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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) September 25, 1996
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Alumax Inc.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Delaware 1-12374 13-2762395
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(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
5655 Peachtree Parkway, Norcross, GA 30092
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code (770) 246-6600
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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Item 2. Acquisition or Disposition of Assets.
On September 25, 1996, Alumax Inc., a Delaware corporation ("Alumax" or
the "Company"), completed the sale of certain of its fabricated products
businesses ("Fabricated Products") in Western Europe and the United States to
Euramax International, Ltd. for approximately $245 million in cash.
The sale, announced on June 27, 1996, did not include any Kawneer
architectural aluminum operations in Europe or the United States, nor did it
include the Company's Magnolia Division in the United States. The businesses
that were sold had annual sales of approximately $500 million and employ
approximately 2,100 people.
Item 5. Other Events.
On October 10, 1996, Alumax and Eduard Hueck GmbH & Co. KG ("Hueck")
announced that they have entered into negotiations regarding the possible
acquisition of Hueck by Alumax. The companies have indicated that negotiations
are ongoing and that any transaction is dependent upon the execution of a
mutually satisfactory definitive agreement, receipt of all required
governmental and regulatory approvals, and the approvals of the board of
directors of Alumax and all selling parties.
Hueck is a family business based in Ludenscheid, Germany, with
subsidiaries in and outside of Germany that serve as distribution centers.
Hueck is a leading manufacturer of aluminum architectural products in Europe,
with 1995 sales revenues of more than DM 340 million ($230 million).
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(b) Unaudited Pro Forma Financial Information.
On September 25, 1996, the Company completed the sale of certain of its
Fabricated Products businesses in the United States and Western Europe to
Euramax International Ltd. for approximately $245 million in cash. On January
31, 1996, the Company purchased all of the issued and outstanding shares of
common stock of Cressona Aluminum Company ("Cressona"), a privately held
Pennsylvania corporation, for $430 million in cash and certain other
consideration. Cressona's results of operations have been included in the
Company's consolidated financial statements since January 31, 1996.
The unaudited pro forma condensed financial statements included herein
reflect both the acquisition of Cressona and the sale of the Fabricated
Products businesses. The Company used substantially all of the proceeds from
the sale of Fabricated Products to retire the Cressona acquisition debt that
remained outstanding at such date. Residual proceeds are expected to be used
for general corporate purposes. The Company will record the Fabricated
Products sale in the quarter ended September 30, 1996. The final gain on sale
is subject to revision for purchase price allocations among the taxing
jurisdictions, transaction expenses and adjustments in sales proceeds related
to changes in working capital occurring from December 31, 1995 to September 25,
1996.
The unaudited pro forma condensed statements of earnings for the year
ended December 31, 1995 and the six months ended June 30, 1996 have been
prepared by adjusting the historical condensed statements of earnings assuming
the sale of Fabricated Products and the acquisition of Cressona each occurred
on January 1, 1995 and January 1, 1996, respectively. The unaudited pro forma
condensed balance sheet has been prepared by adjusting the historical balance
sheet assuming that the Fabricated Products sale occurred on June 30, 1996.
The Cressona acquisition is reflected in the historical balance sheet at June
30, 1996. The unaudited pro forma condensed financial statements have been
prepared assuming that the net proceeds derived from the sale of Fabricated
Products were used to repay short-term debt incurred to finance the Cressona
acquisition.
The unaudited pro forma financial statements are provided for
informational purposes only and are not necessarily indicative of what the
financial statements of the Company would have been had the transactions taken
place on the dates indicated. Further, these unaudited pro forma financial
statements do not purport to indicate the future results of operations or
financial position of the Company.
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The unaudited pro forma condensed financial statements should be read in
conjunction with the consolidated financial statements of Alumax set forth in
the Company's Annual Report on Form 10-K for the year ended December 31, 1995,
and the unaudited condensed financial statements contained in the Company's
Quarterly Reports on Form 10-Q for the periods ended March 31, 1996 and June
30, 1996, respectively.
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ALUMAX INC.
UNAUDITED PRO FORMA CONDENSED STATEMENT OF EARNINGS
FOR THE YEAR ENDED DECEMBER 31, 1995
(Millions of Dollars, Except Per Share Amounts)
<TABLE>
<CAPTION>
Alumax
Alumax Fabricated Pro Forma As
Historical Cressona Products Adjustments Adjusted
---------- -------- ---------- ----------- --------
<S> <C> <C> <C> <C> <C>
Net sales $ 2,926.1 $ 490.3 $ (483.5) $ (22.8) (a) $2,910.1
--------- -------- ---------- ----------- --------
Cost and expenses:
Cost of goods sold 2,291.0 391.0 (400.4) (25.4) (a) 2,256.2
Selling, general & administrative 220.2 30.6 (37.6) (10.4) (b) 202.8
Depreciation 109.1 11.5 (8.0) 12.8 (c) 125.4
--------- -------- ---------- ----------- --------
2,620.3 433.1 (446.0) (23.0) 2,584.4
--------- -------- ---------- ----------- --------
EARNINGS FROM OPERATIONS 305.8 57.2 (37.5) 0.2 325.7
Gain on sale of assets 128.8 0.0 0.0 128.8
Other income, net 7.3 0.0 (2.8) 4.5
Interest expense, net (65.4) (4.5) 0.0 (11.2) (d) (81.1)
--------- -------- ---------- ----------- --------
EARNINGS BEFORE INCOME TAXES 376.5 52.7 (40.3) (11.0) 377.9
Income tax provision (139.1) (0.9) 16.5 (15.8) (e) (139.3)
--------- -------- ---------- ----------- --------
NET EARNINGS 237.4 51.8 (23.8) (26.8) 238.6
Preferred dividends (9.3) 0.0 0.0 (9.3)
--------- -------- ---------- ----------- --------
NET EARNINGS TO COMMON SHARES $ 228.1 $ 51.8 $ (23.8) $ (26.8) $ 229.3
========= ======== ========== =========== ========
EARNINGS PER COMMON SHARE:
Primary $ 5.05 $ 5.07
Fully-diluted $ 4.33 $ 4.35
WEIGHTED AVERAGE SHARES (IN MILLIONS):
Primary 45.2 45.2
Fully-diluted 54.8 54.8
</TABLE>
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ALUMAX INC.
