Document 3NxO4g2xZO29mX4nk6wbX13oD

AGREEMENT 6 THIS AGREEMENT, made and entered into as of this 2* day . of November, 1960, by and between Crane Co., an Illinois corporation with an office in Chicago, Illinois, (hereinafter called Crane), and Cochrane Corporation, a Pennsylvania corporation with an office in Philadelphia, Pennsylvania, (hereinafter called Cochrane, WITNESSETH: WHEREAS, Cochrane desires to sell to Crane and Crane desires to purchase from Cochrane certain of the assets of Cochrane; NOW, THEREFORE, in consideration of the terms, covenants and conditions hereinafter set forth, the parties hereto mutually agree as follows: 1. Subject to the terms and to the fulfillment of the conditions hereinafter contained, Cochrane agrees to sell to Crane or a wholly owned subisidiary of Crane, and Crane or its wholly owned subsidiary agrees to buy from Cochrane; (wherever Crane is hereinafter used it shall mean either Crane or a wholly owned sub sidiary of Crane): (a) All of the inventories of Cochrane reflected on its books and records at March 31, 1960 subject to changes in the usual and ordinary course of business between that date and the date of closing. Cochrane shall determine the value of its inventories at the date of closing which value will be examined by Arthur Andersen & Co., its regularly employed Certified Public Accountants and Crane shall have the option on its part to have Crane's personnel assigned to observe the practices followed in the taking and pricing of such inventory. Upon the completion and taking of such inventory, Arthur Andersen 6c Co. will submit to Cochrane and to Crane their opinion in the form attached hereto as Exhibit H. On the date of the closing Crane shall pay to Cochrane on account of the said inventories the s ill pay the balance due Cochrane as shown by the opinion of Arthur Andersen & Co. in cash promptly following the receipt of such opinion but in no event later than January 31, 1961. In the event that the aggregate amount to be paid for such inventories is less than $2,000,000, Cochrane shall refund promptly to Crane the difference between the price to be so paid and $2,000,000. Crane shall be entitled to a credit from the amount due Cochrane for its inventories for any 2 advance payments or progress payments actually received by Cochrane as of the date of the closing. In addition, Cochrane agrees that if any advance or progress payments have been billed by Cochrane and not received on the date of the closing, Cochrane will assign such bill ing to Crane at the closing and Crane will be entitled to collect and retain for its own account the amount of such billings. (b) All patents and trademarks and appli- v cations therefor, engineering drawings, patterns and lists of customers of Cochrane, Crane to pay therefor on the date of the closing the sum of $1.00. (c) Plant and equipment including land, build ings, machinery and equipment, etc.. Crane to pay therefor to Cochrane the sura of $635,000 less de preciation in accordance with Cochrane's past practices from June 30, 1960 to the date of the closing plus any capital improvements but in no event shall Crane be obligated to pay in excess of - 3- $650,000 for these assets. (d) All of the outstanding stock of Cochrane's two subsidiaries, namely, Cochrane Engineering Corporation (Engineering), an Illinois corporation with an office in Chicago, Illinois, and Cochrane Water Conditioning Limited (Conditioning), a Canadian Dominion corporation with a place of business in Toronto, Canada, Crane to pay therefor the book value as of June 30, 1960 as set forth on Exhibits C and D attached hereto less any dividends or distribution of capital, surplus or profits which shall have been paid and/or declared to the date of closing, plus or minus any profit or losses with depreciation being computed in ac cordance with the past practices of Cochrane. In the event the aggregate of the book values determined in accordance with the foregoing produces a minus figure, such figure shall on a prorata basis be deducted from the amounts due from Crane to Cochrane under (a) and (c) above. Crane shall pay therefor at the date of closing the book value as of October 31, 1960 less any dividends or distribution of capital, surplus or profits which shall have been - 4- declared and not paid or less any such items which is Cochrane's intention to distribute, pay or de clare during November of 1960. Following the closing and on or before December 21, 1960, the book value of the two subsidiaries as above described as of November 30, 1960 shall be de termined and Crane shall immediately pay to Cochrane any remaining balance due thereon and Cochrane shall immediately reimburse Crane for any overpayment with respect to such book values. As of the date of the closing Crane shall also pay to Cochrane the amount of any net intercompany re ceivables due Cochrane from its two subsidiaries. (e)^All omer remaining assets of Cochrane of whatsoever kind, nature or description and where soever situated including but not limited to Cochrane's investment in a French company, except as follows: (i) Cash on hand and in banks. (ii) Receivables (including but not limited to the Mexican notes and any and all royalties irrespective of when paid arising out of any business trans acted by Cochrane's Mexican, French, -5- Italian, Swedish or New Zealand licensees prior to January 1, 19&1 or by Conditioning or Engineering prior to December 1, i960, and any amounts due on contracts which have been completed at the date of closing but under the teiros of which certain amounts are withheld until after the closing). (iii) Any unbilled charges against customers. (iv) Life insurance policies, corporate charter, seals, minute books, stock books, stock ledgers and books of account. Crane to pay therefor on the date of closing the sum of $1.00. ' 2. At the date of the closing, real estate and personal property taxes and assessments for the year i960. Insurance, utility charges, employee compensation (including without limitation salaries, wages, bonuses and vacation pay for wage earners), rentals and simi lar charges shall be prorated. At the date of the closing. Crane shall reimburse Cochrane the amounts of prepayments on any service or operating contracts, prepaid advertising, prepaid amounts In the postal meter, freight, deposit for the gas account at Pottstown, 6 special deposits, travel advances. United Airlines' deposit, deposits with bids and any other appropriate deferred charges (except for any life insurance policies) as such appear in accordance with generally accepted accounting principles on the balance sheet of Cochrane. In the event Crane cancels the Insurance policies Cochrane will be entitled to receive from Crane the difference between what it is entitled to receive from the insurance companies on the policies cancelled and the amount it would have been entitled to if the premiums for the insurance policies had been prorated. 3, Concurrently with the purchase of the foregoing assets. Crane will assume and take over and perform in accordance with their terms, all outstanding purchase contracts, sales contracts, leases, license agreements, agreements with sales agents. Union contracts and other outstanding operating and service contracts of Cochrane as entered into by Cochrane in the usual and ordinary course of business. If required to assume any such contracts In writing Crane will so assume. If any such sales contracts shall be nonassignable by law or contract or in the event that the other party to any such contract shall not consent to the assignment thereof, then, and in such event. Crane shall complete any such contract for or on behalf of Cochrane and receive from Cochrane as payment therefor the net amount due of the price for which Cochrane shall have agreed to perform the contract. Except as provided under the -7- provisions of paragraph 11 hereof, Crane shall assume and be for performance"'guarantees a `ranty of producti^sold by Cochrane prior to the date of th iing, 4. Unless otherwise mutually agreed upon, the closing shall be held commencing at 11:00 A,H. on December 2, 1960 at the offices of Cochrane in the city of Philadelphia, effective as of the close of business on November 30, I960, 5, Cochrane warrants and represents, and all of which warranties and representations shall be true at the time of and shall survive the closing,' that: (a) It is a corporation duly organized and existing under the laws of Pennsylvania and is now and will be on the date of closing in good standing in Pennsylvania and will prior to the date of closing give to Crane a list of the other states where it is qualified to do business, (b) Its two subsidiaries, Engineering and Conditioning, are respectively duly organized and existing under the laws of Illinois and the Dominion of Canada and are respectively duly qualified to do business in Illinois and the Dominion of Canada and are now and shall be on 8- the date of closing in good standing in every jurisdiction in which the nature of tHeir business makes such qualification necessary* (c) The consolidated financial statements of Cochrane for the fiscal year ended March 31, 1960 attached hereto as Exhibit A and the three months statement ended June 30, 1960 for Cochrane and the separate statements for its subsidiaries. Engineering and Conditioning, for the three months ended June 30, 1960 attached hereto respectively as Exhibits B, C and D constitute substantially true and correct statements as of such dates of the financial condition of Cochrane and of its ass income, with the same being true of its two subsidiaries, all prepared in accordance with generally accepted accounting principles. (d) It has and will have at the time of closing 9 good and marketable title to all of the properties and assets to be so transferred and sold to Crane hereunder, free and clear of any and all liens and encumbrances or restrictions, except current taxes and assessments due and payable after the date of 9 closing and easements and restrictions of record affecting real property and objections and exceptions to title as shown on Cochrane*s title insurance policies, all as set forth on Exhibit E attached hereto. (e) Its two subsidiaries, Engineering and Conditioning, will have at the time of closing good and marketable title to all of their properties and assets free and clear of any and all liens and encumbrances or restrictions, except liabilities appearing on the balance sheets, current taxes and assessments due and payable after the date of closing and easements and restrictions of record and other title objections or exceptions affecting real property at the time of acquisition by Engineering or Conditioning. (f) Engineering will at the time of closing have no known undisclosed liability for re negotiation nor any liability under sales contracts for price redetermination. (g) There is not now nor will there be on the date of closing any litigation, proceedirg or controversy pending, or, to the knowledge of 10 Cochrane threatened, against its two subsidiaries nor are its two subsidiaries now, nor -will they be at the time of closing in default with respect to any judgment, order, writ, injunction, decree, rule or regulation of any court or administrative agency. (h) Cochrane*s and its two subsidiaries* affairs have been and will be conducted from June 30, 1960 to the date of closing, in accordance with good business practices, and they have not sold, purchased, incurred or entered into, nor will they sell, purchase, incur or enter into, any contract, lease or other agreement affecting any of the assets or liabilities to be transferred to or assumed by Crane hereunder except in the ordinary course of business. In this connection, Cochrane further warrants and represents that between the date of the execution of this Agreement and the closing date, it and its two subsidiaries will not accelerate delivery on any sales and purchase orders and that on the closing date the only changes in back log of customers and inventories will be due to the normal course of business. 