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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported) November 12, 1997
L.B. FOSTER COMPANY
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(Exact name of registrant as specified in its charter)
DELAWARE 0-1043 25-1324733
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(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
415 HOLIDAY DRIVE, PITTSBURGH, PENNSYLVANIA 15220
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code 412-928-3417
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(Former name or former address, if changed since last report.)
Item 2. Acquisition or Disposition of Assets.
On November 12, 1997, L.B. Foster Company (the "Registrant")
acquired: (i) the equipment, inventory, receivables and
miscellaneous assets of Precise Fabricating Corporation, a
Massachusetts corporation ("Precise" ), and (ii) the real estate
in Georgetown, Massachusetts owned by F&G Realty Trust, a
Massachusetts trust ("F&G"), which Precise utilized to conduct
its business of fabricating metal products. F&G and Precise are
collectively referred to as "Sellers". The foregoing
acquisition (the "Acquisition") was effected in accordance with
the Asset Purchase Agreement dated as of November 12, 1997 by
and among Registrant and Sellers (the "Agreement").
Registrant intends to continue to utilize the acquired assets
for the purpose of fabricating metal products.
The purchase price for the land, buildings, equipment,
furniture, fixtures, miscellaneous assets and good will was
$3,647,981. The Registrant also agreed to pay the estimated
book value of Precise's inventory and up to the ninety-six
percent (96%) of the face amount of Precise's receivables.
The purchase price was paid, in part, at closing by: (i) a cash
payment of $3,695,938, of which $500,000 was deposited into an
escrow account to secure Sellers' obligations under the
Agreement; and (ii) the assumption by the Registrant of certain
of Precise's liabilities, primarily accounts payable and an
industrial revenue bond, in the amount of $1,520,449. The cash
payment at Closing included eighty percent (80%) of the value of
inventory and sixty percent (60%) of the face value of receivables.
Twenty percent (20%) of the book value of the inventory was withheld
pending the completion of a post-closing audit designed to
verify the actual final inventory value. Thirty-six percent (36%)
of the face value of receivables was withheld and will be
paid by Registrant as and if receivables are collected, in the
manner set forth in the Agreement.
Registrant obtained funds for this transaction under its
existing loan agreement from its banking group comprised of
Mellon Bank, N.A., PNC Bank and Corestates Bank, N.A.
Item 7. Financial Statement, Pro Forma Financial Information and Exhibits
(a)(b) It is impracticable to provide the financial statements
and pro forma financial information required in respect of the
Acquisition at the time that this Current Report on Form 8-K is
being filed. Such financial statements and pro forma financial
information will be filed on or prior to January 26, 1998, if
required by Item 7.
(c) Exhibits
(1) Asset Purchase Agreement, dated November 12, 1997, by and
among the Registrant, Precise and F&G
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act
of 1934, the Registrant has duly caused this report to be filed
on its behalf by the undersigned hereunto duly authorized.
L.B. FOSTER COMPANY
By: /s/Roger F. Nejes
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Roger F. Nejes
Title: Senior Vice President and Chief
Financial Officer
Date: November 25, 1997
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ASSET PURCHASE AGREEMENT
This AGREEMENT, made and entered into as of the 12th day of
November, 1997, by and between PRECISE FABRICATING CORPORATION
("Precise") a Massachusetts corporation, and F&G REALTY TRUST
("F&G") a Massachusetts Trust (Precise and F&G are sometimes
collectively referred to herein as (the "Sellers");
A
N
D
L. B. FOSTER COMPANY, a Delaware corporation (hereinafter "Buyer").
W I T N E S S E T H:
WHEREAS, Precise is engaged in the business of fabricating
metal products (hereinafter said business is referred to as the
"Operations"); and
WHEREAS, F&G owns the land and buildings which are or may be
utilized by Precise in connection with the Operations.
WHEREAS, the Sellers desire to sell to the Buyer, and the Buyer
wishes to purchase from the Sellers, subject to the terms and
conditions herein set forth, substantially all of the Sellers'
real estate, inventory, equipment, machinery and proprietary
information relating to the Operations.
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter set forth, the parties agree as follows:
1. Assets to be Acquired
1.1 Included Assets - At the Closing, as defined in Section 3.1,
and subject to the terms and conditions hereinafter set forth,
the Sellers shall sell, convey, transfer and deliver to Buyer,
and Buyer shall purchase the following property (the "Assets"),
free and clear of all liens and encumbrances, subject to the
exclusions in Section 1.2:
a. All of Precise's equipment, truck, trailers, office
equipment, machinery, jigs, patterns and dies related to the
Operations, including the property set forth in Exhibit 1.1(a)
hereto, (the "Equipment");
b. All of Precise's inventory (including work-in-process)
acquired in the ordinary course of business and pertaining to
the Operations (the "Inventory");
c. All of Precises' trade account receivables arising in the
ordinary course of business, pertaining to the Operations and
not older than 210 days from applicable invoice dates but
excluding certain specifically identified Receivables. (the
"Receivables").
d. All of Precise's rights with respect to (i) uncompleted
contracts for the sale of goods arising from the Operations and
entered into in the ordinary course of business; (ii) vendors'
uncompleted obligations to provide goods or services related to
the Operations; and (iii) any other purchase order, quotation,
industrial revenue bond or other item with respect to which
Seller has assumed an obligation pursuant to Sections 1.3 (i),
(ii), (iii) and (iv) below: and (iv) insurance policies relating
to the conduct of the Operations; provided, however, that the
assignment of rights to such insurance policies shall not
prejudice Precise's ability to obtain coverage under such
policies to the extent that Foster is not adversely affected by
Seller obtaining such coverage.
e. The land and improvements (the "Real Estate") located in
Georgetown, Massachusetts described in the Contract for Purchase
and Sale of Real Property attached hereto as Exhibit 1.1(e) (the
"Real Estate Contract").
f. All proprietary information, intellectual property, books,
records and documents related to the Operations ("Proprietary
Information"), including, without limitation, trade secrets,
know-how, drawings, vendor lists, manufacturing documentation
and processes, blueprints, patents, licenses, books and records,
customer lists, trademarks, all contractual and other rights
related to the drilling and burning machine, servicemarks and
trade names including, Precise Fabrication or any variation
thereof; and
g. Covenants not to compete from each of Precise and F&G.
h. All computer programs, software (to the extent transferable),
telephone and fax numbers related to the Operations.
i. Commissions or other fees attributable to Precises' shipments
after Closing.
1.2 Exclusions From Assets - Notwithstanding anything to the
contrary provided in Section 1.1 hereof, the following assets of
the Sellers shall not be included in the Assets to be purchased
and sold hereunder, (collectively the "Excluded Assets"):
a. Claims for refunds of taxes and other governmental charges
for periods ending prior to the Closing Date.
b. Cash or cash equivalents existing on the Closing Date.
c. Capital stock in Precise.
d. Sellers' tax records.
e. Prepaid deposits or expenses including, without limitation,
any deposits made pursuant to the Internal Revenue Code Section
444.
f. Worker's compensation refunds.
g. Toyota Avalon used by Franklin B. Davis and Jeep Cherokee
used by George H. Nelson, Jr.
h. Property other than that included in Section 1.1 hereinabove.