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF EARNINGS
(a) Reflects $48.6 million elimination of Alumax sales to Cressona combined
with increased external sales of $25.8 million for product sold to
Fabricated Products.
(b) Elimination of redundant costs and impact of aligning compensation
programs.
(c) Earnings effect of depreciating estimated fair values of Cressona
property, plant and equipment.
(d) Additional net interest expense including reduction of interest income
and elimination of Cressona interest expense. Interest expense has been
computed on assumed net borrowings of $169.7 million at an annual average
rate of 6 percent.
(e) Reflects the income tax effect of pro forma adjustments. Tax effects
were calculated using the statutory rates for the taxing jurisdictions
affected by the adjustments.
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ALUMAX INC.
UNAUDITED PRO FORMA CONDENSED STATEMENT OF EARNINGS
FOR THE SIX MONTHS ENDED JUNE 30, 1996
(Millions of Dollars, Except Per Share Amounts)
<TABLE>
<CAPTION>
Alumax
Alumax Fabricated Pro Forma As
Historical Cressona(1) Products Adjustments Adjusted
---------- ---------- -------- ----------- --------
<S> <C> <C> <C> <C> <C>
Net sales $1,654.0 $39.7 $(239.3) $(6.5) (a) $1,447.9
-------- ----- ------- ----- --------
Cost and expenses:
Cost of goods sold 1,312.3 32.4 (195.7) (6.6) (a) 1,142.4
Selling, general & administrative 133.3 2.4 (21.6) (2.6) (b) 111.5
Depreciation 68.9 1.0 (4.8) 1.0 (c) 66.1
-------- ----- ------- ----- --------
1,514.5 35.8 (222.1) (8.2) 1,320.0
-------- ----- ------- ----- --------
EARNINGS FROM OPERATIONS 139.5 3.9 (17.2) 1.7 127.9
Gain on sale of assets 171.2 0.0 0.0 171.2
Other income, net 14.9 0.0 0.4 15.3
Interest expense, net (34.1) (0.2) 0.0 4.4 (d) (29.9)
-------- ----- ------- ----- --------
EARNINGS BEFORE INCOME TAXES 291.5 3.7 (16.8) 6.1 284.5
Income tax provision (113.0) 0.0 6.9 (4.0) (e) (110.1)
-------- ----- ------- ----- --------
NET EARNINGS 178.5 3.7 (9.9) 2.1 174.4
Preferred dividends (4.7) 0.0 0.0 (4.7)
--------- ----- ------- ----- --------
NET EARNINGS TO COMMON SHARES $ 173.8 $ 3.7 $ (9.9) $ 2.1 $ 169.7
======== ===== ======= ===== ========
EARNINGS PER COMMON SHARE:
Primary $ 3.81 $ 3.72
Fully-diluted $ 3.23 $ 3.16
WEIGHTED AVERAGE SHARES (IN MILLIONS):
Primary 45.6 45.6
Fully-diluted 55.2 55.2
</TABLE>
(1) Amounts represent Cressona's operating results for the month ended
January 31, 1996. The Cressona transaction has been accounted for as a
purchase with Cressona's results of operations included in the Company's
historical condensed statement of earnings since January 31, 1996.
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ALUMAX INC.
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF EARNINGS
(a) Reflects $7.6 million elimination of Alumax sales to Cressona combined
with increased external sales of $1.1 million for product sold to
Fabricated Products.
(b) Elimination of redundant costs and impact of aligning compensation
programs.
(c) Earnings effect of depreciating estimated fair values of Cressona
property, plant and equipment.
(d) Reduction in net interest expense reflects lower average borrowings
related to debt incurred to finance the Cressona acquisition.
(e) Reflects the income tax effect of pro forma adjustments. Tax effects
were calculated using the statutory rates for the taxing jurisdictions
affected by the adjustments.
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ALUMAX INC.