11 - (i) Except as set forth on Exhibit F attached hereto, none of the agreements or contracts to be assumed, taken over and performed by Crane by virtue of the provisions of numbered paragraph three hereof, are or will be on the date of closing, "long term" (long term being defined as more than one year), nor will any of the sales contracts to be so assumed, taken over and performed by Crane be subject to price redetermination. (j) It or its subsidiaries do not have, nor will they have, at the time of closing, any pension plans for either their hourly or salaried employees or any undisclosed liability for any such pensions except for the pension plans agreed to in the last Union contracts negotiated covering hourly employees only and that with respect to these plans there will be deposited with the trustee on the date of closing the amount of $15,000. Cochrane has computed this amount by adding to normal costs of the plans commencing April 15, 1960 an amount necessary to amortize the past service cost over a period of 30 years including interest at 3% per annum on the un amortized balance. 12 (k) The sales contracts to be assumed, taken over or performed by Crane pursuant to the pro visions of this Agreement which shall be entered into following the execution of this Agreement shall not require Crane to produce and deliver merchandise in the aggregate at prices less than cost excluding any allocable part of general and administrative expenses, all calculated in accor dance with generally accepted accounting principles consistent with those heretofore applied by Cochrane and its two subsidiaries. (1) Its two subsidiaries. Engineering and Conditioning, have filed with the appropriate govern mental agencies all tax returns required to be filed by them. Engineering's Federal income tax returns have either been examined by the Internal Revenue Service and settled or no waivers of statutes of limitations have been executed or given by Engineering for the years to and including the year ended March 31, 195_2 and there are no unpaid pro posed assessments of Federal income tax pending against Engineering for said years. Engineering's Federal income tax returns for the years since - 13 - March 31> 1959 have been filed as required and have been prepared on the same basis as that upon which the return for the year ended March 31? 1959 was cleared and settled. All liability for taxes shown on Federal and State tax returns filed have been paid dr the liability therefor has been provided for in the attached Exhibfcs A and C and all Federal and State income or franchise taxes for the period subsequent to the periods covered by said returns likewise have been paid or fully accrued. . Conditioning's income tax returns and state ments up to and including the fiscal year ended March 31, 1958 have been audited by the Federal authori ties and no reassessment notice has been received with respect to the fiscal year ended March 31? 1958 or with respect to each of the years prior thereto; in addition. Conditioning's income tax returns and state ments with respect to the years following March 31? 1958 have been prepared in accordance with the same accounting principles and practices employed in former years, and there is no reason to anticipate any further taxes as being due - 14 - for such year or prior years. All liability for taxes on Federal income tax returns filed have been paid or the liability therefor has been provided in the attached Exhibits A and D and all Federal and other taxes due up to March 31, 1960 have either been paid or fully accrued. All installments of taxes due prior to the closing date have been or will be paid on their due date. (m) The stock of its two subsidiaries. Engineering and Conditioning, has been lawfully issued, is fully paid and nonassessable, is free and clear of any liens, encumbrances, equities and restrictions and that Cochrane has the legal right to sell and transfer all outstand ing shares of such subsidiaries. In the event of a breach of any of the foregoing repre sentations and warranties, Crane shall be entitled to adjustment in the contract price in the amount of the loss to Crane. No breach shall relieve Crane of its contract obligations hereunder. 6. The consummation of this transaction shall be subject to the fulfillment on or prior to the date of closing, of the following conditions, which are in addition to any other conditions set forth herein: 15 (a) Cochrane shall execute and deliver such instruments of assignment and transfer and other documents as may be deemed reasonably necessary and advisable by counsel for Crane to fully vest in Crane good title to all of the assets to be purchased hereunder except that as to real estate the instruments of title shall be deeds of special warranty. (b) That the certificates representing the stock of its two subsidiaries, namely, Engineering and Conditioning, will be deposited with Crane at the time of closing in such form as to enable the shares of stock represented thereby to be trans ferred to Crane on the stock transfer books of Engineering and Conditioning with any appropriate documentary stamps affixed and cancelled. (c) The consent Crane of the trade n or any part thereof as a subsidiary or as a division of Crane, Cochrane hereby agreeing that immediately after the date of closing, it will cause its name to be changed to a name not similar to or identified with its present name, and that 16 for a period of seven years from and after the date of closing, it will not engage in any business competitive with Cochrane's present business within the Dominion of Canada and the continental limits of the United States of America, excluding the states of Idaho, North Dakota and South Dakota. (d) There shall have been no adverse changes in the conditions, financial, business or otherwise, of Cochrane or its two subsidiaries from June 30, 1960 and until the time of closing, except for changes resulting from operations in the usual and ordinary course of their businesses and between such dates the businesses and assets of Cochrane and its two subsidiaries to be acquired by Crane hereunder shall not have been adversely affected as a result of any fire, explosion, earthquake, flood, accident, strike, lock-out, combination of workmen, taking over of any such assets by any government authorities, riot, activities of armed forces, or acts of God or of the public enemies. In the event any one or more of the acts of God described in detail above 17 is covered by insurance where Crane would be entitled to the proceeds the occurrence of such an act will not be a condition, (e) Cochrane and its two subsidiaries shall maintain in full force and effect until the time of closing, existing insurance policies to cover and protect against loss or damage the assets to be purchased by Crane hereunder, and Cochrane agrees that it will cause the "loss payable clause" in each policy covering plant, building, offices and \ their contents to be amended immediately so that the proceeds of any such policies shall be paid in the event of loss or damage as the interest of Cochrane and Crane may appear. If the closing is not held as set forth in this Agreement and is not mutually postponed to a further date. Crane agrees that its name may be removed from such policies, (f) In the event that any sums which Cochrane and its two subsidiaries have paid for Workmenfs Compensation and Unemployment Compen sation and its experience ratings therefor can - 18 - be assigned to or for the benefit of Crane, then on the date of closing, Cochrane shall execute and deliver such documents and there after do such other things as may be deemed reasonably necessary and advisable by counsel for Crane to effect such transfer. , 7. Cochrane will use its best efforts to obtain the written / consent, if required, of any leasor before the date of the closing to the assignment of any leases to be taken over and performed by Crane by virtue of the provisions of paragraph three hereof. Crane shall only be liable for such leases where such written consent is obtained. 8. During the period from and after the date of closing and through March 31, 1961, Craie shall receive and hold as trustee for the account of Cochrane payments on all receivables defined on pages five and six which have not been paid prior to the date of closing and for which Cochrane is not paid directly. During this entire period Crane will deposit daily in Cochrane*s account in the bank and the account to be designated by Cochrane the amounts received by Crane fcr Cochrane's receivables as above described giving to Cochrane a duplicate copy of the deposit slip as the deposits are made. Nothing 19 - contained herein shall be construed as placing any obligation on Crane to collect for Cochrane any such trade accounts, but Crane will follow Cochrane's past practices in effecting the collection of such accounts receivable. Any accounts which have not been duly paid by March 31, 1961 will be turned over completely and unconditionally to Cochrane for collection. During this same period of time Crane will, in accordance with Cochrane*s past practices, process Cochrane*s accounts payable which are obligations of Cochrane. 9. Following the execution of this Agreement, Cochrane will permit Crane, through its authorized representatives, at all reason able times, to have access to and examine the properties and \ financial and corporate records of Cochrane and its two subsidiaries, but any examination so made shall not affect the aforesaid continuing representations and warranties of Cochrane. 