumax Incentive Compensation plan bonus will be paid to
participants pro rata to the number of months of Alumax ownership of
the Sale Companies in 1996.
3. The salary of Mr. David Pugh, recently appointed Managing Director or
Alumax Ellbee Limited, has been increased with effect from May 1, 1996
by the sum of L.8,000 per annum.
4. Swift Caravans, a customer of Alumax Ellbee Limited, has notified
Alumax Ellbee Limited that it is evaluating the product of a
competitor of Alumax Ellbee Limited in relation to doors for touring
caravans. Sales of such doors to Swift Caravans in 1995 amounted to
approximately L.500,000.
5. Fred Farrar, Managing Director of Alumax Ellbee Ltd., retired on
February 29, 1996 at age 61. He was granted a pension augmentation in
the form of additional pensionable service. The cost of this was
approximately L.17,653 and has now been paid into the UK Pension
Scheme by Alumax Ellbee Limited and will be booked in full against the
earning of that company by the end of May 1996. See, in particular,
documents b.12 to b.16, inclusive, of the documents listed in Schedule
3.1(m)(xii).
6. See also disclosure regarding the retention bonus in item no. 2 of
Schedule 4.1(iii).
7. Alumax Mill Products, Alumax Fabricated Products and Alumax Building
Products will be entering into a settlement agreement with Decatur
Aluminum Corporation (see Schedule 3.1(o)). In connection with that
settlement, the parties intend to amend and restate the Supply
Agreement effective January 9, 1994, by and between Decatur Aluminum
Corporation and Alumax Fabricated Products, Inc. (see Schedule
3.1(p)).
8. Asset sale involving assets used in the manufacture of acrylic windows
by Alumax Ellbee Limited pursuant to Asset Transfer Agreement between
Alumax Ellbee Limited
-1-
<PAGE> 199
Schedule 3.1(f) (continued)
and Polyplastics B.V., dated February 28, 1996 (see Schedule 3.1(p)).
9. According to a letter from the Delegation a l'Amenagement du
Territoire et a l'Action Regionale (DATAR) dated March 14, 1996,
Alumax Coated Products S.A. has been granted a subsidy of FF 1,000,000
conditional upon (i) Alumax Coated Products S.A. being granted a FF
4,000,000 loan, (ii) a continuous financial support from the group of
FF 11,000,000 and (iii) the creation of 40 permanent jobs at Alumax
Coated Products S.A. by January 1, 1998. Alumax Coated Products S.A.
has already received one third of the subsidy (i.e. approximately FF
300,000). The reimbursement of the balance of the loan of FF
20,000,000 from Alumax Holdings S.A. to Alumax Coated Products S.A.
dated December 2, 1993 (which was FF 12,000,000 on March 20, 1995)
could jeopardize the right to such subsidy, which may have to be
repaid.
10. De Brauw Blackstone Westbroek are working on an amendment to the
Articles of Association of Alumax Coated Products B.V., which
amendment would change the fiscal year of Alumax Coated Products B.V.
11. A new collective bargaining agreement is in the course of negotiation
between FME, on behalf of employers within the industry, and the trade
unions, and will be binding on Alumax Coated Products B.V.
12. One of the customers of Alumax Industries S.A., Transloko, has filed
for bankruptcy. FF 1,500,000 is due from the customer. The
management of Alumax Industries S.A. anticipates that the company's
credit insurance will cover up to 85% of that amount although no
warranty is given to this effect. Alumax Industries S.A. continues to
deal with the customer on a pre-payment basis.
13. Alumax Coated Products B.V. is considering issuing proceedings for the
payment of NLG 35,000 against VOF Bravo Plafonds and approximately NLG
60,000 against Wolwega Panelen B.V. See also Schedule 3.1(o).
14. The zero balance account to which Alumax Coated Products B.V. and
Alumax Europe B.V. participate will be terminated prior to Closing.
-2-
<PAGE> 200
Schedule 3.1(f) (continued)
15. Alumax Coated Products B.V. has suffered a slight drop in turnover
which it may not make up for prior to Closing.
16. The registration of Alumax Europe B.V. for VAT purposes has been
questioned by the Dutch tax authorities. See Schedule 3.1(q), item 5
for clarification.
17. The returns filed by Alumax Coated Products B.V. did not, according to
the Dutch tax authorities, adequately reflect the VAT due in respect
of the use of company cars and the cantina of Alumax Coated Products
B.V.
18. The loan made by Alumax Europe B.V. to Kawneer Aluminum GmbH as laid
down in the promissory note dated as May 6, 1994 has been repaid after
December 31, 1995.
19. After December 31, 1995, Alumax Europe B.V. has incurred costs in the
amount of approximately NLG 465,000 in respect of the study into the
possibility of further acquisitions.
20. Alumax Europe B.V. has issued joint and several liability statements
in respect of certain of its subsidiaries pursuant to article 403,
Volume 2 of the Dutch Civil Code. Some or all of these statements may
be withdrawn or may be in the process of being withdrawn.
-3-
<PAGE> 201
SCHEDULE 3.1(g)
LIABILITIES
1. Guarantee given to Secretary of State for Trade & Industry by Euramax
Aluminum Limited (now Alumax Coated Products U.K. Limited) dated May
5, 1989 (the parties are Ametalco Limited, Euramax Aluminum Limited,
and the Secretary of State for Trade & Industry).
2. Cross guarantee given by Alumax Holdings Limited to National
Westminster Bank dated March 21, 1994 in respect of UK Centralized
Cash Management System, dated March 1994.*
3. Guarantee given by National Westminster Bank to HM Customs & Excise
(L.50,000) dated March 21, 1994 for payment of sums due by Alumax
Ellbee Ltd. and counter-indemnity given by Alumax Ellbee Ltd. to
National Westminster Bank.*
4. Guarantee given by National Westminster Bank to HM Customs & Excise
for payment of sums due by Alumax Coated Products Ltd. and
counter-indemnity given by Alumax Coated Products Ltd. (L.30,000).*
5. Cross guarantee for centralized cash management system of Alumax Inc.,
dated March 24, 1994 (guarantees the obligations of Alumax Holdings
Limited, Alumax Coated Products UK and Alumax Ellbee Limited and
Kawneer UK Limited).*
6. Indemnity from Alumax Holdings Limited to National Westminster Bank,
dated March 24, 1994.*
7. Cross guarantee for centralized cash management system of Alumax
Coated Products UK Limited, dated March 30, 1994 (guarantees the
obligations of Alumax Holdings Limited, Alumax Ellbee Limited and
Kawneer UK Limited).*
8. Cross guarantee for centralized cash management system of Alumax
Ellbee Limited, dated March 1994 (guarantees the obligations of Alumax
Coated Products UK Limited, Alumax Holdings Limited and Kawneer UK
Limited).*
- --------------------------
* Will be terminated prior to Closing.
-1-
<PAGE> 202
Schedule 3.1(g) (continued)
9. Alumax Coated Products B.V. and Alumax Europe B.V. have additional tax
obligations as set forth in Schedule 3.1(q) (see numbers 4 and 5).*
10. Alumax Europe B.V. has issued joint and several liability statements
in respect of certain of its subsidiaries pursuant to article 403,
Volume 2 of the Dutch Civil Code. Some or all of these statements may
be withdrawn or may be in the process of being withdrawn.
11. Alumax Holdings Limited has contingent liability pursuant to a
guarantee given to the landlord of property at 3rd Floor, 40 Clifton
Street, Uxbridge in respect of payment of rent by the tenant, payment
of service charge, and performance and observance of covenants
contained in the lease by the tenant. In the event of the tenant's
liquidation, Alumax Holdings Limited is obliged, at the request of the
landlord, to take up the lease.
12. Alumax Coated Products UK Limited has a contingent liability pursuant
to an underlease of property at 134A High Street, Uxbridge assigned to
Career Care Limited in 1990.
- --------------------------
* Will be terminated prior to Closing.
-2-
<PAGE> 203
SCHEDULE 3.1(h)
REAL PROPERTY
<TABLE>
<CAPTION>
OWNED/
SUBSIDIARY/DIVISION ADDRESS CITY LEASED
<S> <C> <C> <C>
Alumax Building Products, Inc.
Plant-Subleasing Bldg. 1400/11/21 North Daly Anaheim, CA leased
Plant 849/851 Railroad St. Bloomsburg, PA leased
Plant 206 Kesco Dr. Bristol, IN owned
Office 406 Kesco Dr. Bristol, IN
Headquarters 14651 Dallas Parkway Dallas, TX leased
Plant 160 County Rd. 15 S Elkhart, IN leased
Plant 2211 W. 8th St. Loveland, CO leased
Plant 700 So. 2nd Ave. Mansfield, TX owned
Plant 1820 East 26th St. Marshfield, WI owned
Plant 1000 W. First St. McPherson, KS owned
Plant 39 W. Hampton Mesa, AZ leased
Plant 680 Gordon Dr. Moulton, AL owned
Closed as of 12/31/93-Subleased Shelly Land Rd Mount Joy, PA leased
Plant 207 Watlington Industrial Rd. Reidsville, NC leased
Plant 28921 E. Hwy 74 Romoland, CA owned
Plant 1360 Wilco Rd. Stayton, OR leased
Plant Rt. 41 So. & Lamb Dr. Tifton, GA leased
Plant 1550 Parkway Blvd. West Sacramento, CA leased
Alumax Coated Products, Inc.
Plant 119 N. Sebastian Rd. West Helena, AR owned
Alumax Door Products, Inc.
Plant 1410 S.W. 12th Ave. Ocala, FL leased
Plant/Office 305 Industrial Parkway Richmond, IN leased
Alumax Fabricated Products, Inc.
Headquarters 5335 Triangle Parkway Norcross, GA leased
</TABLE>
-1-
<PAGE> 204
Schedule 3.1(h)(continued)
<TABLE>
<CAPTION>
OWNED/
SUBSIDIARY/DIVISION ADDRESS CITY LEASED
<S> <C> <C> <C>
Appliance and Specialty Products, Inc.
Plant Hwy. 36, Milton Rd. Carrollton, KY owned
Plant 3510 Lightner Rd. Vandalia, OH leased
Euramax Home Products, Inc.(1)
Service Center 6235 W. 73rd. St. Bedford Park, IL leased
Service Center 1025 Avenue S, Suite 150 Grand Prairie, TX leased
Plant 450 Richardson Dr. Lancaster, PA owned
Service Center 3701-A Pell Circle Sacramento, CA leased
Service Center 4777 Stone Dr. Tucker, GA leased
Alumax Coated Products U.K. Limited
Plant Brunel Road Corby, England owned
Undeveloped Brunel Road Corby, England owned
Plant Macadam Road Corby, England owned
Alumax Holdings Limited/Alumax Coated
Products U.K. Limited Cowley Mill Road Uxbridge, England leased
Office
Alumax Ellbee Limited
Plant Grangefield Works, Pudsey, England two parts leased;
Richardshaw Road (North side) one owned
Plant Grangefield Works, Pudsey, England two leases
Richardshaw Road (South side)
</TABLE>
- ----------------------------------
(1)Presumes transfer of real property owned and leased by the Home
Products Division of Alumax Aluminum Corporation to Euramax Home Products, Inc.
-2-
<PAGE> 205
Schedule 3.1(h)(continued)
<TABLE>
<CAPTION>
OWNED/
SUBSIDIARY/DIVISION ADDRESS CITY LEASED
<S> <C> <C> <C>
Alumax Coated Products S.A.
Plant Avenue Louis-Antoine Beaunier Andrezieux-Boutheon, France owned
Alumax Industries S.A.
Plant Complexe Industriel De Meron Montreuil-Bellay, France owned
Alumax Coated Products B.V.(2)
Plant Industrieweg 6 Roermond, Netherlands owned
Plant Productieweg 2 Roermond, Netherlands owned
</TABLE>
With respect to the UK Properties, Seller has made further disclosure to
Purchaser through Purchaser's U.K. counsel by delivery of the documents
reflected on the attached Annex to Schedule 3.1(h).
The Seller has not delivered deeds relating to the leasehold and freehold
property at Grangefield Works, Pudsey, England marked on the plan attached as
Exhibit F to the Agreement. The Seller cannot locate such deeds. An
application has been filed with the Land Registry for the issue of replacement
Land certificates.
After the transfer of land by Alumax Coated Products B.V. to Alumax Extrusions
B.V., it is possible that the buildings located on the land may contravene
statutory provisions which require building to be sited a certain distance from
the boundary of such property.
The real property of Alumax Coated Products B.V. is encumbered with a right
pursuant to the "Belemmeringenwet Privaatvecht" in favor of Industrieschap
Roerstreek. The real property of Alumax Coated Products B.V. is encumbered by
a right of the Industrieschap Roerstreek, a governmental organization, which
inter alia, prohibits Alumax Coated Products or any subsequent owner of the
real property from using the premises for retail trade. Alumax Coated Products
B.V. has complied with the obligations concerning construction contained in the
deeds of transfer relating to its real property dated March 15, 1973, February
17, 1974, and March 9, 1996.
- ----------------------------------
(2)Alumax Coated Products B.V. holds legal title to real property occupied
by Alumax Extrusions B.V. at Industrieweg 8, Roermond, Netherlands and will
transfer such title to Alumax Extrusions B.V. prior to Closing.
-3-
<PAGE> 206
Schedule 3.1(h)(continued)
-4-
<PAGE> 207
ANNEX to Schedule 3.1(h)
<TABLE>
<CAPTION>
ALUMAX PROPERTIES IN THE UK
<S> <C>
---------------------------------------------------------------------------------------
1. UNITS 1 AND 2 GRANGEFIELD:
--------------------------
---------------------------------------------------------------------------------------
1.1 Letter - British Gas North Eastern to Simpson Curtis undated
---------------------------------------------------------------------------------------
1.2 Copy Agreement for Sale - Leedsford (Structures) undated
Limited (1) Ellbee Limited (2)
---------------------------------------------------------------------------------------
1.3 Copy Memorial of Conveyance - Ralph Lobley Proctor 12.04.06
and Joseph Henry Ward (1) Sam Cordingley (2)
---------------------------------------------------------------------------------------
1.4 Copy Second Schedule of Abstract of Title 23.11.25
---------------------------------------------------------------------------------------
1.5 Copy Memorial of Conveyance - Bertha Whitham (1) The 23.01.62
Mayor Alderman and Burgesses of the Borough of Pudsey
(2)
---------------------------------------------------------------------------------------
1.6 Copy of Conveyance - Bertha Whitham (1) The Mayor 08.05.64
Aldermen and Burgesses of the Borough of Pudsey
---------------------------------------------------------------------------------------
1.7 Copy lease - the Mayor Aldermen and Burgesses of the 21.1.65
Borough of Pudsey (1) Samuel Gratix Limited (2)
---------------------------------------------------------------------------------------
1.8 Letter - Eddisons Chartered Surveyors to Ellbee 09.11.83
Limited
---------------------------------------------------------------------------------------
1.9 Copy report on Condition of Factory Unit - J 07.4.88
Robinson & Son (Consulting Engineers) Limited
---------------------------------------------------------------------------------------
1.10 Copy Deed of Surrender - Thorn EMI plc (1) Ellbee 1989
Limited (2)
---------------------------------------------------------------------------------------
1.11 British Coal Mining Search - British Coal to Simpson 25.04.89
Curtis
---------------------------------------------------------------------------------------
1.12 Letter - British Telecom to Simpson Curtis 02.05.89
---------------------------------------------------------------------------------------
1.13 Letter - Yorkshire Electricity Board to Simpson 09.05.89
Curtis
---------------------------------------------------------------------------------------
1.14 Local Land Charges Search 25.05.89
---------------------------------------------------------------------------------------
1.15 Copy Report on Title 26.07.89
---------------------------------------------------------------------------------------
1.16 Land Certificate for Title Number WYK4500008, 26.03.91
compared with register on
---------------------------------------------------------------------------------------
1.17 British Coal Mining Search 18.03.96
---------------------------------------------------------------------------------------
</TABLE>
<PAGE> 208
<TABLE>
<S> <C> <C>
---------------------------------------------------------------------------------------
1.18 Copy letter to Nottingham District Land Registry and 19.03.96
Copy Office Copy Entries - Land Register: Title No.
YK 16740
---------------------------------------------------------------------------------------
1.19 Copy local search 22.03.96
---------------------------------------------------------------------------------------
1.20 Copy lease between the Mayor Aldermen and Burgesses 28.07.64
of the Borough of Pudsey (1) and S.M.L. Engineers
Limited (2)
---------------------------------------------------------------------------------------
1.21 Copy lease between the Mayor Aldermen and Burgesses 25.06.65
of the Borough of Pudsey (1) and S.M.L. Engineers
Limited (2)
---------------------------------------------------------------------------------------
1.22 Replies to General Enquiries before Contract and 19.06.96
Supplemental Enquiries together with enclosures
referred to in replies
---------------------------------------------------------------------------------------
1.23 Copy Lease - Unit 3, First Avenue, Grangefield 04.04.95
Industrial Estate, Pudsey
---------------------------------------------------------------------------------------
2. MACADAM ROAD
------------
---------------------------------------------------------------------------------------
2.1 Bundle of Pre-Registration Deeds and Documents as
listed on schedule with bundle
---------------------------------------------------------------------------------------
2.2 Copy Conveyance and Assignment - Lloyds Ironstone 30.12.32
Company Limited (1) Stewarts & Lloyds Limited (2)
---------------------------------------------------------------------------------------
2.3 Copy Lease - Commission for the New Towns (1) The 14.04.82
East Midland Electricity Board (2)
---------------------------------------------------------------------------------------
2.4 Copy Lease (two copies) - Commission for the New 28.05.82
Towns (1) Boulton and Paul Plc (2)
---------------------------------------------------------------------------------------
2.5 Underlease - Boulton and Paul Plc (1) L. B. 02.01.86
(Plastics) Limited (2)
---------------------------------------------------------------------------------------
2.6 Two Land Registry Index Map Searches 18.06.87
---------------------------------------------------------------------------------------
2.7 Conveyance - Commission for the New Towns (1) L. B. 29.09.87
Plastics Limited (2)
---------------------------------------------------------------------------------------
2.8 Official Search Certificate Number S5212260 16.09.87
---------------------------------------------------------------------------------------
2.9 Fire Certificate - Northamptonshire Fire Authority 13.01.89
(1) Sky Home Improvements Limited (2)
---------------------------------------------------------------------------------------
2.10 Land Certificate Title NN107987 14.09.90
---------------------------------------------------------------------------------------
2.11 Local Search - Corby District Council 28.09.90
---------------------------------------------------------------------------------------
2.12 Company Search - L. B. Plastics Limited 07.11.90
---------------------------------------------------------------------------------------
</TABLE>
<PAGE> 209
<TABLE>
<S> <C> <C>
---------------------------------------------------------------------------------------
2.13 Copy Local Land Charges Search - Corby Borough 20.03.96
Council
---------------------------------------------------------------------------------------
2.14 Replies to General Enquiries before Contract - Long 19.06.96
Form together with enclosures referred to in replies
---------------------------------------------------------------------------------------
3. BRUNEL ROAD (LAND ONLY)
-----------------------
---------------------------------------------------------------------------------------
3.1 Copy Receipt for Compensation Money 30.07.03
---------------------------------------------------------------------------------------
3.2 Copy Conveyance - G L T Brudenell (1) J C B Bruce and 26.06.31
K O Hunter (2) Coutts & Co (3) Lloyds Ironstone
Company Limited (4)
---------------------------------------------------------------------------------------
3.3 Copy Conveyance - The London Midland and Scottish 13.08.34
Railway Company (1) Stewarts & Lloyds Limited (2)
---------------------------------------------------------------------------------------
3.4 Copy Lease - Sir Michael Clume Seymour (1) Stewarts & 18.12.35
Lloyds Limited (2)
---------------------------------------------------------------------------------------
3.5 Copy Conveyance - L B Pain (1) J W Pain & Anor (2) 30.07.36
Stewarts & Lloyds Limited (3)
---------------------------------------------------------------------------------------
3.6 Copy of the Electricity (Supply) Acts 1882 to 1936, 11.03.49
Electricity Act 1947
---------------------------------------------------------------------------------------
3.7 Copy Conveyance and Surrender - E C S J G Brudenell 08.03.63
(1) Mrs M J Brudenell & Anor (2) E C S J G Brudenell
& Anor (3) Mrs M J Brudenell & Others (4) Guardian
Assurance Company Limited (5) Stewarts & Lloyds
Minerals Limited (6)
---------------------------------------------------------------------------------------
3.8 Copy Memorandum and Articles of Association 18.05.65
---------------------------------------------------------------------------------------
3.9 Copy Licence - British Steel Corporation (1) Corby 12.07.78
Development Corporation
---------------------------------------------------------------------------------------