1.3 Seller's Liabilities - Buyer shall not assume any of
Sellers' liabilities except (i) obligations for completion of
those contracts for the sale of goods which arose in the
ordinary course of business of the Operations and were either:
(A) identified when this Agreement was executed in Exhibit 4.5;
or (B) are identified on the Closing Date pursuant to Section
4.5(f) and are acceptable to, or have previously been approved
by, Buyer (the "Backlog"); (ii) F&G's monetary obligations with
respect to the industrial revenue bond secured by the Real
Estate (the "IRB)"): (iii) Precise's accounts payable other than
identified accounts payable retained by Seller incurred and
unpaid in the ordinary course of business and which relate to
the Operations, together with earned, but unpaid, agent's
consultant's or distributor's commissions relating to the
Operations ("Accounts Payable") and the earned and unpaid
vacation pay through December 31, 1997 of any of Sellers'
employees who are employed by Buyer after the Closing ("Vacation
Pay") to the extent, but only to the extent, that the sum of the
amount of such assumed Accounts Payable and Vacation Pay plus
obligations relating to the IRB is equal to or less than the
Purchase Price, as defined in Section 1.4(a) and was deducted
under Section 1.4(b) from amounts otherwise payable to Sellers;
(iv) obligations under outstanding written quotations, purchase
orders, and commissions associated therewith, which are either:
(A) identified when this Agreement was executed in Exhibit 4.5;
or (B) identified on the Closing Date pursuant to Sections
4.5(d) and 4.5(f) which arose in the ordinary course of business
of the Operations and are acceptable to Buyer; and (v)
registration fees and sales tax on trucks and trailers included
in the Assets. Without limiting the generality of Buyer's
non-assumption of liabilities, Sellers' retained liabilities
("Sellers' Liabilities") shall include:
a. Any costs, liabilities, expenses or obligations of Sellers
arising out of, being attributable to or occurring in connection
with, the sale herein contemplated (including, but not limited
to, any counsel fees, accountant fees, sales taxes, brokers' or
finders' fees or liabilities attributable to non-compliance with
the Bulk Sales or any similar act, except with respect to the
Accounts Payable expressly assumed by Buyer).
b. Any federal, state or local taxes imposed by reason of the
sale of the Assets pursuant to this Agreement; provided Buyer
shall be responsible for the registration fees on trucks and
trailers included in the Assets and for sales tax thereon.
c. Any federal, state or local taxes of Sellers, whether current
or deferred.
d. Any costs, expenses, obligations, debts or liabilities (fixed
or contingent, known or unknown) incurred by Sellers prior to or
after the Closing Date, except for those limited obligations
which Buyer has expressly assumed pursuant to the provisions of
this Agreement.
e. Any liabilities (fixed or contingent, known or unknown)
whether for damage to persons or property otherwise arising out
of, being attributable to or occurring in connection with the
conduct of the Operations including, but not limited to,
liabilities arising out of, being attributable to or occurring
in connection with (i) products manufactured, distributed or
sold by Precise, or services provided by Precise, prior to the
Closing Date or claimed defects in or warranty claims respecting
the same; (ii) any violation of any laws, rules, regulations and
orders (including, without limitation, any zoning, use,
pollution, environmental, sanitation, safety or health laws,
rules, regulations and orders) occurring or arising out of any
state of facts in existence prior to the Closing Date; and (iii)
with respect to contracts or obligations assumed by Buyer, any
liabilities arising from any action when either of Sellers
should have acted otherwise, or any improper or negligent action
or improper or negligent omission by either of Sellers which
materially contributed to such contracts or obligations being
breached.
f. Any liability or obligation to any present or past employee
of Sellers or any of Sellers' predecessors, including, without
limitation, any accrued vacation or sick leave pay, severance
pay, unreimbursed employee expense or liability or obligation
under any employee benefit plan subject to "ERISA" which was or
is established or maintained by Sellers, any former or existing
subsidiary of Seller or any member of the "Controlled Group" (as
defined in Section 1563 of the Internal Revenue Code) of which
Sellers or any such subsidiary are or have been a member.
g. Any and all environmental liabilities, of whatever kind or
nature whatsoever associated with or arising from Sellers'
activities prior to the Closing, the Operations prior to the
Closing or the condition of the Real Estate prior to Closing or
the presence of any solid waste, hazardous waste or other
contaminants on or below the Real Estate prior to Closing.
h. Such accounts payable, as Buyer may select, necessary to
reduce the amount of Accounts Payable assumed by Buyer to an
amount not greater than the Adjusted Purchase Price.
I. Any liabilities, expenses or obligations arising from or
relating to claims asserted by third parties to the extent that
such claims arise from a failure to obtain such third party's
consent to either (i) Buyer's assumption of obligations owed to
such third party by either of Sellers; or (ii) Sellers'
assignment to Buyer of rights which either of such Sellers had
with respect to such third parties.
j. Liabilities arising from the terminations of agency,
distributorship or other such agreements pursuant to Section 6.6
below.
k. Any other liabilities or obligations of Seller which are not
expressly assumed by Buyer.
l. Accounts payable retained by Seller.
1.4 Purchase Price; Payment
a. Purchase Price
The purchase price for the Assets shall be the sum of: (i) for
the Assets other than Inventory and Receivables (the "Fixed
Assets"), $3,592,300, decreased by the decline (excluding
depreciation), if any, in the book value of Fixed Assets from
June 30, 1997 to the Closing and increased by the amount, up to
$130,000, spent by Precise for a copying machine and a
drilling/burning machine, both of which are included in the
Fixed Assets (the "Fixed Asset Price"); and (ii) for the
Inventory, the Inventory's book value at Closing (the "Inventory
Price"); and (iii) for the Receivables, 96% of the face amount
of such Receivables, less an adequate reserve for bad debt (the
"Receivables Price").
b. Deduction From Purchase Price
There shall be deducted from the aggregate purchase price of
the Assets the sum of: (i) Vacation Pay; (ii) all accrued
interest, unpaid principal prepayment penalties and other
monetary obligations related to the IRB; (iii) Accounts Payable;
and (iv) the amount which Precise has billed in excess of costs
prior to Closing for raw materials relating to Backlog.
c. Certifications
On or prior to the Closing, Sellers shall certify in writing to
Buyer as to the amount of each of the Fixed Asset Price, the
Inventory Price, the Receivables Price and the amounts to be
deducted from the Purchase Price pursuant to Section 1.4(b)
above, which certifications shall be supported by reasonably
detailed calculations. A condition precedent to either party's
obligation to close shall be Buyer's agreement to the amounts so
certified, which agreement shall not prejudice either parties'
rights under Section 1.4(e) with respect to post-closing adjustments
d. Closing Payments
At the Closing, Buyer, pursuant to the certification and
agreement contemplated in Section 1.4(c), shall pay, to Sellers,
after deducting such amounts as the parties have preliminarily
determined are deductible under Section 1.4(b), the sum of the
Fixed Asset Price, 80% of the Inventory Price and 60% of the
face amount of the Receivables, less an adequate reserve for bad
debt, by depositing $500,000 into escrow pursuant to the Escrow
Agreement in the form of Exhibit 1.4(d) hereto and paying to
Sellers the balance in immediately available funds.
e. Post Closing Adjustments
Within forty-five (45) days after the Closing Date, Buyer shall
conduct an audit to determine as of the Closing, the book value
of the Fixed Assets and Inventory, and the amount properly
deductible under Section 1.4(b), and Sellers shall be given full
opportunity to participate in such audit. Within this
forty-five (45) day period, Buyer shall advise Sellers in
writing of the results of the audit and provide them with a copy
of the audit report. Such notice shall be accompanied by a
check in the amount of the balance, if any, owed with respect to
the Fixed Assets or Inventory or by a request for reimbursement
to the extent the amount paid by Buyer at Closing exceeded the
properly calculated portion of the purchase price allocable to
the Fixed Assets and Inventory, after the deductions set forth
in Section 1.4(b). Sellers shall, within ten (10) days after
receiving such notice, reimburse Buyer for any overpayment made
by Buyer. If the parties are unable to agree as to the balance
due or the amount to be reimbursed, either party may refer the
dispute to binding arbitration, which shall be conducted in
accordance with the rules and procedures of the
American Arbitration Association and which shall constitute the
exclusive method for resolving any such dispute.
f. Receivables
After Buyer has collected from the Receivables an amount equal
to the amount initially paid at Closing by Buyer (60% of the
face amount of the Receivables, less an adequate reserve for bad
debt) for such Receivables (the "Initial Receivables Payment"),
Buyer shall thereafter, on the 20th day of each month, remit to
Sellers 90% of the additional amounts (in excess of the Initial
Receivables Payment) collected by Buyer from the Receivables
during the preceding month. As used herein amounts "collected"
by Buyer shall be amounts remaining after the deduction of
Buyer's out-of-pocket collection expenses incurred with
Precise's consent. If, within 180 days after Closing, the Buyer
has not collected an amount equal to the Initial Receivables
Payment, Sellers shall, at Buyer's option, pay to Buyer the
difference between the Initial Receivables Payment and the
amount collected by Buyer, whereupon ownership of all
uncollected Receivables shall revert to Precise. Unless a
customer specifically allocates a payment to a later outstanding
balance, all payments shall be applied against the oldest
outstanding balance.
g. Definition of Book Value; Work in Process Valuation
As used herein, "book value" shall be determined in accordance
with, generally accepted accounting principles, consistently
applied, with Inventory (subject to the immediately succeeding
paragraph with respect to work-in-process) being valued at the
lower of cost or market, and with the value of the
work-in-process component of Inventory being principally derived
from job estimates.