10. Crane warrants and represents that it has done nothing nor dealt with any broker which in any respect would require Cochrane to pay any broker*s or finder's fees or commissions with respect to the matters provided for in this Agreement. Cochrane warrants and represents that it has done nothing nor dealt with any broker which in any respect would require Crane to pay any broker's or finder's fees or commissions with respect to the matters provided for in this Agreement. Except for the Federal documentary stamps, the cost of any real estate transfer taxes shall be divided equally between Crane and Cochrane. - 20 - 11. As of the date of the closing Cochrane will accrue a reserve on its books for liability under its performance guarantees and waranties of products, such reserve to be computed in ac cordance with Cochrane's past practices of accruing such a reserve annually on its books. To the extent of this reserve and only to that extent, Cochrane will reimburse Crane for materials and labor expended *foere Crane services products sold by Cochrane before the closing and where under the performance guarantee or warranty of product in question Cochrane would have been required to so service the product if this Agreement had not been consummated. Crane agrees to notify Cochrane prior to rendering any such services and to obtain wherever possible Cochrane's written approval before rendering such services. 12. Crane further agrees that it will continue the volun tary payment for their respective lifetime to the ten former employees of Cochrane listed on Exhibit G attached hereto in the monthly amount set forth opposite their respective names; said Exhibit also setting forth the respective ages of such employees. 13. On or prior to the time of closing Cochrane will cause its pension plans for its wage earners and any trust agreements or any group annuity contract pertaining to such plans to be amended in a manner satisfactory to counsel .for Crane so that from and after the date of closing the Board of Directors of Crane shall have the 21 same power to appoint and remove trustees and members of pension boards serving thereunder and to exercise all such rights of amend ment, suspension and termination as are reserved to Cochrane in such plans, trust agreements or annuity contracts and otherwise to act with respect to such plans, trust agreements or annuity contracts to such degree as may be permissible as though Crane rather than Cochrane had been a party thereto in the first instance. 14. Cochrane covenants that not later than the closing date the present Directors and Officers of Engineering and Conditioning will lodge with the company for delivery to Crane their written resignations as Directors and Officers to take effect on acceptance and that each of the Directors will cooperate in the necessary pro ceedings for the appointment of new Directors and Officers to re place those so resigning and Cochrane undertakes that on or before the closing date it will cause such Directors1 meetings to be held as may be necessary to validly transfer the said shares sold into the name of Crane or its nominee and otherwise to effectuate the purpose of this Agreement. 15. Cochrane agrees that following the closing, it will, from time to time, upon reasonable request of Crane, execute, acknowledge anddfeliver in proper form any instruments of further assurance necessary or desirable for perfecting in Crane its successor or assign, as the case may be, title to the properties. 22 assets and rights intended to be purchased by Crane according to the provisions of this Agreement. 16. The obligations of Cochrane under this Agreement are expressly conditioned upon the ratification of the execution here of and the approval of the transfer of its assets as aforesaid, by the affirmative vote of the respective holders of at least 51X of the outstanding shares of capital stock of Cochrane entitled to vote at a meeting to be held on or before November 18, 1960 called for the purpose of approving this Agreement. Promptly following the execution hereof, Cochrane will take appropriate steps to propose and submit the said matters to and obtain such vote of the holders of its capital stock at meetings to be called and held as provided by law. 17. In addition to any of the other conditions herein, the obligations of Crane hereunder are expressly conditioned upon the Board of Directors of Cochrane authorizing the execution of this Agreement and calling a special meeting of the holders of the capital stock of Cochrane to be held on or before November 18, 1960 for the purpose specified in numbered paragraph sixteen and upon the required affirmative vote of said capital stock being obtained at said special meeting. 18* Cochrane has requested Crane to waive the requirements of any Bulk Sales Laws and Crane has acceded to this request. 23 - Cochrane will indemnify and hold Crane harmless against all claims made by creditors of Cochrane's except as to such claims Crane has assumed or agrees to assume hereunder. 19. From the date of closing Crane, at the written direction of Cochrane, will have Cochrane's name endorsed on Craqa.1 s-pra liability insurance for such amount or amounts and for such period of time not exceeding six years as Cochrane in writing shall direct Crane. Any additional premium occasioned by having Cochrane's name added to Crane^s^^oduct liability insurance policy or policies shall be reimbursed by Cochrane to Crane. 20. Following the closing Cochrane shall have the right to examine its books and records retained by Crane for valid purposes including but not limited to such matters as accounts receivable, accounts payable and income taxes. Any such examination shall take place on reasonable notice to Crane and during ordinary business hours. 21. In the event Crane acquire^ the assets described here in through a wholly owned subsidiary, Crane will guarantee per formance of this contract and of any obligation of its subsidiary arising out of this contract including but not limited to any leases assigned to Crane's subsidiary. 22. This Agreement together with the matter annexed hereto and made a part hereof (constituting Exhibits A through H inclusive) constitutes the entire Agreement between the parties. 24 23. This Agreement is being entered into and closed in the state of Pennsylvania and shall be construed and enforced in accordance with the laws of such state. . 24. This Agreement shall inure to the benefit of and be binding upon Cochrane and Crane, and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate as of the day and year first above written. COCHRANE CORPORATION c`President Attest: CRANE CO r Secretary COCHRANE CORPORATION AND SUBSIDIARIES ssssss=sz=ssssBssssssscssnssss = ss:sss3ess . CONSOLIDATED FINANCIAL STATEMENTS AS OF MARCH 31'; 19-60 TOGETHER WITH % AUDITORS' OPINION .. ' . f- Arthur Andersen & Co. 1617 PKNKSTrVAKlA. BOOLEVAJRD PhIIjSJDELPHIA o i&HiBrr "fl* Arthur Andersen 8c Co. 1617 Pennsylvania Boulevard Philadelphia 3 AUDITORS ' OPINION * . To the Board of Directors, Cochrane Corporation: We have examined the consolidated balanoe sheet of COCHRANE CORPORATION (a Pennsylvania corporation) and subsidiaries as of March 31, 1960, and the related statements of consolidated income and retained earnings for the year then ended. Our examination was made in accordance with generally accepted auditing standards, and accordingly Included such tests of the accounting records and 6uch other auditing procedures as we considered necessary in the circumstances. In our opinion, the accompanying consolidated balance sheet and statements of consolidated income and retained earnings present fairly the financial position of Cochrane Corporation and subsidiaries as of March 31, I960, and the results of their operations for the year then ended, and were prepared in conformity with generally accepted accounting principles applied on a basis consistent with that of the preceding year. Philadelphia, Pa., June 17, I960 ASSETS CURRENT ASSETS: Cash Receivables (less reserves for bad debts of $66,832) Inventories, at the lower of cost (principally first-in, first-out) or market Prepaid insurance, etc. Total current assets I COCH CONSOLID! OTHER ASSETS: Noncurrent receivables Cash surrender value of life insurance $ 84,2 -.......40,* PLANT AND EQUIPMENT, At cost: Land Buildings Machinery and equipment, etc Less- Accumulated depreciation $ 55, 479, 1,047, $1,581, c. 900./ The accompanying : POHATION AND SUBSIDIARIES iNCE SHEET -- MARCH 31. I960 I i j . 1,907 S,096 5,642 6,274 19,919 I. |'-4,840 L,481 i,240 LIABILITIES AND STOCKHOLDERS1 CAPITAL CURRENT LIABILITIES: Current portion of long-term debt Notes payable to banks Accounts payable Progress billings, net of related costs of $65,493 Accrued expenses Accrued income taxes Total current liabilities LONG-TERM DEBT (Note 1), Net of current portion shown Above: $ 8; 60( 556 IOC 354 49 $1,752, A-X/2% serial notes payable, due in annual installments of $80,000 on October 1, 1961 and 1962 STOCMKHoOrtLgDaEgReS* paCyAaPbITleA,L: due in installments to 1969 Capital stock- 6% cumulative preferred, par value $100 per share Authorized 5,000 shares, issued and outstanding 2,370 shares Common, par value $10 per share Authorized and issued 10,500 shares, including 1,500 shares in treasury shown below Retained earnings ($1,741,806 restricted -- Note 1) Less- 1,500 shares of common stock in treasury, at cost . $ 160,000 24,000 184 $ 237,000 105,000 $ 342,000 2,517,688 $2,859,688 140.000 2,719, $4,656[ = ss s a = s * an integral part of this balance sheet. i i COCHRANE CORPORATION AND SUBSIDIARIES CONSOLIDATED INCOME FOR THE YEAR ENDED MARCH 31, 1960 REVENUES: Net sales Commissions and royalties Total revenues COST OF SALES Gross Income SELLING AND ADMINISTRATIVE EXPENSES: Commissions Other (see accompanying schedule) Operating income, after deducting provisions for depreciation of $119,973 OTHER DEDUCTIONS -- Net: Interest Less- Purchase discounts, etc. (net) Income before income taxes FEDERAL, STATE AND FOREIGN INCOME TAXES Net Income $ 7,944* 53 105,40 $ 8,049,94 5,570,73 $ 2,479,20 $ 572,158 1,794,346 2,366,50. $ 112,70;' $ 46,087 39.330 6,75' $ 105,94 63,00' $ 42,94: :Bs:si:ak! The accompanying notes are an integral part of this statement. COCHRANE CORPORATION AND SUBSIDIARIES CONSOLIDATED OTHER SELLING AND ADMINISTRATIVE EXPENSES FOR THE YEAR ENDED MARCH 31, I960 Salaries, wages, etc. Advertising Travel Insurance Telephone, telegraph and postage Supplies Policy allowances, guaranty and warranties Depreciation Professional expenses Pay roll taxes Other taxes Rentals Dues, subscriptions and contributions Maintenance, repairs and defective material Miscellaneous and departmental transfers -- net $1,032,573 72,644 1*1,99* 58,345 94,049 75,236 45,589 15,543 25,550 26,580 13,384 49,905 12,211 8,959 79,220 $1,794,346 COCHRANE CORPORATION AND SUBSIDIARIES CONSOLIDATED RETAINED EARNINGS FOR THE YEAR ENDED MARCH 31, I960 BALANCE, MARCH 31, 1959 ADD- Net Inoome for the year DEDUCT- Cash dividends paid or payable on preferred stock ($6.00 per share) BALANCE, MARCH 31, I960 ($1,741,806 restricted Note 1) $2,488,96 42,94 $2,531,90) 14,22* $2,517,681 The accompanying notes are an Integral part of this statement* COCHRANE CORPORATION AND SUBSIDIARIES NOTES TO FINANCIAL STATEMENTS MARCH 31, I960 ' (1) Under certain provisions of the 4-1/2J6 serial notes payable agreement, retained earnings as of March 31, 1960, of $1,741,806 are restricted as to cash dividends or any other cash distributions to the stockholders. Other provisions of the note agreement, among other things, limit the amount of indebtedness which may be incurred by the Company and its subsidiaries, prohibit certain liens or encumbrances on plant and equipment and other assets, and require that consolidated net current assets be maintained at not less than $1,400,000. (2) Pursuant to the terms of new three-year union contracts negotiated late in 1959, the Company, in April and May, I960, entered into agreements providing separate noncontributory pension plans for the benefit of employees included in the bargaining units. Under these pension agreements, the Company is required to contribute to pension trust funds annually, such amounts as shall be required to maintain the plans on a sound actuarial basis in accordance with Internal Revenue Regulations. The agreements and plans are effective as of October 16 and November 1, 1959, subject to being approved as qualified under appropriate sections of the Internal Revenue Code, which approval has not yet been obtained. The Company estimates that its past service costs under these plans would aggregate approximately $250,000.. Actuarial studies are presently being made to more accurately determine the future annual cost tp the Company. The Company has not yet selected the period over which the past service costs will be funded. The Company estimates the costs applicable to the period from the effective dates of the plans to March 31, 1960, would be negligible and, accordingly, no provision therefor has been made in the accompanying . financial statements. COCHRANE CORPORATION AND SUBSIDIARIES CONSOLIDATED SOURCE AND DISPOSITION OF WORKING CAPITAL FOR THE YEAR ENDED MARCH 31. 