UNAUDITED PRO FORMA CONDENSED STATEMENT OF FINANCIAL POSITION
AT JUNE 30, 1996
(Millions of Dollars)
<TABLE>
<CAPTION>
Alumax Pro Forma Alumax
Historical Adjustments As Adjusted
---------- ------------ -----------
<S> <C> <C> <C>
Cash & equivalents $ 24.2 $ 24.2
Proceeds receivable 140.0 140.0
Accounts receivable, net 513.5 $ (75.8) (a) 437.7
Inventories 614.3 (89.1) (a) 525.2
Other current assets 103.8 (1.7) (a)(b) 102.1
-------- ------- --------
Total current assets 1,395.8 (166.6) 1,229.2
-------- ------- --------
Property, plant and equipment, net 2,049.0 (60.4) (a) 1,988.6
Other assets 171.8 (1.1) (a) 170.7
-------- ------- --------
Total assets $3,616.6 $(228.1) $3,388.5
======== ======= ========
Accounts payable & accrued liabilities $ 498.5 $ (55.0) (a)(b) $ 443.5
Short-term debt 290.0 (205.3) (c) 84.7
Current maturities 38.4 38.4
-------- ------- --------
Total current liabilities 826.9 (260.3) 566.6
-------- ------- --------
Long-term debt 692.6 692.6
Other liabilities 525.3 (4.5) (a) 520.8
-------- ------- --------
Total liabilities 2,044.8 (264.8) 1,780.0
-------- ------- --------
Commitments & contingencies
Preferred stock 2.3 2.3
Common stock 0.4 0.4
Paid-in capital 914.1 914.1
Retained earnings 657.4 29.6 (d) 687.0
Currency translation (2.4) 7.1 (a) 4.7
-------- ------- --------
Total stockholders' equity 1,571.8 36.7 1,608.5
-------- ------- --------
Total liabilities & stockholders' equity $3,616.6 $(228.1) $3,388.5
======== ======= ========
</TABLE>
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ALUMAX INC.
NOTES TO UNAUDITED PRO FORMA CONDENSED STATEMENT OF FINANCIAL POSITION
(a) Reflects the net assets of Fabricated Products sold.
(b) Adjustment includes tax effects and expenses of sale.
(c) Reflects the use of net proceeds(after tax) from the sale to pay down
short-term borrowings related to the Cressona acquisition.
(d) Reflects an estimated after tax gain on the Fabricated Products sale.
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<TABLE>
<CAPTION>
(c) Exhibits.
<S> <C>
Exhibit 99.1 Purchase Agreement, dated as of June 24, 1996, between Euramax
International, Ltd. and Alumax Inc., filed as Exhibit 10.01 to
Alumax Inc.'s Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996 and incorporated herein by reference.
Exhibit 99.2 First Amendment, dated as of September 25, 1996, to the Purchase
Agreement, dated as of June 24, 1996, between Euramax
International, Ltd. and Alumax Inc.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Alumax Inc.
By: /s/ Helen M. Feeney
------------------------------------
Helen M. Feeney
Vice President and Corporate Secretary
Date: October 10, 1996
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EXHIBIT INDEX
<TABLE>
<CAPTION>
<S> <C>
Exhibit 99.1 Purchase Agreement, dated as of June 24, 1996, between Euramax
International, Ltd. and Alumax Inc., filed as Exhibit 10.01 to
Alumax Inc.'s Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996 and incorporated herein by reference.
Exhibit 99.2 First Amendment, dated as of September 25, 1996, to the Purchase
Agreement, dated as of June 24, 1996, between Euramax
International, Ltd. and Alumax Inc.
</TABLE>
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EXHIBIT 99.2
FIRST AMENDMENT, dated as of September 25, 1996 (the "First
Amendment"), to the PURCHASE AGREEMENT, dated as of June 24, 1996 (the
"Purchase Agreement"), by and between Euramax International, Ltd., a
corporation organized under the laws of England and Wales ("Purchaser"), and
Alumax Inc. ("Seller"), a Delaware corporation and the sole stockholder of each
of Alumax Fabricated Products, Inc., a Delaware corporation, Alumax Holdings
Limited, a corporation organized under the laws of England and Wales and Alumax
Europe BV, a corporation organized under the laws of the Netherlands.
RECITALS
WHEREAS, upon the terms and subject to the conditions of the
Purchase Agreement, 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 (as
defined in the Purchase Agreement), through Holdings S.A. (as defined in the
Purchase Agreement), the Shares (as defined in the Purchase Agreement); and
WHEREAS, Purchaser and the Seller desire to amend certain
terms set forth in the Purchase Agreement pursuant to Section 9.4 of the
Purchase Agreement which permits the amendment thereof by written agreement.
NOW, THEREFORE, in consideration of the premises, and of the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Purchase
Agreement.
2. AMENDMENT.
2.1. EURAMAX INTERNATIONAL PLC. The Preamble of the
Purchase Agreement is hereby amended by deleting the phrase "Euramax
International, Ltd." and replacing it with "Euramax International plc," by
deleting the phrase "Alumax Fabricated Products, Inc." and replacing it with
"Amerimax Fabricated Products, Inc.," by deleting the phrase "Alumax Holdings
Limited" and replacing it with "Euramax Holdings, Limited," and by deleting
the phrase "Alumax Europe BV" and replacing it with "Euramax Europe BV."
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Any reference to Euramax International, Ltd. hereafter shall
be deemed to refer to Euramax International plc in (i) the Purchase Agreement
and the Exhibits and Schedules thereto and (ii) the following agreements
executed in connection with the Purchase Agreement: (a) Escrow Agreement,
dated June 24, 1996, by and between Euramax International, Ltd. and Alumax
Inc., (b) Letter Agreement, dated June 24, 1996, from Alumax Inc. to Euramax
International, Ltd. relating to the Alumax Incentive Compensation Plan bonus
and retention bonus, (c) Letter Agreement, dated June 24, 1996, to Alumax Inc.
from Euramax International, Ltd. relating to Wheels, Inc. and (d) Letter
Agreement, dated June 24, 1996, to Alumax Inc. from Euramax International, Ltd.
relating to an option of the Purchaser to amend certain terms of the Purchase
Agreement (collectively, the "Letter Agreements"). Except where the context
otherwise requires, any reference to the name "Alumax" as part of the corporate
name of any U.S. Sale Company shall be deemed to refer to "Amerimax" and any
such reference as part of the corporate name of any European Sale Company shall
be deemed to refer to "Euramax" in (i) the Purchase Agreement and the Exhibits
and Schedules thereto and (ii) the Letter Agreements.