The value of work-in-process will be calculated based on job
estimates, with the value of on hand materials being the value
of the materials contained in the estimate plus the mark up in
the estimate. The value of applied labor will be based on the
percentage of completion, multiplied by the estimated contract
value of the total labor, which shall include the estimated
profit. The sum of these two values will be the work-in-process
component of Inventory.
2. Transfer and Assignment of Assets; Liabilities
2.1 Instruments of Conveyance and Transfer - The conveyance,
transfer, assignment and delivery of the Assets, other than real
estate, shall be effected by the Sellers' execution and delivery
to the Buyer, on the Closing Date, of a bill of sale and
assignments in the forms attached hereto collectively as Exhibit
2.1, together with such other bills of sale, endorsements,
assignments and other instruments of transfer and conveyance in
form and substance sufficient to vest in the Buyer all of the
Sellers' right, title and interest in and to the Assets, other
than real estate, and as shall reasonably be required by Buyer
or its counsel.
2.2 Real Estate Contract - The Real Estate shall be conveyed
pursuant to the provisions of the Real Estate Contract, which
the parties agree to execute concurrently with the execution of
this Agreement.
2.3 Assignment of Certain Contracts and Rights; Assumption of
Certain Obligations - The conveyance, transfer, assignment and
delivery of Sellers' rights and obligations under certain
contracts commitments and rights shall be effected by Sellers'
and Buyer's execution of an Assignment and Assumption Agreement
in the form of Exhibit 2.3 hereto. The Sellers shall use their
best efforts prior to and, if necessary, after the Closing Date
to obtain such consents or approvals as may be required for the
assignment or transfer of the contracts, agreements, commitments
and rights to be transferred to the Buyer hereunder. If any
such consent or approval is not obtained, the Sellers and the
Buyer agree to cooperate in any reasonable arrangements designed
to provide for the Buyer all of the benefits under such
contract, agreement, commitment or right, including enforcement
for the benefit of the Buyer, at the Sellers' expense, of any
and all rights of the Sellers against the other party or parties
thereto.
2.4 Further Assurances - The Sellers agree that, at any time and
from time to time on and after the Closing Date, they will, upon
the request of the Buyer and without further consideration, take
any and all steps reasonably necessary to place the Buyer in
possession and operating control of the Assets, and will do,
execute, acknowledge and deliver, or will cause to be done,
executed, acknowledged or delivered, all such further acts,
deeds, assignments, transfers, conveyances, powers of attorney
or assurances as may be reasonably required in order fully to
transfer, assign, convey, grant, assure and confirm to the
Buyer, or to aid and assist in the collection of or reducing to
possession by the Buyer of all of the Assets, or to vest in the
Buyer good, valid and marketable title to such Assets.
3. Closing
3.1 Closing Date and Time - The closing of the transactions
provided for herein ("the Closing") shall be deemed to have
taken place at 10:00 a.m. local time on November 12, 1997 at the
offices of Lourie & Cutler, P.C. or at such other time and
place as the parties hereto may mutually agree. The date on
which the Closing occurs is referred to herein as the "Closing
Date".
4. Representations and Warranties of Sellers
The Sellers hereby jointly and severally represent and warrant
to the Buyer as follows:
4.1 Organization and Standing - Each of the Sellers is duly
organized, validly existing and in good standing under the laws
of the state or other jurisdiction of its incorporation or
formation, with full power and authority to sell, own, operate
and lease the businesses and Assets owned, operated and leased
by it, to carry on the business as now being conducted by it, to
enter into this Agreement and to perform all of its obligations
hereunder. Each of the Sellers is duly qualified and is
authorized to do business and is in good standing in each
jurisdiction, domestic and foreign, where the character of the
Assets or the nature of the Operations makes such qualification
necessary.
4.2 Authority - The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have
been duly authorized by all requisite action on the part of each
Seller. This Agreement constitutes the legal, valid and binding
obligation of each Seller, enforceable in accordance with its
terms. Neither the execution nor the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, nor the compliance with or fulfillment of the terms and
provisions hereof, will (a) conflict with or result in a breach
or violation of any of the terms, conditions or provisions of
the Certificate of Incorporation or By-Laws, Trust Agreement or
other governance documents of any of the Sellers; or (b) with or
without the giving of notice or lapse of time or both, conflict
with or result in a breach or violation of, or default or loss
of a benefit under, or permit the acceleration of any obligation
under any provision of any agreement, indenture, mortgage, lien,
lease or other instrument or restriction of any kind to which
any of the Sellers is a party or by which any of the Sellers is
otherwise bound or which would otherwise affect the Assets or
the Operations; or (c) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to any of the
Sellers, the Assets or the Operations. No consent, approval, or
authorization of, or filing or registration with, any
governmental or regulatory authority is required to be obtained
by any of the Sellers in connection with the execution and
delivery of this Agreement or by the consummation of
transactions contemplated hereby.
4.3 Financial Information - Precise's Audited Financial
Statements, which appear as Exhibit 4.3, are in accordance with
the books and records of Precise, are true and complete in all
material respects and were prepared in accordance with generally
accepted accounting principles consistently applied so as to
accurately present the assets and liabilities of Precise as of
the date thereof and the results of Precise's Operations for the
periods shown therein. Since June 30, 1997, Sellers have
conducted the Operations so that none of the activities listed
in Section 6.2(a) have occurred and all of the activities listed
in Section 6.2(b) continuously have occurred.
4.4 Title to Properties, Absence of Liens and Encumbrances - The
Seller has, and shall transfer and convey to Buyer, good and
valid title to all of the Assets, in each case free and clear of
all liens, charges, security interests or other encumbrances of
any nature whatsoever except for permitted encumbrances under
the Real Estate Contract. All contract rights, owned by the
Sellers are (and when transferred and conveyed to the Buyer will
be ) valid, subsisting and in full force and effect in
accordance with their terms. The conduct of the Operations does
not violate any patent or other rights held by third parties.
4.5 List of Properties, Contracts and Other Data
Exhibit 4.5 hereto sets forth, with respect to the Operations
or the Assets as of the date hereof, the following:
a. All patents, trademarks, trade names, copyrights and
servicemarks, and all registrations therefor unexpired as of the
date hereof, all applications pending therefor on said date and
all other proprietary rights included in the Assets;
b. All licenses granted by or to any of the Sellers and all
other agreements to which any of the Sellers is a party which
relate, in whole or in part, to any intellectual property
mentioned in Section 4.5(a) above or to other proprietary rights
included in the Assets;
c. All collective bargaining agreements, employment and
consulting agreements, and all other binding agreements relating
to employment or to the retention of any consultants, and all
other plans, programs, arrangements or materials providing for
benefits to employees employed in the Operations;
d. All unperformed and outstanding written quotations, purchase
orders and the like for the sale or purchase of goods which
arise in the ordinary course of business, pertain to the
Operations, and are with persons or entities unaffiliated with
either of the Sellers, together with any commissions arising
from such purchase orders which will be payable to third
parties that are not affiliated with Sellers. The information
required under this Section 4.5(d) shall be supplemented as to
the Closing Date so as to render such information accurate as of
the Closing Date.
e. All significant contracts, understanding and commitments
(including, without limitation, mortgages, industrial revenue
bonds, indentures and loan agreements) to which any of the
Sellers is a party, or which relate to the Operations and which
are not specifically referred to in (a), (b), (c) and (d) above,
or (f) below; and
f. All Backlog, identifying the customers, products, purchase
orders and amounts previously billed under such purchase orders.