3.10 Copy Deed of Grant - Stewarts & Lloyds Limited (1) 27.10.67?
The Central Electricity Generating Board (2)
-----------------------------------------------------------------------------------------
3.11 Copy Conveyance and Plan - British Steel Corporation 21.03.80
(1) Corby Development Corporation (2)
---------------------------------------------------------------------------------------
3.12 Copy Deed of Grant - Commission for the New Towns (1) 14.04.82
The East Midland Electricity Board (2)
------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 210
<TABLE>
<S> <C> <C>
---------------------------------------------------------------------------------------
3.13 Deed of Agreement - British Still plc (1) Alumax 03.11.94
Coated Products UK Limited (2)
---------------------------------------------------------------------------------------
3.14 Land Certificate Title Number NN174656 21.07.95
---------------------------------------------------------------------------------------
3.15 Bundle of old plans and searches
---------------------------------------------------------------------------------------
3.16 Copy Local Land Charges Search 10.04.96
---------------------------------------------------------------------------------------
3.17 Replies to General Enquiries before Contract - Long 19.06.96
Form together with enclosures referred to in replies
---------------------------------------------------------------------------------------
4. BRUNEL ROAD (MAIN FACTORY)
--------------------------
---------------------------------------------------------------------------------------
4.1 Copy Indenture - Earl of Westmoreland and Anor (1) 26.06.08
The Dowager Countess of Cardigan and Lancastre (2) S
Lloyds (3) Lloyds Ironstone Co. Ltd (4)
---------------------------------------------------------------------------------------
4.2 Copy Assignment - Lloyds Ironstone Co. Ltd (1) 30.12.32
Stewarts & Lloyds Ltd (2)
---------------------------------------------------------------------------------------
4.3 Copy Consent - Stewarts & Lloyds Ltd to The British 11.03.49
Electricity Authority
---------------------------------------------------------------------------------------
4.4 Copy Deed of Grant - Stewarts & Lloyds Ltd (1) The 27.10.67
Central Electricity Generating Board (2)
---------------------------------------------------------------------------------------
4.5 Copy Conveyance and Surrender - E C S J G Brudenell 08.03.63
(1) Mrs M J Brudenell & Anor (2) E C S J G Brudenell
& Anor (3) Mrs M J Brudenell and Others (4) Guardian
Assurance Co. Ltd (5) Stewarts & Lloyds Minerals Ltd
(6)
---------------------------------------------------------------------------------------
4.6 Copy of the Steel Companies (Vesting) Order 1970 18.03.70
---------------------------------------------------------------------------------------
4.7 Copy Licence - British Steel Corporation (1) Corby 12.07.78
Development Corporation (2)
---------------------------------------------------------------------------------------
4.8 Copy Letter - British Steel Corporation to Corby 12.02.80
Development Corporation
---------------------------------------------------------------------------------------
4.9 Copy The Corby Development Corporation (Transfer of 31.01.80
Property and Dissolution) Order 1980
---------------------------------------------------------------------------------------
4.10 Copy Conveyance - British Steel Corporation (1) Corby 21.03.80
Development Corporation (2)
---------------------------------------------------------------------------------------
</TABLE>
<PAGE> 211
<TABLE>
<S> <C> <C>
---------------------------------------------------------------------------------------
4.11 Letter with General Authority annexed - Department of 20.10.81
Environment to Commission for the New Towns
---------------------------------------------------------------------------------------
4.12 Local Search & Enquiries - Corby District Council 30.10.81
---------------------------------------------------------------------------------------
4.13 Agreement - The Commission for the New Towns (1) 23.11.81
Euramax Aluminium Ltd (2)
---------------------------------------------------------------------------------------
4.14 Official Search 14.12.81
---------------------------------------------------------------------------------------
4.15 Office Copy of Land Charge of 48080/31 with plan 22.12.81
---------------------------------------------------------------------------------------
4.16 Official Search - Certificate No G3142026 25.1.82
---------------------------------------------------------------------------------------
4.17 Official Search - Certificate No G3143026 25.1.82
---------------------------------------------------------------------------------------
4.18 Conveyance - The Commission for the New Towns (1) 10.2.82
Euramax Aluminium Ltd (2)
---------------------------------------------------------------------------------------
4.19 Copy Local Land Charges Search 10.04.96
---------------------------------------------------------------------------------------
4.20 Replies to General Enquiries before Contract - Long 19.06.96
Form together with enclosures referred to in replies
---------------------------------------------------------------------------------------
5. UNIT 11 WILLOW COURT
--------------------
---------------------------------------------------------------------------------------
5.1 Lease 17.04.90
---------------------------------------------------------------------------------------
5.2 Copy Local Land Charges Search 02.04.96
---------------------------------------------------------------------------------------
5.3 Replies to General Enquiries before Contract and undated but sent out to
Supplemental Enquiries together with enclosures Dibb Lupton Broomhead
referred to in replies 25.04.96
---------------------------------------------------------------------------------------
6. BROOK BUSINESS CENTRE/11 COWLEY MILL ROAD, UXBRIDGE
---------------------------------------------------
(FORMERLY KNOWN AS UNIT 11 WILLOW COURT)
----------------------------------------
---------------------------------------------------------------------------------------
6.1 Land Certificate Title Number AGL17547 03.05.90
---------------------------------------------------------------------------------------
6.2 Letter - 1. Refuge Assurance Plc 2. Euramax Aluminium 10.07.89
Limited
---------------------------------------------------------------------------------------
6.3 Warranty Agreement - 1. The Waterman Partnership 2. 14.03.90
Sheraton UK Limited 3. Euramax Aluminium Limited
---------------------------------------------------------------------------------------
6.4 Warranty Agreement - 1. Murdoch Green & Partners 2. 15.03.90
Sheraton UK Limited 3. Euramax Aluminium Limited
---------------------------------------------------------------------------------------
</TABLE>
<PAGE> 212
<TABLE>
<S> <C> <C>
---------------------------------------------------------------------------------------
6.5 Warranty Agreement - 1. Ralph T King & Associates 16.03.90
Limited 2. Sheraton UK Limited 3. Euramax Aluminium
Limited
---------------------------------------------------------------------------------------
6.6 Copy Consent to Dealing - 1. United Dominions Trust 17.04.90
Limited 2. Sheraton UK Limited
---------------------------------------------------------------------------------------
6.7 Lease - 1. Sheraton UK Limited 2. Euramax Aluminium 17.04.90
Limited
---------------------------------------------------------------------------------------
6.8 Licence for Alterations - 1. Sheraton UK Limited 2. 19.04.90
Euramax Aluminium Limited
---------------------------------------------------------------------------------------
6.9 Copy letter from Slaughter & May confirming no 02.11.90
contingent liabilities in respect of 134 High Street,
Uxbridge
---------------------------------------------------------------------------------------
6.10 See 5.3 above.
---------------------------------------------------------------------------------------
7. FREEHOLD TITLE NO: YK16740 GRANGEFIELD WORKS
--------------------------------------------
GRANGEFIELD ROAD STANINGLY PUDSEY WEST YORKSHIRE:
-------------------------------------------------
---------------------------------------------------------------------------------------
7.1 Copy Certificate of Incorporation on Change of Name 13.12.72
from SML (Engineers) Limited to Ellbee Limited
---------------------------------------------------------------------------------------
7.2 Copy Deed of Release - SML (Engineers) Limited (1) 17.03.76
British Railways Board (2)
---------------------------------------------------------------------------------------
7.3 Copy Deed of Grant - Leeds City Council (1) Ellbee 06.03.79
Limited (2) Samuel Lazarus (3) Lloyds Bank Limited
(4)
---------------------------------------------------------------------------------------
7.4 Copy Letter (Open Market Valuation Report) - Eddisons 09.11.83
Chartered Surveyors (1) Ellbee Limited (2)
---------------------------------------------------------------------------------------
Fire Certificate - West Yorkshire Fire Service 26.08.88
---------------------------------------------------------------------------------------
ANNEX to Schedule 3.1(h) (continued)
---------------------------------------------------------------------------------------
Copy Fire Alarm Agreement - Abel Alarm Co Limited (1) 16.02.93
Ellbee Limited (2)
---------------------------------------------------------------------------------------
Copy Fire Appliance Maintenance Agreement - LEPOL (1) 11.05.94
Ellbee windows Limited (2)
---------------------------------------------------------------------------------------
7.5 Copy Certificate of Incorporation on Change of Name
from Ellbee Limited to Alumax Ellbee Limited
---------------------------------------------------------------------------------------
7.6 Copy Planning Permission, Building Plans, Practical 02.03.95
Completion Statement, Contract and Drawings - Leeds
City Council
---------------------------------------------------------------------------------------
</TABLE>
<PAGE> 213
<TABLE>
<S> <C> <C>
7.7 Copy Heating Maintenance Agreement - ICH Limited (1) 11.05.95
Ellbee Limited (2)
---------------------------------------------------------------------------------------
7.8 Copy Planning Permission, Building Plans, Practical 15.05.95
Completion Statement, Contract and Drawings - Leeds
City Council
---------------------------------------------------------------------------------------
7.9 Copy Office Copy Entries and Filed Plan 18.03.96
---------------------------------------------------------------------------------------
7.10 Copy Letter - Alumax Ellbee Limited (1) Nottingham 19.03.96
District Land Registry (2)
---------------------------------------------------------------------------------------
7.11 Copy Letter - Nottingham District Land Registry (1) 26.03.96
Alumax Ellbee Limited (2)
---------------------------------------------------------------------------------------
7.12 Copy Coal Authority Search 19.04.96
---------------------------------------------------------------------------------------
7.13 Copy Local Land Charges Search and Local Authority 01.05.96
Enquiries
---------------------------------------------------------------------------------------
7.14 Copy Letter - Leeds City Council Highways and 15.05.96
Transportation Department
---------------------------------------------------------------------------------------
7.15 Replies to General Enquiries before Contract - Long 19.06.96
Form together with enclosures referred to in replies
---------------------------------------------------------------------------------------
8. LEASEHOLD TITLE: YK17367 LAND ON THE NORTH SIDE OF
--------------------------------------------------
RICHARDSHAW ROAD GRANGEFIELD INDUSTRIAL ESTATE PUDSEY
-----------------------------------------------------
WEST YORKSHIRE
--------------
---------------------------------------------------------------------------------------
8.1 Copy Lease - The Mayor Alderman and Burgesses of the 28.07.64
Borough of Pudsey (1) SML (Engineers) Limited (2)
---------------------------------------------------------------------------------------
8.2 Copy Certificate on Change of Name from SML 13.12.72
(Engineers) Limited to Ellbee Limited
---------------------------------------------------------------------------------------
8.3 Copy Deed of Release - SML (Engineers) Limited (1) 17.03.76
British Railways Board (2)
---------------------------------------------------------------------------------------
8.4 Copy Deed of Grant - Leeds City Council (1) Ellbee 06.03.79
Limited (2) Samuel Lazarus (3) Lloyds Bank Limited
(4)
---------------------------------------------------------------------------------------
8.5 Copy letter (Open Market Valuation Report) - Eddisons 09.11.83
Chartered Surveyors (1) Ellbee Limited (2)
---------------------------------------------------------------------------------------
8.6 Copy Certificate of Incorporation on Change of Name 19.09.94
from Ellbee Limited to Alumax Ellbee Limited
---------------------------------------------------------------------------------------
8.7 Copy Coal Authority Search 25.04.96
---------------------------------------------------------------------------------------
</TABLE>
<PAGE> 214
<TABLE>
<S> <C> <C>
8.8 Copy Office Copy Entries and Filed Plan 29.04.96
---------------------------------------------------------------------------------------
8.9 Copy Local Land Charges Search and Local Authority 01.05.96
Enquiries
---------------------------------------------------------------------------------------
8.10 Copy Letter - Leeds City Council Highways and 15.05.96
Transportation Department
---------------------------------------------------------------------------------------
8.11 Replies to Supplemental Enquiries - Assignment of 20.06.96
Lease
---------------------------------------------------------------------------------------
9. LEASEHOLD TITLE NO: YK20826 LAND ON THE EAST SIDE OF
----------------------------------------------------
GRANGEFIELD ROAD GRANGEFIELD INDUSTRIAL ESTATE PUDSEY
-----------------------------------------------------
WEST YORKSHIRE
--------------
---------------------------------------------------------------------------------------
9.1 Copy Lease - The Mayor Aldermen and Burgesses of the 25.06.65
Borough of Pudsey (1) SML (Engineers) Limited (2)
---------------------------------------------------------------------------------------
9.2 Copy Certificate of Incorporation on Change of Name 13.12.72
from SML (Engineers) Limited to Ellbee Limited
---------------------------------------------------------------------------------------
9.3 Copy Deed of Release - SML (Engineers) Limited (1) 17.03.76
British Railways Board (2)
---------------------------------------------------------------------------------------
9.4 Copy Deed of Grant - Leeds City Council (1) Ellbee 06.03.79
Limited (2) Samuel Lazarus (3) Lloyds Bank Limited
---------------------------------------------------------------------------------------
9.5 Copy letter (Open Market Valuation Report) - Eddisons 09.11.83
Chartered Surveyors (1) Ellbee Limited (2)
---------------------------------------------------------------------------------------
9.6 Copy Certificate of Incorporation on Change of Name 19.09.94
from Ellbee Limited to Alumax Ellbee Limited
---------------------------------------------------------------------------------------
9.7 Copy of Coal Authority Search 25.04.96
---------------------------------------------------------------------------------------
9.8 Copy Office Copy entries and Filed Plan 29.04.96
---------------------------------------------------------------------------------------
9.9 Copy Local Land Charges Search and Local Authority 01.05.96
Enquiries
---------------------------------------------------------------------------------------
9.10 Copy Letter - Leeds City Council Highways and 15.05.96
Transportation Department
---------------------------------------------------------------------------------------
9.11 Replies to Supplemental Enquiries - Assignment of 20.06.96
Lease
---------------------------------------------------------------------------------------
</TABLE>
<PAGE> 215
<TABLE>
<S> <C> <C>
10. Combined Freehold and Leasehold Site on the North
-------------------------------------------------
side of Richardshaw Road Grangefield Industrial
-----------------------------------------------
Estate Pudsey combining all three properties numbered
-----------------------------------------------------
7,8 and 9 above:
---------------
- ---------------------------------------------------------------------------------------
10.1 Inspection Report from Derek J Batten Chartered 28.05.96
Surveyor with Album of 29 photographs ancillary above:
- ---------------------------------------------------------------------------------------
10.2 Additional Preliminary Enquiries together with 20.06.96
enclosures referred to in replies
- ---------------------------------------------------------------------------------------
11. MISCELLANEOUS RE: ALUMAX PROPERTIES IN THE UK
----------------------------------------------
- ---------------------------------------------------------------------------------------
11.1 Bundle of correspondence and other Schedules passing 15.03.96 to
between Baker & McKenzie and Dibb Lupton Broomhead 20.06.96
- ---------------------------------------------------------------------------------------
ADDITIONAL DOCUMENTS
1. Copy of Underlease of 3rd floor, 40 Clifton Street,
Uxbridge, dated November 11, 1993
- ---------------------------------------------------------------------------------------
ADDITIONAL DISCLOSURES
- ---------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
ANNEX to Schedule 3.1(h) (continued)
1. All the title deeds relating to the freehold and two
leasehold properties incorporated in Titles YK16740,
YK17367 and YK20826 have been lost and despite
exhaustive searches cannot be located
Replacement Land Certificates have been applied for.
2. Contingent liability could arise under a Lease dated
the 22 June 1979 relating to 134 High Street Uxbridge
between Refuge Assurance (1) and Alumax Limited (2)
which was assigned in 1990 to Career Care Limited.
Further details are being obtained from Alumax's
former solicitors.
3. Contingent liability could arise under a Guarantee
given by Alumax Holdings Limited in an Underlease of
the 3rd floor 40 Clifton Street, Uxbridge. Further
details are being sought.
4. Contingent unquantifiable liability could arise under
the lease of Unit 3 in respect of dilapidations.
</TABLE>
<PAGE> 216
SCHEDULE 3.1(h)(x)
PROPERTY LEASE LIABILITIES - UNITED KINGDOM
1. Alumax Holdings Limited has contingent liability pursuant to a
guarantee given to the landlord of property at 3rd Floor, 40 Clifton
Street, Uxbridge in respect of payment of rent by the tenant, payment
of service charge, and performance and observance of covenants
contained in the lease by the tenant. In the event of the tenant's
liquidation, Alumax Holdings Limited is obliged, at the request of the
landlord, to take up the lease.
2. Alumax Coated Products UK Limited has a contingent liability pursuant
to an underlease of property at 134A High Street, Uxbridge assigned to
Career Care Limited in 1990.
-1-
<PAGE> 217
SCHEDULE 3.1(i)
PERSONAL PROPERTY
1. The bank accounts in the name of Alumax Europe B.V. and Alumax Coated
Products B.V. may be pledged to the banks with which such accounts are
held. In the credit letter dated November 5, 1992 by Credit Lyonnais
Bank Nederland (presently called Generale Bank Nederland) to Alumax
Europe B.V., it is stated that by accepting the credit offer, Alumax
Europe B.V. pledges all claims on Credit Lyonnais Bank Nederland (in
advance) to Credit Lyonnais Bank Nederland.
2. The inventory and other assets of Alumax Europe B.V. and/or Alumax
Coated Products B.V. may be subject to a retention of title
("eigendomsvoorbehoud") pending payment of such inventory and other
assets.
<PAGE> 218
SCHEDULE 3.1(k)
INTELLECTUAL PROPERTY
U.S. SALE COMPANIES
The following is a list of all patent registrations and applications and
trademark registrations and applications (all in the name of Alumax Inc.) used
in the business of Alumax Fabricated Products, Inc. or its Subsidiaries.
PATENTS
Roof Ventilating Apparatus 5,035,172 7-30-91
(gable) A gable ventilator comprising a vent member which holds and displaces
an eaves panel and a bracket which positions and supports the vent member.
Roof Ventilating Apparatus 4,995,308 2-26-91
(Fascia) A fascia ventilator which is low in profile and comprises a
vent member and a cover member. The vent member is provided with either
apertures or channels through which air may pass. The ventilator is further
provided with a fiberglass mesh filter for excluding entry of insects and
similar pests.
SPLASH BLOCK 5,441,364 8-15-95
The novel feature of the invention relates to means for coupling two or more
splash blocks together to connect the splash blocks, such that the effective
length of the splash block can be extended to carry water under force of
gravity any desired distance from the building foundation.
Reinforced Siding Panel 4,718,214 1-12-88
An improved siding panel providing greater rigidity to the panel while reducing
the weight of the panel compared to a thicker metal sheet.
Gutter Guard Ferrule 5,228,247 7-20-93
A ferrule for use in a rain gutter to surround a spike which connects the
gutter to a supporting wall, with the gutter beneath an overhanging roof edge.
Gutter Guard Screen Support Clip 5,044,581 9-03-91
A clip for supporting a guard screen on a rain gutter to keep leaves and other
debris from entering the gutter.
-1-
<PAGE> 219
Schedule 3.1(k)(continued)
PATENT APPLICATIONS
"Gutter Connector" 08/541,921 10-10-95
Method of joining or connecting metal gutter sections together so that the
joint will look good, with virtually no shadow line, be leak-proof and easy to
install. Product will consist of an outer metal strip and a seal tape and/or
compound as inner seal.
"Stile Clip for Mirrored In Preparation
Wardrobe Door"
This invention relates to mirrored wardrobe doors. A mirror is mounted within
a metal frame which, in turn, is either pivotally or slidable mounted in the
door opening. The mirror thus serves as the only door panel. Inexpensive
mirrored wardrobe doors have suffered the problem that forces exerted on the
frame by a user to open the door can distort the frame sufficiently to cause it
to separate from the mirror. Mirrored wardrobe doors built sufficiently sturdy
to avoid this problem tend to be more expensive. This invention is designed to
be a low cost solution to this problem.
U.S. TRADEMARKS
J" DESIGN (7) 1,037,787 04-13-76
For sheet metal entrance and passageway doors and parts therefor in Class 6 (US
Class 12)Renewal applied for 1-29-96
PERM-A-SPOUT (137) 1,791,638 09-07-93
For plastic downspouts and plastic elbows for rain gutters, in Class 19 (US
Class 12)
RIGI-DOR (15) 1,101,188 09-05-78
For sheet metal entrance and passageway doors, and parts therefor in Class 6
(US Class 12)
VERTA PLANK (94) 1,176,811 11-10-81
For metal siding panels in Class 6 (US Class 12)
PENDING APPLICATIONS
CornerFlex SN 75/087671 04-15-96
For adjustable angle aluminum flashing
Seamer Search being conducted.
For sealed metal gutter connector
-2-
<PAGE> 220
Schedule 3.1(k)(continued)
TRADEMARKS BASED ON USAGE
Alumax Building Products, Inc.
Alu-loc
Alu-tuff
Alu-tuff II
Alumax Door Products, Inc.
Rigi-Gard
Integrity
Illusions
LITIGATION
Alumax Door Products, Inc. has been notified by Therma-Tru Corporation of
Maumee, Ohio, that it wishes to discuss the possibility that Door Products'
"Illusions" door infringes Therma-Tru's Compression Molded Door Assembly
patent, U.S. Patent #4,550,540 (the "540 patent"). Therma-Tru has recently
won an infringement action involving the 540 patent against Peachtree Doors,
Inc. Patent counsel for Door Products recommended certain changes in the
"Illusion" door after reviewing the 540 patent. Therma-Tru is still pursuing a
meeting.
FOREIGN TRADEMARKS
PERM-A-SPOUT Canada
ALUMAX MIC 6 TOOL PLATE U.K. (registered September 8, 1995;
no. 1527118)
COPYRIGHTS
None.
EUROPEAN SALE COMPANIES
The following is a list of all patent registrations and applications and
trademark registrations and applications for the European Sale Companies:
-3-
<PAGE> 221
Schedule 3.1(k)(continued)
PATENTS
Alumax Coated Products S.A.
a. A French patent for a "door opening and closing system in particular
for trailers and camping cars" was filed on December 24, 1986 (no.
8618158), published on July 1, 1988 (no. 2609094) and issued on May
19, 1989. Fallen on August 31, 1990. The patent was filed by Euramax
Aluminum. The change of name of Euramax Aluminum into Alumax Coated
Products has not been registered with the French Patent Office.*
b. A French patent for "other construction elements and fittings" was
filed on April 2, 1976 (no. 7610189), published on October 28, 1977
(no. 2346587) and issued on May 8, 1981. Fallen on December 29, 1983.
The patent was filed by Euramax Aluminum. The change of name of
Euramax Aluminum into Alumax Coated Products has not been registered
with the French Patent Office.*
Alumax Industries SA
a. A European patent for a window aperture having a pivoted flap with two
opening positions especially for use in motor coaches was filed for
the countries of Great Britain, Italy, Germany, and Spain on December
18, 1987 (no. 87402902), published on July 13, 1988 (no. EP274320)
and issued on September 11, 1991. The patent was filed by UCP Societe
Industrielle. The change of name of UCP Societe Industrielle into
Alumax Industries has not been registered with the European Patent
Office.
b. A French patent for the window aperture having a pivoted flap with two
opening positions especially for use in motor coaches was filed on
December 19, 1986 (no. 8617911), published on June 24, 1988 (no.
2608527) and issued on April 28, 1989. This patent was originally
filed by UCP Cintrage Tous Profils, but was subject to the
registration at the French Patent Office of a change of name to UCP
Societe Industrielle. The change of name of UCP Societe Industrielle
into Alumax Industries has not been registered with the French Patent
Office.*
c. A French patent was filed for a "quick assembly window" on December 7,
1988 (no. 8816076), published on June 8, 1990 (no. 2639995) and issued
on May 19, 1995. This patent, which was originally filed by UCP
Societe Industrielle, has been subject to
- ----------------------------------
* To change the name of the patent holder, the registration process
takes approximately one month from the date the Patent Office is
notified of such change. The cost related to such change is
approximately FF 1,730 for the first patent and FF 750 for each
additional patent.
-4-
<PAGE> 222
Schedule 3.1(k)(continued)
PENDING APPLICATIONS
the registration at the French Patent Office of a change of name into
Alumax Industries.*
Alumax Coated Products S.A.
A French patent was filed on January 27, 1995 (no. 9501315) for
composite panels 4,000T devoted to insulated conservatory roofs
market. The patent has not yet been published; publication of a
patent occurs eighteen months after the filing date.
TRADEMARKS
Alumax Industries S.A.
a. A French trademark for Visuclip (in respect of an aluminum clipping
window) was filed on June 22, 1989 (no. 139054). The registration
number is 1537686 and the classes are 6, 17, 19 and 20. The trademark
was filed by UCP Societe Industrielle. The change of name of UCP
Societe Industrielle into Alumax Industries has not been registered
with the French Trademark Office.*
b. A French trademark for Visuplast (in respect of a PVC clipping window)
was filed on June 22, 1989 (no. 139055). The registration number is
1537687 and the classes are 6, 17, 19 and 20. The trademark was filed
by UCP Societe Industrielle. The change of name of UCP Societe
Industrielle into Alumax Industries has not been registered with the
French Trademark Office.*
c. A French trademark for Visulight (in respect of an ELLBEE window) was
filed on May 29, 1991 (no. 288212). The registration number is
1667842 and the classes are 6, 17, 19 and 20. The trademark was filed
by UCP Societe Industrielle. The change of name of UCP Societe
Industrielle into Alumax Industries has not been registered with the
French Trademark Office.*
- ----------------------------------
* To change the name of the patent holder, the registration process
takes approximately one month from the date the Patent Office is
notified of such change. The cost related to such change is
approximately FF 1,730 for the first patent and FF 750 for each
additional patent.