2.2. ALUMAX HOLDINGS SHARES AND ALUMAX FRANCE
SHARES.
(A). Section 1.1 of the Purchase Agreement is amended by deleting in
its entirety clause (a) thereof and replacing it with "(a) the Seller
agrees to sell, transfer and assign to a newly formed wholly owned
subsidiary of Purchaser to be organized under the laws of England and
Wales ("U.K. Newco"), and Purchaser agrees to cause U.K. Newco to
purchase, all right, title and interest in and to the Alumax Holdings
Shares,". Section 1.1 of the Purchase Agreement is further amended by
deleting the phrase ("U.S. Newco" and, collectively with Dutch Newco
and French Newco, the "Subsidiary Purchasers") and replacing it with
"("U.S. Newco" and, collectively with U.K. Newco, Dutch Newco and
French Newco, the "Subsidiary Purchasers")".
(B). Section 1.1 of the Purchase Agreement is hereby amended by
deleting from clause (c) the following phrase: "upon consummation of
the transactions described in clause (b) of this Section 1.1 and in
Section 1.4(e) hereof,".
(C). Section 1.4(b) of the Purchase Agreement is hereby amended by
deleting the phrase "other than
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Holdings S.A." and replacing it with "including Holdings S.A.".
(D). Section 1.4(d) of the Purchase Agreement is hereby
deleted in its entirety.
2.3. CLOSING. Section 1.2 of the Purchase Agreement is
hereby amended by deleting clause (a) in its entirety and replacing it with the
following: "by the close of business on September 25, 1996."
2.4. HOME PRODUCTS. Section 1.4(a) of the Purchase Agreement
is hereby amended by deleting the phrase "Euramax Home Products, Inc." and
replacing it with "Amerimax Home Products, Inc."
Any reference to Euramax Home Products, Inc. in (i) the
Purchase Agreement and the Exhibits and Schedules thereto and (ii) the Letter
Agreements hereafter shall be deemed to refer to Amerimax Home Products, Inc.
2.5. INTERIM OPERATION OF THE SALE COMPANIES. Section 4.1
(i) of the Purchase Agreement shall be amended by deleting the "and" before the
"(B)" and replacing it with a comma, and by the addition of the following
phrase at the end thereof: " and (C) changes in the objects clauses of the
articles of association of Alumax Europe and the Alumax Europe Subsidiary to
permit the granting of guarantees, pledges of securities and security
interests."
2.6. TERMINATION. Section 6.1(a) of the Purchase Agreement
is hereby amended by deleting the phrase "the date which is 90 days from and
after the date hereof" in clause (iii) and replacing it with "by September 25,
1996."
2.7. FRENCH TAX YEAR. The first sentence of Section 8.4(a)
is hereby amended by deleting the phrase "the taxable years of each Sale
Company shall be closed" and replacing it with the phrase "the taxable years of
each Sale Company (other than the French Companies) shall be closed." The
second sentence of Section 8.4(a) is hereby amended by deleting the phrase "the
taxable years of the European Sale Companies to close" and replacing it with
the phrase "the taxable years of the European Sale Companies (other than the
French Companies) to close."
2.8. ASSET PURCHASE AGREEMENT. Exhibit A (Asset Purchase
Agreement) to the Purchase Agreement shall be deleted and replaced in its
entirety by the form attached hereto as Exhibit A.
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2.9. FORM OF DISTRIBUTION AGREEMENT. Exhibit E (Form of
Distribution Agreement) to the Purchase Agreement shall be deleted and replaced
in its entirety by the form attached hereto as Exhibit E.
2.10. SCHEDULES. The following Schedules to the Purchase
Agreement are hereby amended as follows:
(A). Any reference in the Schedules to "3rd Floor, 40 Clifton Street,
Uxbridge" shall hereinafter be deemed to refer to "3rd Floor, 40
Clifton Street, London."
(B). Schedule 3.1(d)(ii) (Required Consents) to the Purchase
Agreement is hereby amended by adding the following at the end
thereof:
9. Truck Lease and Service Agreement, dated as of
December 7, 1989, between Ryder Truck Rental, Inc.
and Alumax Aluminum Corporation, Home Products
Division.
10. Software License Agreement, dated as of May 25, 1990,
by and between Xerox Corporation and Alumax
Home Products, as amended by Special Transitions
Amendment to MDIS Chess Platform - Independent
Software License Agreement between McDonnell
Information Systems, Incorporated and Alumax Home
Products Division, Alumax Aluminum Corporation,
entered into as of May 22, 1995.
(C). Schedule 3.1(p) (Material Contracts) to the Purchase Agreement
is hereby amended by adding the following on page 11 thereof after
"Euramax Home Products, Inc. . . . Private Label Agreement dated as of
March 20, 1996 by and between Alumax Aluminum Corporation, Home
Products Division and Geocel Corporation":
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<TABLE>
<S> <C>
Amerimax Home Products, Truck Lease and Service Agreement dated as of
Inc. December 7, 1989 between Ryder Truck Rental,
Inc. and Alumax Aluminum Corporation, Home
Products Division, as amended by the Amendment
to Truck Lease and Service Agreement, dated
December 8, 1989, by and between Ryder Truck
Rental, Inc. and Alumax Aluminum Corporation,
Home Products Division.