The information required under this Section 4.5(f) shall be
supplemented as of the Closing Date so as to render such
information accurate as of the Closing Date.
g. All computer programs or software used in the Operations.
h. All Receivables.
Except as disclosed in Exhibit 4.5, none of the Sellers has
been notified of any claim, or otherwise has reason to believe,
that any lease, license, patent or other proprietary right,
agreement or contract referred to in such Exhibit 4.5 is not
valid and enforceable in accordance with its terms for the
periods stated therein, or that there is under any such lease,
license, patent or other proprietary right, agreement or
contract any existing default or event of default or event which
with notice or lapse of time or both would constitute such a
default or that any such lease, license, patent or proprietary
right is not fully transferable to Buyer so as to enable Buyer
to receive the benefit thereof.
4.6 Litigation - Except as listed and described in Exhibit 4.6,
there are no actions, suits, proceedings, claims, investigations
or examinations pending or, to the knowledge of any of the
Sellers, threatened which arise from the use of any of the
Assets or the conduct of the Operations, or which question the
validity or seek to prevent the consummation of this Agreement
or the transactions contemplated hereby, whether at law or in
equity, before or by any federal, state or local court or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign. Except as set forth in
Exhibit 4.6, no lawsuit seeking more than $25,000 in damages has
been filed against either of the Sellers during the preceding
five (5) years.
4.7 Taxes
a. All returns, including estimated tax returns, required to be
filed on or prior to Closing Date by any of the Sellers with
respect to any federal, state, local, foreign and other income,
franchise, capital stock, employees' income withholding,
nonresident alien withholding, social security, unemployment,
disability, real property, personal property, sales, use,
transfer and other taxes, including any interest, penalties, or
additions to tax in respect of the foregoing (all the foregoing
collectively referred to as "Taxes"), which, if unpaid, might
result in a lien upon any of the Assets have been duly filed and
are true, correct and complete, and all Taxes payable pursuant
thereto have been paid.
b. All returns, including estimated tax returns, required to be
filed after the Closing Date by any of the Sellers with respect
to Taxes which, if unpaid, might result in a lien on any of the
Assets will be duly filed and will be true, correct and
complete, and all Taxes payable pursuant thereto will be paid.
c. No deficiency or adjustment in respect of any Taxes which
was assessed against any of the Sellers and which might result
in a lien on any Assets remains unpaid and the Sellers have no
knowledge of any assessed deficiency proposed or any audits or
investigations pending or threatened with respect to any such
Taxes against any of the Sellers.
4.8 Employee Relations
a. Exhibit 4.8(a) contains a true and complete list of all
pension, thrift, savings, profit sharing, bonus, incentive,
medical, insurance, benefit, employee welfare, retirement,
disability, group insurance, stock purchase, stock option, stock
appreciation, executive or deferred compensation, group life
insurance, hospitalization insurance or other fringe or employee
benefit plans, programs or arrangements, and any employment or
consulting contracts, collective bargaining agreements,
severance agreements or plans, or vacation or sick leave plans,
and all employee manuals or other written statements of policies
or practices relating to employment, which are provided to, for
the benefit of, or relate to, any persons employed by Precise
or, to the extent related to the Operations, F&G (collectively,
the "Employment Agreements").
b. The Sellers have in all material respects performed all
obligations required by the terms of the above-described
Employment Agreements to be performed thereunder, and are not in
violation in any material respect of, and have no knowledge of
any material default or violation by any other party to, any of
the Employment Agreements.
c. Except as set forth in Exhibit 4.8(c), there are no
controversies pending or threatened between the Sellers and any
of their employees, former employees, employees' collective
bargaining representatives, job applicants or any association or
group of such persons. The Seller has complied in all material
respects with all federal, state, local or foreign laws relating
to the employment of labor, including any provisions thereof
relating to wage, hours, and the payment of social security and
similar taxes, and are not liable for any arrears of wages, or
any taxes or penalties for failure to comply with any of the
foregoing.
d. Except as set forth in Exhibit 4.8(d), none of the Sellers
(i) is a party to, otherwise involved in, or, to the best of its
knowledge, threatened by, any labor dispute, unfair labor
practice charge or other administrative, governmental, judicial
or appellate proceeding or investigation directly or indirectly
arising out of the wages, hours or other terms or conditions or
employment of any person who applied for employment, or was or
is now employed, by any of the Sellers; (ii) is currently
negotiating, or is subject to any order, judgment, decree or
injunction of any court, regulatory authority, arbitrator or
other tribunal requiring it to negotiate, any collective
bargaining agreement with regard to persons employed by the
Sellers; or (iii) has experienced any stoppage of work
whatsoever during the preceding three (3) years.
e. Buyer is not assuming and Sellers shall retain all
responsibilities for any liability associated with the
Employment Agreements.
f. Nothing in this Agreement, expressed or implied, is intended
to confer upon Sellers' employees, former employees, collective
bargaining representatives, job applicants, any association or
group of such persons any rights or remedies of any nature or
kind whatsoever under or by reason of this Agreement, without
limitation, any rights of employment.
4.9 Inventories - The Inventory consists of inventories of the
kind, quality and condition normally used or produced in the
Operations and all Inventory is of domestic origin with proper
material certifications, except to the extent set forth in
Exhibit 4.9 The quantities of each type within the Inventory
are not excessive but are reasonable and warranted in the
present circumstances of the Operations. All work-in-process
and finished goods inventory is free of any defect or deficiency.
4.10 Government Approvals - Exhibit 4.10 hereto contains a true
and correct list of all material authorizations, consents,
licenses, permits, orders and other registrations and permits of
all governmental agencies (including building, occupancy, and
environmental permits), whether federal, state or local,
domestic or foreign, required to permit the conduct of the
Operations as presently conducted.
4.11 Insurance - Exhibit 4.11 contains a true and complete list
of all policies and binders of insurance covering any of the
Assets or relating to the Operations. Except as described on
such Exhibit 4.11, no claim in excess of $5,000 has been made
under any such policy or any similar policy during the past five
(5) years. Prior to Closing, Seller shall have extended its
general liability policy through June 14, 1999.
4.12 No Defaults - None of the Sellers is in violation of or in
default with respect to any contract, agreement, lease, mortgage
or other instrument, or any covenant or restriction or any law,
rule, regulation, order, writ or decree of any court or of any
governmental department, commission, board, bureau, agency or
instrumentality, federal, state, local, domestic or foreign,
which violation or default would or, so far as can reasonably be
foreseen, could have a material adverse affect on the Assets or
the Operations, or on the ability of any of the Sellers to
perform their obligations hereunder, and there has not occurred
any event which, with notice or lapse of time or both, would
constitute such a violation or default.
4.13 Brokers - Except for Seller's retention of O'Conor, Wright
Wyman, Inc., the Sellers have not engaged or authorized any
broker, finder, investment banker or other third party to act on
its behalf, directly or indirectly, as a broker, finder,
investment banker or in any other like capacity in connection
with this Agreement or the transactions contemplated hereby, or
has consented to or acquiesced in anyone's so acting, or knows
of any claim for compensation for so acting or of any basis for
such a claim. Sellers shall be solely liable for any fees or
costs payable to O'Conor, Wright Wyman, Inc.
4.14 Compliance with Applicable Law - The conduct of the
Operations does not violate or infringe upon any, and is in
compliance with all, domestic or foreign laws, statutes,
ordinances or regulations or any right or patent, trademark,
trade name, copyright, know-how or other proprietary right of
third parties, the violation or infringement of which would
adversely affect the Operations.
4.15 Violations - Sellers have received no notice of any
violation of any building, fire, zoning, environmental, health
or other law with respect to the Operations within the last five
(5) years.
4.16 Assigned Contracts - With respect to any contracts,
including the Backlog, to be assigned to or assumed by Buyer,
Sellers have neither billed nor received funds disproportionate
to the amount of goods shipped or services performed.