-5-
<PAGE> 223
Schedule 3.1(k)(continued)
DESIGNS
Alumax Industries S.A.
Five designs of "door opening" were filed on August 1, 1995 (no. 954264). They
were published on October 31, 1995 as numbers 411839, 411840, 411841, 411842,
and 411843.
COPYRIGHTS
None.
-6-
<PAGE> 224
SCHEDULE 3.1(l)
PERSONNEL
(i) OFFICERS
ALUMAX APPLIANCE AND SPECIALTY PRODUCTS, INC.
J. David Smith, President
Helen M. Feeney, Vice President and Secretary
Gary D. Foster, Vice President
Lawrence B. Frost, Vice President and Treasurer
Dale H. LaLonde, Vice President
Robert Wolf, Vice President
Michael W. Borkowski, Assistant Secretary
Marc H. Crown, Assistant Treasurer
ALUMAX BUILDING PRODUCTS, INC.
J. David Smith, President
Helen M. Feeney, Vice President and Secretary
Gary D. Foster, Vice President
Lawrence B. Frost, Vice President and Treasurer
Mitchell B. Lewis, Vice President
Robert Wolf, Vice President
Michael W. Borkowski, Assistant Secretary
Marc H. Crown, Assistant Treasurer
ALUMAX COATED PRODUCTS, INC.
J. David Smith, President
Helen M. Feeney, Vice President and Secretary
Gary D. Foster, Vice President
Lawrence B. Frost, Vice President and Treasurer
Mitchell B. Lewis, Vice President
Michael W. Borkowski, Assistant Secretary
Marc H. Crown, Assistant Treasurer
ALUMAX DOOR PRODUCTS, INC.
J. David Smith, President
Helen M. Feeney, Vice President and Secretary
Gary D. Foster, Vice President
Lawrence B. Frost, Vice President and Treasurer
Hartley Hyder, Vice President
Robert P. Wolf, Vice President
Michael W. Borkowski, Assistant Secretary
Marc H. Crown, Assistant Treasurer
-1-
<PAGE> 225
Schedule 3.1(l)(continued)
ALUMAX FABRICATED PRODUCTS, INC.
J. David Smith, President
Frank Geist, Group Vice President
Helen M. Feeney, Vice President and Secretary
Gary D. Foster, Vice President
Lawrence B. Frost, Vice President and Treasurer
Dale H. LaLonde, Vice President
Gerry L. Wharton, Vice President - Finance and Administration
R. P. Wolf, Vice President
Michael W. Borkowski, Assistant Secretary
Marc H. Crown, Assistant Treasurer
EURAMAX HOME PRODUCTS, INC.
(to be determined)
ALUMAX COATED PRODUCTS B.V.
Jean-Claude Bonnard, President Directeur Generale
ALUMAX COATED PRODUCTS S.A.
See the list of Directors and Supervisory Board Members (the equivalent of
officers) in Schedule 3.1(l)(ii).
ALUMAX COATED PRODUCTS U.K. LIMITED
See the list of Directors and Supervisory Board Members (the equivalent of
officers) in Schedule 3.1(l)(ii).
ALUMAX ELLBEE LIMITED
See the list of Directors and Supervisory Board Members (the equivalent of
officers) in Schedule 3.1(l)(ii).
ALUMAX EUROPE B.V.
See the list of Directors and Supervisory Board Members (the equivalent of
officers) in Schedule 3.1(l)(ii).
ALUMAX HOLDINGS LIMITED
See the list of Directors and Supervisory Board Members (the equivalent of
officers) in Schedule 3.1(l)(ii).
ALUMAX INDUSTRIES, S.A.
Aloyse R. Wagener, President Directeur Generale
-2-
<PAGE> 226
Schedule 3.1(l)(continued)
(ii) DIRECTORS
ALUMAX APPLIANCE AND SPECIALTY PRODUCTS, INC.
ALUMAX BUILDING PRODUCTS, INC.
ALUMAX COATED PRODUCTS, INC.
ALUMAX DOOR PRODUCTS, INC.
ALUMAX FABRICATED PRODUCTS, INC.
Helen M. Feeney, J. David Smith, Michael T. Vollkommer
EURAMAX HOME PRODUCTS, INC.
(to be determined)
ALUMAX COATED PRODUCTS B.V.
Helen M. Feeney, Managing Director
Jo M. Cuypers, Managing Director
Supervisory Board
Dale H. LaLonde
Neil P. Davies
J. David Smith
ALUMAX COATED PRODUCTS S.A.
Philippe Berard, Director
Guy Blanc, Director
Jean-Claude Bonnard, President Directeur General
Neil Davies, Director
Helen M. Feeney, Director
J. David Smith, Director
ALUMAX COATED PRODUCTS U.K. LIMITED
Neil P. Davies, Director
Helen M. Feeney, Director
Derek Rolf, Director
J. David Smith, Director
Roger A. Walters, Managing Director
Gerald Williams, Director
Paul Williams, Director and Secretary
ALUMAX ELLBEE LIMITED
Neil P. Davies, Director
Helen M. Feeney, Director
Eric Jarrett, Director
Ian Pittendreigh, Director and Secretary
David Pugh, Managing Director
J. David Smith, Director
-3-
<PAGE> 227
Schedule 3.1(l)(continued)
ALUMAX EUROPE B.V.
Helen M. Feeney, Managing Director
Frans Th.H. Kurvers, Managing Director
Dale H. LaLonde, Managing Director
J. David Smith, Managing Director
ALUMAX HOLDINGS LIMITED
Helen M. Feeney, Director
Frans Th.H. Kurvers, Director
Dale H. LaLonde, Director
J. David Smith, Director
Neil P. Davies, Managing Director
ALUMAX INDUSTRIES S.A.*
Aloyse R. Wagener, President Directeur General
Neil P. Davies, Director
Helen M. Feeney, Director
Jean Lecloux, Director
J. David Smith, Director
- ----------------------------------
* Fred Farrar is a named director on the French commercial registry (the
Trade and Companies Register), although he stepped down from that
position earlier this year.
-4-
<PAGE> 228
SCHEDULE 3.1(m)(i) EMPLOYEE BENEFIT
PLANS
1. Alumax Inc. Group Life Medical, Dental and Disability Plans provide
for:
Medical Benefits*
Prescription Drug Benefits
Dental Benefits
Vision Care Benefits
Health Care Reimbursement Benefits
Dependent Care Reimbursement Benefits
Employee Life Insurance Benefits
Spouse's Life Insurance Benefits
Children's Life Insurance Benefits
Accidental Death and Dismemberment Insurance Benefits
2. Long Term Disability Insurance Plan
3. Business Travel Accident Insurance Plan
4. Alumax Severance Pay Plan
5. Alumax Executive Separation Plan
6. Retirement Plan for Salaried Employees of Alumax Inc. and Its
Subsidiaries
7. Alumax Inc. Thrift Plan for Salaried Employees (incorporating an
Employee Stock Ownership Plan)
8. Alumax Stock Option Plans
9. Incentive Compensation Plans (bonus)
10. Alumax Fabricated Products, Inc. Retirement Income Plan (bargaining
and non-bargaining hourly employees of Building Products and Door
Products)
11. Alumax Aluminum Corporation Combined Pension Plan (non-bargaining
hourly employees of Home Products)
12. Kawneer Company, Inc. Retirement Plan for Hourly Employees (bargaining
employees of Alumax Appliance and Specialty Products)
- ----------------------------------
* Contracts with: Aetna PPO & Indemnity, Partners HMO (Alumax Building
Products, Elkhart, Perris Valley and Reidsville), HealthGuard HMO
(Home Products, Lancaster), Blue Cross OH (Alumax Appliance and
Specialty Products, Vandalia)
-1-
<PAGE> 229
Schedule 3.1(m)(i)(continued)
13. Teamsters Pension Plan (multi-employer plan) (bargaining employees of
Home Products in Bedford Park)
14. Vacation Plan
15. Holidays
16. Jury Duty
17. Military Duty
18. Short Term Salary Continuation
19. Back Pay
20. Leave of Absence Policy
21. Scholarship Program
22. Tuition Assistance Plan
23. Bereavement Pay
24. Matching Gift Program
25. Relocation Plan
26. Service Recognition Program
27. Benefits required under Collective Bargaining Agreements (see item no.
2 on Schedule 3.1(v)).
-2-
<PAGE> 230
SCHEDULE 3.1(m)(ii) CERTAIN EXCEPTIONS
TO ERISA COMPLIANCE
None.
-1-
<PAGE> 231
SCHEDULE 3.1(m)(iv) FUNDING
DEFICIENCIES
None.
-1-
<PAGE> 232
SCHEDULE 3.1(m)(vi)
RETIREE OBLIGATIONS
None.
-1-
<PAGE> 233
SCHEDULE 3.1(m)(viii)
PENSION SCHEMES
1. The Alumax U.K. Pension Plan (formerly the Euramax Limited Group Life
Insurance and Retirement Plan ("the UK Pension Scheme")). Life cover for
members of the UK Pension Scheme is insured with Sun Alliance Insurance Group.
2. The Euramax Group Supplementary Pension Plan (or "Thrift Scheme") is
invested separately with an insurance company but forms part of the trust of
the UK Pension Scheme. It comprises voluntary contributions by a member and
additional contributions paid by the employers.
3. See also Schedule 4.11(e) for details of other existing employee
benefits.
-1-
<PAGE> 234
SCHEDULE 3.1(m)(x)
CONTRIBUTIONS TO THE UK PENSION SCHEME
1. Contributions by Alumax Ellbee Limited to the UK Pension Scheme during
the early part of the year ending April 5, 1994 were not at the rate
recommended by the actuary, although the contributions paid for the
year were.
2. See also disclosure regarding Fred Farrar's pension under item no. 5,
Schedule 3.1(f).
3. There is inevitably some administrative delay between the payment of
salaries and contributions being paid into the UK Pension Scheme by
both the employee and the employers. Therefore, while contributions
have been received for April and May 1996 in respect of the UK Pension
Scheme, only some of the contributions for June 1996 have been paid
into the scheme.
In addition, the amount of contributions paid into the UK Pension
Scheme is generally reconciled at the end of each scheme year with any
shortfall being paid at that time (this has been relevant in the past
in respect of Alumax Ellbee Limited). The amount of such annual
shortfall has generally been less than L.20,000.
-1-
<PAGE> 235
SCHEDULE 3.1(m)(xi)
COMPLIANCE: THE UK PENSION SCHEME
1. The "Normal Retirement Date" under the UK Pension Scheme for men and
women was age 65 and 60 respectively. However, this was changed to
age 65 for both men and women with effect from November 17, 1993. The
upper age limit for men and women joining the UK Pension Scheme has
also been amended. Special arrangements have been made for a small
number of individual members. See generally documents a.12, b.4, b.8,
b.9 and b.21 through b.24 of the documents listed under item no. 4 on
Schedule 3.1(m)(xii).
2. The governing documentation of the UK Pension Scheme prohibits the
assets of the scheme being invested in "employer-related investments."
Technically, however, amounts due from participating employers under
the UK Pension Scheme constitute such an investment.
3. There are currently fewer than ten part-time employees who have been
permitted to join the UK Pension Scheme under the same terms as
full-time members.
4. Only monthly paid employees of Alumax Holdings and the Alumax Holdings
Subsidiaries may join the Thrift Scheme provided that they are members
of the UK Pension Scheme.
5. The hourly paid employees (also known as "works employees") of Alumax
Ellbee Limited were offered membership of the UK Pension Scheme;
however, they did not take this up. Therefore, these employees are
not covered for life insurance under the UK Pension Scheme and neither
the Thrift Scheme nor the Group Salary Continuance Insurance held with
Zurich Life apply to them. See generally Schedule 3.1(m)(viii) and
the documents listed under item no. 4 on Schedule 3.1(m)(xii).
6. See also disclosures made in Schedule 3.1(m)(x).
-1-
<PAGE> 236
Schedule 3.1(m)(xii)
DOCUMENTS RELATING TO THE UK PENSION SCHEME
1. The Seller has not supplied a copy of the Interim Deed for the UK
Pension Scheme dated March 1, 1968, which it cannot locate.
2. The only booklets supplied in respect of the UK Pension Scheme are an
undated booklet (but circa April 1978), together with amendments with
effect from April 6, 1980, and booklets dated May 1987 and August 1995.
3. Page 8 of the Deed amending the Definitive Deed and Rules dated
November 8, 1984 cannot be located.
4. The following documents have been provided to Purchaser:
a. UK Pension Scheme Governing Documentation
a.1 Definitive Trust Deed and Rules dated February 8, 1971.
a.2 Deed of Appointment dated June 1, 1973, appointing Paul
Fredrick Williams as a Trustee.
a.3 Supplemental Deed dated March 2, 1978, appointing Frederick
Henry Lawton and Melvin Ted Lueck as Trustees in place of
George Frederick Lewis, Roger Frank Brown and Sir Charles
Whishaw and amending the UK Pension Scheme.
a.4 Supplemental Trust Deed dated September 27, 1978 appointing
Neil Patrick Davies as a Trustee of the UK Pension Scheme in
place of Melvin Ted Lueck.
a.5 Interim Amending Deed dated September 27, 1978.
a.6 Deed of Participation dated April 23, 1981 admitting Ellbee
Limited to participation in the UK Pension Scheme.
a.7 OPB Modification Order dated February 23, 1984.
a.8 Deed of Appointment dated April 17, 1984 appointing Roger
Anthony Walters as a Trustee in place of Fredrick Henry Lawton.
a.9 Deed amending the Definitive Deed and the Rules dated November
8, 1984.
a.10 Deed of Amendment dated June 21, 1988.
a.11 Deed of Appointment dated January 27, 1992 appointing
Frederick Farrar as a Trustee.
-1-
<PAGE> 237
Schedule 3.1(m)(xii)(continued)
a.12 Second Definitive Trust Deed and Third Rules dated November 5,
1993.
a.13 Deed of Participation dated July 21, 1994.
a.14 Deed of Amendment dated December 19, 1995.
a.15 Deed of Appointment dated December 19, 1995 appointing Marc
Crown as a Trustee of the UK Pension Scheme.
a.16 Deed of Appointment and Removal dated March 27, 1996.
b. Additional UK Pension Scheme Documents
b.1 Lists as at December 31, 1995 of active members, pensioners
and deferred pensioners including the actives' names, ages and
details of their Pensionable Service and Pensionable Salary,
together with a copy of a fax from Watson Wyatt to Baker &
McKenzie of June 5, 1996 attaching lists of members.
b.2 UK Pension Scheme explanatory booklets - amending Booklet
dated circa April 1978, together with amendments with effect
from April 6, 1980 and Booklets dated May 1987 and August 1995.
b.3 The UK Pension Scheme annual report for years ended April 5,
1990, April 5, 1991 (together with a copy of the signed
Actuarial Statement), April 5, 1992 (together with a copy of
the signed Actuarial Statement), April 5, 1993, April 5, 1994
and April 5, 1995.
b.4 Actuarial Valuations as at April 6, 1990, April 6, 1993 and
April 6, 1996.
b.5 Contracting out certificates dated November 23, 1990,
September 4, 1981 and August 2, 1994.
b.6 Form of Appointment of Schroders, together with Schedule.
b.7 Copy of letter from the Inland Revenue to Baker & McKenzie
dated March 18, 1996 enclosing a copy of the original approval
letter for the UK Pension Scheme.
b.8 "Risk Specification" in respect of the UK Pension Scheme
summarizing the lump sum death benefits payable under the UK
Pension Scheme.
-2-
<PAGE> 238
Schedule 3.1(m)(xii)(continued)
b.9 Announcement to all of the members of the UK Pension Scheme
from the Trustees dated August 13, 1993 relating to the
equalization of "Normal Retirement Dates".
b.10 Summary as at March 1988 and Application Form to join the
Group Supplementary Pension Plan (or "Thrift Scheme").
b.11 Letter dated October 24, 1995 from Schroders Investment
Management to Paul Williams attaching Valuation Statement as
at September 29, 1995, Schroders fact-sheet and Schroders
Economic Perspective.
b.12 Letter from Watson Wyatt to Alumax Ellbee Limited relating to
Fred Farrar's augmentation of benefits, dated April 11, 1996.
b.13 Memo from Neil Davies to Peter McDonald regarding Fred
Farrar's pension, dated April 4, 1996.
b.14 Letter from Alumax Holdings Limited to Watson Wyatt regarding
Fred Farrar's pension, dated January 17, 1996.
b.15 Internal memo from David Smith to Neil Davies regarding Fred
Farrar's pension calculation, dated November 13, 1995.
b.16 Internal memo from Neil Davies to David Smith detailing the
calculation basis of Fred Farrar's pension, dated November 6,
1995.
b.17 Letter, dated July 3, 1995, from Coopers & Lybrand to The
Trustees of the UK Pension Scheme regarding Audit report to
the trustees.
b.18 Letter from Euramax Limited to Coopers & Lybrand Deloitte
regarding the UK Pension Scheme, dated February 7, 1994.
b.19 UK Pension Scheme summary of actuarial valuation as of April
6, 1996.
b.20 Announcements to Members of the UK Pension Scheme dated
January 20, 1992 and March 29, 1988.
b.21 "Risk Specification" in respect of the UK Pension Scheme,
together with standard terms and conditions dated May 23, 1995.
b.22 Signed Trustees' minutes dated August 4, 1993.
-3-
<PAGE> 239
Schedule 3.1(m)(xii)(continued)
b.23 Signed Trustees' minutes dated October 21, 1993.
b.24 Letter from Alumax Ellbee Limited dated April 11, 1995.
b.25 Inter-office correspondence regarding director service
augmentations dated July 23, 1993.
b.26 Table prepared by the Wyatt Company regarding service
augmentations, dated May 18, 1993.
b.27 Inter-office correspondence on augmentations dated July 27,
1993.
b.28 Policy Documentation held with National Mutual Life in respect
of the Group Supplementary Pension Plan (or "Thrift Scheme"),
the effective date of which is April 28, 1994.
c. Other Arrangements
c.1 Schedule of Group Salary Continuance Insurance held with
Zurich Life.
c.2 Policy Terms of Group Salary Continuance Insurance with Zurich
Life effective from February 3, 1992.
c.3 Unsigned Policy Terms of the Group Salary Continuance
Insurance with Zurich Life effective from November 14, 1994.
c.4 Letter from Watson Wyatt to Alumax Coated Products UK Limited
dated April 25, 1996 regarding equalization under the Zurich
Life arrangement and letter from Watson Wyatt to Zurich Life
of the same date.
c.5 Fax dated June 20, 1996 from Zurich Life to Baker & McKenzie
regarding equalization under the Group Salary Continuance
Arrangement.
-4-
<PAGE> 240
SCHEDULE 3.1(m)(xiii) OBJECTIONS TO
"NORMAL RETIREMENT DATE"
None.
-1-
<PAGE> 241
SCHEDULE 3.1(m)(xiv)
CHANGES TO UK PENSION SCHEME SINCE THE
EFFECTIVE DATE OF THE LAST ACTUARIAL VALUATION
None.
-1-
<PAGE> 242
SCHEDULE 3.1(m)(xvi)
DUTCH EMPLOYEES
NAME
Aal, HAM
Aben, FMP
Bakker, R
Beckers, JJM
Bemelmans, MHM
Blanckers, MCHC
Boers, PHJ
Bongers, JPM
Boots, MPM
Bosch, AAM
Boumans, RWM
Bremmers, WJ
Case, DJ
Coenen, SJAC
Coesmans, MPMG
Coulen, AAG
Cox, JJ
Cremers, BJG
Cremers, THJH
Crutzen, FHM
Cruysen Van Der, LJ
Custers, GJ
Cuypers, JMG
Dirkx, JCG
Dresen, RAG
Eck Van, JMPA
Feijen, J
Feron, PHA
Franssen, RCA
Geelen, PWA
Gerrits, HAM
Geukes, M
Geurtjens, CJ
Geurts, JHCM
Gielen, HWP
Gijsberts, TAG
Glavimans, JAME
Goor Van, HM
Guyt, HL
Halmans, HHT
Hannen, HAPG
Heijnen, HGP
Hendrix, JM
Henstra, SG
Herten Van, N
Heur Van, PEJ
-1-
<PAGE> 243
Schedule 3.1(m)(xvi) (continued)
Hintzen, FW
Hodzelmans, WHH
Hoek, CCJ
Huggenum Van, WHJ
Huskens, WTJ
Inderhees, AFH
Jansen, JAC
Jenniskens, G
Jong EJT, DE
Joosten, JHP
Joosten, GWE
Joosten, JWM
Joris, HC
Julicher, PJH
Keuren, LGP
Keybeck, JHM
Kleukers, PG
Kliem, HHG
Knoops, GJWH
Knubben, PMG
Knubben, AEAM
Konings, M
Kroon, AJ
Krotjee, JJF
Kruchten Van, LHM
Kuehm, WMG
Kwaspen, MAM
Lemmens, WTJGM
Linssen, AJA
Loyen, LHJ
Maassen, AAH
Manrho, JH
Meijers, MHM
Meijers, GA
Meijers, EWC
Meijers, NLAM
Meijs, BHM
Mendel, JHR
Mesman, PWGM
Meuwissen, HEJM
Molken, JHGM VAN
Montfort, GCM VAN
Mooren, JGM
Noorbeek, R
Oldenhof, MJ
Paulissen, JTH
Peeters, HJHM
Peeters, JHH
Peusen, GFC
-2-
<PAGE> 244
Schedule 3.1(m)(xvi) (continued)
Philips, MMHM
Piepers, WPM
Poulussen, WEG
Proosten, HJJM
Puts, WGLM
Puts, HAM
Puts, JJM
Ramakers, FM
Ramakers, GL
Reijnders, RNM
Reijnders, WCC
Reijnders, JC
Reuter, H
Riderbeek, RPM
Rietrab, MHM
Roemen, RJE
Roumen, JCM
Ruysch, WW
Schiffelers, JNGA
Schmitz, JAM
Schmitz, HCN
Schmitz, WJLM
Schoonenberg, RLM
Seegers, JMJM
Seerden, PAM
Seerden, JE
Seevens, EAM
Semmeling, DSJ
Sluymers, JW
Smeets, JMC
Smits, LHM
Soest Van, FGJ
Sonnemans, HGG
Sonntag, LJ
Speijcken, R
Stams, JMH
Stemkens, ETL
Steuns, LJM
Suylen, JH
Tegels, JHW
Thissen, HLL
Tillmans, PAH
Tobben, JHAC
Tullenmans, JCH
Verbunt, HHM
Verbunt, DNC
Verlaan, JJC
Verstappen, MJJ
Vogels, LAM
-3-
<PAGE> 245
Schedule 3.1(m)(xvi) (continued)
Vossen, AGM
Vossen, MAG
Vrehen, JAE
Vroomen, HAG
Wijers, PM
Wijnen, MMCG
Willems, SJM
Woerdman, EM
Wolters, MGG
Wolters, HMM
Wolters, MA
Wullms, JA
Wullms, GMHM
-4-
<PAGE> 246
SCHEDULE 3.1(m)(xvii)
DUTCH EMPLOYEES NOT COVERED BY PENSION SCHEME
All employees of Alumax Coated Products B.V. are covered by the Dutch pension
arrangements with the exception of two German employees who work and live in
Germany.