Amerimax Home Products, Software License Agreement, dated as of May
Inc. 25, 1990, by and between Xerox Corporation and
Alumax Home Products, as amended by Special
Transition Amendment to MDIS Chess Platform -
Independent Software License Agreement between
McDonnell Information Systems, Incorporated
and Alumax Home Products Division, Alumax
Aluminum Corporation, entered into as of May
22, 1995.
Alumax Appliance & Reciprocal Non-Disclosure Agreement dated as
Specialty Products, Inc. of June 11, 1996 by and between Alumax
Appliance & Specialty Products, Inc. and
Intelledge Corporation
</TABLE>
(D). Schedule 3.1(k) (Intellectual Property) to the Purchase
Agreement shall be deleted and replaced in its entirety by the form
attached hereto as Schedule 3.1(k).
(E). Schedule 4.15(a) (List of Bank Accounts) to the Purchase
Agreement shall be deleted and replaced in its entirety by the form
attached hereto as Schedule 4.15(a).
(F). All references to Schedule 4.15(b) (Aggregate Balances in Bank
Accounts) in the Purchase Agreement
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shall be deemed to refer to the schedule attached hereto as
Schedule 4.15(b).
(G). Schedule 5.2(l) (Intellectual Property to be Assigned) to the
Purchase Agreement shall be deleted and replaced in its entirety by
the form attached hereto as Schedule 5.2(l).
2.11. CERTAIN GUARANTEES, ETC. Notwithstanding the
disclosure as to the Seller's intent to terminate the contracts listed under
Schedule 3.1(g) (Liabilities) and Schedule 4.1 (Terminated Guarantees and
Obligations) to the Purchase Agreement, the parties agree that the contracts
listed as numbers 3, 4 and 6 on Schedule 3.1(g) and as numbers 2, 3 and 5 on
Schedule 4.1 shall not be terminated but shall remain in full force and effect
on the Closing Date. The Seller hereby confirms that the obligations under
such contracts do not constitute indebtedness for borrowed money or guarantees
of indebtedness for borrowed money. The parties further agree that for
purposes of the definition of "Funded Debt" in Section 2.1 of the Purchase
Agreement, the obligations under such contracts shall not be taken into account
in the calculation of Funded Debt for any purpose under Article II of the
Purchase Agreement.
2.12. PURCHASE PRICE.
(A). The payment of the Initial Purchase Price shall be (i) increased
by an amount equal to (x) US $27,615, representing reimbursement for
compensation provided to and expenses of Scott Vansant, and (y) US
$2,900, representing reimbursement with respect to fees and expenses
of DeBrauw Blackstone Westbroek in connection with work performed at
the request of Purchaser with respect to amendments of the articles of
association of the Dutch Sale Companies, and (ii) decreased by an
amount equal to US $135,000, representing one-half (1/2) of the amount
estimated by Purchaser to be the amount of the stock transfer tax
required to be paid in the Netherlands and the United Kingdom in
connection with the sale of the Alumax Europe Shares and the Alumax
Holdings Shares under the Purchase Agreement.
(B). The Seller shall in good faith promptly prepare a final invoice
setting forth the actual compensation provided to and expenses of
Scott Vansant by the Seller on and after July 29, 1996. If the amount
shown on the final invoice exceeds US $27,615, Purchaser shall pay the
amount of such excess to the Seller, and if US $27,615 exceeds the
amount shown on the final invoice, the Seller shall pay the amount of
such excess to
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Purchaser, in either case within ten business days of the receipt of
the final invoice in immediately available funds.
(C). The Seller shall provide Purchaser with a copy of the bill or
other statement reflecting the fees and expenses referred to in
Section 2.12(a)(i)(y) hereof within ten business days of receipt
thereof by the Seller. If the amount shown on the bill or other
statement exceeds US $2,900, Purchaser shall pay the amount of such
excess to the Seller, and if US $2,900 exceeds the amount shown on the
bill or other statement, the Seller shall pay the amount of such
excess to Purchaser, in either case within ten business days of the
receipt of the bill or other statement in immediately available funds.
(D). Purchaser shall pay on or prior to the date when due the stock
transfer taxes referred to in Section 2.12(a)(ii) and shall within ten
business days of such payment provide the Seller with receipts or
other documentary evidence of such payments. If the amount shown on
the receipts or other documentary evidence exceeds US $135,000,
Purchaser shall pay the amount of such excess to the Seller, and if US
$135,000 exceeds the amount shown on the receipts or other documentary
evidence, the Seller shall pay the amount of such excess to Purchaser,
in either case within ten business days of the receipt of the receipts
or other documentary evidence in immediately available funds.
(E). In the event of any dispute with respect to the adjustments
contemplated by paragraphs (b), (c) and (d) above, such dispute shall
be resolved in conjunction with the determination of the Final
Purchase Price in accordance with the procedures set forth in Section
2.2 of the Purchase Agreement (including, if necessary, through the
arbitration procedures provided for therein).
2.13. WHEELS, INC. LEASE. Notwithstanding the terms and
provisions of the Letter Agreement, dated as of June 24, 1996, between
Purchaser and the Seller with respect to the Lease Agreement, dated June 17,
1994, by and between Wheels Inc. and the Seller (the "Lease Agreement"),
Purchaser agrees and acknowledges that such Lease Agreement will not be
assignable, transferable or otherwise available to Purchaser and that all of
the employees of the Sale Companies in possession of any vehicles leased under
such Lease Agreement will be caused to deliver possession of such vehicles on
the date hereof to the Seller or any designee of
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<PAGE> 8
the Seller at such location as the Seller may reasonably specify. In the event
that any such vehicles are not so returned on the date hereof, Purchaser shall
cause the Sale Companies to direct their employees to deliver any unreturned
vehicles promptly at the locations specified in accordance with the immediately
preceding sentence or to such other locations as the Seller may notify
Purchaser in writing.