4.17 Adverse Effects - None of the representations or warranties
of Sellers contained herein and none of the other information or
documents furnished or to be furnished to Buyer or any of its
representatives by Sellers or their representatives pursuant to
the terms of this Agreement, is false or misleading in any
material respect or, to the best of Sellers' knowledge, omits to
state a fact herein or therein necessary to make the statements
herein or therein not misleading in any material respect.
4.18 Condition and Sufficiency of Plant and Equipment - The
buildings, plants, structures and Equipment included with the
Assets are structurally sound with no known defects, are in good
operating condition and repair and are adequate for the uses to
which they are being put, and none of such building, plants,
structures or Equipment is in need of maintenance or repairs
except for ordinary, routine maintenance and repairs that are
not material in nature or cost. The building, plants,
structures, land, Equipment and Proprietary Information included
within the Assets are sufficient for the continued conduct,
substantially as conducted at any time since June 30, 1997, of
the Operations after the Closing.
4.19 Certification - Precise possesses AISC certification for
complex buildings and complex bridges. A copy of such
certification is attached hereto as Exhibit 4.19.
4.20 Approved Fabrication - Except for products identified in
Exhibit 4.20, Precise is on the Massachusetts Highway
Department's list of approved fabricators for all products sold
by Precise for the three year period prior to June 30, 1997.
4.21 Preferences - Except as set forth in Exhibit 4.21, Precise
has not obtained any business or sales due to Precise being a
small business domiciled in Massachusetts or the beneficiary of
any other preference that Precise knows or should know may not
be available to Foster.
4.22 Receivables - The Receivables have arisen from bona fide
transactions in the ordinary course of business and consistent
with past practice. Except as otherwise consistent with past
practice, each sale involved with respect to a Receivable will
have been sold and delivered to the account obligor, and no
further goods or services will be required to be provided in
order to complete such sale and to entitle the Seller or their
respective assignees to collect the Receivable in full. No
Receivable has been or will have been assigned or pledged to any
other person, firm or corporation and no defense or setoff to
any such Receivable has been asserted by the account obligor.
5. Representations and Warranties of Buyer
The Buyer hereby represents and warrants to Sellers as follows:
5.1 Organization and Standing - The Buyer is a corporation duly
organized and validly existing under the laws of the State of
Delaware. The Buyer has full corporate power and authority to
acquire, own, lease and operate the Assets to be conveyed to it,
to carry on the Operations, to enter into this Agreement and to
perform all of its obligations hereunder.
5.2 Authority
a. The execution and delivery by the Buyer of this Agreement,
and the consummation of the transactions contemplated hereby,
have been duly authorized by all requisite corporate action on
the part of Buyer. This Agreement constitutes the legal, valid
and binding obligation of the Buyer, enforceable in accordance
with its terms. Neither the execution nor the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby or thereby, nor the compliance with or fulfillment of the
terms and provisions hereof, will (i) conflict with or result in
a breach or violation of any of the terms, conditions or
provisions of the Certificate of Incorporation or By-Laws of the
Buyer; or (ii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Buyer or any of
its assets or properties, which breach, violation, conflict or
default would have a material adverse effect on the Buyer.
b. No consent, approval or authorization of, or filing or
registration with, any governmental or regulatory authority is
required to be obtained by the Buyer in connection with the
execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby.
5.3 Brokers - The Buyer has not engaged or authorized any
broker, finder, investment banker or other third party to act on
its behalf, directly or indirectly, as a broker, finder,
investment banker or in any other like capacity in connection
with this Agreement or the transactions contemplated hereby, nor
has it consented to or acquiesced in anyone's so acting, or
knows of any claim for compensation for so acting or of any
basis for such a claim.
6. Covenants of the Seller
6.1 Access to Properties, Books and Records; Title Reports
Prior to the Closing Date, the Sellers shall, at the Buyer's
request, afford or cause to be afforded to the agents,
attorneys, accountants and other authorized representatives of
the Buyer, reasonable access to all suppliers, agents,
distributors, consultants, employees, properties, books and
records relating to the Assets and the Operations and shall
permit such persons, at Buyer's expense, to make copies of such
books and records and to discuss with said suppliers, agents,
distributors, consultants and employees the transactions herein
contemplated. The Buyer will treat all information obtained
pursuant to this Section 6.1 as confidential unless and until
the purchase and sale of the Assets shall be consummated. No
investigation by Buyer or any of its representatives pursuant to
this Section 6.1 shall affect any representation, warranty or
closing condition of any party hereto. Sellers waive the
provisions of any previously executed confidentiality agreement
to the extent necessary or appropriate to permit the
investigation contemplated herein. Sellers also waive the
provisions of the confidentiality agreement to the extent
necessary or appropriate to permit Buyer to discuss the
prospects of the Operations and the Products related thereto
with Sellers' customers.
6.2 Conduct of Operations
a. Except with the prior written consent of the Buyer, the
Sellers shall not prior to the Closing Date:
(i) mortgage, pledge or subject to any lien, security interest
or encumbrance, any of the Assets;
(ii) sell, assign, transfer, lease or otherwise dispose of any
of the Assets, except for sales of inventory in each case for
fair value in the ordinary course of business and consistent
with past practice;
(iii) amend, terminate or waive any right of material value
relating to the Operations;
(iv) other than in the ordinary course of business, enter into,
modify, amend or assume any contract, agreement, obligation,
lease, license or commitment relating to the Operations which by
its terms requires performance subsequent to the Closing Date or
which involves an aggregate monetary commitment or exposure for
all such contracts in excess of $50,000;
(v) incur any obligation or liability (fixed or contingent),
except normal trade or business obligations incurred in the
ordinary course of business and consistent with past practice,
which will not either individually or in the aggregate adversely
affect the Operations;
(vi) transfer or grant any rights under any concessions, leases,
licenses, patents, inventions, trademarks, trade names,
servicemarks or copyrights or with respect to any know-how, in
each case included in the Assets;
(vii) prebill for unperformed services or unshipped goods or
bill any amount disproportionate to services performed or goods
shipped; or
(viii) agree to commit to do any of the foregoing.
b. Except as otherwise permitted by this Agreement or with the
prior written consent of the Buyer, prior to the Closing Date,
the Sellers shall:
(i) conduct the Operations as presently operated and only in the
ordinary course and consistent with past practice and use their
best efforts to preserve intact each of their respective
business organizations (including the retention of those key
employees which Buyer identifies in writing as "Key Employees")
and to preserve their relationships with and goodwill of their
customers, suppliers and other persons having business dealings
with them;
(ii) maintain in force all existing casualty and liability
insurance policies and fidelity bonds relating to the Assets or
the Operations, or policies or bonds providing substantially the
same coverage;
(iii) advise the Buyer in writing of any material adverse change
or any event, to cause a material adverse change in the
condition (financial or otherwise), assets, liabilities or
earnings of the Sellers;
(iv) maintain all of the Assets in good operating condition,
reasonable wear and tear excepted, consistent with past
practice, and take all steps reasonably necessary to maintain
the intangible Assets; and
(v) maintain, consistent with past practice, all inventories,
spare parts, office supplies and other expendable items included
in the Assets;
(vi) bill customers only in amounts proportionate to services
actually performed or goods actually shipped; and
(vii) pay creditors in accordance with normal practices and in
the ordinary course of business.
6.3 Non-Competition; Confidentiality - For a period of sixty
(60) months after the Closing Date, neither of the Sellers
shall, nor shall they permit their respective subsidiaries to,
directly or indirectly own, manage, operate, join, control or
participate in the ownership, management, operation or control
of, or be connected in any manner with the design, development,
manufacture, fabrication, or sale of any product which is the
same or similar to products associated with the Operations as
they have been conducted by either of the Sellers at any time
prior to the Closing Date or engage, directly or indirectly, in
any fabricating or manufacturing technique, method or process
similar to any of those utilized in or applicable to the
Operations; provided, however, that nothing contained in this
Section 6.3 shall in any manner prohibit the ownership or
acquisition by any of the Sellers or such subsidiaries of five
percent (5%) or less of the outstanding voting securities of
any publicly held corporation or other business enterprise. The
Sellers agree that the remedy at law for any breach by them of
this Section 6.3 would be inadequate and the Buyer would be
entitled to injunctive relief in such a case, as well as any
other remedies provided herein or at equity or in law. It is
the intent and understanding of each party hereto that if in any
action before any court or agency legally empowered to enforce
this Section 6.3, any term, restriction, covenant or promise in
this Section 6.3 is found to be unreasonable and for that reason
unenforceable, then such term, restriction, covenant or promise
shall be deemed modified to the extent necessary to make it
enforceable by such court or agency.