-1-
<PAGE> 247
SCHEDULE 3.1(n)
LICENSES, PERMITS AND REGISTRATION; COMPLIANCE WITH LAWS
1. A revision of the air permit relating to the paintline of Alumax
Coated Products B.V. according to the Environmental Protection Act
("Wet milieubeheer") is in preparation.
2. See also disclosures made in Schedule 3.1(m)(xi) and Schedule 3.1(w).
3. Until recently, the "Eligibility Conditions" for membership of the
"Group Salary Continuance Insurance" held with Zurich Life in respect
of certain employees of Alumax Holdings and the Alumax Holdings
Subsidiaries specified an upper age limit of 55 and 60 for women and
men, respectively. In addition, the "Termination Date" under this
arrangement was age 60 and 65 for women and men, respectively. A
request has been made recently to equalize these ages with effect from
April 6, 1995 (see, in particular, documents c.1 through c.5 of the
documents listed in item no. 4 on Schedule 3.1(m)(xii)).
-1-
<PAGE> 248
SCHEDULE 3.1(o)
LAWSUITS, PROCEEDINGS AND INVESTIGATIONS
<TABLE>
<CAPTION>
FILE
CASE NAME DATE CLAIM AMOUNT
<S> <C> <C>
Alumax Building Products, Inc. -and- Cobra Industries, Inc. 10/27/95 $850,000.00
Alumax Building Products, Inc. v. Roofer's Mart, Inc. v. 01/30/95 $331,632.63
AAC Construction Company, Inc. and Achelpohl Roofing and
Sheet Metal
Alumax Door Products, Inc. and National Doors, Inc. 01/24/96 $46,106.00
Alumax Industries, S.A. v. Gallion (Scott Expansion) 08/12/94 4,000,000FF
Beeman: Charles -and- Alumax Building Products, Inc. 10/27/95 UNSPECIFIED
Bolin, Dean -and- Alumax Door Products/Richmond, Indiana 4/1/96 UNSPECIFIED
Bowman, D. -and- Alumax Aluminum Corporation, Home 10/19/90 RESERVE OF
Products Division (WC) $232,553.00
Capital Development Board; State of Illinois -and- Alumax 07/18/94 $70,061.28
Fabricated Products, Inc. (Cahokia Mounds Interpretive
Center project)
Coble: Tracy D. v. Johnson Metal Products (Alumax Door 12/15/92 UNSPECIFIED
Products, Inc.) (EEOC)
Dale: Richard C. and Mary Dale v. Howard Maines, 6/12/96 UNSPECIFIED
McCubbin Ford, Inc., McCubbin Leasing and Amax, Inc.
d/b/a/ Alumax Inc.
Decatur Aluminum Corp. v. Alumax Fabricated Products, 12/08/95 $2,000,000.00
Inc., Alumax Mill Products, Inc. and Alumax Building
Products, Inc.
Fitzgerald: Kevin -and- Alumax Building Products, Inc. 06/07/96 UNSPECIFIED
Fleetwood Enterprises, Inc. -and- Alumax Building Products, Inc. 07/11/95 UNSPECIFIED
Golka: Daniel J. v. Alumax Inc., Alumax Building Products, 07/05/95 UNSPECIFIED
Inc. and Temo, Inc., and DOES 1 through 20 inclusive
Goss: Ronald K. v. Jack C. Hart and Alumax Building 10/12/95 UNSPECIFIED
Products, Inc.
Graber v. Dawn N. Beal, Alumax Building Products, Inc. and 03/13/96 UNSPECIFIED
Alumax Fabricated Products, Inc.
</TABLE>
-1-
<PAGE> 249
Schedule 3.1(o) (continued)
<TABLE>
<CAPTION>
FILE
CASE NAME DATE CLAIM AMOUNT
<S> <C> <C>
Hammack: Craig v. Alumax Building Products, Inc. and 05/24/95 $20,000.00
Continental Risk Management and/or Crawford & Company
(WC)
Harvey: Rena -and- Alumax Building Products, Inc. 06/14/96 UNSPECIFIED
Harvey: Rex v. Alumax Building Products, Inc. and Ronald 01/24/96 UNSPECIFIED
D. Anderson
Hausner v. Alumax Building Products, Inc. 04/02/96 $32,000
Herrera: Jose v. Alumax Building Products, Inc. (WC); 07/05/95 UNSPECIFIED
Anaheim, CA facility
Hubbard: Norma J. v. Alumax Aluminum Corporation, 04/04/95 UNSPECIFIED
Home Products Division
In re: Mallard Coach Company, Inc., Mallard Real Estate, 08/26/92 $161,560.00
Inc., Sprinter Recreational Vehicles, Inc., Real-Lite, Inc.,
Overland Industries, Inc., and M.D.T., Inc. (Chapter 11)
International Association of Machinists and Aerospace 6/14/96 NOT APPLICABLE
Workers, AFL-CIO: Petition for Certification of
Representative
Iveco -and- Alumax Industries SA 1993 150,000FF
Kit Manufacturing -and- Alumax Building Products, Inc. 01/21/93 UNSPECIFIED
LaRocca: Robert J. -and- Alumax Building Products, Inc. (WC) 11/10/95 UNSPECIFIED
Luczak: Betty A. v. Jack C. Hart and Alumax Building 10/12/95 UNSPECIFIED
Products, Inc.
Martin, Anthony Frederich -and- Alumax Ellbee Limited 1993 UNSPECIFIED
Omelas: Mary L. -and- Alumax Building Products, Inc. 05/13/96
Para Press v. Aloyse Wagener - Tribunal du Travail of Esch 07/27/94
sur Alzette (Luxembourg)
Prislac: Madeline -and- Alumax Building Products, Inc. and 06/26/95 UNSPECIFIED
Price Costco
</TABLE>
-2-
<PAGE> 250
Schedule 3.1(o) (continued)
<TABLE>
<CAPTION>
FILE
CASE NAME DATE CLAIM AMOUNT
<S> <C> <C>
Pukahi: Reuben M., et al. v. State of Hawaii; Department of 01/24/96 UNSPECIFIED
Hawaiian Home Lands; Housing Finance & Development
Corporation; DHHL-HFDC Joint Venture; Glenn K. Lindsey
dba Glenn Lindsey Construction; First Insurance Company of
Hawaii, Ltd., Yamada and Sons, Inc., James F. Kepoo
dba Kepoo's Termite & Pest Control; Hawaii Home Owners
Warranty Council, Inc.; Home Owners Warranty Corporation;
How Insurance Company; John Does 1-100; Glenn K. Lindsey
dba Glenn Lindsey Construction v. Douglas K. Awai dba
Douglas K. Awai Masonry; Hilton T. Hiyoto dba HTH Island
Wide Painting; Manuel C. Jardine dba Triple K Plumbing,
Alumax Building Products; and Tom Sills dba Big Island
Truss Company
Roye, L. -and- Alumax Aluminum Corporation, Home 05/03/91 RESERVE OF
Products Division (WC) $68,935
Schultz: Ty -and- Alumax Building Products, Inc. (claim) 05/12/93 $7,789.00
Scott & Goldman, Inc., v. Michael A. Bergstrom 02/21/96 $10,000
(cross-complaint by Bergstrom against Alumax
Building Products, Inc.)
Shields: Ethel and Stanley v. Jesse Robinson, Alumax 10/04/95 UNSPECIFIED
Building Products, Inc., Thomas Myrvold and Progressive
Insurance Company
Smeal: James -and- Alumax Aluminum Corporation, Home 01/24/96 UNSPECIFIED
Products Division (Lowes Lumber Company)
Spickler Landfill; Marshfield, WI (Alumax Fabricated 12/12/95 UNSPECIFIED
Products, Inc.)
Stump: Elizabeth -and- Alumax Building Products, Inc. (WC) 12/19/94
The Home Depot (miscellaneous claims tendered to Alumax various
Inc. under Vendor Buying Agreement)
Walker: Christine v. Alumax Building Products, Inc. 05/16/96 UNSPECIFIED
Walters: Kenneth and Karen v. Kim Parks individually and 10/23/95 UNSPECIFIED
doing business as Kim Parks Construction; The Homeowners
Resources, a general partnership; Tim Merino, William Packs
and Omer Inzri, partners; Alumax Building Products, Inc.;
and Does 1 through 10, inclusive
</TABLE>
-3-
<PAGE> 251
Schedule 3.1(o) (continued)
<TABLE>
<CAPTION>
FILE
CASE NAME DATE CLAIM AMOUNT
<S> <C> <C>
Weyerhaeuser Company v. Alberts Texaco; Amex Aluminum; 01/02/96 UNSPECIFIED
Automated Products, Inc.; Baltus Car Care; Baltus Oil
Company, Inc.; Bauman Auto Co., Inc.; Berg Pontiac, Inc.;
Bill's Auto Repair; Boch Industries; C-Way Industries f/k/a
Fiesta Corp.; City of Abbotsford, Wisconsin; City of
Marshfield, Wisconsin; Crown Olds Pontiac, Cadillac, Inc.;
Don's Standard Station; Farmers Co-Op Produce Company, Inc.;
Gary's One Hour Martinizing; Gary's Northside Skelly Service;
GTE; Heinzen Printing, Inc.; Jelco Buses; Johnson Garmet;
Kelly Tire Service, Inc.; Marshfield Airways; Marshfield Air
Service, Inc.; Marshfield Radiator Company; Mid-State Truck
Services, Inc.; Northern Auto Supply; Okray Family Farms, Inc.;
Okray Enterprises, Inc.; Ore-Ida Foods, Inc.; Pathfinder; Quick
Cleaners; Radlinger Chrysler Plymouth; Rex Neon Sign Corp.;
Rollohome Corp.; Schierl Tire & Service Center; Skelly Oil Co.;
Sooline Railroad; Village of Spencer; Town of Spencer; V&H, Inc.;
Wheeler Chevrolet, Inc.; WIS Prepackaged Cheese Company/Beatrice
Company; and Wisconsin Homes, Inc. (Spickler Landfill;
Marshfield, WI)
Whitman: Karen (employee - claim against equipment 12/19/94 UNSPECIFIED
manufacturer)
Alumax Building Products, Inc. -and- Amalgamated Clothing 03/03/95
& Textile Workers Union; No. 25-UD-221
Petition for Withdrawal of Union Shop Authority
Alumax Building Products, Inc. -and- Amalgamated Clothing 07/12/95
& Textile Workers Union; No. 25-CA-24078 (7/12/95)
Charge Against Employer filed July 12, 1995, alleging
that the Employer has violated Section 8(a)(5) of the
Act by unilaterally changing the terms and conditions
of employment without bargaining with the Union.
Additionally charged with discrimination against
Janine Jones for her activities in support of the Union
by terminating her employment.
STATUS: Letter to NLRB, dated November 6, 1995,
requesting that investigation be suspended pending
outcome of arbitration proceeding.
</TABLE>
-4-
<PAGE> 252
Schedule 3.1(o) (continued)
<TABLE>
<CAPTION>
FILE
CASE NAME DATE CLAIM AMOUNT
<S> <C> <C>
Alumax Building Products, Inc. and Teamsters Local 391; 5/28/96
No. 11-CA-17043 (5/28/96)
Charge Against Employer filed May 28, 1996,
alleging that Employer has violated Sections 8(a)(1)
and (a)(5) of the Act by (i) unilaterally imposing an
attendance policy in the work place without bargaining
with the Union, (ii) unilaterally establishing a new
classification within the bargaining unit without
bargaining with the Union, and (iii) unilaterally
deciding to hire a truck driver at a higher wage rate
than that set out in the Labor Agreement without
bargaining with the Union.
STATUS: Letter from NLRB to Alumax Building
Products, Inc. dated May 29, 1996 requesting
information.
Various automobile liability insurance claims various NONE OVER
$50,000
Various workers compensation claims various NONE OVER
$50,000
</TABLE>
Additional Matters
1. There is an outstanding industrial injury claim from 1992 by Mary
Whetstone for tenosynovitis which has been brought against Alumax
Ellbee Limited. The claim is being handled by the Company's insurers
who are disputing the claim on the basis that any illness is
attributable at least in part to her previous employment in the
tailoring industry. The L.45,000 reserved by the insurers is
therefore believed to be high.
2. Claim by former employee, Nathalie Monatte, against Alumax Coated
Products S.A. for FF 100,000 for alleged dismissal without cause. The
court is to render its decision on June 24, 1996.
3. Alumax Coated Products B.V. is considering issuing proceedings for the
payment of NLG 35,000 against VOF Brovo Plafonds.
4. Alumax Coated Products B.V. is considering issuing proceedings against
Wolwega Panelen B.V. for the payment of approximately NLG 60,000.
-5-
<PAGE> 253
Schedule 3.1(o) (continued)
5. Alumax Coated Products B.V. and Alumax Europe B.V. may consider
resisting the assessments made by the Dutch tax authorities in respect
of VAT (see Schedule 3.1(f)), but Alumax Europe B.V. has, for the time
being, decided not to do so.
6. See also Schedule 3.1(m)(xi), item no. 1 which may subject the company
to claims.
7. See items no. 1, 3, 4, and 5 of Schedule 3.1(q) with respect to
lawsuits, proceedings and investigations in respect of Taxes.
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<PAGE> 254
SCHEDULE 3.1(p)
MATERIAL CONTRACTS
COMPANY/SUBSIDIARY CONTRACT
Alumax Appliance and Exclusive Marketing and Manufacturing
Specialty Products, Inc. Agreement dated as of September 7, 1994,
by and between Alumax Appliance and
Specialty Products, and DNS
Industries, Inc.
Alumax Appliance and Supply Agreement entered into as of May 4,
Specialty Products, Inc. 1995, by and between Inc. Nichols Aluminum
and Alumax Appliance and Specialty Products,
Inc.
Alumax Appliance and Purchase and Supply Agreement entered into
Specialty Products, as of July 27, 1995, by and Inc. between Alumax
Appliance and Specialty Products, Inc. and
General Electric Company.
Alumax Appliance and Lease Agreement dated February 6, 1995
Specialty Products, between Wenrick & Gross Realty Inc. Co. and
Alumax Appliance and Specialty Products,
Inc. for property at 3510 Lightner Road,
Vandalia, Ohio.
Alumax Appliance and Agreement with United Automobile,
Specialty Products, Inc. Aerospace and Agricultural Implement
Workers of America (UAW) Local Union No.
1420 dated May 15, 1994 - Carrollton,
Kentucky. Expires May 15, 1997.
(approximately 70 employees)
Alumax Appliance and Manufacturer's Agent Agreement dated as of
Specialty Products, February 1, 1995 by and Inc. between Alumax
Appliance and Specialty Products, Inc. and
J&H Engineering & Sales, Inc.
Alumax Appliance and Service Agreement dated as of November 11,
Specialty Products, 1994 by and between Alumax Inc. Appliance and
Specialty Products, Inc. and AL-Trim
Corporation.
Alumax Building Products,
Inc. Aluminum Coil Supply Agreement made
December 12, 1994, between Alumax Building
Products, Inc. and Awnings Unlimited -and-
Amendment to Lease made September 20, 1995
-and- UCC-1 from Awnings Unlimited
-1-
<PAGE> 255
Schedule 3.1(p)(continued)
Alumax Building Products, Supply Agreement entered into as of
Inc. February 27, 1995, by and between Nichols
Aluminum and Alumax Building Products,
Inc. -and- Addendum to Agreement dated
September 25, 1995 extending contract
through June 30, 1997 for a minimum of
2,000,000 pounds per month.
Alumax Building Products, Painted Aluminum Coil Supply Agreement
Inc. dated March 25, 1996 by and between Landau
Boats, Inc. and Alumax Building Products,
Inc.
Alumax Building Products, Private Label Agreement dated November 8,
Inc. 1995, by and between Alumax Building
Products, Inc. and Jewell Building
Systems, Inc.
Alumax Building Products, Buyer's Confidentiality and Warranty
Inc. Agreement dated October 12, 1995, with Joe
Gaskin and Mobile Home Supply Company.
Alumax Building Products, Lease, dated October 18, 1983, by and
Inc. between Chamberlain Enterprises and Alumax
Fabricated Products, Inc. for property at
39 West Hampton, Mesa, Arizona -and-
Amendment of Lease, dated June 25, 1989,
between Chamberlain Properties and Alumax
Fabricated Products, Inc. -and- Assignment
and Assumption Agreement, dated as of
July 1, 1993, by and between Alumax
Fabricated Products, Inc. and Alumax
Building Products, Inc.
Alumax Building Products, Documents related to sale of Anaheim
Inc. facility to Temo, Inc. on July 28, 1995:
Sublease Agreement dated July 28, 1995,
between Alumax Building Products, Inc. and
Temo, Inc. (expiring November 2, 1996) -
and- $150,000 Promissory Note dated
July 28, 1995, from Temo, Inc. to Alumax
Building Products, Inc. due October 1,
2000.
Alumax Building Products, Industrial Lease, dated January 27, 1990,
Inc. by and between Cherhomac Properties and
Alumax Fabricated Products, Inc.
for property at 1550 Parkway Boulevard, West
Sacramento, California -and- First
-2-
<PAGE> 256
Schedule 3.1(p)(continued)
Amendment to Lease, dated October 14, 1991, by
and between Cherhomac Properties and Alumax
Fabricated Products, Inc. -and- Transfer and
Assumption Agreement, dated as of July 1, 1993, by
and between Alumax Fabricated Products, Inc. and
Alumax Building Products, Inc.
Alumax Building Products, Lease made as January 1, 1986, by and between
Inc. Paul A. Adams Trust and Alumax Building Products,
a division of Alumax Fabricated Products, Inc. for
2211 W. Eighth Street, Loveland, Colorado -and-
Amendment of Lease, dated January 31, 1986, by and
between Paul A. Adams Trust and Alumax Fabricated
Products, Inc. -and- Amendment of Lease #3, dated
November 30, 1990, by and between Beverly A.
Bidwell, Dennis P. Bidwell and Janet S. Bidwell
and Alumax Fabricated Products, Inc. -and- Fourth
Amendment to Lease, effective January 1, 1993, by
and between Beverly A. Bidwell, Dennis P. Bidwell
and Janet S. Bidwell and Alumax Fabricated
Products, Inc. -and- Fifth Amendment to Lease,
effective February 9, 1993, by and between Beverly
A. Bidwell, Dennis P. Bidwell and Janet S. Bidwell
and Alumax Fabricated Products, Inc. -and-
Transfer and Assumption Agreement, dated as of
July 1, 1993, by and between Alumax Fabricated
Products, Inc. and Alumax Building Products, Inc.
Alumax Building Products, Indenture dated July 23, 1979, between
Inc. Commercial Leasing Associates and Howmet Aluminum
Corporation (Mobile Home Products Division) for
property at Route 41S and Lamb Drive, Tifton,
Georgia -and- Amendment to Lease Agreement dated
January 13, 1987, between Commercial Leasing
Associates and Alumax Fabricated Products, Inc.
-and- Amendment No. 2 to Lease Agreement by and
between Commercial Leasing Associates and the
Building Products Division of Alumax Fabricated
Products, Inc., executed August 3 and August 24,
1990, respectively -and- Assignment and Assumption
Agreement, dated
-3-
<PAGE> 257
Schedule 3.1(p)(continued)
as of July 1, 1993, by and between Alumax
Fabricated Products, Inc. and Alumax Building
Products, Inc.
Alumax Building Products, Contract for Industry Track between The
Inc. Atchison, Topeka & Santa Fe Railway Company,
Vanguard Plastics, Inc., and Alumax Fabricated
Products, Inc. dated September 13, 1984
(McPherson, Kansas).
Alumax Building Products, Lease, dated December 19, 1994, by and between
Inc. O.E. Green, Elton H. Trent, Jr., and G. E. Smith,
partners trading as Green, Smith and Trent, and
Alumax Building Products, Inc. for real property
located at Route 1, Watlington Industrial Road,
Reidsville, North Carolina.
Alumax Building Products, Lease dated March 25, 1969, between Sandra J.
Inc. Philippi, Roy Philippi and Larry A. Smith, and
Amax Aluminum Mill Products, Inc. for the property
at 1360 Wilco Road, Stayton, Oregon -and-
Amendment to Lease, dated July 14, 1983, between
Sandra J. Philippi, Roy Philippi and Larry A.
Smith and Alumax Fabricated Products, Inc. -and-
Amendment of Lease dated July 27, 1988, between
Sandra J. Philippi, Bruce L. Philippi, Larry A.
Smith, and Alumax Fabricated Products, Inc. -and-
Amendment of Lease, dated June 17, 1993, between
Sandra J. Philippi, Bruce L. Philippi and Larry A.
Smith and Alumax Fabricated Products, Inc. -and-
Transfer and Assumption Agreement, dated as of
July 1, 1993, by and between Alumax Fabricated
Products, Inc. and Alumax Building Products, Inc.
-and- Amendment of Lease dated May 25, 1994
between Sandra J. Philippi, Bruce L. Philippi and
Larry A. Smith and Alumax Fabricated Products,
Inc.
Alumax Building Products, Lease dated November 15, 1988, between
Inc. Bloomsburg Industrial Enterprises, Inc. and Alumax
Fabricated Products, Inc., Building Products
Division, for property at 851 Railroad Street,
Bloomsburg, Pennsylvania -and- Assignment and
-4-
<PAGE> 258
Schedule 3.1(p)(continued)
Assumption Agreement, dated as of July 1, 1993,
by and between Alumax Fabricated Products, Inc.
and Alumax Building Products, Inc.
Alumax Building Products, Lease made as of March 22, 1995, between
Inc. Bloomsburg Industrial Enterprises, Inc. and Alumax
Building Products, Inc. for property located
adjacent to 851 Railroad Street, Bloomsburg,
Pennsylvania.
Alumax Building Products, Memorandum of Lease dated March 4, 1993, between
Inc. The Prudential Insurance Company of America and
Alumax Fabricated Products, Inc. for Alumax
Building Products' headquarters located at 14651
Dallas Parkway, Suites 323 & 330, Dallas, Texas
-and- First Modification and Ratification of Lease
dated June 1993 between Fults Management Company
and Alumax Fabricated Products, Inc. -and- Notice
Letter, dated May 28, 1993, to Prudential
Insurance Company of America.
Alumax Building Products, Lease Agreement entered into February 11, 1988
Inc. by and between Vernon R. Sailor and Richard E.
Kemper and Sailor Mfg., Inc. for property at 160
County Road 15, South, Elkhart, Indiana -and-
Assignment and Assumption Agreement, dated July 1,
1993, by and between Alumax Fabricated Products,
Inc. and Alumax Building Products, Inc.
Alumax Building Products, Rapho Industrial Park Lease Agreement, dated
Inc. November 21, 1991, between Rapho Associates and
Building Products Division of Alumax Fabricated
Products, Inc. for property in Manhem,
Pennsylvania -and- Assignment of Lease, dated
August 24, 1993, between Alumax Fabricated
Products, Inc. and Alumax Building Products, Inc.
(Facility closed - property has been subleased)
Alumax Building Products, Agreement with Amalgamated Clothing and Textile
Inc. Workers Union, AFL-CIO, CLC - Elkhart, Indiana.