1960 WORKING CAPITAL WAS PROVIDED BY: Net income Add (deduct)- Income transactions not affecting working capitalDepreciation Increase in cash surrender value of life insurance Working capital provided by operations Decrease in noncurrent receivables Total working capital provided $ 42,945 $ 119,973 ' (8.772) 111,201 $ 154,146 22,395 $ 176,541 WORKING CAPITAL WAS EXPENDED FOR: Cash dividends Reduction pf long-term debt Net additions to plant and equipment Total working capital expended RESULTING IN A DECREASE IN WORKING CAPITAL OF $ 14,220 82,250 80,744 $ 177,214 $ 673 S8BBX8B88 THE DECREASE IN WORKING CAPITAL IS REPRESENTED BY THE FOLLOWING CHANGES: March 31, Current assetsCash Receivables -- net Inventories Prepaid insurance, etc. 1960 1959 (Decrease) $ 131,907 $ 352,219 1,386,096 1,173,142 2,275,642 2,084,024 56,274 55,556 $(220,312) 212,954 191,618 718 $3,849,919 $3,664,941 $ 184,978 Current liabiiitiesCurrent portion of long-term debt Notes payable to banks Accounts payable Progress billings -- net Accrued expenses Accrued income taxes Working capital $ 83,000 $ 83,000 600,000 500,000 558,234 389,424 108,135 104,613 354,133 310,837 49,050 179,027 $1,752,552 $1,566,901 $2,097,367 $2,098,040 BSBSBSSKSS $100,000 168,810 3,522 43,296 (129,977) $ 185,651 $S SSS S B(6B7SS3) COCHRANE CORPORATION Statement of Income One Month Ended June 30o i960 Operating. Revenues Sales 9 less returns and allowances $ 7750753 Foreign license fees Total 1 816 776,569 Cost of Goods Sold 50?,,173 Cross Income 269,396 Selling and Administrative Expense Commissions Selling expense Administrative expense Total 82,919 85,350 44*130 Operating Income __ 56^997 Other Expense (Net) Interest expense Loss: Purchase dlscounts0 etc0 Total 4C421 2,891 Income before Income Taxes 54,106 Federalo State and Foreign Income Taxes 24fi 500 Net Income 29,606 Percent .of Net Sales I00o0 65.3 34o? I0o7 lloQ 5.7 27o4 -70- 5 o2 o3 7*0 _2s2_ WI H<1I si Nj Three Months Ended June 30q I960 Perce of Ne Sales $1C9U0834 8*896 1*920,730 1.338*184 582*546 169,314 229,107 128u458 546,879 35,667 12,003 -ft#6 u22Z 280730 12 ,, 212 i6,,5ifl 100,,C 69.7 JOO UoSi 6o7 28^*; 1 oJ ** io.'! o< 1 Q 1 1 Depreciaion charges included in above figures 1-- * 26fp6p COCHRANE ENGINEERING CORPORATION Balance Sheet as of June 300 i960 Assets Cah Commissions Receivable Cochrane Corporation CopesVolcan Division Aerotec Industries Accounts Receivable Federal Income Tax Travel Advances Other Furniture and Office Machines Less reserve for depreciation Total Assets $ 24*995 5*354 6*024 2*339 766 166 10,308 9*575 Liabilities Accounts Payable Advances from Cochrane Corporation Accrued Items Capital Stock Earned Surplus Balance as of March 310 i960 Bet Loss, three months ended June 30e I960 $ 13d822 (3,665) Total Liabilities $ 2012J 36,373 3*321 733 $ 42,550 $ 1,173 23 p 000 3*220 5*000 10,157 $ 42,550 tmw v COCHRANE ESOIHEEaiNQ CORPORATION Statement of Income Income Cosmlssion Income Cochrane Corporation Copee^Vulcan Division Aeroteo Industries Cochrane Water Conditioning Limited Service and Inspection Cochrane Corporation Customers Miscellaneous Income Qrosa Tnrome Expenses * Sales andAdministration Field Service Milwaukee Office TotalExpenses Income or (Lose) before Income Taxes Federal Income Taxes Net Income or (Lose) One Month Ended June 30, I960 $ 13,295 1P108 2C278 1,342 *_ 180023 7C106 le103 3^040 11D249 60774 Three Months Ended June 30q I960 $ 19,588 40427 2*574 12 2,790 577 29,968 21,642 3,043 8,948 13.63.3- (3,665) (3,665) Current Assets Cash ASSETS Accounts Receivable Trade Other Votes Receivable , Less allowance Tor losses In collection $1,469,509 29,588 32,182 1,531,279 59,165 Inventories Work in process Raw materials 7520716 1,383,647 Prepaid Insurance and other prepaid item Total Current Assets coc Balance $ 63,855 la472c094 2,136*563 50,362 3,722,878 Other Assets Investments in and advances to subsidiaries Voncurrent receivables Cash surrender value - life Insurance on eiqplpyees 95,000 84.259 40,582 Fixed Assets Buildings Machinery and equipmsnt $ 484,562 1,005,581 1,490*143 Leas allowance Tor depreciation 901,142 46,108 589,001 635,I-V 34,577,327 ;i:>2g: CORPORATION IS Of JURS 30 0 I960 LIABILITIES Current Liabilities Serial promissory note due October 10 I960 Mortgage payable Botes payable - bank - Accounts payable Payments received in advance Dividends payable Progress billings on long term contracts less related cost of $291*058 Accrued Items Salariesf wages, provisions for vacations Commiasions payable Royalties payable Employees wage deductions and payroll taxes Estimated costs to completecontracts billed Miscellaneous . $ 68*441 151*666 8*175 55*645 19*557 41,534 Federal and state taxes on incests Total Current Liabilities Serial promissory notes ($80,000 due Oote 1* 1960-62 less note due I960 shown above) S Mortgage payable ($75 due quarterly* 1960-69, lose \ current portion shown above) * 5 Capital Stock Ofc Cumulative Preferred, $100 Par . Authorised - 5*000 shares Issued and outstanding - 2,370 shares Common* $10 Par - Authorised* issued and outstanding - 10*500 shares 237.000 105.000 342.000 Earned Surplus Balance at March 31, I960 Rot income, three months ended June 30, I960 $2,450,795 16,518 2,467,313 Deduct dividetwis declared Deduct , T/Coaon stock held in treasury, 1,500 shares at cost 3,555 2.463.758 2.805.758 140,000 $ 80,000 3,000 600*000 602,566 1.099 3,555 ,, 63,033 345,018 30,548 1,728,819 160,000 23,250 2.665,758 t4* 37.827 cog Ealanc*' She Cash ASSETS $ 23,877 Accounts Receivable Trade Other Less.allowance for losses in collection $218,673 8q833 2270511 7,423 220,038 Inventory Work in process Raw materials 97,700 lit, 571 109*271 Prepaid Insurance and other prepaid items Total Current Assets 5*286 363*522 Fixed Assets Land Machinery and equipment $ 2,944 Furniture, fixtures and office equipment 27*872 Leasehold Improvements 20,097 50,913 Less allowance for depreciation and amortisation 17*592 fm^rr"pu 9,000 33,321 42,321 $405,843 .o^L'V una 30,, 1550 LIABILITIES Accounts Payable Trade Outside Trade - Cochrane (U.S<. $ 67.943) Progress billings (net of related cost of $ 16,358) $149,883 58,338 4C690 Accrued Items Sal^rles0 wages. etc* Accrued expenses Coianiasions payable Canadian Foderal Sales Tax payable Estimated costs to collate contracts billed Royalties payable , 3.138 7o249 1.583 291 80250 120075 Reservo for Federal and Provincial Income Taxes Total Current Liabilities Demand Uoteo Payable . Cochrane - Philadelphia (0oSo $ 750000) $220,911 32,586 3,615 257,112 73,878 CAPITAL AND SURPLUS Capital Stock- without nominal orpar value Authorised 500000 shares Unissued 35.000 shares Issued 15.000 shares-paid Earned Surplus Balance March 31 I960 Three Months operations ended June 30. I960 $ 49.811 10.042 in15.000 *. 59.853 74,853 COCHRANE WATER CONDITIONING LIMITED Statement of Income Operating Revemie Salesc lose returns and allowances Cost of Goods Sold Material Burden ~ handling Engineering Freight Landing charges Royalty 1 Additional cost of sales Mfjbc ellar.eoue Underabsorbed burden Gross Income Selling and Administrative Expenses Commissions and trade discounts Selling expenses6 net of conaissione eai"ned Aduiniotrative expenses Operating Income Other Ir.coms f. Net Purchase discounts,, etc* Foreign end local exchange Income before Income Taxes Federal and Provincial Income Taxes Net Income One Month Ended June 30c i960 Percent of Net Sales Three Months Ended June 300 I960 Percen of Net Sales $1*0,872 100o0 86c62? 5ol97 6,.839 2,058 2,994 60o3 3,6 4*8 1,6 2,1 4vli6 2*9 (243) (<2) 10.700 7o4 (2,432) ' . _(W) 116 ,-,196 80.8 27*676 19.2 1,954 16,570 ^034 21..558 6,118 lo3 13,5 2*1 14o9. 4*3 99 36 135 6,253 1,-500 $ 4,,733 oi 4*4 $421 ,.833 100,Cgf 276,124 16-569 170174 10,,O32 7.794 12.,075 (234) 100700 (4,541) 345-693 76u140 65-5 3o9 4ol 2.4 * I08 2o9 M) 2,5 a, 81c9 lfl.l 10,135 44,>73 9,231 63,839 12,301 2,4 10.6 2,2 15o2 2,9 463 773 1,241 13 5 542 3.500 $ 30,01 -4i -2~v 3 3-2 ___ 3__ Z.% Depreciation included In above 443 $ 1.09** PARCEL 1 Parking Lot 17th and Clearfield Streets Deed dated December 29, 1958, K & G Corporation to Cochrane Corporation, Title Objections: (From Commonwealth Title Co. .# B 947726M) 1. Mortgage $30*000.00 to K & G Corporation dated December 29, 1958. - to be paid off by Cochrane at or before the closing. 2. Easement of drain for drain under railroad. PARCEL 2 '17th and Lippincott (formerly Wishart) Streets Main Plant Deed dated October 11, 1945, recorded in Deed Book C.J.P., 1036, page 141, Cochrane Corporation (old company) to H.S.B. Corporation (name changed to Cochrane Corporation October 19, 1945, Certificate recorded. Liber Book J., 208, page 5^2, Harrisburg). Title Objections; (From Commonwealth Title Co. #X33448 and #938565M) 1. Railroad siding extends across premises. 2. North half of bed of Clearfield Street excepted. 3. public sewer in 17th Street. 4. No record of sewer in Clearfield or Lippincott Street. EXHIBIT "E" 5. No record or sewer pipe in Clearfield Street. 6. Clearfield Street not paved; no sidewalk or curbing. . 7. Clearfield Street not on City Plan; no record of opening. 8. Windows in southwest line overlook railroad. 9. Three foot alleys appurtenant to portions of premises physically non-existent. 