Sellers agree to regard and preserve as confidential all
Proprietary Information pertaining to the Operations that has
been or may be obtained by Sellers, whether Sellers had such
information in its memory or in writing or other physical form.
Sellers will not, without written authority from the Buyer to do
so, use for Sellers' benefit or purposes, nor disclose to
others, any Proprietary Information connected with the
Operations.
For purposes of this Agreement, "Proprietary Information" shall
mean any information relating to Operations and shall include
(but shall not be limited to) information encompassed in all
drawings, designs, plans, proposals, marketing and sales plans,
financial information, costs, pricing information, customer
information and all methods, concepts or ideas in or reasonably
related to the Operations.
6.4 Use of Names - Sellers agree that from and after the Closing
Date, neither they nor any of their affiliates shall directly or
indirectly own, manage, operate, control or otherwise
participate in any business using the name Precise or any
variant thereof and that none of them will license, grant,
transfer or otherwise authorize or encourage the use of such
name or any variant thereof. As promptly as practicable after
the Closing Date, Precise shall cause its corporate name to be
changed to a name which does not contain the word "Precise" or
any similar word.
Without limiting the right of Buyer to pursue all other legal
and equitable rights available to it for violation of this
Section 6.4, Sellers agree that other remedies cannot fully
compensate Buyer for such a violation and that Buyer shall be
entitled to injunctive relief to prevent violation or continuing
violation thereof. It is the intent and understanding of each
party hereto that if, in any action before any court or agency
legally empowered to enforce this Section 6.4, any term,
restriction, covenant or promise in this Section 6.4 is found to
be unreasonable and for that reason unenforceable, then such
term, restriction, covenant or promise shall be deemed modified
to the extent necessary to make it enforceable by such court or
agency.
6.5 Payment of Creditors - Seller shall cause all of Sellers'
Liabilities to be satisfied in the ordinary course of business.
6.6 Termination of Agents, Distributors, etc. - Upon the request
of Buyer, and subsequent to the Payment Date, Sellers shall
terminate, in accordance with the provisions of any relevant
agreement, any agent, distributorship, consulting or similar
agreement that relates to the Operations and to which either of
the Sellers is a party. Nothing herein shall be deemed to
require Sellers to terminate any agreement prior to the date it
is terminable by notice in accordance with its terms.
6.7 Pre-Closing Claims - Sellers shall retain responsibility for
and continue to pay all hospital, medical, life insurance,
disability, pension, supplemental unemployment and other welfare
or ERISA plan expenses and benefits for each of their respective
employees who is hired by Buyer with respect to claims incurred
by such employees or their covered dependents prior to the
Closing Date. Expenses and benefits with respect to claims by
any person employed by Buyer or their covered dependents which
arise from occurrences on or after the Closing Date shall be the
responsibility of Buyer, subject to Sellers' COBRA continuation
obligations, in accordance with the terms of any applicable
welfare plan maintained for such employees by Buyer. Sellers
will retain responsibility for, and continue to pay, any life,
health, pension or other welfare or retirement benefits payable
to each employee of Sellers' who retired prior to the Closing
Date.
6.8 Severance Pay - Sellers will retain responsibility for, and
will make, payment of any severance pay that may become payable
after the Closing Date to any of their respective employees as a
result of the termination by either of Sellers of such employees employment.
7. Public Announcements
Neither Sellers nor the Buyer intend to make any public
announcement or press release, or otherwise disclose any
information relating to the execution of this Agreement or any
transactions contemplated hereby prior to the Closing Date.
Each party, however, reserves the right to make such statements
as are appropriate, in the opinion of its counsel, under the
securities laws of the United States or any state thereof, by
the rules or regulations of NASDAQ, or by applicable law;
provided, however, that prior to making any such statements, the
party desiring to make the statement shall give reasonable
notice to the other party so as to afford the other party the
opportunity to comment on the statement.
8. Conditions to Obligations of Sellers
The obligations of the Sellers to sell the Assets hereunder are
subject to the fulfillment, on or before the Closing Date, of
each of the following conditions:
8.1 Compliance with Agreement - The Buyer shall have performed
in all material respects all obligations which it is required to
perform under this Agreement on or before the Closing Date.
8.2 Representations and Warranties - The representations and
warranties made by the Buyer herein shall be true and correct in
all respects on and as of the Closing Date as though such
representations and warranties were made on and as of such time.
8.3 Certificate of Buyer - On the Closing Date, the Buyer shall
have delivered to the Sellers a certificate, duly executed by an
executive officer of Buyer, as to the fulfillment of the
conditions set forth in Sections 8.1 and 8.2 hereof.
8.4 All Proceedings to be Satisfactory - All corporate and other
proceedings to be taken by the Buyer in connection with the
transactions contemplated hereby and all documents incident
thereto shall be reasonably satisfactory in form and substance
to the Sellers and their counsel, and the Sellers and their
counsel shall have received all such certified or other copies
of such documents as it or they may reasonably request.
8.5 Opinions of Counsel - The Sellers shall have received the
written opinions of David L. Voltz, General Counsel of Buyer,
dated and delivered as of the Closing Date, substantially to the
effect set forth in Exhibit 8.5 hereto.
9. Conditions to Obligations of Buyer
The obligations of the Buyer to purchase the Assets hereunder
are subject to the fulfillment, on or before the Closing Date,
of each of the following conditions:
9.1 Compliance with Agreement - Each of the Sellers shall have
performed in all material respects all obligations which it is
required to perform under this Agreement on or before the
Closing Date.
9.2 Representations and Warranties - The representations and
warranties made by the Sellers herein shall be true and correct
in all respects on and as of the Closing Date as though such
representations and warranties were made on and as of such time.
9.3 Certificate of Sellers - On the Closing Date, the Sellers
shall have delivered to the Buyer a certificate, duly executed
by an executive officer, as to the fulfillment of the conditions
set forth in Sections 9.1 and 9.2 hereof.
9.4 Board, Shareholder Approval - The boards of directors and
the shareholders of Precise shall have approved the execution,
delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
9.5 All Proceedings to be Satisfactory - All corporate and
other proceedings to be taken by the Sellers in connection with
the transactions contemplated hereby and all documents incident
thereto shall be reasonably satisfactory in form and substance
to the Buyer and its counsel, and the Buyer and its counsel
shall have received all such certified or other copies of such
documents as it or they may reasonably request.
9.6 Opinions of Counsel - The Buyer shall have received the
written opinions of counsel for the Sellers, dated and delivered
as of the Closing Date, substantially to the effect set forth in
Exhibit 9.6 hereto.
9.7 Consents and Approvals - There shall have been obtained all
consents, releases and/or approvals of third parties required,
in Buyer's opinion, to permit Buyer both (i) to acquire at the
Closing all of Sellers' rights, title and interest in and to
the Assets; (ii) to conduct the Operations after the Closing in
substantially the same manner as such Operations were conducted
prior to the Closing; (iii) to release any colorable lien or
encumbrances on the Assets, except for permitted encumbrances
under the Real Estate Contract.
9.8 Carolina Steel - Buyer shall have been satisfied, in its
sole discretion, that it will have a substantially similar
arrangement to that enjoyed by Precise prior to Closing with
Carolina Steel Corporation after the Closing.
10. Conditions Precedent to Obligations of Both Sellers and Buyer
Sellers' and Buyer's respective obligations to consummate the
transactions contemplated herein shall each be subject to the
fulfillment on or before the Closing Date, of each of the
following conditions:
a. Employment and Non-Compete agreements shall have been
executed by Buyer and Franklin B. Davis; and by Buyer and George
H. Nelson, Jr.
b. The parties shall have made the joint determinations required
under Section 1.4(c).
c. Individual guaranties by each Franklin B. Davis and George H.