Expires April 25, 1997. (approximately 91
employees)
-5-
<PAGE> 259
Schedule 3.1(p)(continued)
Alumax Building Products, Agreement with Aluminum Brick & Glass Workers
Inc. Union, Local 380, dated May 1, 1994 - Perris
Valley, California. Expires April 30, 1997.
(approximately 40 employees)
Alumax Building Products, Agreement with International Brotherhood of
Inc. Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 391, dated October 1, 1994.
Expires October 1, 1997. (approximately 31
employees)
Alumax Building Products, Agreement between Alumax Building Products
Inc. division of Alumax Fabricated Products, Inc. and
the International Association of Machinists, Local
1315 - Bristol, Indiana. Expires May 5, 1998.
(approximately 33 employees)
Alumax Building Products, Consulting Agreement dated as of May 10, 1995 by
Inc. and between Alumax Building Products, Inc. and
Richard L. Waggoner.
Alumax Building Products, Continuing HUD Guaranty (dated as of May 17,
Inc. 1995), Continuing Product Liability Indemnity,
Continuing Product Warranty Agreement, Continuing
Public Liability Indemnity (dated as of April 4,
1995) from Alumax Building Products, Inc. to
Cavalier Homes, Inc.
Alumax Building Products, Master Purchase Agreement dated as of March 18,
Inc. 1996 by and between Alumax Building Products, Inc.
and Fleetwood Enterprises, Inc.
Alumax Building Products, Lease Agreement entered into May 23, 1995 by and
Inc. between Alumax Building Products, Inc. and Key
Credit Corporation for modular office building
located at 500 Kesco Drive, Bristol, Indiana.
Alumax Building Products, Vendor Buying Agreement dated as of June 30,
Inc. 1995 by and between Alumax Building Products, Inc.
and Stambaugh-Thompson Co.
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<PAGE> 260
Schedule 3.1(p)(continued)
Alumax Building Products, Aluminum Coil Supply Agreement dated as of May
Inc. 6, 1996 by and between Alumax Building Products,
Inc. and Jack Gosch Ford, Inc. dba Hemet Valley
RV.
Alumax Coated Products, Facilities Contract entered into as of March
Inc. 14, 1995, between Alumax Building Products, Inc.
and Larry Delk & Associates Inc. regarding
construction of a paintline and fabrication
facility in Helena, Arkansas.
Alumax Coated Products, Consulting Agreement between Alumax Coated
Inc. Products, Inc. and John Munday dated September 6,
1994, for construction of paintline at Helena,
Arkansas.
Alumax Coated Products, Consignment Agreement, dated January 3, 1996,
Inc. between Alumax Coated Products, Inc. and Morton
International, Inc. for West Helena, Arkansas
plant (the original party was Alumax Building
Products, Inc.).
Alumax Coated Products, Grant Agreement dated June 12, 1994, by and
Inc. among Alumax Coated Products, Inc., Alumax
Building Products, Inc., Phillips County, and
Helena/West Helena Industrial Development
Corporation.
Alumax Coated Products, Lease Agreement dated July 12, 1994, by and
Inc. among Alumax Coated Products, Inc., Alumax
Building Products, Inc., and Helena/West Helena
Industrial Development Corporation.
Alumax Coated Products, Agreement for Electric Service, dated March 6,
Inc. 1995, with Woodruff Electric Cooperative
Corporation for a 2-year term.
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<PAGE> 261
Schedule 3.1(p)(continued)
Alumax Coated Products, Sales Order, dated May 1, 1995, by and between
Inc. Amoco Energy Trading Corporation and Alumax
Coated Products, Inc. for supply of natural gas
from May 1, 1995 through July 31, 1996.
Alumax Door Products, Second Supplement to Sublease Agreement (Second
Inc. Expansion Area) dated October 10, 1989, by and
between DEVCO Realty, Alumax Door Products, Inc.,
and Alumax Fabricated Products, Inc. -and-
Environmental Covenant dated October 20, 1989
-and- Letter Agreement dated July 6, 1994, with
the City of Richmond, Indiana, for construction
of parking lot and railway facilities in Eastern
Indiana Industrial Park.
Alumax Door Products, Business Property Lease and Guaranties, dated
Inc. December 30, 1992, by and between Marion
Industrial Properties, Inc., Robert M. Aubrey,
and Alumax Door Products, Inc. for property at
1410 S.W. 12th Avenue, Ocala, Florida -and-
Subordination, Non-Disturbance and Attornment
Agreement dated as of December 28, 1992, by and
among Barnett Bank of Marion County, N.A., Marion
Industrial Properties, Inc., Alumax Door
Products, Inc. and Alumax, Inc.
Alumax Door Products, Agreement with International Association of
Inc. Machinists and Aerospace Workers - Richmond,
Indiana. Expires February 21, 1998.
(approximately 86 employees)
-8-
<PAGE> 262
Schedule 3.1(p)(continued)
Alumax Door Products, Sales Representative Agreement dated as of
Inc. February 15, 1993 by and between Johnson Metal
Products (division of Alumax Door Products, Inc.)
and S&M Marketing.
Alumax Fabricated Products Supply Agreement effective January 9, 1994, by
Inc. and between Decatur Aluminum Corporation and
Alumax Fabricated Products, Inc. on behalf of
Alumax Building Products, Inc., as amended and
restated effective April 1, 1996.
Alumax Fabricated Products Supply Agreement dated August 7, 1995, between
Inc. Barmet Aluminum Corporation and Alumax Fabricated
Products, Inc.
Alumax Fabricated Products Lease Agreement dated March 20, 1990, between
Inc. Peterson Properties Limited and Alumax Aluminum
Corporation for property at 5335 Triangle
Parkway, Norcross, Georgia -and- First Amendment
to Lease Agreement, dated February 9, 1993,
between Boca Corners, L.P. and Peterson
Properties Limited and Alumax Inc. -and- Second
Amendment to Lease, dated January 27, 1995,
between Boca Corners, L.P. and Alumax Inc. - and-
Letter Agreement dated April 11, 1995.
Alumax Fabricated Products ALUMAWOOD trademark agreement dated December 5,
Inc. 1986, with Howard Manufacturing Company
Euramax Home Products, Lowe's Master Standard Buying Agreement by and
Inc. between Lowe's Companies, Inc. and Alumax
Aluminum Corporation, Home Products Division,
entered into January 12, 1995.*
Euramax Home Products, Supply Agreement dated May 4, 1995, by and
Inc. between Nichols Aluminum and Alumax Aluminum
Corporation, Home Products Division.*
Euramax Home Products, Letter Agreement between Home Products
Inc. Division, Alumax Aluminum Corporation, and GSW
Thermoplastics Company, a division of GSW Inc.,
dated September 20, 1989. (Reinstating
Distribution Agreement dated October 8, 1987.)*
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<PAGE> 263
Schedule 3.1(p)(continued)
Euramax Home Products, Industrial Building Lease dated October 20,
Inc. 1992, between LaSalle National Trust, N.A. and
Alumax Aluminum Corporation for property at 6235
West 73rd Street, Bedford Park, Illinois -and-
Agreement of Subordination, Nondisturbance and
Attornment dated January 29, 1993 between
Allstate Life Insurance Company and Alumax
Aluminum Corporation.*
Euramax Home Products, Commercial Lease Agreement, dated January 28,
Inc. 1994, by and between Alexander & Baldwin, Inc.
and Alumax Aluminum Corporation, Home Products
Division, for 45,281 square feet situated at 1025
Avenue S, Suite 150, Grand Prairie, Texas.*
Euramax Home Products, Lease made as of April 12, 1984, by and between
Inc. Northgate Investment Company and Alumax Aluminum
Corporation for property located at 3701-A Pell
Circle, Sacramento, California -and- Addendum to
Lease dated November 26, 1985 by and between
Northgate Investment Company and Alumax Aluminum
Corporation -and- Second Addendum to Lease, dated
October 19, 1987, by and between Northgate
Investment Company and Alumax Aluminum
Corporation -and- Lease Extension dated November
28, 1988 between Northgate Investment Company and
Alumax Aluminum Corporation -and- Lease Extension
Agreement dated July 5, 1994 between Florian F.
Dauenhauer and Florene M. Heck and Alumax
Aluminum Corporation.*
Euramax Home Products, Lease dated July 28, 1972 between J. L.
Inc. Williams & Co., Inc. and Howmet Corporation for
property at 4777 Stone Drive, Tucker, Georgia -
and- Letter Extension dated September 10, 1992.*
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<PAGE> 264
Schedule 3.1(p)(continued)
Euramax Home Products, Agreement with Miscellaneous Warehousemen,
Inc. Airline, Automotive Parts, Service, Tire, Rental,
Chemical and Petroleum, Ice, Paper, and Related
Clerical and Production Employees Union Local
781, affiliated with International Brotherhood of
Teamsters, dated January 14, 1996 - Chicago
Service Center of Home Products Division of
Alumax Aluminum Corporation. Expires January 14,
1999. (approximately 22 employees)*
Euramax Home Products, Vendor Information Packet (undated and
Inc. unsigned) governing terms and conditions of doing
business with The Home Depot.*
Euramax Home Products, Private Label Agreement dated as of February
Inc. 16, 1994 by and between Alumax Aluminum
Corporation and Alumin-Nu Corporation.*
Euramax Home Products, Private Label Agreement dated as of March 20,
Inc. 1996 by and between Alumax Aluminum Corporation,
Home Products Division and Geocel Corporation.*
Alumax Coated Products Guarantee given to Secretary of State for Trade
U.K. Limited & Industry by Euramax Aluminum Limited (now
Alumax Coated Products Limited dated May 5, 1989)
(the parties are Ametalco Limited, Euramax
Aluminium Limited, and the Secretary of State for
Trade & Industry).
Alumax Coated Products Guarantee given by National Westminster Bank on
U.K. Limited behalf of Alumax Coated Products U.K. Limited for
payment of sums due to HM Customs & Excise
(L.30,000) and counter-indemnity given by Alumax
Coated Products U.K. Limited to National
Westminister Bank.
Alumax Coated Products Exclusive Agency Agreement between Euramax Ltd.
U.K. Limited (now Alumax Coated Products U.K. Limited) and
Coiltrade i. Norrkoping AB, dated February 10,
1993. Appoints Coiltrade as exclusive sales agent
in Sweden. Terminable on six months' written
notice by either party.
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<PAGE> 265
Schedule 3.1(p)(continued)
Alumax Coated Products Agency Agreement between Alumax Coated Products
U.K. Limited U.K. Limited and Dr. Augusto Hugony dated
February 2, 1996 (draft). Appoints Dr. Hugony as
sole and exclusive agent for marketing and
promotion in Italy (with the exception of the
caravan sector) and San Marino. Initial fixed
term of 3 years by fixed periods of one year,
terminable on six months' written notice, such
notice to expire at the end of the initial period
or at the end of any such further fixed periods.
Alumax Coated Products Contract with Barclays Limited (regarding the
U.K. Limited delivery of rolling slabs from December 1995
through 1996).
Alumax Coated Products Contract with Alcan Rolled Products UK
U.K. Limited (regarding the conversion of ingot to coil from
July 1996 through December 1996)
Alumax Coated Products Contract with Hoogovens Aluminium UK Limited
U.K. Limited (regarding the conversion of rolling slabs to
coil from January 1996 through December 1996)
Alumax Coated Products Contract with Alliance Gas Limited (regarding
U.K. Limited the supply of gas to Brunel and McCadam Road
starting January 1996 though September 1998)
Alumax Coated Products Contract with Yorkshire Electricity Group plc
U.K. Limited (regarding the supply of electricity to Brunel
and McCadam Road through October 1996)
Alumax Coated Products Standard form contracts of employment with all
U.K. Limited employees (save for directors) as set out in two
Company Handbooks for monthy and hourly paid
staff, respectively.
Alumax Coated Products Cross guarantee for centralized cash management
U.K. Limited system of Alumax Coated Products U.K. Limited,
dated March 30, 1994 (guarantees the obligations
of Alumax Holdings Limited, Alumax Ellbee Limited
and Kawneer U.K. Limited).
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<PAGE> 266
Schedule 3.1(p)(continued)
Alumax Coated Products Sales contract with Hydro Aluminium S.A., dated
B.V. January 5, 1996 (delivery of ingots from March
1996 through October 1996).
Alumax Coated Products Sales contract with Hydro Aluminium S.A., dated
B.V. December 5, 1995 (delivery of ingots from April
1996 through June 1996).
Alumax Coated Products Sales contract with Hydro Aluminium S.A., dated
B.V. November 14, 1995 (delivery of ingots from
January 1996 through August 1996).
Alumax Coated Products Sales contract with Barclays Physical Trading,
B.V. dated November 13, 1995 (delivery of ingots from
January 1996 through December 1996).
Alumax Coated Products Sales contract with Glencore, dated November 7,
B.V. 1995 (delivery of ingots from November 1995
through April 1996).
Alumax Coated Products Sales contract with Metall Management GmbH,
B.V. dated January 5, 1996 (delivery of ingots from
May 1996 through September 1996).
Alumax Coated Products Contract with Alcan Rolled Products U.K., dated
B.V. December 15, 1995 (regarding the conversion of
ingots to aluminum coil sheet for 1996).
Alumax Coated Products Special Pricing Memorandum between ACP B.V. and
B.V. Alcan Rolled Products U.K., dated December 15,
1995.
Alumax Coated Products Contract terms with Hoogovens Aluminum, dated
B.V. November 20, 1995 (regarding the conversion of
ingots to aluminum coil sheet for 1996).
Alumax Coated Products Contract with Pechiney Rhenalu Neuf Brisach,
B.V. dated November 23, 1995 (regarding the conversion
of ingots to aluminum coil sheet for 1996).
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<PAGE> 267
Schedule 3.1(p)(continued)
Alumax Coated Products Contract with Alusuisse Swiss Aluminum Ltd.,
B.V. dated September 4, 1995 (regarding the conversion
of ingots to wide aluminum coil sheet for 1996).
Alumax Coated Products Contract with Maersk Container Industrie AS in
B.V. respect of 1,000 tons aluminum coils.
Alumax Coated Products Contract with Pechiney Rhenalu Issoire, dated
B.V. November 14, 1995 (regarding the conversion of
ingots to wide aluminum coil sheet for the first
half of 1996).
Alumax Coated Products Alumax Coated Products B.V. has concluded a
B.V. FOREX agreement with Alumax Inc. pursuant to
which Alumax Coated Products B.V. buys L.200,000
on a monthly basis with Dutch Guilder. Note: The
agreement, which has a term extending to December
31, 1996, will be terminated prior to Closing.
Alumax Coated Products Alumax Coated Products B.V. has granted a
B.V. participating loan to Alumax Holdings SA, the
interest of which is related to the profit of
Alumax Holdings SA. (Note: the agreement will be
terminated at Closing.)
Alumax Coated Products Regional Collective Bargaining Agreement of the
S.A. Metallurgy industry of Loire et Arrondissement
d'Yssingeaux et Lozere
Alumax Coated Products Alumax Coated Products S.A. is a party to
S.A. several agreements with labor unions. See
Schedule 3.1(v).
Alumax Holdings Limited Cross guarantee given by Alumax Holdings
Limited to National Westminster Bank dated March
21, 1994 in respect of U.K. Centralized Cash
Management System as a guarantee for the
obligations of Alumax Coated Products U.K.
Limited, Alumax Ellbee Limited and Kawneer UK
Limited.
Alumax Holdings Limited Indemnity from Alumax Holdings Limited to
National Westminster Bank, dated March 24, 1994.
Alumax Holdings Limited Office lease of Alumax Holdings Limited at
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<PAGE> 268
11 Brook Business Center, Cowley Mill Road,
Uxbridge, Middlesex, England.
Alumax Ellbee Limited Supply Agreement between Atrak Limited, Boomer
Industries Limited and Alumax Ellbee Limited,
dated July 5, 1995.
Alumax Ellbee Limited Asset Transfer Agreement between Alumax Ellbee
Limited and Polyplastics B.V., dated February 28,
1996. The agreement prevents Alumax Ellbee
Limited from selling Acrylic windows.
Alumax Ellbee Limited Guarantee given by National Westminster Bank in
relation to payment of sums due to HM Customs &
Excise (L.50,000) by Alumax Ellbee Limited and
counter-indemnity given by Alumax Ellbee Limited
to National Westminister Bank.
Alumax Ellbee Limited Ground leases of Alumax Ellbee in Grangefield
Industrial Estate in Pudsey, England.
Alumax Ellbee Limited Lease of Unit 3, First Avenue, Grangefield
Industrial Estate, Pudsey, England.
Alumax Ellbee Limited Cross guarantee for centralized cash management
system of Alumax Ellbee Limited, dated March 1994
(guarantees the obligations of Alumax Coated
Products U.K. Limited, Alumax Holdings Limited
and Kawneer U.K. Limited.)
Alumax Ellbee Limited Debtor Insurance Contract with Coface LBF
through October 1997.
Alumax Ellbee Limited Gas Contract with Kerr-McGee Gas (U.K.) Limited
through 1997
Alumax Ellbee Limited Electricity Contract with Yorkshire Electricity
Group plc through October 1996
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<PAGE> 269
Schedule 3.1(p)(continued)
Alumax Ellbee Limited At any one time there may be contracts for up
to one month's advance supply of aluminum which
may have a value in the region of L.200,000.
Alumax Ellbee Limited Annual Wages Agreement with General, Municipal,
Boiler makers and Allied Trades Union
Alumax Ellbee Limited Standard form contracts of employment with all
employees (save for directors) as set out in the
Company Handbook.
Alumax Ellbee Limited Letter appointing Mr. Pittendreigh as Financial
Controller and Company Secretary, dated March 6,
1995.
Alumax Ellbee Limited Asset Purchase Agreement between Alumax Ellbee
Limited and Halls Homes & Gardens (Trading)
Limited dated June 24, 1992.
Alumax Europe B.V. Credit facility in the amount of U.S.
$15,000,000 dated November 5, 1992 with Generale
Bank (formerly Credit Lyonnais Bank Nederland).
Alumax Europe B.V. Joint Venture Agreement dated April 27, 1993
with Kawneer Europe B.V. and Kawneer Aluminum
Gmbh. The agreement contains a non-competition
clause (Article 13) providing for a restriction
in the business of manufacturing, marketing,
distributing and/or selling aluminum products
within or into any part or all of Eastern Europe,
including Poland.
Alumax Europe B.V. Loan Agreement with Kawneer Polska in the
amount of DM 300,000 on the terms and conditions
as laid down in the deed of incorporation dated
April 27, 1993.
Alumax Europe B.V. Loan agreements dated May 11, 1994 (290,000,000
Polish zlotys), June 10, 1994 (1,820,000,000
Polish zlotys) and March 28, 1994 (90,000,000
Polish zlotys) with Alumax Polsha.**
Alumax Europe B.V. Deed of incorporation of Kawneer Polska dated
April 27, 1993.
-16-
<PAGE> 270
Alumax Inc. Cross guarantee for centralized cash management
system of Alumax Inc., dated March 1994
(guarantees the obligations of Alumax Holdings
Limited, Alumax Coated Products U.K. and Alumax
Ellbee Limited).
Alumax Industries S.A. Loan of 20,000,000FF from Alumax Holdings S.A.
to enable Alumax Industries S.A. to acquire
shares of Alumax Coated Products S.A. in December
1995.
Alumax Industries S.A. Regional Collective Bargaining Agreement of the
metallurgy industry of the Maine and Loire.
* Contracts to be assigned to Euramax Home Products, Inc. under Asset
Purchase Agreement between Alumax Aluminum Corporation and Euramax
Home Products, Inc.
** These contracts were stated in terms of old Polish zlotys. As of
1995, 10,000 old zlotys are equal to one new zloty.
Additional Matters
1. Appointment letter for Neil Davies dated September 27, 1977.
2. Appointment letter for R. A. Walters dated July 18, 1983 and
relocation expenses letter dated July 15, 1983.
3. Guarantee letter from Alumax Inc. to Jean-Claude Bonnard dated March
10, 1988.
4. Employment Letter from Alumax International to Aloyse Wagener dated
March 20, 1992 (superseded by the "Contrat de Travail").*
5. Employment Contract ("Contrat de Travail") between UCP Societe
Industrielle and Aloyse Wagener, dated July 1, 1992.
6. Appointment letter for J.M. Cuypers dated April 24, 1970.
7. Employment letter from Euramax Aluminium Limited to Gerald Williams
dated August 14, 1986.
- --------------------
* See also item no. 4 of Schedule 4.11(a). To the extent this
Employment Letter is superseded, the Employment Letter will not be
binding.
-17-
<PAGE> 271
Schedule 3.1(p)(continued)
8. Employment letter from Alumax Ellbee Limited to Paul Encell dated
December 23, 1994.
9. Employment letter from Euramax Limited to Ms. A. M. Pallares dated
February 1, 1991.
10. Consulting Agreement between Alumax Coated Products UK Limited and
Employment Training Advisory Support Services Ltd. confirmed in letter
to Euramax Ltd. dated December 8, 1992.
11. See also Schedule 3.1(h) regarding leased properties outside the
United States.
12. Alumax Coated Products U.K. Limited has agreed not to compete with
other companies in the group in certain territories pursuant to the
following unwritten arrangements:
<TABLE>
<CAPTION>
Party Territory Customers/Products
- -------------------------- --------------------------- ---------------------------
<S> <C> <C>
Alumax Coated Belgium, the All
Products B.V. Netherlands and
Luxembourg
Germany All
Alumax Coated Spain All, other than
Products S.A. industrial clients
Portugal All, other than
industrial clients
Italy All, other than
industrial clients
Alumax Mill All, except U.K. MIC 6 tool plate
Products and Scandinavia
</TABLE>
13. Alumax Coated Products B.V. has agreed not to compete with Alumax
Coated Products U.K. Limited pursuant to the following unwritten
arrangements:
<TABLE>
<CAPTION>
Party Territory Customers/Products
- --------------------------- --------------------------- ---------------------------
<S> <C> <C>
Alumax Coated UK All, including
Products U.K. industrial clients
Scandinavia All, including
industrial clients
All Video blanks for
teletronics market
</TABLE>
-18-
<PAGE> 272
Schedule 3.1(p) (continued)
In practice, if any inquiry is received by Alumax Coated Products U.K. from a
relevant product/customer, it will refer such inquiry to the relevant company.