3. COUNTERPARTS. For the convenience of the parties
hereto, this First Amendment may be executed in any number of separate
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
4. PURCHASE AGREEMENT. Except as herein expressly
amended, the Purchase Agreement is ratified and confirmed in all respects and
shall remain in full force and effect in accordance with its terms. All
references to the Purchase Agreement shall mean such Agreement as amended
hereby and as may in the future be amended, restated, supplemented or modified
from time to time.
5. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 9
IN WITNESS WHEREOF, this First Amendment has been duly
executed and delivered by the duly authorized officers of the parties hereto as
of the date first hereinabove written.
EURAMAX INTERNATIONAL PLC
By: /s/ Joseph M. Silvestri
-----------------------------
Name:
Title:
ALUMAX INC.
By: /s/ R.P. Wolf
-----------------------------
Name: R.P. Wolf
Title: Vice President
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<PAGE> 10
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 Amerimax 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 Euramax International, Ltd.
(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> 11
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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<PAGE> 13
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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<PAGE> 14
(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> 15
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> 16
(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 Attachment 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> 17
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> 18
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> 19
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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<PAGE> 20
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 Amerimax 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"
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<PAGE> 21
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 Attachments. All Schedules and Attachments
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 Attachment 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 Attachments,
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.
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<PAGE> 22
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:
AMERIMAX HOME PRODUCTS, INC.
By:
------------------------------
Name:
Title:
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<PAGE> 23
Attachment A
Assumption, Receipt and Acknowledgment
In connection with that certain Asset Purchase Agreement, dated as of
________________, 1996 (the "Agreement"), by and between Alumax Aluminum
Corporation, a Delaware corporation ("AAC"), and Amerimax Home Products, Inc.,
a Delaware corporation ("Home Products"), the parties thereto hereby confirm
the following (capitalized terms used herein but not otherwise defined shall
have the meanings assigned to them in the Agreement):
1. AAC acknowledges its assignment of the Division Assets and the
Division Assumed Liabilities and its receipt of a promissory
note in the amount of $______________ in accordance with the
terms of the Agreement.
2. Home Products acknowledges receipt of the Division Assets and
its assumption of the Division Assumed Liabilities in
accordance with the terms of the Agreement. Home Products
hereby accepts the foregoing assignment and in consideration
thereof hereby assumes, and agrees to pay, perform or
discharge, as appropriate, all of the Division Assumed
Liabilities, whether required to be paid, performed or
discharged prior to or after the date hereof.
Accordingly, the parties agree and acknowledge that the obligations of
each party to be performed pursuant to Section 1.5 of the Agreement have been
fully satisfied.
<PAGE> 24
IN WITNESS WHEREOF, the undersigned have signed this Assumption,
Receipt and Acknowledgment as of the date first above written.
ALUMAX ALUMINUM CORPORATION
By:
---------------------------
Name:
Title:
AMERIMAX HOME PRODUCTS, INC.
By:
---------------------------
Name:
Title:
<PAGE> 25
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> 26
SCHEDULE 1.1(ii)
DIVISION PERSONAL PROPERTY
Please see Schedule of Fixed Assets by Location attached to original Form of
Agreement.
<PAGE> 27
SCHEDULE 1.1(v)
DIVISION VEHICLES
None owned except yard truck and forklifts. See Personal Property schedule.
<PAGE> 28
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, 1996, for the Chicago Service Center, expiring
January 14, 1999, covering approximately 22 employees.
Vendor Information Packet (undated and unsigned) governing terms and conditions
of doing business with The Home Depot.
Private Label Agreement dated as of February 16, 1994 by and between Alumax
Aluminum Corporation and Alumin-Nu Corporation.
Private Label Agreement dated as of March 20, 1996 by and between Alumax
Aluminum Corporation, Home Products Division and Geocel Corporation.
Software License Agreement between Alumax Aluminum Corporation and McDonnell
Information Systems dated May 25, 1990, as amended May 22, 1995.
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.
<PAGE> 29
Schedule 1.1(xiii) (continued)
Commercial Lease Agreement dated January 28, 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 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.
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.
Truck Lease and Service Agreement dated as of December 7, 1989 between Ryder
Truck Rental, Inc. and Alumax Aluminum Corporation, Home Products Division, as
amended by the Amendment to Truck Lease and Service Agreement, dated December
8, 1989, by and between Ryder Truck Rental, Inc. and Alumax Aluminum
Corporation, Home Products Division.
<PAGE> 30
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 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 and 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> 31
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 and
Scandinavia. 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> 32
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 NINETY (90) 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> 33
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 written 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.
(d) Notwithstanding termination of this Agreement, the
Distributor shall be entitled to sell any inventory of the Products in its
possession.
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
<PAGE> 34
Alumax/Euramax
Distribution Agreement
Page 5
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.
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> 35
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 part 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
Distributor: EURAMAX COATED PRODUCTS LTD.
Brunel Road, Earlstrees Industrial Estate
Corby, Northants NN17 4JW, England
Attention: Managing Director
Facsimile No: 011-44-1536-400101
<PAGE> 36
Alumax/Euramax
Distribution Agreement
Page 7
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.