Nelson, Jr. of Sellers' obligations hereunder shall have been
duly executed in form and content satisfactory to Sellers and
Buyer.
d. The IRB shall have been assumed by Foster on terms
satisfactory to Sellers and Foster.
e. The Real Estate shall have been conveyed to Foster pursuant
to the provisions of the Real Estate Contract.
11. Termination
This Agreement may be terminated by mutual written consent of
the Buyer and the Sellers.
12. Bulk Sales Law
The Buyer and Sellers agree that Sellers need not comply with
the provisions of any Bulk Sales Law, including, without
imitation, the bulk transfer provisions of the Uniform
Commercial Code of any state, or any similar statute, if and to
the extent applicable to the transactions contemplated by this
Agreement. Sellers agree to indemnify and hold Buyer harmless
from and against any and all claims, liabilities, damages,
expenses and attorneys' fees arising from failure to comply with
the Bulk Sales Act.
13. Return of Funds; Assistance
In the event either of the Sellers receive funds subsequent to
the Closing which belong to Buyer, Sellers shall cause such
funds to be delivered to Buyer within 72 hours after either of
Sellers initially received such funds. In the event Buyer
should receive funds subsequent to the Closing which belong to
either of the Sellers, Buyer shall cause such funds to be
delivered to either of Sellers within 72 hours after Buyer
initially received such funds.
14. Warranty Work
If it is necessary or appropriate for Buyer to perform warranty
work due to any defects in goods arising from Sellers conduct of
the Operations prior to the Closing, Sellers shall, without
limitation on any other rights or liabilities, reimburse Buyer
for Buyer's actual and reasonable costs in performing such
warranty work within thirty (30) days after Buyer's completion
of such warranty work; provided that Buyer shall give Sellers
notice prior to commencing such warranty work so as to provide
Sellers with a reasonable time to investigate Sellers'
responsibility for such warranty work.
15. Amendment and Waivers
15.1 Amendments, Modifications, Etc. - At any time prior to the
Closing Date, this Agreement may be amended, modified or
supplemented only by an instrument in writing executed and
delivered on behalf of each of the parties hereto, which
instrument when so executed and delivered shall thereupon become
a part of this Agreement and the provisions thereof shall be
given effect as if contained in this Agreement as of the date
hereof.
15.2 Waivers - The representations, warranties, covenants or
conditions set forth in this Agreement may be waived only by a
written instrument executed by the party so waiving. The
failure of any party at any time or times to require performance
of any provision thereof shall in no manner affect the right of
such party at a later time to enforce the same. No
waiver by any party of any condition, or breach of any term,
covenant, agreement, representation or warranty contained in
this Agreement, in any one or more instances, shall be deemed to
be or construed as a waiver of any other condition or of the
breach of any other term, covenant, agreement, representation or
warranty contained in this Agreement.
16. Survival of Representations and Warranties
All representations, warranties and covenants of the parties
hereto contained in this Agreement or made pursuant hereto shall
survive for twenty-four (24) months following the Closing and
shall thereafter terminate except as to matters to which a party
shall have given written notice of any claim within such period;
provided, however, that (a) the covenants contained in Sections
2.1, 2.2, 2.3, 2.4, 6.3, 6.4, 6.5 6.6 and 28 shall survive until
such covenants have been performed; (b) the covenant regarding
confidentiality contained in Sections 6.1 and 7 (or any other
obligation of confidentiality owed to Seller by Buyer) shall not
survive beyond the Closing Date; and (c) no limitation shall
exist with respect to Sellers' Liabilities.
17. Indemnification
17.1 Indemnification by Sellers - Subject to the terms and
conditions of this Section 17, the Sellers hereby agree to
indemnify and save harmless the Buyer and its affiliates from,
against, for and in respect of:
a. Sellers' Liabilities and any and all liabilities, obligations
or claims, whether absolute, accrued, contingent or otherwise
and whether a contractual, statutory, tax or any other type of
liability, obligation or claim (including, without limitation,
all reasonable costs and expenses, including reasonable
attorney's fees, interest and penalties), suffered, sustained,
incurred or required to be paid by the Buyer or its affiliates
and arising from or relating to Operations or the use of the
Assets on or prior to the Closing Date; and
b. any and all damages, losses, obligations, liabilities,
claims, actions or causes of action, encumbrances, costs and
expenses (including, without limitation, reasonable attorneys'
fees, interest and penalties) suffered, sustained, incurred or
required to be paid by the Buyer or any of its affiliates
because of the untruth, inaccuracy or breach of any
representation, warranty, covenant or agreement of any of the
Sellers contained in or made pursuant to this Agreement;
provided that any claim or indemnification pursuant to this
paragraph 17.1(b) shall be asserted, by written notice, no later
than twenty-four (24) months after the Closing Date (or, if such
claim is based upon a covenant or agreement which, pursuant to
Section 16 hereof, survives until a later date, then such claim
shall be so asserted prior to such later date; provided,
however, that the provisions of this Section 17.1(b) shall be
inapplicable until the aggregate amount of liabilities,
obligations, damages, and expenses suffered or sustained by the
Buyer or to which Buyer becomes subject which would otherwise be
covered by the indemnity in this Section 17.1(b) exceeds in the
aggregate Fifty Thousand Dollars ($50,000). The above proviso
shall not, however, be applicable to: (i) the determination of
deductions from the Purchase Price pursuant to Section 1.4(b);
(ii) the obligation to make post-closing adjustments pursuant to
Section 1.4(e), (iii) all obligations with respect to
Receivables under Section 1.4(f); (iv) the obligation to return
Buyer's funds pursuant to Section 13 hereof; (v) the obligation
to perform warranty work pursuant to Section 14 hereof; and (vi)
obligations to share proceeds under Section 28.
17.2 Indemnification by Buyer - Subject to the terms and
conditions of this Section 17, the Buyer hereby agrees to
indemnify and save harmless the Sellers and their affiliates
from, against, for and in respect of any and all damages,
losses, obligations, liabilities, claims, actions or causes of
action, encumbrances, costs and expenses (including, without
limitation, reasonable attorneys' fees, interest and penalties)
suffered, sustained, incurred or required to be paid by the
Sellers or any of their affiliates (a) because of the untruth,
inaccuracy or breach of any representation, warranty, covenant
or agreement of the Buyer contained in or made pursuant to this
Agreement; and (b) to the extent arising (other than from
Sellers' Liabilities) from Buyer's use of the Assets or the
Operations subsequent to the Closing Date, provided that any
claim for indemnification pursuant to this Section 17.2 shall be
asserted, by written notice, no later than twenty-four (24)
months after the Closing Date (or, if such claim is based upon a
covenant or agreement which, pursuant to Section 16 hereof,
survives until a later date, then such claim shall be so
asserted prior to such late date); provided, however, that the
provisions of Section 17.2(a) shall be inapplicable until the
aggregate amount of liabilities, obligations, damages and
expenses suffered or sustained by the Sellers or to which
Sellers become subject which would otherwise be covered by the
indemnity in Section 17.2(a) exceeds in the aggregate Fifty
Thousand Dollars ($50,000). The above proviso shall not,
however, be applicable: (i) to Buyer's assumption of certain
liabilities pursuant to Sections 1.3(i), - (v), inclusive
hereinabove; (ii) the obligation to return Sellers' funds
pursuant to Section 13; (iii) the obligation to make
post-closing adjustments pursuant to Section 1.4(e); (iv) all
obligations with respect to Receivables under Section 1.4(f);
and (v) obligations to share proceeds under Section 28.