14. Alumax Ellbee Limited has an outstanding purchase order with the party
listed below:
Party Date Value
- ------------------ --------------------- -----------------------
Barclays Physical June 24, 1996 *202,800
Trading Limited
Alumax Coated Products U.K. Limited has outstanding purchase orders with the
parties listed below:
<TABLE>
<CAPTION>
Party Date Purchase Value
Order
Number
- -------------- -------------- -------------- --------------
<S> <C> <C>
Barclays Physical April 9, 1996 61949a L.115,900
Trading Limited
Barclays Physical October 31, 1995 59570a $528,750
Trading Limited
Barclays Physical April 9, 1996 61950a L.115,900
Trading Limited
Barclays Physical October 31, 1995 59571a $528,750
Trading Limited
Barclays Physical April 9, 1996 61951a L.116,300
Trading Limited
Barclays Physical October 31, 1995 59572a $528,750
Trading Limited
Barclays Physical October 31, 1995 59573a $528,750
Trading Limited
Barclays Physical October 31, 1995 59574a $528,750
Trading Limited
</TABLE>
-19-
<PAGE> 273
Schedule 3.1(p) (continued)
<TABLE>
<S> <C> <C> <C>
Barclays Physical October 13, 59270c L.58,850
Trading Limited 1995
Barclays Physical September 9, 58842a L.63,000
Trading Limited 1995
Barclays Physical October 31, 59568c $528,750
Trading Limited 1995
Haden Orysys October 18, 59347d L.524,685
International 1995
Limited
</TABLE>
Alumax Industries S.A. has outstanding purchase orders with the parties listed
below:
<TABLE>
<CAPTION>
Party Date Value
- ----------- ----------- -----------
<S> <C> <C>
SOFTAL June 7, 1996 FF 776,610
SOFTAL June 13, 1996 FF 767,016
SOFTAL June 4, 1996 FF 230,677
SOFTAL March 26, 1996 FF 596,970
SOFTAL June 13, 1996 FF 23,292
SOFTAL June 3, 1996 FF 20,904
SOFTAL June 4, 1996 FF 20,984
SOFTAL May 15, 1996 FF 238,788
</TABLE>
Alumax Coated Products B.V. has outstanding purchase orders with the parties
listed below:
<TABLE>
<CAPTION>
Party Date Value
- -------------------------- ------------------- -------------
<S> <C> <C>
Hunter Douglas Metals B.V. June 7, 1996 NLG 1,340,000
Hydro Aluminum S.A. January 5, 1996 NLG 2,356,000
Metall Management
Gesellschaft MBH & Co KG January 5, 1996 NLG 1,266,750
Barclays Physical Trading June 14, 1996 NLG 1,355,000
Barclays Physical Trading November 13, NLG 2,137,620
1995
Hydro Aluminum S.A. June 10, 1996 NLG 3,412,800
Hydro Aluminum S.A. December 5, NLG 1,382,000
1995
</TABLE>
-20-
<PAGE> 274
Schedule 3.1(p)(continued)
15. Various confidentiality, nondisclosure, finders fees and broker
agreements (some of which prohibit disclosure to the Purchaser and are
therefore not listed below, but which will be among the records of the
Sale Companies after the Closing), including, but not limited to:
a. Agreement Concerning Confidential Disclosure of Information by
Steelcase to an Outside Party
Parties: Alumax Fabricated Products, Inc. and
Steelcase Inc.
Dated: May 20, 1994
b. Acquisition Candidate/Finder's Fee Agreement
Parties: Alumax Fabricated Products, Inc. and
Fernwood Management Company, Inc.
Dated: May 12, 1994
c. Confidentiality and Non-Disclosure Agreement
Parties: Merchant Capital Group, Ltd. and
Alumax Fabricated Products, Inc.
Dated: June 14, 1994
d. Confidentiality Agreement
Parties: Calhoun Companies and Alumax
Fabricated Products, Inc.
re: Lexington Standard Corp.
Dated: July 26, 1994
Finder Fee Agreement
Parties: Alumax Fabricated Products, Inc. and
Calhoun Companies
Dated: July 26, 1994
e. Finder Fee Agreement (Cardinal Aluminum Co./Aluminum Source
Inc.)
Parties: Alumax Fabricated Products,Inc. and Calhoun
Companies
Dated: March 8, 1994
f. Non-Disclosure Agreement
Parties: Alumax Fabricated Products, Inc. and
Great Walls of America, Inc.
Dated: August 8, 1994
g. Joint Nondisclosure Agreement
Parties: Alumax Fabricated Products, Inc.,
Kawneer Co., Inc. and Steelcase, Inc.
Dated: September 30, 1994
-21-
<PAGE> 275
Schedule 3.1(p)(continued)
h. Standard Nondisclosure Statement and Representation of
Purchaser Agreement
Parties: American Business Group, Inc. and Alumax
Home and Specialty
Dated: November 7, 1989
i. Confidentiality Agreement
Parties: Alumax Home & Specialty Products with
Calhoun Companies
Dated: January 16, 1990
Fee Agreement
Parties: Alumax Home and Specialty Products and
Calhoun Companies
Dated: January 16, 1980
j. Confidentiality Agreement
Parties: Alumax Home and Specialty Products and
Calhoun Companies
Dated: January 5, 1990
Fee Agreement
Parties: Alumax Home and Specialty Products and
Calhoun Companies
Dated: January 5, 1990
k. Confidentiality Agreement
Parties: Alumax Home and Specialty Products and
Calhoun Companies
Dated: January 16, 1990
Fee Agreement
Parties: Alumax Home and Specialty Products and
Calhoun Companies
Dated: January 16, 1990
l. Consultant Fee Letter
Parties: Alumax Inc. and R. William Breece, Jr.
(re: manufacturer of aluminum and vinyl
windows)
Dated: February 23, 1990
m. Services Engagement Letter
Parties: Alumax Fabricated Products, Inc. and
Gardiner & Rauen, Inc.
Dated: June 26, 1990
-22-
<PAGE> 276
Schedule 3.1(p)(continued)
n. Letter Agreement of Confidentiality
Parties: Alumax Fabricated Products, Inc. and
Gardiner & Rauen, Inc.
Dated: June 26, 1990
o. Agreement of Confidentiality, Non-Disclosure and Disclaimer
Parties: Nationwide Business Services and
Alumax Inc.
Dated: August 14, 1990
p. Confidentiality Agreement
Parties: Finch & Moore Associates, Inc. and
Alumax (re: Hirschfield Steel Co., Inc.)
Dated: December 12, 1990
q. Confidentiality Agreement
Parties: Alumax Fabricated Products, Inc. and
Geneva Capital Markets, Inc.
Dated: December 20, 1990
r. Standard Fee Agreement Letter
Parties: Preferred Equities Company, Inc. and
Alumax Fabricated Products, Inc.
Dated: December 21, 1990
s. Confidentiality Agreement
Parties: Interstate/Johnson Lane Corporation and
Alumax Home and Specialties Products Group
Dated: June 6, 1989
t. Confidentiality Agreement (Precision Machining Company
Formac Corp.)
Parties: Alumax Home and Specialty Products and
Calhoun Companies
Dated: December 20, 1989
u. Confidentiality Agreement (Aluminum Design Corporation)
Parties: Alumax Home and Specialty Products and
Stevenson & Company
Dated: May 5, 1989
v. Finder Fee Agreement (Penny Plate, Inc.)
Parties: Pride Capital Group, Inc. and Alumax
Fabricated Products, Inc.
Dated: July 21, 1995
w. Confidentiality and Non-Disclosure Agreement
Parties: Southern Aluminum Manufacturing, Inc. and
Alumax Aluminum Corp.
Dated: August 24, 1995
-23-
<PAGE> 277
Schedule 3.1(p)(continued)
x. Confidentiality Agreement (Novo Industries)
Parties: Alumax Fabricated Products, Inc. and
Imperial Brokerage Co.
Dated: April 18, 1995
y. Finder Fee Agreement
Parties: Alumax Fabricated Products, Inc. and
Calhoun Companies
Dated: April 5, 1995
Confidentiality Agreement
Parties: Alumax Fabricated Products, Inc. and
Calhoun Companies
Dated: April 5, 1995
z. Confidentiality Agreement (General Aluminum Corp.)
Parties: Alumax Fabricated Products, Inc. and
Imperial Brokerage Co.
Dated: April 5, 1995
Finder Fee Agreement
Parties: Alumax Fabricated Products, Inc. and
Imperial Brokerage Co.
Dated: undated
aa. Fee Agreement
Parties: St. Denis Partners, dba Robert Finch
Associates and Alumax Fabricated
Products, Inc.
Dated: March 8, 1995
bb. Confidentiality Agreement
Parties: Capital Consultants Hansen + Partner
and Alumax Fabricated Products, Inc.
Dated: February 13, 1996
cc. Finder Fee Agreement
Parties: American Brokerage Partners, Inc.
and Alumax Fabricated Products, Inc.
Dated: February 13, 1996
dd. Confidentiality Agreement (re: Able Enterprises, Inc.)
Parties: Interlink and Alumax Inc.
Dated: October 18, 1989
ee. Confidentiality Agreement (re: Transonics, Inc. and
Dynasonics, Inc.)
Parties: Interlink and Alumax Inc.
Dated: October 18, 1989
-24-
<PAGE> 278
Schedule 3.1(p)(continued)
ff. Non-Disclosure Agreement
Parties: Bazzle & Trainor Associates and
Alumax Fabricated Products, Inc.
Dated: May 10, 1991
gg. Non-Disclosure Confidentiality Agreement
Parties: Nightingale & Associates, Inc. (on behalf of
certain pre-engineered metal buildings and
roofing manufacturers) and Alumax Fabricated
Products, Inc.
Dated: May 31, 1991
hh. Letter Confidentiality Agreement
Parties: USG Corporation and Alumax Inc.
Dated: January 26, 1991
ii. Letter re Confidentiality
Parties: Geneva Capital Markets, Inc. and
Alumax Fabricated Products, Inc.
Dated: April 2, 1991
jj. Confidentiality and Fee Agreement Letter
Parties: Crown Capital Corporation and Alumax
Inc.
Dated: June 4, 1991
kk. Fee Agreement
Parties: Throne & Company and Alumax Fabricated
Products, Inc.
Dated: August 23, 1991
ll. Confidentiality Agreement
Parties: D.J. Robinson Consultants Inc. and Alumax
Fabricated Products, Inc.
Dated: December 10, 1991
mm. Confidentiality Agreement
Parties: The Summerford Company, Inc. and Alumax
Fabricated Products, Inc.
Dated: January 3, 1991
nn. Intermediary Fee/Non-Disclosure Agreement
Parties: Business to Business International, Inc. and
Alumax Fabricated Products, Inc.
Dated: April 16, 1992
oo. Finder Fee Agreement
Parties: Alumax Fabricated Products, Inc. and
Calhoun Companies (on behalf of Cobra
Industries)
Dated: August 3, 1992
-25-
<PAGE> 279
Schedule 3.1(p)(continued)
pp. Finder's Fee Agreement
Parties: Harry Roman & Company and Alumax Fabricated
Products, Inc.
Dated: August 8, 1992
qq. Confidentiality Agreement
Parties: Niederhoffer-Henkel & Co., Inc. and Alumax
Fabricated Products, Inc.
Dated: August 18, 1992
rr. Letter Fee Agreement
Parties: Robert Martens & Company (on behalf of Allsco
Building Supplies, Inc.) and Alumax Fabricated
Products, Inc.
Dated: December 22, 1992
ss. Standard Fee Agreement Letter
Parties: The Aspen Group and Alumax Fabricated Products,
Inc.
Dated: December 21, 1992
tt. Confidentiality Agreement
Parties: Niederhoffer-Henkel & Co. and Alumax Fabricated
Products, Inc.
Dated: undated (fax dated August 7, 1993)
uu. Confidential Disclosure Agreement
Parties: Alumax Fabricated Products, Inc. and Alumber
LLC, represented by Thomas A. Nassif
Dated: December 23, 1993
vv. Non-Disclosure Agreement
Parties: Alumax Aluminum Corporation (Home Products
Division) and J&F Tool
Dated: March 20, 1995
ww. Joint Non-Disclosure Agreement
Parties: Alumax Building Products, Inc., Alumax
Aluminum Corporation and Corcel Corporation
Dated: January 20, 1995
xx. Confidentiality and Nondisclosure Agreement
Parties: Alumax Fabricated Products, Inc. and
Uniplex Profiles, Inc.
Dated: May 22, 1995
yy. Confidentiality Agreement
Parties: Alumax Industries SA and Matra
Dated: June 10, 1994
-26-
<PAGE> 280
Schedule 3.1(p)(continued)
zz. Confidentiality Agreement:
Parties: Alumax Industries SA and Trev
Dated: undated
12. See also documents relating to the UK Pension Scheme listed in
Schedule 3.1(m)(xii) and the disclosures made generally in Schedules
3.1(m)(viii) through 3.1(m)(xiv) in this respect.
-27-
<PAGE> 281
SCHEDULE 3.1(q)
TAX MATTERS
1. Alumax Inc.
Tax Dispute Regarding Consolidation with Amax
The Internal Revenue Service (the "IRS") has asserted that Alumax Inc.
(the "Company") and certain of its subsidiaries were improperly included in the
consolidated income tax returns of AMAX Inc. ("Amax") for 1984, 1985 and 1986
and on that basis has asserted a federal income tax deficiency against the
Company of $129 million. Interest on the deficiency through December 31, 1995,
would be $235 million. In response to the IRS' notice of deficiency, the
Company filed a petition in United States Tax Court on May 15, 1995, seeking a
redetermination in respect of the purported deficiency. The IRS filed its
answer on July 11, 1995, disputing the position advanced in the Company's
petition and requesting affirmation of the IRS' determination. The parties
have waived their rights to a trial and the matter is being submitted to the
Court for decision based upon the pleadings, stipulations, memoranda and other
documents submitted to the Court by the parties.
In connection with the spin-off of the Company, the Company and Amax
entered into the tax disaffiliation agreement, dated as of May 24, 1993 (the
"Tax Disaffiliation Agreement"), defining the rights and obligations of the
Company and Amax in respect of taxes following the consummation of the
spin-off. Under the terms of the Tax Disaffiliation Agreement, the Company has
assumed responsibility for all proceedings regarding the purported deficiency
and payment of any additional taxes, along with penalties and interest, which
may ultimately be due.
The Company has set up a reserve to provide for the net deficiency
(taking into account tax benefits to the Company from paying the deficiency and
interest).
2. US Sale Companies
All U.S. Sale Companies have entered into agreements extending the
statute of limitations applicable to U.S. Federal income taxes for the years
1984 - present.
3. Alumax Coated Products SA
A controle fiscal has recently been completed; the results are
awaited. This is an audit carried out by the French tax authorities whereby
the company accounts for the preceding two fiscal years (1993 and 1994) are
reviewed.
-1-
<PAGE> 282
Schedule 3.1(q)(continued)
4. Alumax Coated Products B.V.
The tax authorities have indicated, although no formal assessment has
been made, that they will levy an additional amount of VAT (approximately NLG
65,000) in respect of the use of company cars and the canteen. They have also
indicated that the amount of the fiscal reserve is too high. Accordingly, NLG
2,000,000 will have to be added to the fiscal profit of Alumax Coated Products
B.V. This will lead to additional tax payments of approximately NLG 700,000
(i.e. 35% of NLG 2,000,000).
Alumax Coated Products B.V. has lodged an objection to the 1990 tax
assessment but no formal assessment has yet been imposed by the Dutch tax
authorities.
5. Alumax Europe B.V.
The tax authorities have indicated, although no formal assessment has
been made, that they will levy an additional amount of VAT in respect of the
VAT registration of Alumax Europe B.V. for the period 1991-1994 (approximately
NLG 27,750). This amount will have to be increased for 1995.
Alumax Europe B.V. has tainted share premium of NLG 44,465,497.
6. Alumax Industries S.A. and Alumax Coated Products S.A.
Alumax Industries S.A. and Alumax Coated Products S.A. are parties to
a tax allocation agreement with Alumax Holdings S.A.
7. Alumax Holdings Limited, Alumax Coated Products UK Limited and Alumax
Ellbee Limited
Alumax Holdings Limited, Alumax Coated Products UK Limited and Alumax
Ellbee Limited are parties to a tax allocation agreement.
-2-
<PAGE> 283
SCHEDULE 3.1(s)
BROKERS AND FINDERS
Wolfensohn & Co., Incorporated*
599 Lexington Avenue
New York, New York 10022
Wolfensohn & Co., Incorporated's fees and expenses will be paid by Alumax Inc.
__________________________________
* Name may change pending merger of Wolfensohn & Co., Incorporated and
Bankers Trust.
-1-
<PAGE> 284
SCHEDULE 3.1(t)
SUFFICIENCY OF ASSETS
1. Auto lease with Wheels, Inc. will be terminated. Purchaser will be
required to enter into a lease and transfer agreement with Wheels,
Inc. prior to Closing.
-1-
<PAGE> 285
SCHEDULE 3.1(v)
COLLECTIVE BARGAINING AGREEMENTS
1. Alumax Ellbee Limited recognizes the General, Municipal, Boiler Makers
and Allied Trade Union in respect of hourly/weekly paid employees.
2. Alumax Industries SA and Alumax Coated Products SA are bound by the
National and Regional Collective Bargaining Agreements:
Convention Collective Nationale de la Metallurgie (National
Collective Bargaining Agreement of the Metallurgy Industry).
Conventions Collectives Regionale de la Metallurgie (Regional
Collective Bargaining Agreements of the Metallurgy Industry):
- Maine-et-Loire
- Loire et Arrondissement d'Yssingeaux et Lozere
3. Approximately 10 of the employees of Alumax Coated Products B.V. are
members of a labor union.
4. Alumax Coated Products B.V. is subject to the Collective Labor
Agreement (consisting of 5 agreements) for the Metallurgic and
Electrotechnical Industry. A new collective labor agreement is being
negotiated. It appears from recent media coverage, that these
negotiations are not progressing very well. Moreover, according to
such coverage, the labor unions have threatened strike action.
5. See also Schedule 3.1(p) for collective bargaining agreements to which
the U.S. Sale Companies are parties.
6. There was a strike at Alumax Coated Products SA which lasted
approximately four hours in March 1996. This related to salaries and
year-end bonuses.
7. There is currently a Petition for Certification pending at Alumax Door
Products (Ocala, Florida) regarding the International Association of
Machinists and Aerospace Workers.
-1-
<PAGE> 286
SCHEDULE 3.1(w)
ENVIRONMENTAL MATTERS
United States
<TABLE>
<CAPTION>
Site Wastewater Stormwater Air
---- ---------- ---------- ---
<S> <C> <C>
Alumax Appliance and Specialty Products, Inc.
Carrollton, Kentucky Ky0011732 079-0580-0015
For sanitary only Small silk screening
NPDES operation
Vandalia, Ohio Application submitted Application submitted
Pending state action Pending state action
Alumax Building Products, Inc.
Anaheim, California 2-1-102 State General in place 007062
To sewer For coating line
Elkhart, Indiana INR00A045 2009930690
Alumax Coated Products, Inc.
Helena, Arkansas State letter of 1581A
authorization For coating line
Alumax Door Products, Inc.
Ocala, Florida J1-02-0797 FLR003143 300 RL 420075
Richmond, Indiana To sewer INR 00 J001 Application submitted
Pending state action
(de minimus source)
Euramax Home Products, Inc.*
Lancaster, Pennsylvania 320 36 318 0888
To sewer For coating line
</TABLE>
- ----------------------------------
* (To be assigned to Euramax Home Products, Inc. under Asset Purchase
Agreement between Alumax Aluminum Corporation and Euramax Home
Products, Inc.)
-1-
<PAGE> 287
Schedule 3.1(w)(continued)
The following plants have no permittable air emissions or industrial wastewater
discharges. Stormwater permits may be required.
Alumax Building Products, Inc.
<TABLE>
<S> <C>
Bloomburg, Pennsylvania PAR 204802
Bristol, Indiana No discharge
Loveland, Colorado COB-010373
Mansfield, Texas TXR-00A67
Marshfield, Wisconsin Applied for, pending state action
McPherson, Kansas Applied for, pending state action
Mesa, Arizona No discharge
Moulton, Alabama AL6120030
Mount Joy (Manheim), Pennsylvania Closed
Reidsville, North Carolina NCG030000
Romoland (Perris Valley), California Applied for, pending state action
Stayton, Oregon No discharge
Tifton, Georgia GAR000000
West Sacramento, California Applied for, pending state action
Service Centers None required
</TABLE>
-2-
<PAGE> 288
Schedule 3.1(w)(continued)
Europe
<TABLE>
<CAPTION>
Site Wastewater Air
---- ---------- ---
<S> <C> <C>
Alumax Coated Products B.V.
Roermond Authorized by local authority* Authorized by local authority
(Province of Limburg)
Alumax Coated Products U.K. Limited
Corby Authorized by local authority (Corby U.K. Environmental Protection Act
District Council)
Alumax Ellbee Limited
Pudsey Leeds City Council B0106
Powder coating YW/946/93C
Anodising YW/560/92B
Alumax Industries SA
Montreuil-Bellay Authorized by city** --
</TABLE>
Additional Permits:
1. Alumax Ellbee Limited Environmental Protection Act 1990 Authorization
dated 30 June 1993 for Grangefield Industrial Estate. Authorization to
carry out the process of application of dry powder to an aluminum
substrate where more than 20 tons is applied in a solid form in any
twelve month period.
- ----------------------------------
* A condition of the permit dated March 11, 1993, "Wet Verontreikiging
oppervlaktewatern" (waste water discharge permit), is an investigation
to be performed by Euramax (now Alumax Coated Products B.V.) into
reduction of aluminum emission according to best practicable means
("best uitvoerbare technieken") and to be filed with the Water Board
on January 1, 1995. It is uncertain whether this investigation has
been performed.
** This agreement is not signed by the city.
-3-
<PAGE> 289
Schedule 3.1(w)(continued)
2. Alumax Ellbee Limited Environmental Protection Act 1990 Authorization dated
4 February 1995 for Grangefield Industrial Estate. Authorization to carry
out the process of application of dry powder to an aluminum substrate where
more than 20 tons is supplied in a solid form in any twelve month period.
3. Alumax Coated Products U.K. Limited has local authority authorization under
Environmental Protection Act at Brunel Road site.
4. Three "Hinderwetvergunningen" (Nuisance Act permits) granted to Euramax
(now Alumax Coated Products B.V.), dated July 16, 1984, January 19, 1987,
and May 23, 1989, regarding expansion of the site at 6 Industrieweg. The
site was granted a wholly revised Environmental Protection Act permit on
August 23, 1994 which replaces any previous Nuisance Act permits.
5. "Lozingsvergunning ingevolge de Lozingsverordening Riolering" (municipal
wastewater discharge permit granted to Euramax (now Alumax Coated Products
B.V.)), dated August 8, 1983, relating to the site at 6 Industrieweg.
6. "Lozingsvergunning Waterschap Zuiveringschap Limburg" dated March 11, 1993
(wastewater discharge permit granted by Regional Waterboard to Euramax (now
Alumax Coated Products B.V.) site at 6 Industrieweg). An emission
reduction study which had to be performed before January 1, 1995 may lead
to stricter emissions standards in the permit.
7. "Grondwaterontrekkingsvergunning" (groundwater extraction permit) granted
by the Executive of the Province of Limburg relating to the site at 6
Industrieweg, dated December 22, 1987 (unless renewed, expired in 1993).
8. "Vergunning ingevolge de Wet Milieubeheer aan Euramax" (Environmental
Protection Act permit) granted to Euramax (now Alumax Coated Products B.V.)
dated December 14, 1993 relating to the site at Productieweg 2 in Roermond.
9. "Gebruiksvergunningen" (permits to use the building) dated September 21,
1994 for Productieweg 2 and dated February 21, 1996 for Industrieweg 6,
granted by the Fire Department of the Municipality of Roermond to Alumax
Coated Products B.V.