10. Right of railroad to elevate or depress its tracks. PARCEL 3 Former Pottstown Metal Products Co. Plant Deed dated August 31* 1951* Pottstown Metal Products Co. to Cochrane Corporation, recorded in Deed Book 2210, page 60. Title Objections: (From Commonwealth Title Co. #>C15986lM, Montgomery County Trust Co. #11230, #22782) 1. Release, John Wambach to P <: RR Co. dated April 4, 1835, recorded August 6, 1835* Miscellaneous Book 4, page 116, 2. Release, Daniel Yocum to P & RR Co. dated September 3, 1835* recorded September 5* 1835* Miscellaneous Book 4, page 126 . -2- 3. Release, Bartholomew Wamback to P & RR Co, dated March 22, 1838, recorded' March 23, 1838, Miscellaneous Book 4, page 4l4. 4. Right of Way, Catharine Amole to Philadelphia Suburban Gas and Electric Co. dated July 6, 1920, recorded March 24, 1921, Deed Book 830, page 552. 5. Portion of premises within bed of Grosstown Road subject to public and private rights. 6. Agreement, Daniel Davidheiser, et ux and Pa, Schuylkill Philadelphia Co, dated March 16, 1886, recorded in Deed Book 297, page 58. 7. Agreement, re: Farmers Fire Insurance Co. of York, right to occupy ground necessary for approach to overhead bridge as in Deed to Eastern Real Estate Company dated June 9, 1903, recorded in Deed Book 505* page 222. * 8. Covenant re fence, per deed, Jacob Yerger, et ux to Pa, Schuylkill Valley Railroad Co,, dated September 8, 1883, recorded in Deed Book 275, page 117. 9. Agreement per deed Pennsylvania Railroad Co. to Pottstown Metal Products Co. dated April 22, 1937, recorded in Deed Book 1236, page 275* 10. Proceedings re: alteration of grade crossing of Grosstown Road and the Pennsylvania Railroad Co. right of way. -3- 11. Right of Way of Pennsylvania Pa. & R. Railroad Co. as recorded in Deed Book 501, page 150 and Deed Book 165, page 197* ' 12. Right of Way of Philadelphia Suburban Gas and Electric Company (from physical Inspection), 13. Right of Way of National Transit Co. as recorded in Deed Book 44, page 69. PARCEL 4 West of Grosstown Road Deed "Julia M. Hines to Cochrane Corp. dated October 8, 1953, recorded October 10, 1953 in Deed Book 2411, page 171. Title Obiectbns: (From Commonwealth Title Co. -#X15986lM) 1. Release, John Ne.lman to P & RR Co. dated April 4, 1835, recorded August 6, 1835 in Miscellaneous Book 4, page 109. 2. Release, Daniel Yocum to P & RR Co. dated September 3, 1835, recorded September 5, 1835 in Miscellaneous Book 4, page 126. 3. Agreement re erection and maintenance of fence, per deed, Rachael E. Reifsnyder to Pa. Schuylkill Valley Railroad Co. dated May 1, 1895, recorded in Deed . Book 402, page 220. -4- 4. Right of Way of Pennsylvania Pa. & R* Railroad Co. as recorded in Deed Book 501, page 150 and peed Book 165, page 197. 5. Right of Way of Philadelphia Suburban Gas and Electric Company (from physical Inspection). 6. Right of Way of National Transit Co. as recorded in Deed Book 44, page 69. 7. Proceedings re alteration of grade crossing of Grosstown Road and the Pennsylvania Railroad Co. right of way. , PARCEL 5 Selinger Tract (East of Grosstown Road) - Deed, Joseph A. Selinger, Jr. to Cochrane Corp. dated August 19, 1953* recorded in Deed Book 2398, page 359. Title Objections: (From Commonwealth Title Co. ------------------ ,,#X214851M) 1. Release, Daniel Yocum to Philadelphia and Reading Railroad Co. dated September 3# 1835, recorded in Miscellaneous Book 4, page 126. 2. Deed, Joseph A. Selinger, Jr. to Cochrane Corp. dated August 19* 1953* recorded in Deed Book 2398* page 359* re discharge of waste onto Selinger1s remaining property. -5- PARCEL 6 Pennsylvania Railroad Co* tract west of center line of Grosstown Road Deed dated July 27, 1955* Pennsylvania Railroad Co. to Cochrane Corp., recorded in Deed Book 2638* page 130. Title Objections: (From Commonwealth Title Co, : ,#24433*0 1. Covenant in Deed Book 297, page 58 re maintenance of fence. 2, Covenant in Deed to Cochrane Corp* re fence construction. PARCEL 7 Borough of Pottstown Tract West of Grosstown Road Deed, Borough of Pottstown to Cochrane Corp. dated , recorded Montgomery County in Deed Book 3051, page l4l, and Berks County in Deed Book 1351, page 584. ALL PARCBIS The following Title Objections will be applicable to all properties: 1* Subject to possible lien of corporate taxes. 2. Variation in location or dimension and other objections and easements, which a survey for conveyance purposes would disclose or which are visible on the ground. -6- EXHIBIT F Union Contracts consisting of the following: (a) Agreement between Cochrane Corporation and Local 165, I.U.E.R.M, ALF-CIO dated December 2,. 1959. (b) Agreement between Cochrane Corporation Coppersmlthing Division and Sheetmetal Workers ' International Association Local Union No. 82 dated December 3* 1959. (c) Agreement between Cochrane Corporation and American Federation of Technical Engineers Local 3 AFL-CIO dated December 2, 1959. (d) Agreement between Pottstown Metal Products Division of Cochrane Corporation and United Steel Workers of America, AFL-CIO, dated December 3, 1959- Leases consisting of the following: (a) New York office lease, 260 Madison Avenue, with 260 Madison Corporation, expiring April 30, 19^5 at yearlyrental of $9*500 plus electricity. (b) Milwaukee office lease at 2411 West Capital Drive, with Zeb Corporation expiring July 3? 19&3 at yearly rental of $1,200 plus electricity and cleaning. (c) Minneapolis office lease at 4010 West 65th Street, with Southdale Management Company expiring July 31, 1963 at a monthly rental of $117. Sales Orders with deliveries extending beyond one year as follows: See Exhibit F-l attached. EXHIBIT P (cont *d) 4. Equipment Leases as follows: (a) Thomas A. Edlspn, Inc. - 11 dictating and 3 transcribing machines for thirty-six months at $223.12 per month. (b) Monroe Calculating Machine Co. - 2 calculators for thirtysix months at $54.93 per month. (c) Pennsylvania Pump, & Compressor Co. - air compressor and after cooler - P.M.P. P.0. 1-11291 dated September 2, i960 at $6,075*00., payable twenty-four equal monthly Install ments plus interest at 6#. (d) Sprinkler leases with Automatic Sprinkler Corporation dated June 15, 1956 for sprinkler systems at Philadelphia and Pottstown plants with requirement for yearly payment of $100.00 per year each. # 5. Licensing Agreements under which Cochrane Is Licensee: (a) James H. Harlow, Agent, as Licensor, dated January 8, 1957 covering patents No. 2,773*829 and No. 2,773*830. (b) Illinois Water Treatment Co. as Licensor, dated January 1, 1958 covering patents No. 2,771*424 and No. 2,605,084 and Canadian patent No. 617,844. (c) KulJIan Corporation, as Licensor, dated November 15, 1957 covering patent applications No. 530,367 and No. 532,524. (d) The Pennutit Company, as Licensor, dated January 1, 1953 covering patent No. 2,428,418, Canadian patent No. 450,605 and British patent No. 544,086. EXHIBIT P (cont *d) 6. Licensing Agreements under which Cochrane Is Licensor: (a) Recuperation Theraique & Epuration, Paris, France, as Licensee, evidenced by letters dated August 20, 1923, January 18, 1924, May 20, 1936 and February 16, 1939 from Cochrane. (b) Termomeccanica Italians, La Spezla, Italy, as Licensee dated June 15, 1954 as modified September 15/ 1954 and January 11, i960, (c) Kockums Mekamska Verkstada Aktiebolag, Malmo, Sweden, as Licensee, dated December 30, 1954. (d) Babcock and Wilcox de Mexico, Mexico City, Mexico as Lieensee, dated October 15/ 1955 as supplemented October 15, 1955. (e) Cochrane Water Conditioning, Limited, Toronto, Canada as Licensee, dated April 1, 1957. 7- Pension Plan Agreements and Trusts as follows: (a) Pension Plan Agreement dated May 25/ i960 between Cochrane and Local No. 165/ I.U.E.R.M. (b) Pension Plan Agreement dated April 25, i960 between Cochrane and A.F.T.E. Local No, 3. (c) Pension Plan Agreement dated April 25, i960 between Cochrane and S.W.I.A, Local No. 82. (d) Pension Plan Agreement dated April 25, i960 between Cochrane and U.S. of A. Local No. 5080. (e) Pension Plan Trust Agreement dated May 27, i960 between Cochrane and Girard Trust Corn Exchange Bank, as trustee. Sale* Order* Sohed.iel for Shipment Aft or liorember 3ot 196I EXHIBIT P-1 [4(1 Name EXHIBIT G Age Monthly Pension Allowance Walter'G. Cook 80 Harold D. Elfreth 77 Jesse E. Harris 79 Maude Mcllvaine Jennison (Estimated to be between 75-80) Mary F. Irvin ' 67 Louis J. Poehler 85 John A. Strecker . 77 Joseph JF. Tapley 75 Fred S. Vandegrift 66 Joseph Oldknow * 75 $ 84.00 105.00 125.00 45.50 84.00 43.00 84.00 84.00 84.00 84.00 * Still in Cochrane1s employ. Will retire on the above pension at December 31, I960. . s AUDITORS' OPINION To Cochrane Corporation and Crane Co. At your request we have examined the inventories of Cochrane Corporation (a Pennsylvania corporation) as of November 30, 1960. Our examination of the inventories was made in accordance with generally accepted auditing standards and accordingly Included such tests of the accounting records and such other auditing procedures as we considered necessary in the circumstances. In our opinion, the inventories of Cochrane Corporation as of November 30, 1960 were fairly stated at $, determined in conformity with generally accepted accounting principles applied on a basis consistent with that applied by Cochrane Corporation in stating its inventories at March 31, 1960. Exhibit H ASSENT AND AGREEMENT As an inducement to Crane Co. to execute the foregoing Agreement, the undersigned holders of shares of issued and outstanding capital stock of Cochrane Corporation, to the extent set opposite their respective signatures, hereby assent to the execution of the foregoing Agreement by Cochrane Corporation and represent and agree to and with Crane Co. that they, the undersigned holders, are, respectively, the owners or nominees of the shares of said capital stock of Cochrane Corporation as are set forth opposite their signatures below, that they are now and will be on the date of closing referred to in said Agreement, entitled to vote such shares without restriction, that they will cause Cochrane Corporation to call and hold the necessary meetings of its stockholders to vote upon the transfer of the assets of Cochrane Corporation and the change of its corporate name as provided in said Agreement, and that they will vote their said shares at such meetings to approve and ratify the execution of said Agreement and to approve and authorise such transfer of assets and change of corporate name. This instrument may be executed in counterparts. IN WITNESS WHEREOF, the undersigned stockholders, in order to irrevocably induce the execution of the fore going Agreement by Crane Co. on or before November *-f- . 