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 LIMITED
By: _________________________
Title: ______________________
<PAGE> 37
Alumax/Euramax
Distribution Agreement
Page 8
SCHEDULE I
PRODUCT DESCRIPTION AND LOGO GRAPHICS
(To be attached at time of execution)
<PAGE> 38
Alumax/Euramax
Distribution Agreement
Page 9
SCHEDULE II
CURRENT PRICE SHEET
(To be attached at time of execution)
<PAGE> 39
Alumax/Euramax
Distribution Agreement
Page 10
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> 40
Alumax/Euramax
Distribution Agreement
Page 11
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> 41
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.
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)
-1-
<PAGE> 42
Schedule 3.1(k)(continued)
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
U.S. PATENTS HELD BY ALUMAX ALUMINUM CORPORATION
The following is a list of all patent registrations held in the name of Alumax
Aluminum Corporation used in the Home Products Division of Alumax Aluminum
Corporation.
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.
FOREIGN PATENTS HELD BY ALUMAX ALUMINUM CORPORATION
Gutter Guard Screen Support Clip Canada No. 2054447
TRADEMARKS BASED ON USAGE
Alumax Building Products, Inc.
Alu-loc
Alu-tuff
Alu-tuff II
-2-
<PAGE> 43
Schedule 3.1(k)(continued)
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.
EUROPEAN SALE COMPANIES
The following is a list of all patent registrations and applications and
trademark registrations and applications for the European Sale Companies:
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.
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
-3-
<PAGE> 44
Schedule 3.1(k)(continued)
May 8, 1981. Fallen on December 29, 1983. The patent is no longer
valid in Belgium, Germany, Spain, Great Britain, the Netherlands and
Italy. The patent corresponded to a product which has been abandoned
by the company.
c. A French patent for composite panels 4,000T devoted to insulated
conservatory roofs market was filed on January 27, 1995 (no. 9501315)
and was published on August 2, 1996 (no. 2729988).
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, Portugal 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. A change of name of UCP Societe Industrielle
into Alumax Industries has been registered with the local patent
offices in Spain, Great Britian and Italy, and is pending in Germany
and Portugal.
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. A change of name from UCP Societe Industrielle
into Alumax Industries has 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 was abandoned this year according to
instructions of Alumax Industries for non-payment of the annuity.
However, the company benefits from a six-month grace period (i.e.,
until January 11, 1997). If the company ---- decides to pay the
annuity prior to the expiration of the grace period, the patent will
remain valid.
-4-
<PAGE> 45
Schedule 3.1(k)(continued)
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. An application for the change
of name of UCP Societe Industrielle into Alumax Industries was filed
with the French Trademark Office on September 18, 1996.
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. An application for the change of name of
UCP Societe Industrielle into Alumax Industries was filed with the
French Trademark Office on September 18, 1996.
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. An application for the change of name of UCP
Societe Industrielle into Alumax Industries was filed with the French
Trademark Office on September 18, 1996.
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.
-5-
<PAGE> 46
ALUMAX INC. schedule 4.15a UPDATED
ALUMAX FABRICATED PRODUCTS, INC. 23-Sep-96
MASTER BANK ACCOUNT LISTING
<TABLE>
<CAPTION>
MASTER ACCOUNT CONTACT
COMPANY/DIVISION BANK NAME ACCOUNT TYPE LOCATION PERSON
--------------------------------- ---------------- ----------- ------------ --------------- --------------
<S> <C> <C> <C> <C> <C>
ALUMAX HOME PRODUCTS
Alumax Aluminum Corporation Cole Taylor Bank 414620800 PETTY CASH BEDFORD PK, IL Jeremy Shull
Alumax Aluminum Corporation Fulton Bank 031867676 PETTY CASH LANCASTER, PA Jeremy Shull
Alumax Aluminum Corporation Fulton Bank 031867619 PAYROLL LANCASTER, PA Jeremy Shull
Alumax Aluminum Corporation Nationsbank Of Texas 1740148792 PETTY CASH GRAND PR'E, TX Jeremy Shull
Alumax Aluminum Corporation Trust Company Of Georgia 8800975347 PETTY CASH ATLANTA, GA Jeremy Shull
Alumax Aluminum Corporation Wells Fargo 4518070750 PETTY CASH SACRAMENTO, CA Jeremy Shull
Alumax Aluminum Corporation Chase Manhattan Syracuse 801254410 C. DISBURSEMENT LANCASTER, PA Jeremy Shull
Alumax Aluminum Corporation Mellon Bank 1190651 LOCKBOX LANCASTER, PA Jeremy Shull
ALUMAX FABRICATED PRODUCTS, INC.
Alumax Aluminum Corporation Wachovia Bank Of Georgia 14841028 DISBURSEMENT NORCROSS, GA Gerry Wharton
3 Alumax Aluminum Corporation Chase Manhattan Bank 9102776193 MASTER NORCROSS, GA Marc Crown
ALUMAX BUILDING PRODUCTS, INC.
Alumax Building Products, Inc. Bank Of America 1233453934 PAYROLL DALLAS, TX Scott Anderson
Alumax Building Products, Inc. Chase Manhattan Syracuse 601215312 C. DISBURSEMENT DALLAS, TX Scott Anderson
Alumax Building Products, Inc. First National Bank of Chicago 5247438 LOCKBOX DALLAS, TX Scott Anderson
ALUMAX COATED PRODUCTS B.V.