10. Two factory expansion permits dated December 19, 1995 under the "Wet
milieubeheer" (Environmental Protection Act) granted by the
-4-
<PAGE> 290
Schedule 3.1(w)(continued)
Municipality of Roermond to Alumax Coated Products B.V.'s site at 6
Industrieweg.
11. "Revisievergunning ingevolge de Wet milieubeheer" (Environmental Protection
Act (EPA) permit) granted by the Municipality of Roermond to Euramax (now
Alumax Coated Products B.V.), dated August 23, 1994, relating to the 6
Industrieweg site in Roermond.
Other Matters
1. The effluent treatment plant at Alumax Industries SA includes underground
storage tanks.
2. The roof of the Anodising Department of Alumax Industries SA may be
comprised of Asbestos sheeting. A sample has been sent for external
analysis.
3. There is an underground fuel tank at Alumax Industries S.A.
4. During 1994 and 1995, the Alumax Industries SA facility was unable to meet
effluent limits. The plant's treatment system was upgraded in late 1995
and now meets the limits.
5. Alumax Coated Products U.K. Limited experienced a chrome leak some 1 to 5
years ago. The land area in which it occurred continues to be pumped out
and monitored. It appears to be contained within local heavy clay soil.
6. New abatement equipment is being installed at the Alumax Coated Products
site in Corby to the Decor Process (end of May/early June 1996) and to the
main paintline (end of July/early August 1996). On completion of the
installation, the Local Authority will issue a new authorization.
7. There was formerly an underground fuel storage tank located at Alumax
Ellbee Limited. This was filled in accordance with Fire Officers
regulations in March 1993. The Fire Officer's requirements were that the
tank be filled with concrete slurry (10-1 mix).
8. Because of a potential problem in 1992 and 1993 from fall-out from the
anodising scrubber chimney at the Alumax Ellbee site in Pudsey, the
anodising section was completely refurbished and the scrubbing system
replaced in September 1995.
-5-
<PAGE> 291
Schedule 3.1(w)(continued)
9. On February 7, 1996, two officers of the environmental police visited
Alumax Coated Products B.V. in respect of the quantity of paint remaining
in "empty" paint drums. A letter dated February 13, 1996 from Mr. H.
Meuwissen of Alumax Coated Products B.V. to Mr. C. J. Kucera referring to a
visit by the environmental police relates to an alleged violation of waste
legislation occurring in 1994. This may result in a fine.
10. "Controle Rapport Brandweer Gemeente Roermond" dated November 23, 1995
(Report of an inspection by the Fire Department of the Municipality of
Roermond), stating violations of permit conditions and outlining the
measures which must be taken ultimately within 6 months.
11. Alumax Coated Products B.V. exceeded its permit limitation in relation to
the sulphate content of water effluents during the quarter ended September
29, 1993. The limitation in the permit has since been increased.
12. The Euramax Concept Actieplan Milieu Nul - Audit dated January 1992 and the
Euramax Milieu Nul - Audit dated January 1992 and the Loran Report dated
January 3, 1994 refer to certain permit violations and/or soil pollution.
Based upon available information, with the renewal of the Nuisance Act in
1995 all problems mentioned in the Nul - Audit were solved.
13. A report drafted by DHV environmental consultancy, "Industrieschap
Roerstreek Bodemonderzoek Heide-Roerstreek" (soil investigation), dated
March 1990, shows the results of a very limited soil investigation on
several industrial sites presumably in the neighborhood of the two Euramax
(now Alumax Coated Products B.V.) sites. It shows some spots of serious
pollution. Since the report has a very limited scope, it does not supply
much information. Based upon available information, the problem of the
soil pollution was solved before the building permit was acquired in 1994.
14. "Verkennend bodemonderzoek (NVN 5740) beschrijving nulsituatie (indicative
soil investigation baseline report) Euramax Coated Products B.V. te
Roermond, Industrieweg 6," dated January 3, 1994, which includes a
description of the production process with potentially polluting
activities.
15. The Carrollton facility received an NOV in November 1994 from EPA following
a June 1994 inspection and corrective action was completed by December
1994.
-6-
<PAGE> 292
Schedule 3.1(w)(continued)
16. The Carrollton plant has asbestos-containing transite siding panels in the
upper portion of the high bay.
17. In January 1993, the Carrollton facility received an Agreed Order from the
KDNREP requiring corrective actions due to several exceedances of the KPDES
discharge permit. By mid-1993, all requirements of the Order were
satisfied. The anodising line, which was the source of the regulated
wastewater, was removed during 1994, leaving only the sanitary treatment
plant being discharged. There have been occasional exceedances on
discharge from the sanitary treatment plan (e.g. TSS and BOD) due to upsets
in the system, which were promptly corrected.
18. In October 1993, the Carrollton plant received an NOV from the KDNREP
regarding certain violations of the hazardous waste regulations (e.g.
labeling and inspection) which were immediately corrected.
19. The Richmond, Indiana plant was unable to meet requirements of a new
discharge permit issued in early 1994, but treatment was upgraded and the
plant discharge is in compliance with the permit.
20. In late 1994 in connection with excavation for plant expansion, paint
spillage was found between the wall and floor slab at Lancaster.
Contaminated soil was excavated and disposed of in accordance with RCRA.
21. During 1992, the Lancaster plant experienced several exceedances of its
discharge permit, which was addressed by installation of additional
settling and filtration capacity.
-7-
<PAGE> 293
SCHEDULE 3.1(x)
CUSTOMERS AND SUPPLIERS
<TABLE>
<CAPTION>
1995 Sales
Customer Country Business Unit Market ($MM)
--------------- ------- -------------------- --------------------- ----------
<S> <C> <C> <C> <C>
Home Depot US Home Products Bldg/Repair & Maint. 19.1
Fleetwood US Building Products RV 17.1
Skyline Homes US Building Products Manufactured Housing 10.0
Lewes US Home Products Bldg/Repair & Maint. 7.0
Cardo Door Holland Coated Products B.V. Industrial/Bldg &
Construction 6.7
VAW Germany Coated Products B.V. Industrial 6.5
Talfab U.K. Coated Products U.K. Industrial 5.7
Atlas Caravans U.K. Coated Products U.K. RV 5.5
Atlas Caravans U.K. Ellbee RV 3.4
Willerby U.K. Ellbee RV 5.1
Willerby U.K. Coated Products U.K. RV 3.3
Payless Cashways US Home Products Bldg/Repair & Maint. 5.1
Cobra Ind. US Building Products RV 5.1
Redman Homes US Building Products Manufactured Housing 5.0
Midwest Mfg. US Door Products Bldg & Construction 4.8
Farmer Boy Ag US Building Products Rural Roofing & Siding 4.6
Bernsdorfer Germany Coated Products B.V. Industrial/Bldg &
Construction 4.4
-----
118.4
(23% of total sales)
</TABLE>
-1-
<PAGE> 294
Schedule 3.1(x) (continued)
<TABLE>
<CAPTION>
Approximate 1995 Purchases
Supplier Product Country ($MM)
------------------ -------- ------------ --------------------------
<S> <C> <C> <C>
Nichols Aluminum Aluminum US 31.3
Alcan Aluminum U.K./Holland 13.5
Alumax Aluminum US/Europe 26.2
Barclay's Trading Aluminum U.K./Holland 22.8
Decatur Aluminum Aluminum US 19.0
Okaya Steel US 15.7
Hoogovens Aluminum Holland/U.K. 2.2
Bethlehem Steel Steel US 8.7
Nextech Steel US 8.3
Certainteed Vinyl US 7.8
-----
155.5
</TABLE>
-2-
<PAGE> 295
SCHEDULE 3.1(y)
BOOKS AND RECORDS
1. Alumax Coated Products B.V. and Alumax Europe B.V. do not have all
corporate records available. For instance, neither company has copies of
all amendments to its articles of association.
-1-
<PAGE> 296
SCHEDULE 3.2(c)
GOVERNMENTAL FILINGS BY PURCHASER
1. Environmental permits and other permits and licenses required for business
of the Home Products Division of Alumax Aluminum Corporation to be
conducted by Euramax Home Products, Inc.
2. The Social Economical Merger Code ("SER besluit Fusiegedrags Regels 1975")
notification in the Netherlands and the notification requirements under the
Collective Labor Agreement of the Metallurgic and Electrochemical
Industries.
3. Dutch requirement to consult with work councils:
The Works Councils of Alumax Coated Products B.V. and Alumax
Extrusions B.V. must give a positive advice.
Under the applicable collective labor agreement of Alumax Coated
Products B.V. there is a notification requirement (see Article X.6 of
the CLA).
4. The Works Councils of Alumax Industries SA and Alumax Coated Products SA
must have been consulted prior to the sale.
-1-
<PAGE> 297
SCHEDULE 4.1(c)
PLANNED CAPITAL EXPENDITURES
Alumax Fab. Products North America*
1996 Capital Expenditures
<TABLE>
<CAPTION>
(000$)
------
<S> <C>
January - February Actual 1,638
March Forecast 577
----
1st Qtr. Forecast 2,215
2nd Qtr. Forecast 1,758
3rd Qtr. Forecast 893
4th Qtr. Forecast 893
-----
Total 1996 5,759
=====
</TABLE>
*Excluding Magnolia
-1-
<PAGE> 298
Alumax Fabricated Products North America
1996 Profit Plan
Summary of 1996 Capital Expenditures
(000's)
<TABLE>
<CAPTION>
Company Project Description Amount
--------------- ------------------------------------------------------------------------ --------------
<S> <C> <C>
BPD Helena Fabrication Facility 2,250
BPD Projects Between $80,000 and $499,000 1,190
BPD Projects Under $80,000 610
------------
Total 4,050
HPD Projects Between $80,000 and $499,000 475
Projects Under $80,000 175
------------
Total 650
Door Projects Between $80,000 and $499,000 230
Projects Under $80,000 422
------------
Total 652
Appliance Projects Between $80,000 and $499,000 0
Projects Under $80,000 407
------------
Total 407
Total Projects Over $500,000 2,250
Projects Between $80,000 and $499,000 1,895
Projects Under $80,000 1,614
------------
Total 5,759
</TABLE>
-1-
<PAGE> 299
Alumax Fabricated Projects North America**
1996 Profit Plan
1996 Capital Expenditures From $80,000 To $499,999
<TABLE>
<CAPTION>
(In Thousands)
Total
CPAR
Division Branch Description Amount
-------- ------ --------------------------------------------------------------------- ------
<S> <C> <C> <C>
BPD Moullon Manufactured Housing Drip Edge Machine 110.0
Bristol Handling equipment, skids and carts for plant 2 (laminated product) 225.0
Perris Valley Two hydraulic payoffs 80.0
Mansfield Cutline with payoff, mesa tooling, and post-cut die 80.0
Elkhart CNC punch press 100.0
Sacramento Four point welder for sash & frame 85.0
Sacramento Automatic glazing beading system 80.0
Sacramento Automatic XYZ glass cutter 100.0
Helena Slitter crane expansion 80.0
Helena Paintline drive updates 250.0
Total Building Products 1,190.0
HPD Lancaster 16" soffit tooling and equipment modifications 155.0
Lancaster 4" mitre dies 320.0
Total Home Products 475.0
Door RICHMOND NITROGEN SPRING FOR DIES 100.0
OCALA EMBOSS PRESS AUTOMATION 130.0
Total Door Products 230.0
Appliance None
Corporate None
TOTAL 1996 PROJECTS FROM $80,000 TO $499,999 1,895.0
</TABLE>
-1-
<PAGE> 300
1996 Capital Expenditures
Alumax Fabricated Products Europe*
<TABLE>
<CAPTION>
(000's)
<S> <C>
Jan - Feb Actual $798
March Fcst 322
Q1 1,120
Q2 3,196
Q3 3,822
Q4 3,556
-----------
Full Year $ 11,694**
===========
</TABLE>
__________________________________
* All numbers are based on the exchange rates reflected in each of
Schedules A, B, C, D and E.
** Because all of the numbers have been rounded to the nearest thousand,
the total is overstated by $15,000.
-1-
<PAGE> 301
Exhibit A
Fx Rate: 1.56 Coated Products U.K. Ltd.
(Corby, Northants)
<TABLE>
<CAPTION>
Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total
------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Decor Registration 23 109 132
FLT 94 94
Leveller 156 172 328
Powder Pretreatment 70 632 702
Sheet Div. Equipment 78 78 78 78 78 390
P/Line Pretreatment 234 234
P/Line Structure 55 55
Enviro Monitoring 47 47
Computer Screens 16 16 16 48
Cars 27 39 28 39 133
7.5 T Trucks 47 47
Incinerator* 83 484 123 690
Brake Press* 55 55
RAF Machine* 36 36
FLTs* 76 76
CR Steel Pretreat* 39 39
Trailers* 23 23
Screen Cleaning* 70 70
Dl Water Quench* 16 16
Embosser Brake* 25 25
------------------------------------------------------------------------------------------------
103 318 179 344 127 601 266 295 726 281 3,240
================================================================================================
</TABLE>
-1-
<PAGE> 302
<TABLE>
<CAPTION>
Exhibit B
Fx Rate: .63 Coated Products B.V.*
(Roermond, Netherlands)
Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total
----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revision roof Building WPL/DL 95 95
A/C Offices 63 63
Optimize communications system 76 76
Info. Supply Data 32 32 63 32 159
Manager's Funds 32 32 32 32 32 32 63 32 32 319
Replacement Porta Spec 76 76
Equipment Lab 38 76 114
Environmental & Safety 44 32 38 114
Company Cars 32 38 70
Standard Paint Line 32 139 189 430 63 32 347 1,232
Wide Paint Line 189 189 378 378 189 189 378 1,890
Decor Line 9 101 107 95 312
Embossing Line 76 76
Sheet Division 113 473 586
---------------------------------------------------------------------------------------------
9 253 739 670 442 1,011 612 392 297 757 5,182
=============================================================================================
</TABLE>
__________________________________
* Although the total amount for the capital expenditures for the rest of 1996
will be approximately correct, the allocation to the respective items may
be different.
-1-
<PAGE> 303
Exhibit C
Fx Rate: 1.56 Ellbee Limited
(Pudsey W. Yorks)
<TABLE>
<CAPTION>
Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BUILDINGS
Compressor House & Balling Unit 39 39
Roof for External Chemical Waste Area 11 11
Install Emergency Lighting 6 6 6 6 24
PLANT
Tractor Units 156 156
Trailer Units 62 62
Auto-Glazing Machines 39 39 39 39 78 78 312
Glass Handling Equipment 27 27 54
UPVC Welding Equipment 12 12
Shrink Wrapping Machine 39 39
General Material Handling Equipment 23 23 46
Surface Grinder 27 27
No. 1 Factory Compressor Update 19 19
Metal Hardness Tester 3 3
C.A.D. System 16 16 32
Computing General 8 8 8 8 32
1996 REPLACEMENT & REFURBISHMENT
Crimping Machines 9 9 18
Lathe 0
Director's Car 16 16
Vans 41 41
Managers Fund 16 16 23 16 71
1995 ITEMS
Corner Cleaner 12 12
---------------------------------------------------------------------------------------
104 58 82 82 128 315 94 57 76 30 1,026
=======================================================================================
</TABLE>
-1-
<PAGE> 304
Exhibit D
Fx Rate: .2
Coated Products S.A.
(Cedax, France)
<TABLE>
<CAPTION>
Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total
-----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Shop 12 127 20 29 20 30 40 411 689
Others 27 72 20 38 20 18 195
-----------------------------------------------------------------------------------------------
27 84 147 58 49 0 20 48 40 411 884
===============================================================================================
</TABLE>
-1-
<PAGE> 305
Exhibit E
Fx Rate: .20 Industries S.A.
(Bellay, France)
<TABLE>
<CAPTION>
Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Modular Building 5 5
Vehicle Building 5 5 10 20
Subcontracting 30 40 70
Machining/Paint 125 125
Other 23 4 4 24 4 4 21 84
Management 50 20 80 80 230
Management Funds 5 5 5 5 5 5 5 5 5 45
--------------------------------------------------------------------------------------------------
78 44 29 114 5 149 9 66 85 0 579
==================================================================================================
</TABLE>
-1-
<PAGE> 306
SCHEDULE 4.1
TERMINATED GUARANTEES AND OBLIGATIONS
1. Cross guarantee given by Alumax Holdings Limited to National Westminster
Bank dated March 21, 1994 in respect of UK Centralized Cash Management
System, dated March 1994.
2. Guarantee given by National Westminster Bank to HM Customs & Excise
(L.50,000) dated March 21, 1994 for payment of sums due by Alumax Ellbee
Ltd. and counter-indemnity given by Alumax Ellbee Ltd. to National
Westminster Bank.
3. Guarantee given by National Westminster Bank to HM Customs & Excise for
payment of sums due by Alumax Coated Products Ltd. and counter-indemnity
given by Alumax Coated Products Ltd. (L.30,000).
4. Cross guarantee for centralized cash management system of Alumax Inc.,
dated March 24, 1994 (guarantees the obligations of Alumax Holdings
Limited, Alumax Coated Products UK and Alumax Ellbee Limited and Kawneer UK
Limited).
5. Indemnity from Alumax Holdings Limited to National Westminster Bank, dated
March 24, 1994.
6. Cross guarantee for centralized cash management system of Alumax Coated
Products UK Limited, dated March 30, 1994 (guarantees the obligations of
Alumax Holdings Limited, Alumax Ellbee Limited and Kawneer UK Limited).
7. Cross guarantee for centralized cash management system of Alumax Ellbee
Limited, dated March 1994 (guarantees the obligations of Alumax Coated
Products UK Limited, Alumax Holdings Limited and Kawneer UK Limited).
8. Alumax Coated Products B.V. and Alumax Europe B.V. have additional tax
obligations as set forth in Schedule 3.1(q) (see numbers 4 and 5).
-1-
<PAGE> 307
SCHEDULE 4.1(iii)
CHANGES IN BENEFIT PLANS
1. The Alumax Incentive Compensation Plan bonus will be paid to participants
pro rata to the number of months of Alumax ownership of the Sale Companies
in 1996.
2. A retention bonus of two months salary will be paid to senior management
(approximately 20 people) on consummation of the transaction. Under the
terms of the UK Pension Scheme (as defined in item no. 1 of Schedule
3.1(m)(viii)) this will count for the purposes of "Pensionable Salary" and
"Final Pensionable Salary" as defined in the governing documentation of the
UK Pension Scheme.
3. See disclosure made in respect of Fred Farrar under item no. 5 of Schedule
3.1(f).
4. Alumax Ellbee Limited is likely to make nine employees redundant during the
month of August. This may result in severance costs of approximately
L.2000 and may subject the company to claims.
-1-
<PAGE> 308
SCHEDULE 4.11(a)
EMPLOYMENT AGREEMENTS
1. Letter of July 18, 1983 from Euramax International to R. A. Walters
offering employment, as accepted July 18, 1983.
2. Letter of July 15, 1983 from Euramax International to R. A. Walters
offering relocation expenses.
3. Guarantee letter from Alumax Inc. to Jean-Claude Bonnard dated March 10,
1988.
4. Employment Letter from Alumax International to Aloyse Wagenar dated March
20, 1992 (superseded by the "Contrat de Travail)."*
5. Employment Contract ("Contrat de Travail") between UCP Societe Industrielle
and Aloyse Wagener, dated July 1, 1992.
6. Appointment Letter of April 24, 1970 from Aluminum Extruders Nederland N.V.
(now Alumax Coated Products B.V.) to J.M. Cuypers.
7. Inter-office correspondence of September 6, 1976 from J. J. Reddy to J.M.
Cuypers regarding position of Acting General Manager.
8. Appointment Letter, dated September 27, 1977 from Alumax International Ltd.
to Neil Davies.
9. Employment letter, dated August 14, 1986, from Euramax Aluminium Limited to
Gerald Williams, as accepted on August 19, 1986.
10. Employment letter, dated December 23, 1994, from Alumax Ellbee Limited to
Paul Encell, as accepted on December 26, 1994.
11. Employment letter from Euramax Limited to Ms. A. M. Pallares dated February
1, 1991.
12. Employment agreements of all employees of U.K. Sale Companies.
__________________________________
* To the extent this Employment Letter is superseded, the Employment
Letter will not be binding.
-1-
<PAGE> 309
SCHEDULE 4.11(c)
EXISTING EMPLOYEE BENEFITS OF U.S. TRANSFERRED EMPLOYEES
1. Alumax Inc. Group Life Medical, Dental and Disability Plans provide for:
Medical Benefits*
Prescription Drug Benefits
Dental Benefits
Vision Care Benefits
Health Care Reimbursement Benefits
Dependent Care Reimbursement Benefits
Employee Life Insurance Benefits
Spouse's Life Insurance Benefits
Children's Life Insurance Benefits
Accidental Death and Dismemberment Insurance Benefits
2. Long Term Disability Insurance Plan
3. Business Travel Accident Insurance Plan
4. Alumax Severance Pay Plan
5. Alumax Executive Separation Plan
6. Alumax Inc. Thrift Plan for Salaried Employees (incorporating an Employee
Stock Ownership Plan)
7. Incentive Compensation Plans (bonus)
8. Vacation Plan
9. Holidays
10. Jury Duty
11. Military Duty
12. Short Term Salary Continuation
13. Back Pay
14. Leave of Absence Policy
15. Scholarship Program
__________________________________
* Contracts with: Aetna PPO & Indemnity, Partners HMO (Alumax Building
Products, Elkhart, Perris Valley and Reidsville), HealthGuard HMO
(Home Products, Lancaster), Blue Cross OH (Alumax Appliance and
Specialty Products, Vandalia)
-1-
<PAGE> 310
Schedule 4.11(c) (continued)
16. Tuition Assistance Plan
17. Bereavement Pay
18. Matching Gift Program
19. Relocation Plan
20. Service Recognition Program
-2-
<PAGE> 311
SCHEDULE 4.11(e)
EXISTING EMPLOYEE BENEFITS OF EUROPEAN TRANSFERRED EMPLOYEES
Dutch Sale Companies:
1. VUT (early retirement to schedule) based on the collective labor agreement
for the Metallurgic and Electrotechnical industry.
2. Pension scheme based on the collective labor agreement of the Metallurgic
and Electrotechnical industry.
3. Pension insurance with "Zwitzerleven/Swiss Life Insurance" for salaries
above the maximum salary of the collective labor agreement for the
Metallurgic and Electrotechnical industry.
4. Sickness disability pension insurance ("ao-pension") with
"Nationale-Nederlanden" for management.
5. See also insurance register as drawn up by Marsh & McLennan.
6. Collective Medical Insurance for Alumax Coated Products B.V. employees who
are not mandatorily insured under the Medical Insurance Fund taken out with
"de Amersfoortse."
7. Insurance for the shortfall in disability payments in the Metallurgic and
Electrotechnical industry with certain Dutch insurers.
8. The Alumax U.K. Pension Plan (formerly the Euramax Limited Group Life
Insurance and Retirement Plan ("the UK Pension Scheme")). Life cover for
members of the UK Pension Scheme is insured with Sun Alliance Insurance
Group.
9. The Euramax Group Supplementary Pension Plan (or "Thrift Scheme") is
invested separately with an insurance company but forms part of the trust
of the UK Pension Scheme. It comprises voluntary contributions by a member
and additional contributions paid by the employers.