1960, have hereunto set their hands and seals as of this 2nd day of November, 1960. STOCKHOLDERS NUMBER OF SHARES Cr-CT ^ AWBL AW-ig8gBg At an lndueaiat to Cm Co. to execute tho fortgoing AgrtoaMnC, tho undorolgMA holders of ihani of Issued and 'v V ' " ** 'V .) ,*, outstanding capital stock of Coehrano Corporation, to tho extent sot opposite tholr respective signatures, horoby assent to tho execution of tho foregoing Agt--int by Cochrane Corporation and represent and agree to and with Crone Co. that they, tho undersigned holders, ore, respectively, tho owners or nominees of the shares of said capital stock of Cochrane Corporation as are set forth opposite their signatures below, that they ere now end will be on the date of closing referred to In said Agreement, entitled to vote such shores without restriction, that they will cause Cochrane Corporation to cell end hold the necessary meetings of its stockholders to vote upon the transfer of the assets of Cochrane Corporation and the change of Its corporate name as provided in said Agreement, and that they will vote their said shares at such meetings to approve end ratify the execution of said Agreement and to approve end authorise such transfer of eseets end change of corporate sue, Thlft iittUuBtttt My be oweuted In counterparts. IS WITNESS WHESLEO?, the undersigned stockholders, in order to Irrevocably induce the execution of the fore* going Agree--nt by Crane Co. on or before November . I960, have hereunto cot their hand# and seals as of this 2nd day of Xloveaber, I960. 8TOCKBOLDPL3 ^ ?P i-- a , - "3KW.t?-*;. .* * *. ;V >. */ O "Y DwCCe&er 5, I960 Kr, 1C, Ssrsrclscn, . Treaarrar ard Chief 'Financial Officer Crane Co, _ 55 Ib.-i/th b-rchcr Drive ' . b*'Cr'irO- 6^ Illinois ' lie: Cochrane Corporation This x;ill serve cc both-a letter of tears- nlttol of various closing dcaurmts received by no at the closing in connection x;ith she above corporation held at the offices of VJoIf, Slock, Schorr and Solis- Cvhen in Vb.iC:;'.'blebia on Friday, December 25 I960'end J. -r? ' ; a .::. .... ry for each cf to as to that fcooU place ^{ ' r> y*J f.5l .? ,,. `O* Sonera! Sill of Sale and Ascussteioa Qn-y o (one fully ssiabuted copy and three x additional unexecuted copies) . a" 0t betvve-ew*j rw*.v--iU^>U~w Corporation, Crane Co, arc Girard '- ---^ 0O--i -- --------------------------------i.1-^ ^ * . .*.^ ^*N <j --.. ****v--v** fwj^^ **** r** *3 >0 w0 .;ruct Corn Crehango Ssnh (three rally eriecuted copies and one un-> creeutod copy) . iv.aecbeat So, 1 to the Trust Agree- v.eni dated t&y 27, 1960 entered into percent to the four pension plans Cochrane has' (two fully executed copies and four unexecuted copies) Receipt' from Girard Trust Corn Exchange- IJarsh dated December .2, I960 re $13,000 deposit as contribution to the pension trust (original only) k.*(': %%p; 'W' >CV .1w-.- .* <U w-- a - Steesabcr'5, I960 krksf rp- codecs of title rcc-ort biols .-. W^. w vL.** %**.* *- *%->.% ~ .-% >.--%. llw;.^,i;..iC2 Cc:;.;;^y3 one dated- Cctober $_, I960 . end the cccond dstod CTovcober' 10, 1960 cover7:3 the properties deeded ^ ~? w^> to ns in lliilsdclphis end 't^ttcto'Eri -* at the closing (criminal c-t-Iy of the fro reports) t&on the deeds- have , been recorded, they will be tnreed '* no- ` . 'w-WW w'. .-jQ r . .? .--. . /- .w4 r!-.-/, 7~* ->r TW'^--v-' <-.--. -. f * 0 > *?. cad ei^ratatCi^ coneon stock of. Cochrane Sn^^esting Corporetn.cn, cs Illinois ccrporction, cerciets cf 50 cZ ...roe of ccceion stock' cel e-II b * ' (.-''*''*<'! c-- .7-, <~*> <->'*>.,'---" --:.-> <-``-'^s'-?~ .-f? 1 .`^'* 1 u*.l;C T 7.'^.'c\"o^^^.w .**s--.*'w^_--vv-*-?r'..*t.-"^^.c*.s^.--c3*. ^ .T >*a ^ a Canadian otrpe-rerica, consists, of lo5li0'shares of c?.cital stock*. .. iertifieatc So. 4 representing'. 14,5*97 shares .of'Cochrans neter Ocrkiitionins V ,T -%1 * '-.<! /j Vt ***, n Au -r*^ %# W4# wv*** w >-* ^ r* efrtificstes r.-Ji.:kerc.d 7, 1 red 5'ceck U-------- < of' t OV wW* VVi. ..^/ * ^ 'v-/ Iw . " b'.'t. .^4 w- l^V** >+~J OtS\** , J.4C Grnsdc-) 6d-s;;o ::ce sll in order to bs . e.wr>.Ci 0-i nocks nr tas co:eve**iV to Crone Co. or Cr, ...e Liri.ted as nsy' bo ; felt dcGire'bls tks erceptlcn of the . Ceres one ebera. certificates .^etc-re the . ......'^,0 ^iL.S liWw iC^Sii 3-'*e*t;0> w-.A.i op ,5 eetlonel benki Theso rcp::cse:?c Qualify- ;kvc c&sres for directors etc if there Is ' cey problen, -X have been etsrred that . . Cebbreno will take steps ` to h&xre1 the;: ` ... cionstures tpeeraeteee- ` : *; .' ` biz* Alice bU Harrelcoa Eoccdbsr 5 3 19CO Trscensrts thonscivso as registered in C;.. .ado cad as sot forth on lieu in Assignment oncost for last Crsdansrh nine a duplicate cf ho. 103*707 ccvor- a> ^llCA^iaOL'1, (1 don't understand this. Probably these viXL eventually sriud up in Canere.) ' ' ASStgO Cv:o - .-~ ? '^-T promos vere net delivered to -~a with ' Cll ststexaet being msec that the first ere bed expired cad Chat no cnc had bean die to locate the second one. patents listed cn Assignment above except ter the'first tvo patents. .. ' itesdipt ci.ia.cc2 by Cc-chrsi20 Corpora tics rlth respect to three of the four checks delivered at the closing respectively in do cner-ts cl 32*010*003., $174,702.71 and $9,424.So.\viih hs latter two being in Canadian funds. {vJbcn"v-a receive a csttlcaerrC sheet fr'esa Ccstten^ealtb Land Zlhle It td.Il constitute a receipt for the CGOpGOO plea collar chock pale for tee real estate.) :e i;ng`j.neertng corporation and resignations c-a all officers and directors of Cochrans rhginearing Corporation ana Cochrane hater Coaeitionlng Line.tod. iCesignatiens of Frances t. Say and J* K. Olayeezrb respectively as Assistant Secretary and Vice^Fresiosne of Cochrane beter Conditioning United and resig nations of Tbarlov; Z,, HsBrice, Fhrray ` Dabler and John Iboms Johnson as 'i '* r'T' mrclscn 5 December 5S 19 directors mid officers ci the scrr.e corporation --d resignation - Vernal C. Curran no Vicc~Firesidont of Soles . of the company. (I ma sendlng thesa directly to Canada.) . hosignsticrs of Louis J. Goii:e:ns francos M. Day3 U. Tvylie Tosses 5 J. II, Cl-syeqoib and 7. S. J&Ssica as officers and where necessary. as directors of Cochrane .Engineering Corporation, . MimCe Zoolz-: .of Cochrane Engineering Corporation. ' '. . Assisnnent;, original, and two copies of ' Cochrsns*s interest to. a- boclilet entitled t5osliading and Stocking Haste' in Modern Boi?.cr Itocsss**. . ' . * Assignments original and two copies- to a .tradetrarh called -^COCdl-AhE" in francs. . (vie hove >520 idea if this Assignment * complies with Breach law but when the . matter is cheeked ire cm* obtain any . farther doear.snhr irora Cochrans.) _ Letter fir as V?6.1f a Blecb9 Schorr and. Solis-* Cohens dated Kay' 24:. 1960 regarding Hex? Jersey tradeisarh I,dcSIilCj'SCf." with note appended to the effect that this Crsdersrb cannot bo assigned in Hex-? Jersey. Criminal direction to Crane Co. as to .;' where Crane is to deposit Cochrane*3 .' csccu-nto receivable. f :' Two criminals and one certificate signed -. by ;fcBr:lde for Cochrane certifying that ' there have been no adverse changes in the condition of Ccchrone* business* . Alien ll :rretoen - o- Copy .of receipt given to Cochrane Corporation regarding property in or iter Toronto> Canada iced to prooerty in i orcc to ^ Canoes, (This kLU be cent directly to Montreal* j Copy cf letter cent. by Cc-Lirane Corporation to live ritilcdtlphia Esticnal bode regarding its ^vestesat In ' Recuperation ibernicea & Epurcticd, ` 3 w rcc t> --"2. & , receipt give.-I to Cochrane Corporation re receipt or certificates representing shares-or erode -- the fir at' certificate represents 63 and not 630 chorea. Receipt given by Crane to Cochrane re letter iron She Eiilpdolphia National seals and copies or letters dated July 20 and de-gtsc 3 ail s^ich respect to aseupsrafcioa iborsaiore e Lpuracion. ' ' ' Letters referred to in above receipt. . Stool: powers covering investeont in Recuperation Xheradoue 6s Hparatlon repre- soatins 400 Olcss A shares 5 63 Founder chorea3 7;60G Class B chares and 4,COO . Class shares. ' '. _ Letter 'free: Uolis liocb5 Schorr and SolisCohca to drsnb L. Luce dated psceasher Z9 .1560 -regarding iterss still open..' Sincerely ,yo-<ars3 ' Franlt L.' Luce cc*. Cac^ellcder t 4 (1. aarreleoo A. 8* BttMt 7nittrr and Chief September $ 1963 Dividend Recuperettoo Thcrmique St Spurst Urn RECEIVE lei Off&ir F. McDFRMCTT 2 8i 4v1m4 bp The Philadelphia Batinas! Bonk la a telephone conversation today that they bad reealved tbs I960 &d 1951 dividend* on the eharec Chet an ia theabovs^orperetloa free leelate Generals l& 9rlat fr*c and that the wat of the met iivUetl wo* 13,414.32 franc* end that the fvaat* bed been converted to 9* $ dollars at the rate of .203$ recalling, in the receipt ( $6,805.92. Ihii exeunt her been credited to Cram Co. Aeceuat #139*187$ m of this date. Xa oy letter to thee of laly 11, 194$, X had tigered the tetal dividend at $$,818*14 franee after 151 French withholding tea, eo that the col lection charge of Soelete General* apparently onowoted to 174*58 francs er approgcieately 73.00 9* 8* dollars. Ia booking this dividend I have instructed Kr* Schneider to booh it gross of the 151 withholding test end to credit the foreign teat with held for the 151 tax, so that we will piofc~op the dividend gross fear tax purposes end claia foreign tax credit for the withholding tax. In addition since wt apparently em 101 of the eownon stock of the Cab* pony, we can data a desoed paid credit for French toss* tapeeed on the French Cwapany according to tb&it financial report which we received e month ago aewntad to 50i of their locos* before taxes. 3hi naans that no C. fi, tax will have to he provided on the dividend income, as the withheld tax pleetfco deemed paid tax will be well in excess of the 6. 8. 521 Income toot rate. *SH>es cc: ttr* 8. G. Fabian!, Freaidant Kr. F. C. ttees, Controller Nr* f 1. Inca, Secretary ttr.C. F. Mfifaiartt, iMifUBt treasurer ttr. 8. A. Schneider, Accounting supervisor FORM MHA COCHRANE DIVISION CRANE CO. PHILADELPHIA 32, PA. To Mr. G. F. McDermott Crane Co. - New York AH CMttKb H)rc( to Mw / CtohcuH WWwwt-Cum Ca,, htlUO^phlt. F.. 4 *t coatuUMl Kpoa *U>ko. accitfaob. m to bm4 tkt< ew<tre(. AH analaltens (lr iMndiU wuRtMe* and ubpet ta ch wHhotA Mtfc*. j Dr/'riv \ L f_ i v * i. 'Cr r ft/Vn^ PM'ITT vJ. T. !YCL>i.M`.lvj 1 I SUBJECT: RECUPERATION THERMIQUE ET EPURATION IN REPLY MENTION DESK September 4, 1963 Attached are the copies of the three letters which should give some clue as to the location of the shares. cs :sc C. Scuron Controller Oroattizeo 1803 FOREIGN DEPARTMENT CABLE AOORCBB "PHILABANK" . i .> vr-v P iS&h ia-1, Pa. DU P L I fe*0*1t*.1v*ienGueenKelreabler hrl4 16* Trance\ Comp&rtimentde# Depot* t*mgen td/dc f.osfc . . R.l l2,063 share8-RECUPERATION -THSRMIQJ ETKPURATION , n/o Cochrane Corporation,; Philadelphia, Pe* ?k Gentlemen | ?\t? '\ >. >. v si*; "* v ; * We have your letterof March 2B.$l 1961,, In; which yoa request / authorisation to supply the tSorgan^ Guaranty ^Trust.Company of New York, Parle, on behalf of their client. Crane C9.Chicago,; with the name of Vr ' --''A; , the holder ofithe ncminatlve certificatee'repreaenting the above listei securities. We attach tWo photo-copiea of; a letter datedDecember 2, 1960*v. * ^addressed to, us by. Cochrane jCorporaticn^vwhich; Is self-toplanetbxy and ia.*`:;--yl : .which they. advised' that all of:their rights,1 title, vand' interest in these,,'.. * 1 * securities; had1 been' sold,'assigned,, transferred* and 'set icver-to Crane { *V Oroattzzbd 1803 porciqn on*Afrr*-l*wT eM(4Meiin miuANR* v y ,, /. J '/ ' ; .. j! *^D UPLI C/A-.T H Philadelphia-1* Pa. March 15, 1961 .X,\ * ';** ` lir.' Frank Ince, Esquire Assistant Secretary Crane Company /' 3^0 Park Avenue Jew York, M.Y. ' a . Rei 12.063 chares Recuperation Thermions ei gpuratlon .... j'.jpear.Kr* Lueet . `- - : y.?