Alumax Coated Products B.V. Generale Bank 228828302 MASTER NETHERLANDS Frans Van Soast
Alumax Coated Products B.V. Commerzbank 157153858008 MASTER NETHERLANDS F. Van Soast
Alumax Coated Products B.V. ABN NA MASTER NETHERLANDS F. Van Soast
Alumax Coated Products B.V. BFG NA MASTER NETHERLANDS F. Van Soast
ALUMAX COATED PRODUCTS LTD.
Alumax Coated Products LTD. National Westminister Bank 61788902 MASTER CORBY Marc Crown
ALUMAX COATED PRODUCTS SA
Alumax Coated Products SA Monte Paschi Banque 6034113001 MASTER FRANCE P. Berard
Alumax Coated Products SA Societe Generale Bank 20028052 MASTER FRANCE Marc Crown
ALUMAX COATED PRODUCTS, INC.
Alumax Coated Products, Inc. Chase Manhattan Syracuse 601208234 C. DISBURSEMENT DALLAS, TX Scott Anderson
Alumax Coated Products, Inc. Nationsbank Of Texas 1294461271 PAYROLL DALLAS, TEXAS Scott Anderson
ALUMAX DOOR PRODUCTS, INC.
Alumax Door Products, Inc. Bank Of America 7101058 LOCKBOX CHICAGO, IL Scott Cole
Alumax Door Products, Inc. Barnett Bank 1154086855 PAYROLL OCALA, FL Scott Cole
Alumax Door Products, Inc. Chase Manhattan Syracuse 601226376 C. DISBURSEMENT RICHMOND, IN Scott Cole
Alumax Door Products, Inc. First Union Bank 16322203757 PETTY CASH OCALA, FL Scott Cole
Alumax Door Products, Inc. Star Bank 21663646 PAYROLL RICHMOND, IN Scott Cole
Alumax Door Products, Inc. Star Bank 21359831 PETTY CASH RICHMOND, IN Scott Cole
Alumax Door Products, Inc. Star Bank 21386628 PAYROLL RICHMOND, IN Scott Cole
ALUMAX ELLBEE LIMITED
Alumax Ellbee LTD National Westminister Bank 61788929 MASTER PUDSEY, ENGLAND Marc Crown
ALUMAX EUROPE BV
Alumax Europe BV Generale Bank 229831591 MASTER NETHERLANDS F. Bijihouwer
ALUMAX HOLDINGS LIMITED
Alumax Holdings Limited National Westminister Bank 61788999 TREASURY ACCT. UXBRIDGE Marc Crown
Alumax Holdings Limited National Westminister Bank 61788880 TRADING ACCT. UXBRIDGE Marc Crown
ALUMAX INDUSTRIES SA
Alumax Industries SA Societe Generale Bank 20028060 MASTER FRANCE Marc Crown
APPLIANCE & SPECIALTY PRODUCTS, INC.
Appliance & Specialty Products, Inc. Chase Manhattan Syracuse 601225170 C. DISBURSEMENT CARROLLTON, KY Dan Reilly
Appliance & Specialty Products, Inc. Farmers Bank Of Milton 1050281 DEPOSITORY CARROLLTON, KY Dan Reilly
Appliance & Specialty Products, Inc. Farmers Bank Of Milton 1050249 PAYROLL CARROLLTON, KY Dan Reilly
Appliance & Specialty Products, Inc. Farmers Bank Of Milton 1050303 PAYROLL CARROLLTON, KY Dan Reilly
==============
Current 38
</TABLE>
<TABLE>
<S> <C>
1. Alumax Magnolia Division's Accounts - The Two Accounts Should Be Deleted From This List
2. Account Omitted From Original List and Later Closed
3. New Bank Account Requested By Scott Vansant
</TABLE>
<TABLE>
<CAPTION>
ACCOUNTS DELETED FROM THE LIST
<S> <C> <C> <C> <C> <C>
1 Alumax Inc. Frankford Trust Company 000B24338 PETTY CASH BRISTOL, PA Jeremy Shull
1 Alumax Aluminum Corporation SunTrust Bank na
2 Alumax Coated Products B.V. National Westminister Bank 61788902 MASTER NETHERLANDS Marc Crown
2 Alumax Europe BV Societe Generale Bank 2870226 MASTER NETHERLANDS Marc Crown
2 Alumax Holdings Limited National Westminister Bank 61820776 MASTER UXBRIDGE Marc Crown
ACCOUNTS ADDED TO THE LIST
3 Alumax Aluminum Corporation Chase Manhattan Bank 9102776193 MASTER NORCROSS, GA Marc Crown
</TABLE>
<PAGE> 47
SCHEDULE 4.15(b)
BALANCES OF BANK ACCOUNTS
Aggregate Balances: $8 million
With Regional Balances as follows:
U.S. Accounts $1-2 million
European Accounts $6-7 million
-1-
<PAGE> 48
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.
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
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<PAGE> 49
Schedule 5.2(l)(continued)
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
U.S. PATENTS HELD BY ALUMAX ALUMINUM CORPORATION
The following is a list of all patent registrations held in the name of Alumax
Aluminum Corporation used in the Home Products Division of Alumax Aluminum
Corporation.
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.
FOREIGN PATENTS HELD BY ALUMAX ALUMINUM CORPORATION
Gutter Guard Screen Support Clip Canada No. 2054447
TRADEMARKS BASED ON USAGE
Alumax Building Products, Inc.
Alu-loc
Alu-tuff
Alu-tuff II
-2-
<PAGE> 50
Schedule 5.2(l)(continued)
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-