17.3 Procedure for Indemnification with Respect to Third Party
Claims - The obligations and liabilities of any party against
which indemnification is sought ("Indemnifying Party") hereunder
with respect to claims resulting from the assertion of liability
by third parties shall be subject to the following terms and
conditions:
a. Any party seeking indemnification hereunder ("Indemnified
Party") agrees to give prompt written notice to any Indemnifying
Party of any claim by a third party which might give rise to a
claim based on the indemnity agreements contained in Sections
17.1 and 17.2 hereof, stating the nature and basis of said claim
and the amount thereof, to the extent known. The Indemnifying
Party shall satisfy its obligation to indemnify the Indemnified
Party under this Section 17 within thirty (30) days after
receipt of the foregoing notice unless the Indemnifying Party
shall have elected to defend in good faith such claim as
provided in subsection (b) hereof.
b. In the event the Indemnified Party shall notify the
Indemnifying Party of any claim pursuant to subsection (a)
hereof, the Indemnifying Party shall have the right to elect to
defend such claim (including all actions, suits, proceeding and
all proceedings on appeal or for review which counsel deem
appropriate) with counsel reasonably satisfactory to the
Indemnified Party by written notice to the Indemnified Party
within thirty (30) days after receipt of such notice. The
Indemnified Party shall make available to the Indemnifying Party
and its attorneys and accountants all books and records of the
Indemnified Party relating to such proceedings or litigation,
and the parties hereto agree to render to each other such
assistance as they may reasonably require of each other in order
to ensure the proper and adequate defense of any such action,
suit or proceeding.
c. So long as the Indemnifying Party is defending in good faith
any such claim, the Indemnified Party shall not compromise or
settle such claim, without the written consent of the
Indemnifying Party.
17.4 Procedure for Claims by Buyer or Sellers - In the event
that the Buyer or the Sellers shall seek indemnification
hereunder by the other with respect to any claims (other than by
third parties), the party seeking indemnification shall give
prompt written notice of such claim, stating the nature and
basis of said claim and the amount thereof, to the extent known.
Within thirty (30) days after receipt of such notice, the other
party shall either pay the amount of such claim or set forth in
writing any dispute with respect to such claim.
18. Expenses
Each party hereto shall pay its own expenses incidental to the
preparation of this Agreement, the carrying out of the
provisions hereof, and the consummation of the transactions
contemplated hereby.
19. Notices
All notices or other communications required or permitted under
this Agreement shall be in writing and shall be deemed to have
been duly given if delivered by telex, telegram, telecopy or
personally, or five (5) days after mailing if sent by registered
or certified mail, postage prepaid, addressed as follows:
If to Buyer:
L.B. Foster Company
415 Holiday Drive
Pittsburgh, PA 15220
Attention: Chief Executive Officer
With a copy to:
L.B. Foster Company
415 Holiday Drive
Pittsburgh, PA 15220
Attention: General Counsel
If to Sellers:
Franklin B. Davis
360 Walnut Street
Lynnfield, MA 01940
George H. Nelson, Jr.
9 Arrowhead Drive
Groveland, MA 01834
With a copy to:
David R. Andelman, Esq.
Lourie & Cutler, P.C.
60 State Street
Boston, MA 02109
20. Access to Records after Closing
For a period of three (3) years after the Closing Date, Sellers
and their representatives shall have reasonable access to all of
the books and records of Sellers transferred to Buyer hereunder
to the extent that such access may reasonably be required by
Sellers in connection with matters relating to or affected by
the operations of Sellers prior to the Closing Date or related
to any obligation of Sellers not assumed by Buyer pursuant to
this Agreement. Such access shall be afforded by Buyer upon
receipt of reasonable advance notice and during normal business
hours. Seller shall be solely responsible for any costs or
expenses incurred by it pursuant to this Section 20. If Buyer
shall desire to dispose of any of such books and records prior
to the expiration of such three year period, Buyer shall, prior
to such disposition, give Sellers a reasonable opportunity, at
Sellers' expense, to segregate and remove such books and records
as Sellers may select.
For a period of three (3) years after the Closing Date, Buyer
and its representatives shall have reasonable access to all of
the books and records which Sellers or any of its affiliates may
retain after the Closing Date. Such access shall be afforded by
Sellers and its affiliates upon receipt of reasonable advance
notice and during normal business hours. Buyer shall be solely
responsible for any costs and expenses incurred by it pursuant
to this Section 20. If Sellers or any of its affiliates shall
desire to dispose of any of such books and records prior to the
expiration of such three-year period, Sellers shall, prior to
such disposition, give Buyer a reasonable opportunity, at
Buyer's expense, to segregate and remove such books and records
as Buyer may select.
21. Entire Agreement; Amendments
This Agreement and the Exhibits referred to herein and the
documents delivered pursuant hereto contain the entire
understanding of the parties hereto with regard to the subject
matter contained herein or therein, and supersede all prior
agreements, understandings or intents between or among any of
the parties hereto. The parties hereto, by mutual agreement in
writing, may amend, modify and supplement this Agreement.
22. Interpretation
Article titles and headings to sections herein are inserted for
convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
The Exhibits referred to herein shall be construed with and as
an integral part of this Agreement to the same extent as if they
were set for verbatim herein. Words of number may be read as
singular or plural, as required by context. The authorship of
this Agreement shall be irrelevant to its interpretation.
23. Waivers
Any term or provision of this Agreement may be waived, or the
time for its performance may be extended, by the party or
parties entitled to the benefit thereof. The failure of any
party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such
provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any party
thereafter to enforce each and every such provision. No waiver
of any breach of this Agreement shall be held to constitute a
waiver of any other or subsequent breach.
24. Partial Invalidity
Wherever possible, each provision hereof shall be interpreted in
such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision or provisions had
never been contained herein unless the deletion of such
provision or provisions would result in such a material change
as to cause completion of the transactions contemplated hereby
to be unreasonable.
25. Joint and Several
Each of Sellers shall be severally liable for Sellers'
obligations and liabilities under this Agreement.
26. Successor and Assigns
a. The rights of Sellers under this Agreement shall not be
assignable by any such party prior to the Closing without the
written consent of Buyer and the rights of Buyer under this
Agreement shall not be assignable by Buyer prior to the Closing
without the written consent of Sellers, except that the rights
of Buyer hereunder may be assigned prior to the Closing, without
the consent of Sellers, to any corporation all of the
outstanding capital stock of which is owned or controlled by
Buyer; provided that (i) the assignee shall assume in writing
all of Buyer's obligations to Sellers hereunder; and (ii) Buyer
shall not be released from any of its obligations hereunder by
reason of such assignment. Following the Closing, either party
may assign any of its rights hereunder, but no such assignment
shall relieve it of its obligations hereunder.
b. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors and permitted
assigns. The successors and permitted assigns hereunder shall
include, without limitation, in the case of Buyer, any permitted
assignee as well as the successors in interest to such permitted
assignee (whether by merger, liquidation (including successive
mergers or liquidations) or otherwise) or any subsequent
purchaser of any of the Assets. Nothing in this Agreement,
expressed or implied, is intended or shall be construed to
confer upon any person other than the parties and successors and
assigns permitted by this Section 26(b) any right, remedy or
claim under or by reason of this Agreement.
27. Execution in Counterparts
This Agreement may be executed in one or more counterparts, each
of which shall be considered an original instrument, but all of
which shall be considered one and the same agreement, and shall
become binding when one or more counterparts have been signed by
each of the parties and delivered to each of Sellers and Buyer.
28. Proceeds from the sale of used ornamental railing, which is
included in the Assets but which did not reflect any asset value
within Precise's June 30, 1997 balance sheets included in
Exhibit 4.3, shall be divided equally between Foster and Precise.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound, have duly executed and delivered this Agreement as of the
date first above written.
ATTEST: L. B. FOSTER COMPANY
/s/David L. Voltz By: /s/Lee B. Foster
- ---------------------------- ----------------------
David L. Voltz Lee B. Foster
Title: President and Chief
Executive Officer
F&G REALTY TRUST
/s/Franklin B. Davis
----------------------
Trustee - Franklin B. Davis
/s/George H. Nelson, Jr.
------------------------
Trustee - George H. Nelson, Jr.
ATTEST: PRECISE FABRICATING CORPORATION
/s/George H. Nelson, Jr. By: /s/ Franklin B. Davis
- ----------------------------- ---------------------------
George H. Nelson, Jr. Franklin B. Davis - President
Title: President
---------------------------