/ *. '* - . Vie recently confirmed to the Societe Generale, 112 Avenue Kleber, .ipar'io 16, France, that they are holding these chare* in safekeeping. jfor our account, in your behalf. IvSv,...J,k,, .\:sI_n___t_h__i_s_ conn. e.c..t.i.o..n..,. we. . enc.l.ose a co.p.y of our letter dated D_ ec. ember 14, 1 rn 966, addressed to you, to which ve have not yet received a reply* \iv>. ' ^ Jour'peOnp^-'aiiostlon wlll.be appreciated. >,... Tery tj .. f : (I..7i?.i` i` - V^ \ '\ ..J /* ? ** < . * *,,. " : me. Autb&Ued Signature.'-;- '' * Jfuv '. ` ''' : -'. :/.i;; lAp'*v'-i''. - f^-{lYW r- /: ,vrV-;:i;;v -rh-/;-.-'-4--'V -V v;>, : % T -h V-V-. O- ; i'siftvV- " o vi Sm--bmr U, I960 -V u j'r;.* Hr. Frank luce, Esquire Assistant Secretary . Crane Company 300 Park Atcgm Vm Tork, I.T. V- - ' -Wirt- * 12.063 lihanxi Rgeuparatlow Thoffdong t Rniratloa Dear Kr. laetl Kr. T. HcBrido, President of Cochrane Corporation, 17th Street below Allegheny Avenue, Philadelphia, Pa. recently in formed us that these shares, now held In safekeeping at Sooieto . Generals, 112, Arenas Gcber, Paris, 16, France, were sold, assigned, trensferrod and set over to your company on December 2, I960. 'v v*."> He should like to know, since the Cochrane Corpor ation Is now a division of Crane Company, wbothor or not It la your intention to permit the sharoe to reaain In safekeeping at the above mentioned bmk, subject to our instructions, initiated by yourselves, the rarpoae of the safekeeping, originally, was to eliminate the risk and aspens# of forwarding the certificates back and forth for wtt . tlon, every time s dividend woe declared and due* : A- ; s A "i V '-A '*' j/ J""A'V f; " *''''` '.`.Ay . ESTABLISHED !? CHICAGO SAN FRANCISCO LOS ANGELES MINNEAPOLIS DETROIT SEATTLE ST. LOUIS INDIANAPOLIS ST. PAUL PORTLAND DULUTH NEW ORLEANS TULSA OAKLAND PHOENIX MILWAUKEE SAN DIEGO KALAMAZOO INCORPORATED INSURANCE 70 PINE STIIEET NEW YORK S September 4, 1963 WHITEHALL 3-2000 NEW YORK BOSTON PITTSBURGH PHILADELPHIA BUFFALO ATLANTA MIAMI SYRACUSE CLEVELAND CHARLESTON RICHMONO MONTREAL TORONTO VANCOUVER CALGARY EDMONTON WINNIPEG CARACAS LONDON Mr. George F. McDermott, Assistant Treasurer The Crane Company 300 Park Avenue New York, New York Dear George: You expressed admiration for the facilities of Marsh & McLennan in the foreign field. The enclosed description of those facilities in our '`News" may be of interest to you. We trust that you may allow us to discuss these facilities further, in the hope that we may be able to assist you in the consolidation and control in the U.S.A. of the insurances of Crane's foreign affiliates. This consolidation I know would provide you personally with "sleep" insurance. I am confident that the complications which you confidentially discussed will be corrected and that our relationship will be a happy one. Sincerely yours. MJD:R Enc. Marshall J. Dodge, Jr. Marsh ATOM^LeIvivaiv SPECIAL SUPPLEMENT TO THE MEMBERS OF OUR ORGANIZATION: August, 1963 t am glad to report that we have now completed our program for the development of a centrally controlled, fully coordinated brokerage service throughout the European Common Market countries, headquar tered with the firm of J. Henrijean & Ses Fils. J. A.. D. Hutchison, formerly in our New York office, has now been transferred to the Henrijean office in Brussels as coordinator for Marsh & McLennan busi ness in Europe. The firm of Henrijean have now enlarged their operation in France through association with the Paris office of A. W. Bain & Sons, Ltd. ; have purchased the well-known Milan agency of MI1 Mare" which now oper ates under the title of Henrijean Italia; have arranged through D. Hudig & Co. of Rotterdam to operate the facility of Henrijean, Holland; and have devel oped an entirely new relationship in Germany with the firm of Gradmann & Holler, whose six offices in Berlin, Dusseldorf, Frankfurt/M, Hamburg, Munich and Stuttgart will carry on operations as Henrijean for United States and Canadian owned risks located in Germany. This cohesive network, coordinated by the Henrijean international staff operating out of Brussels is capable of providing centralized service unequaled in the European Economic Community. This arrangement for the European area represents a major step in improving our world-wide brokerage facilities by making available uniform coverage of properties and liability under insuring conditions patterned after the accepted broad forms used in the United States. The availability of insurance on foreign subsidiaries embracing terms and conditions usual to the experience of the insurance buyer in the United States should provide a major area for the extension of services on our present accounts and the acquisition of new foreign business. Now that these unique facilities are available, it is important that we take immediate steps to bring them to the attention, not only of our present assureds, but to any American or Canadian company with opera tions in the Common Market area. This also gives us an opportunity for pointing out the excellent facilities of our International Division to provide insurance coverage anywhere in the free world. The primary responsibility for the development of international business lies with the account executive, supported and stimulated by the head of his office and other senior officials. In some cases the solicita tion can be carried on by the account executive, -- in other cases it would be highly desirable to bring in a representative of the International -2- Division to carry on the solicitation. On major requests for action on the part of our correspondents, the International Division should be kept advised by means of copies of letters and cables. The International Division is now distributing to each office an upto-date International Placing Guide and will furnish other material from time to time. In order to add further impetus to this special effort to develop international business, our advertising program for the time being will be concentrated on this subject. By virtue of the facilities which we now have at our disposal, we have already received several important orders, and have been given exclusive authority to develop comprehensive international programs for Procter & Gamble and Monsanto Chemical. We are hoping that the expan sion of our international business will be of double importance, not only adding direct income, but as an entree into other types of coverage. I am sure I can count on the cooperation of all of you in carrying out this important program. Chairman -3- Single coordinated insurance service throughout the jfj Common Market marsh & Mclennan international Our well-established network of offices, affiliates and correspondents in virtually all of the world's major markets has recently been strength ened through arrangement for exclusive representation in Common Market countries by J. Henrijean & Ses Fils. This prominent Brussels-based insurance brokerage firm, with oper ations in France, Germany, Italy and Holland, complements our exist ing facilities in other European countries. Now American parent concerns may obtain coverages for their foreign operations that closely resemble those commonly used and under stood here. We suggest an early discussion of your company's present or planned overseas operations with an eye to the creative application of insurance to your needs. Marsh &. MeLejvivan INCORPORATED INSURANCE BROKERS CONSULTING ACTUARIES AVERAGE ADJUSTERS Chicago Mew York San Francisco Minneapolis Detroit Los Angeles Boston SL Louis Philadelphia Pittsburgh Seattle Indianapolis St. Paul Portland Buffalo Duluth Tulsa Atlanta Miami Mew Orleans Syracuse Rochester Tampa Milwaukee Phoenix Cleveland Kalamawo Charleston Oakland San Diego Rtcitmoud Montreal Toronto Vancouver Calgary Edmonton Winnipeg Caracas London LOCAL BROKERAGE FACULTIES THROUGHOUT THE WORLD BILL OF SALE AND ASSUMPTION KNOW ALL MEN BY THESE PRESENTS THAT: WHEREAS, COCHRANE CORPORATION, a Pennsylvania corpor ation, hereinafter referred to as "Cochrane", has entered into an Agreement dated the 2nd day of November, i960, hereinafter referred to as the "Purchase Agreement" with CRANE CO*, an Illinois corporation, hereinafter referred to as "Crane"; and WHEREAS, the Purchase Agreement provides for. the sale by Cochrane to Crane of Cochrane's inventories, patents, trademarks, engineering drawings, patterns, lists of customers, plant and equipment, the stock of Cochrane's subsidiaries and all other assets of Cochrane with certain exceptions spelled out in the Purchase Agreement; and WHEREAS, Cochrane contemporaneously, herewith, has delivered to Crane deeds of special warranty of all of its real property, stock certificates, duly endorsed for transfer, for all of the stock of its subsidiaries, and a certificate of title properly endorsed for the motor vehicle owned by it, and has assigned to Crane all of Cochrane's rights under its patents and trademarks; and WHEREAS, Cochrane.desires to transfer and convey to, and vest in, Crane title to.and ownership of all of the other properties and assets, tangible and intangible, to be con veyed and transferred to Crane as provided in the Purchase Agreement; and WHEREAS, the Purchase Agreement provides that Cochrane is to assign to Crane and Crane is to assume and agree to perform all of its outstanding purchase and sales contracts, leases and other instruments made in the ordinary course of business; and . WHEREAS, the Purchase Agreement contains certain \ representations and warranties on the part of Cochrane; NOW, THEREFORE, this instrument ;. WITNESSETH THAT: 1. Cochrane does hereby sell, transfer, assign and set over to Crane all of its right, title and interest in and to its inventories; patents, trademarks and applications.there for; engineering drawings, patterns, and lists of customers; plant and equipment', including land, buildings and machinery; and all of its remaining assets of whatsoever kind, nature or description and wheresoever situate as the same existed at the close of business on November 30, i960, including without limiting the generality of the foregoing Cochrane's investment in Recuperation Thermique & Epuration, a French company, excepting only the assets set forth in subparagraphs 1(e)(i) to l(e)(iv) of the Purchase Agreement. 2. Cochrane does hereby transfer, assign and set over to Crane all of its outstanding purchase contracts, sales contracts, leases, license agreements, agreements with sales agents, union contracts, and all other outstanding operating and service contracts of Cochrane entered into by Cochrane in the usual course of its business as the same existed at the close of business on November 30, i960. 3. Ihere is hereby incorporated herein with the same force and effect as though the same were,set forth at length all of the representations and warranties of Cochrane affecting any of the aforesaid assets as the same are set forth in the Purchase Agreement and all of the said warranties and representations are hereby confirmed. Except for such repre sentations and warranties, no representations or warranties are made, expressly or by implication, from the execution and. delivery of this Bill of Sale and Assumption.. 