Alumax Ellbee Limited (benefits set out in Company Handbook):
a. Sick pay
b. Long term disability
c. Holidays
d. Family bereavement absence
e. Overtime
-1-
<PAGE> 312
Schedule 4.11(e) (continued)
f. Personal Accident Insurance
g. Motor cars
Alumax Holdings Limited and Alumax Coated Products U.K. Limited (benefits set
out in Alumax Coated Products U.K. Limited Company Handbook):
a. Bereavement Leave
b. Shift Allowances
c. Legal Consultation
d. Company Committee
e. Canteen
f. Sick Pay
g. Holidays
h. Pension scheme
i. Motor cars
j. Small quantities of Company products
k. Overtime
l. Jury service
m. Long-term disability
n. Personal accident insurance
Other benefits for employees of U.K. Sale Companies:
a. PPP Health Plan (U.K. Sale Companies continue to provide PPP
to Directors who retire early until they reach the age of 65).
b. Group Salary Continuation Insurance with Zurich Life
(long-term disability).
c. Directors of U.K. Sale Companies are, in practice, given their
company car when they retire.
-2-
<PAGE> 313
Schedule 4.11(e) (continued)
d. Alumax Inc. Annual Incentive Plan.
e. Alumax Long-Term Incentive Plan.
f. Alumax Coated Products U.K. Limited discretionary bonus scheme
(one-off payment in December).
g. Alumax Ellbee Limited bonus scheme (one-off payment in
December).
Alumax Industries S.A. (other than those provided by law or the applicable
Collective Bargaining Agreement - see item no. 2 on Schedule 3.1(v)):
a. End of year bonus granted to employees (executive and non-executive
with the exception of unskilled workers).
b. Four company cars (three salesmen and Mr. Wagener).
Alumax Coated Products S.A. (other than those provided by law of the applicable
Collective Bargaining Agreement - see item no. 2 on Schedule 3.1(v)):
a. End of year bonus granted to employees (executive and non-executive,
with the exception of unskilled workers).
b. Seven company cars.
c. Advance of medical expenses incurred by employees (reimbursed to the
company after Social Security reimburses the employee).
-3-
<PAGE> 314
SCHEDULE 4.13
KEY EMPLOYEES
1. J. David Smith
2. Frank Geist
3. Neil Bayshore
4. Mitchell Lewis
5. Michael Hoffman
6. Neil Davies
7. Roger Walters
8. David Pugh
9. Aloyse Wagener
10. Jean-Claude Bonnard
11. Jo Cuypers
-1-
<PAGE> 315
SCHEDULE 4.15(a)
LIST OF BANK ACCOUNTS
<TABLE>
<CAPTION>
COMPANY/DIVISION BANK NAME ACCOUNT TYPE LOCATION
- --------------------------------------------- --------------------------- ---------------------- -------------------
<S> <C> <C> <C>
ALUMAX HOME PRODUCTS
- --------------------
Alumax Aluminum Corporation Cole Taylor Bank PETTY CASH BEDFORD PK, IL
Alumax Aluminum Corporation Fulton Bank PETTY CASH LANCASTER, PA
Alumax Aluminum Corporation Fulton Bank PAYROLL LANCASTER, PA
Alumax Aluminum Corporation Nationsbank of Texas PETTY CASH GRAND PR'E, TX
Alumax Aluminum Corporation Trust Company of Georgia PETTY CASH ATLANTA, GA
Alumax Aluminum Corporation Wachovia Bank of Georgia DISBURSEMENT NORCROSS, CA
Alumax Aluminum Corporation Wells Fargo PETTY CASH SACRAMENTO, CA
Alumax Aluminum Corporation Chase Manhattan Syracuse C. DISBURSEMENT LANCASTER, PA
Alumax Inc.* Frankford Trust Company PETTY CASH BRISTOL, PA
Alumax Inc.* Mellon Bank LOCKBOX LANCASTER, PA
Alumax Aluminum Corporation Suntrust Bank PETTY CASH TUCKER, GA
ALUMAX BUILDING PRODUCTS, INC.
- ------------------------------
Alumax Building Products, Inc. Bank of America PAYROLL DALLAS, TX
Alumax Building Products, Inc. Chase Manhattan Syracuse C. DISBURSEMENT DALLAS, TX
Alumax Building Products, Inc. First National Bank of LOCKBOX DALLAS, TX
Chicago
ALUMAX COATED PRODUCTS, B.V.
- ----------------------------
Alumax Coated Products B.V. Generale Bank (previously MASTER** NETHERLANDS
Credit Lyonnais Bank)
Alumax Coated Products B.V. National Westminster Bank MASTER NETHERLANDS
Alumax Coated Products B.V. Commerzbank MASTER NETHERLANDS
Alumax Coated Products B.V. ABN AMRO Bank N.V. MASTER (Guilders)
Alumax Coated Products B.V. BFG MASTER (DM)
ALUMAX COATED PRODUCTS, S.A.
- ----------------------------
Alumax Coated Products S.A. Monte Paschi Banque MASTER FRANCE
Alumax Coated Products S.A. Societe Generale MASTER FRANCE
ALUMAX COATED PRODUCTS, INC.
- ----------------------------
Alumax Coated Products, Inc. Chase Manhattan Syracuse C. DISBURSEMENT DALLAS, TX
Alumax Coated Products, Inc. Nationsbank of Texas PAYROLL DALLAS, TX
ALUMAX DOOR PRODUCTS, INC.
- --------------------------
Alumax Door Products, Inc. Bank of America LOCKBOX CHICAGO, IL
Alumax Door Products, Inc. Barnett Bank PAYROLL OCALA, FL
Alumax Door Products, Inc. Chase Manhattan Syracuse C. DISBURSEMENT RICHMOND, IN
Alumax Door Products, Inc. First Union Bank PETTY CASH OCALA, FL
</TABLE>
__________________________________
* Legal names being changed.
** Held in different accounts in Guilders, French Francs, Deutsche Marks
and U.S. Dollars.
-1-
<PAGE> 316
Section 4.15(a) (continued)
<TABLE>
<S> <C> <C> <C>
Alumax Door Products, Inc. Star Bank PAYROLL RICHMOND, IN
Alumax Door Products, Inc. Star Bank PETTY CASH RICHMOND, IN
Alumax Door Products, Inc. Star Bank PAYROLL RICHMOND, IN
ALUMAX ELLBEE LIMITED National Westminister Bank MASTER PUDSEY, ENGLAND
- ---------------------
ALUMAX COATED PRODUCTS UK LIMITED National Westminster Bank CURRENT HARROW, ENGLAND
- ---------------------------------
ALUMAX EUROPE BV Generale Bank MASTER NETHERLANDS
- ----------------
ALUMAX HOLDINGS LIMITED
- -----------------------
Alumax Holdings Limited National Westminister Bank TREASURY ACCT. UXBRIDGE
Alumax Holdings Limited National Westminister Bank MASTER UXBRIDGE
Alumax Holdings Limited National Westminister Bank TRADING ACCT. UXBRIDGE
ALUMAX INDUSTRIES SA Societe Generale MASTER FRANCE
- --------------------
APPLIANCE & SPECIALTY PRODUCTS, INC.
- ------------------------------------
Appliance & Specialty Products, Inc. Chase Manhattan Syracuse C. DISBURSEMENT CARROLLTON, KY
Appliance & Specialty Products, Inc. Farmers Bank of Milton DEPOSITORY CARROLLTON, KY
Appliance & Specialty Products, Inc. Farmers Bank of Milton PAYROLL CARROLLTON, KY
Appliance & Specialty Products, Inc. Farmers Bank of Milton PAYROLL CARROLLTON, KY
</TABLE>
-2-
<PAGE> 317
SCHEDULE 4.15(b)
AGGREGATE BALANCES IN BANK ACCOUNTS
To be inserted as provided in Section 4.15(b)
-1-
<PAGE> 318
SCHEDULE 4.17
FINANCING
Term Sheet Mezzanine Financing
------------------------------
<TABLE>
<S> <C>
Aggregate Principal Amount $125,000,000
Maturity 8 years
Amortization 100% at stated maturity
Fees 2%
Interest Rate 12%, payable in case semi-annually
Warrants None
</TABLE>
-1-
<PAGE> 319
SCHEDULE 5.2(d)
LIST OF CONSENTS
See Schedule 3.1(d)(ii).
-1-
<PAGE> 320
SCHEDULE 5.2(f)
REQUIRED CORPORATE OR OTHER ACTIONS
Actions to be requested by Purchaser in written notice to Seller not less than
15 business days prior to the Closing Date.
-1-
<PAGE> 321
SCHEDULE 5.2(l)
INTELLECTUAL PROPERTY TO BE ASSIGNED
U.S. SALE COMPANIES
The following is a list of all patent registrations and applications and
trademark registrations and applications (all in the name of Alumax Inc.) used
in the business of Alumax Fabricated Products, Inc. or its Subsidiaries.
PATENTS
Roof Ventilating Apparatus 5,035,172 7-30-91
(gable)
A gable ventilator comprising a vent member which holds and
displaces an eaves panel and a bracket which positions and supports the vent
member.
Roof Ventilating Apparatus 4,995,308 2-26-91
(Fascia)
A fascia ventilator which is low in profile and comprises a vent member and a
cover member. The vent member is provided with either apertures or channels
through which air may pass. The ventilator is further provided with a
fiberglass mesh filter for excluding entry of insects and similar pests.
SPLASH BLOCK 5,441,364 8-15-95
The novel feature of the invention relates to means for coupling two or more
splash blocks together to connect the splash blocks, such that the effective
length of the splash block can be extended to carry water under force of
gravity any desired distance from the building foundation.
Reinforced Siding Panel 4,718,214 1-12-88
An improved siding panel providing greater rigidity to the panel while reducing
the weight of the panel compared to a thicker metal sheet.
Gutter Guard Ferrule 5,228,247 7-20-93
A ferrule for use in a rain gutter to surround a spike which connects the
gutter to a supporting wall, with the gutter beneath an overhanging roof edge.
Gutter Guard Screen Support Clip 5,044,581 9-03-91
A clip for supporting a guard screen on a rain gutter to keep leaves and other
debris from entering the gutter.
-1-
<PAGE> 322
Schedule 5.2(l)(continued)
PATENT APPLICATIONS
"Gutter Connector" 08/541,921 10-10-95
Method of joining or connecting metal gutter sections together so that the
joint will look good, with virtually no shadow line, be leak-proof and easy to
install. Product will consist of an outer metal strip and a seal tape and/or
compound as inner seal.
"Stile Clip for Mirrored In Preparation
Wardrobe Door"
This invention relates to mirrored wardrobe doors. A mirror is mounted within
a metal frame which, in turn, is either pivotally or slidable mounted in the
door opening. The mirror thus serves as the only door panel. Inexpensive
mirrored wardrobe doors have suffered the problem that forces exerted on the
frame by a user to open the door can distort the frame sufficiently to cause it
to separate from the mirror. Mirrored wardrobe doors built sufficiently sturdy
to avoid this problem tend to be more expensive. This invention is designed to
be a low cost solution to this problem.
U.S. TRADEMARKS
J" DESIGN (7) 1,037,787 04-13-76
For sheet metal entrance and passageway doors and parts therefor in Class 6 (US
Class 12)Renewal applied for 1-29-96
PERM-A-SPOUT (137) 1,791,638 09-07-93
For plastic downspouts and plastic elbows for rain gutters, in Class 19 (US
Class 12)
RIGI-DOR (15) 1,101,188 09-05-78
For sheet metal entrance and passageway doors, and parts therefor in Class 6
(US Class 12)
VERTA PLANK (94) 1,176,811 11-10-81
For metal siding panels in Class 6 (US Class 12)
PENDING APPLICATIONS
CornerFlex SN 75/087671 04-15-96
For adjustable angle aluminum flashing
Seamer Search being conducted.
For sealed metal gutter connector
-2-
<PAGE> 323
Schedule 5.2(l)(continued)
TRADEMARKS BASED ON USAGE
Alumax Building Products, Inc.
Alu-loc
Alu-tuff
Alu-tuff II
Alumax Door Products, Inc.
Rigi-Gard
Integrity
Illusions
LITIGATION
Alumax Door Products, Inc. has been notified by Therma-Tru Corporation of
Maumee, Ohio, that it wishes to discuss the possibility that Door Products'
"Illusions" door infringes Therma-Tru's Compression Molded Door Assembly
patent, U.S. Patent #4,550,540 (the "540 patent"). Therma-Tru has recently
won an infringement action involving the 540 patent against Peachtree Doors,
Inc. Patent counsel for Door Products recommended certain changes in the
"Illusion" door after reviewing the 540 patent. Therma-Tru is still pursuing a
meeting.
FOREIGN TRADEMARKS
PERM-A-SPOUT Canada
COPYRIGHTS
None.
-3-
<PAGE> 324
SCHEDULE 7.3(a)
NON-ASSUMED ENVIRONMENTAL SITES
<TABLE>
<CAPTION>
SITE FILE MATTERS/CASES
NO(S)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Colbert Landfill 1.500.4 Colbert Landfill
Spokane, WA
Alumax Fabricated Products, Inc.
15.604.1 Key Tronics v. Alumax
15.604.2 U.S. v. Alumax Fabricated Products and
Alumax Hill Products
- --------------------------------------------------------------------------------------------------------------------------------
Holtz Krause Landfill 1.500.77
Harshfield, WI
Alumax Building Products, Inc.
- --------------------------------------------------------------------------------------------------------------------------------
Mica Landfill 1.500.78 Mica Landfill
Spokane, WA
Alumax Fabricated Products, Inc.
- --------------------------------------------------------------------------------------------------------------------------------
Mid-State Disposal 1.500.26 Mid States
Marathon, WI
Alumax Building Products, Inc.
- --------------------------------------------------------------------------------------------------------------------------------
Refuse Service, Inc. Landfill 1.500.69
McPherson, KS
Alumax Fabricated Products, Inc.
Alumax Building Products, Inc.
- --------------------------------------------------------------------------------------------------------------------------------
Spickler Landfill 1.500.103
Marshfield, WI
Alumax Fabricated Products, Inc.
- --------------------------------------------------------------------------------------------------------------------------------
Industrial Solvents 1.500.44
Newberry Township, PA
Home Products Division of Alumax
Aluminum Corporation
Alumax Building Products
- --------------------------------------------------------------------------------------------------------------------------------
Helen Kramer Landfill
Mantau Township, New Jersey
</TABLE>
-1-
<PAGE> 325
Schedule 7.3(a) (continued)
<TABLE>
<CAPTION>
SITE FILE MATTERS/CASES
NO(S)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Welsh Road Site
Chester County, Pennsylvania
- --------------------------------------------------------------------------------------------------------------------------------
Chemical Recycling, Inc.
Wylie, Texas
- --------------------------------------------------------------------------------------------------------------------------------
Modern Sanitation
York, Pennsylvania
</TABLE>
- 2 -
<PAGE> 326
SCHEDULE 7.3(b)
OTHER DISPOSAL SITES
Amax Metals Recovery, Inc., Braithwaite, LA (waste from Lancaster)
Chemical Conservation of Georgia, Valdosta, GA (waste from Lancaster)
Safety Kleen Corp., Linden, NJ (waste from Lancaster)
Industrial Solvents, York Haven, PA (waste from Lancaster)
Marisol, Inc., Middlesex, NJ (waste from Lancaster)
Aptus, Coffeyville, KS (waste from Lancaster)
Omega Recovery, Whittier, CA (waste from Anaheim)
Casmalia, Casmalia, CA (waste from Anaheim)
Pacific Treatment, San Diego, CA (waste from Anaheim)
-1-
<PAGE> 327
SCHEDULE 7.3(c)
POTENTIAL COMPLIANCE ISSUES
1. Richmond Air Permits: Any penalties resulting from flaws in and/or the
failure to submit permit applications currently under review by the agency
will be paid by Seller.
2. Richmond EPCRA Form Rs: Seller will re-examine calculations and supply
documentation. If reporting is required, reporting and any associated
penalties will be handled by Seller at Seller's expense.
3. Lancaster EPCRA Form Rs: Seller will re-examine calculations and supply
documentation. If reporting is required, reporting and penalties will be
handled by Seller at Seller's expense.
4. Ocala Paint Remediation: Seller will supply analytical data and any
related information on the remediation. Any penalties and costs associated
with potential reporting obligations will be paid by Seller.
5. Carrollton Stormwater Permit: Seller will arrange for removal of standing
water and waste-containing rags.
6. Anaheim Drum Storage Area Berm: Seller will erect berm and will pay costs
of berm and any penalties imposed due to absence of berm.
7. Anaheim EPCRA Form Rs: Seller will re-examine calculations and supply
documentation. If reporting is required, reporting and penalties will be
handled by Seller at Seller's expense.
8. Perris Valley OSHA: Seller will supply documentation on Hazard
Communication Plan and Lookout/Tagout plan. If unavailable, Seller shall
prepare or bear costs of preparation.
9. Montreuil-Bellay Drywell: Seller will obtain clarification on whether the
discharge of wastewater to the drywell complies with Environmental Laws.
If any costs to remediate or reroute wastewater are required, or penalties
result, costs will be paid by Seller.
10. Montreuil-Bellay Acid Baths: Seller will conduct air monitoring if
required, and if such monitoring demonstrates a need for control equipment,
will bear cost of equipment required.
11. Roermond Facility Inspection: Any penalties arising out of paint drum
inspection on February 27, 1996 shall be paid by Seller.
-1-
<PAGE> 328
Schedule 7.3(c) (continued)
Seller shall have the right to have costs paid by Sales Companies if paid prior
to Closing.
-2-
<PAGE> 329
SCHEDULE 7.3(d)
FRENCH ENVIRONMENTAL MATTERS
1. Montreuil-Bellay Fuel Tanks: Seller will arrange for tightness testing in
accordance with standard French practice (which will be described to
Purchaser) and, if tanks are shown to have leaked, Seller shall bear costs
of remediation. If tight, Seller shall have no further responsibility and
Purchaser and Sale Companies shall make no claims under this Agreement in
respect of leakage of such tanks.
2. Montreuil-Bellay Roof Asbestos: If roof must be replaced due to
deficiencies in its integrity within 12 months of Closing, after affording
Seller an opportunity to inspect, increased costs of removal and disposal
(as regulated under French law) shall be paid by Seller.
Seller shall have the right to have costs paid by Sale Companies if paid prior
to Closing.
-1-
<PAGE> 330
SCHEDULE 7.3(e)
OTHER ENVIRONMENTAL MATTERS
1. Lancaster, PA: Any required further investigation and remediation of
solvent and/or diesel fuel contamination under area of former paint line
discovered in 1994.
2. Carrollton, KY: Any required further investigation and remediation
associated with drums rumored to be buried on site.
3. Carrollton, KY: Any required further investigation and remediation of 1990
oil spill on site.
4. Anaheim, CA: Any required investigation and clean-up and remediation of
release of gasoline, lead, toluene, xylene or ethyl compounds described on
California State Spill and Orange County Industrial Cleanups database
associated with "broken main."
5. Mesa, Az: Any required investigation and remediation associated with
disposal of solvents, if any, in drywell.
6. Corby (Brunel Road), England: Any additional investigation and remediation
(excluding continuation of current measures) associated with chromium
contamination.
7. Montreuil-Bellay: any required investigation and remediation associated
with disposal of solvent-containing wastewaters into drywell.
8. Montreuil-Bellay: Any required investigation and remediation associated
with 1993 anodizing line spill.
"Required" shall mean required to be undertaken or performed under applicable
Environmental Laws or as a result of an action against the Sales Companies by a
regulatory authority or third party.
Seller shall have the right to have costs paid by Sales Companies if paid prior
to Closing.
-1-
<PAGE> 331
SCHEDULE 7.4
INDEMNIFIED GUARANTEES
Guarantee given to Secretary of State for Trade and Industry by Euramax
Aluminium Limited (now Alumax Coated Products U.K. Limited), dated May 5, 1989
(the parties are Ametalco Limited, Euramax Aluminum Limited, and the Secretary
of State for Trade and Industry).
Assumption of joint and several liability pursuant to Article 403, vol. 2 of
the Dutch Civil Code issued by Alumax Europe in respect of the obligations of
Alumax Extrusions B.V.
-1-
<PAGE> 332
SCHEDULE 8.8
ALLOCATION OF SHARE PURCHASE PRICE
Intentionally left blank
-1-
<PAGE> 1
EXHIBIT 11.01
ALUMAX INC.
CALCULATION OF EARNINGS PER COMMON SHARE
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
------------------- ------------------
June 30, June 30,
---------------------- -------------------
1996 1995 1996 1995
-------- ------- ------ ----
<S> <C> <C> <C> <C>
Primary earnings per common share
1. Net earnings . . . . . . . . . . . . . . . . . . $ 83.1 $ 39.2 $ 178.5 $ 149.6
2. Deduct - Series A Convertible
Preferred dividends . . . . . . . . . . . . (2.4) (2.4) (4.7) (4.7)
-------- ------- ------- --------
3. Earnings applicable to common shares . . . . . . $ 80.7 $ 36.8 $ 173.8 $ 144.9
======== ======= ======= ========
4. Average primary shares outstanding . . . . . . . 45.7 45.1 45.6 45.0
======== ======= ======= ========
5. Primary earnings per common share
(line 3 divided by line 4) . . . . . . . . . $ 1.77 $ .82 $ 3.81 $ 3.22
======== ======= ======= ========
Fully diluted earnings per common share
6. Earnings applicable to common shares . . . . . . $ 80.7 $ 36.8 $ 173.8 $ 144.9
7. Add - Series A Convertible Preferred dividends . . (2.4) (2.4) (4.7) (4.7)
-------- ------- ------- --------
8. Earnings applicable to common shares . . . . . . $ 83.1 $ 39.2 $ 178.5 $ 149.6
======== ======= ======= ========
9. Average fully diluted shares outstanding . . . . 55.3 54.9 55.2 54.8
======== ======= ======= ========
10. Fully diluted earnings per common share
(line 8 divided by line 9) . . . . . . . . . $ 1.50 $ .71 $ 3.23 $ 2.73
======== ======= ======= ========
</TABLE>
-19-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONDENSED FINANCIAL STATEMENTS OF ALUMAX INC. AT JUNE 30, 1996 AND
FOR THE SIX MONTHS ENDED JUNE 30 1996 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> JUN-30-1996
<CASH> 24
<SECURITIES> 0
<RECEIVABLES> 538
<ALLOWANCES> 25
<INVENTORY> 614
<CURRENT-ASSETS> 1,396
<PP&E> 3,115
<DEPRECIATION> 1,066
<TOTAL-ASSETS> 3,617
<CURRENT-LIABILITIES> 827
<BONDS> 693
0
2
<COMMON> 0
<OTHER-SE> 1,569
<TOTAL-LIABILITY-AND-EQUITY> 3,617
<SALES> 1,654
<TOTAL-REVENUES> 1,654
<CGS> 1,312
<TOTAL-COSTS> 1,515
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 34
<INCOME-PRETAX> 292
<INCOME-TAX> 113
<INCOME-CONTINUING> 292
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 179
<EPS-PRIMARY> 3.81
<EPS-DILUTED> 3.23
</TABLE>