4. Any right, title, interest or demand transferred , to or conferred upon Crane hereunder, shall inure to the bene fits of the successors or assigns of Crane. 5. Crane does hereby assume, take over and agree to perform in accordance with their respective terms all of the pur chase contracts, sales contracts, license agreements, agreements with sales agents, union contracts and other outstanding and operating service contracts of Cochrane, assigned to Crane in paragraph 2. If Crane is required "by the other contracting parties to any such contract, agreement, lease or license,'to assume such contract In writing. Crane hereby agrees to so assume. If any such contract is unassignable and the other party to such contract shall not consent to assignment thereof. Crane shall complete such contract for and on behalf of Cochrane and Cochrane agrees to pay to Crane and Crane agrees to accept as payment thereof the net amount of the price for which Cochrane shall have agreed to perform the contract. Except as provided in paragraph 11 of the Purchase Agreement, Crane hereby also assumes and agrees to be liable for any performance guarantee n by Cochrane in connection with any _by,,,,Cqc.hrane prior to the close of business on November 30, i960. IN WITNESS WHEREOF, Cochrane and Crane have each caused this Bill of Sale and Assumption to be sigped in its corporate name by its President or other authorized offlpefr and Its corporate seal to be hereto affixed duly attested by its Assistant Secretary this 2nd day of December, i960, pursuant to resolutions adopted by their respective Boards of Directors and approved, in the case of Cochrane, by Unanimous' Consent in Writing of its Shareholders. Attest; COCHRANE CORPORATION Assistant Secretary Attest: n vif CRANE CO. By President " [Corporate Seal] COMMONWEALTH OP PENNSYLVANIA: COUNTY OF PHILADELPHIA SS. On this, the 2nd day of December, i960, before me. the undersigned officer, personally appeared T. E. McBRIDE who acknowledged himself to be the President of COCHRANE CORPORATION, a Pennsylvania corporation, and that he, as such President, being authorized so to do, executed the foregoing instrument for the purpose therein contained by signing the name of the corporation by himself as President. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. My Commission Expires: tHj/r 6? i(i? r STATE OF v-ri. M7 COUNTY OF 1/ Ju * V ' f 4-e. ss. On this, the 2nd day of December, i960, before me, the undersigned officer, personally appeared yy) who acknowledged himself to be the of CRANE CO., an Illinois corporation, and that he, as such , being authorized so to do, executed the foregoing instrument for the purpose therein contained by signing the name of the corporation by himself as IN WI1NESS WHEREOF, I have hereunto set my hand and official seal. Notary Pub33c My Commission Expires: j f pt* y -6- I CERTIFICATE PURSUANT TO PARAGRAPH 6(d) OF THE PURCHASE AGREEMENT I, T. E. McBRIDE, do hereby certify that I am the duly elected, qualified and acting President.of Cochrane corporation, a Pennsylvania corporation, hereinafter called "Company", and I do further certify that: 1. I am familiar with the provisions of a certain Agreement dated November 2, i960 between Crane Co., an Illinois corporation and Cochrane, and specifically paragraph 6(d) thereof, 2. There has been no adverse change in the conditions, financial, business or otherwise, of Cochrane or of its subsidi aries, Cochrane Engineering Corporation, an Illinois corporation, and Cochrane Water Conditioning Limited, a Canadian corporation, from June 30, i960 to the close of business on November 30, 196Q, except for changes resulting from operations in the usual and ordinary course of the businesses of such corporations. 3. Between June 30, i960 and the close of business on November 30, I960, the businesses and assets of Cochrane and its two subsidiaries above referred to have not been adversely af fected as a result of any fire, explosion, earthquake, flood, accident, strike, lockout, combination of workmen, taking over of any such assets by.any government authority, riot, activit ies of armed forces, or Acts of God or of the public enemies. IN WITNESS WHEREOF, I have hereunto subscribed my hand and affixed the seal of the corporation this 2nd day of December, i960. tT~E McBrIcle President (Corporate Seal) y* ' .. .H.. _ . , STATE OF DELAWARE SECRETARY OF" STATE DIVISION OF CORPORATIONS FILED 04:00 PN 08/09/2000 001404942 - 2517737 CERTIFICATE OF AUEKXMKEBT TO TUB CERTIFICATE OF INCORPORATION OF COCHRANE INC. Adopted Pursuant to Section 242 of the General Corporation Law of the State of Delaware Cochrane Inc. (the "Corporation*) a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, ("GCL*> DOES HEREBY CERTIFY: FIRST: That by unanimous consent of the Board of Directors of Cochrane Inc., pursuant to Section 141(f) of the GCL, a resolution was duly adopted setting forth a proposed amendment to the Certificate of Incorporation of said Corporation, declaring said amendments to be advisable, and referring said resolution to the stockholders of said Corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows: RESOLVED, that a proposal to change the name of Corporation by deleting Article "First" of the Certificate of Incorporation and to adopt the following amendment to the Certificate of Incorporation of the Corporation: *FIR8T The name of the Corporation is Crane Environmental, Inc. * be and same is hereby approved. oy/os uu _-.ru.-i.,.. SECOND r That pursuant to Section 228 of the GCL the sole stockholder gave its written consent to the amendment.* THIRD: That the aforesaid amendment was duly adopted in accordance with applicable provisions of Section 242 of the GCL. FOURTH: That the capital of said Corporation shall not be reduced by reason of said amendment. XU WITNESS WHEREOF, the undersigned has executed this consent as of the dav of August, 2000. -f4 j-. otJbe*A&r. 3: Msal\dian'\cocia-aJiWaaiend:oir>ccrc STATE OF OELAUARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 04:30 PH 06/20/1995 9SO137408 - 2517737 CERTIFICATE OF INCORPORATION OF COCHRANE INC. 1. The name of the corporation is: Cochrane Inc 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of common stock which the corporation shall have authority to issue is One Thousand Five Hundred (1,500): all of such shares shall be without par value. 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. .6 The name and mailing address of the incorporator is: M. A. Brzoska Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 7. The corporation is to have perpetual existence. I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 20th day of June, 1995.  2003 West, a Thomson business. No claim to original U.S. Govt, works. BUS CORP ACT Art. 5.10, Disposition of Assets Requiring Special Authorization of Shareholders; Effect of Disposition Requiring or Not Requiring Authorization; Liability of Acquiring Corporation *186058 V.A.T.S. Bus.Corp.Act, Art. 5.10 VERNON'S TEXAS STATUTES AND CODES ANNOTATED BUSINESS CORPORATION ACT PART FIVE Current through end of 2003 Third Called Session Art. 5.10. Disposition of Assets Requiring Special Authorization of Shareholders; Effect of Disposition Requiring or Not Requiring Authorization; Liability of Acquiring Corporation A. A sale, lease, exchange, or other disposition (not including any pledge, mortgage, deed of trust or trust indenture unless otherwise provided in the articles of incorporation) of all, or substantially all, the property and assets, with or without the good will of a corporation, if not made in the usual and regular course of its business, may be made upon such terms and conditions and for such consideration, which may consist in whole or in part of money or property, real or personal, including shares of any corporation, domestic or foreign, as may be authorized in the following manner: (1) The board of directors may adopt a resolution recommending that such sale, lease, exchange, or other disposition be approved by shareholders of the corporation, unless the board of directors determines that for any reason it should not make the recommendation in which case the board of directors may adopt a resolution directing that such sale, lease, exchange, or other disposition be submitted to shareholders without recommendation and, in connection with the submission, communicate the basis for its determination that the sale, lease, exchange or other disposition be submitted without recommendation. (2) The board of directors may submit the proposed sale, lease, exchange or other disposition for authorization by the corporation's shareholders at a meeting of shareholders, which may be either an annual or a special meeting. (3) Written or printed notice shall be given to each shareholder of record entitled to vote at such meeting within the time and in the manner provided for in this Act for the giving of notice of meetings of shareholders, and, whether the meeting be an annual or a special meeting shall state that the purpose, or one of the purposes, of such meeting is to consider the proposed sale, lease, exchange, or other disposition. *186059 (4) At such meeting, the shareholders may authorize such sale, lease, exchange or other disposition and may fix, or may authorize the board of directors to fix, any or all of the terms and conditions thereof and the consideration to be received by the corporation therefor. Such authorization shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of the corporation entitled to vote thereon, unless any class or series of shares of the corporation is entitled to vote as a class thereon, in which event the vote required for authorization by the shareholders shall be the affirmative vote of the holders of at least two-thirds of the outstanding shares within each such class or series entitled to vote thereon as a class and at least two-thirds of the outstanding shares otherwise entitled to vote thereon. Shares entitled to vote as a class shall be entitled to vote only as a class unless otherwise entitled to vote on each matter submitted to the shareholders generally or provided in the articles of incorporation. (5) After such authorization by vote of shareholders, the board of directors, nevertheless, in its discretion, may abandon such sale, lease, exchange or other disposition of assets, subject to the rights of third parties under any contracts relating thereto, without further action or approval by shareholders. B. A disposition of any, all, or substantially all, of the property and assets of a corporation, whether or not it requires the special authorization of the shareholders of the corporation, effected under Section A of this article or under Article 5.09 of this Act or otherwise: (1) is not considered to be a merger or conversion pursuant to this Act or otherwise; and (2) except as otherwise statute, does not make the corporation, or other entity expressly provided by another acquiring corporation, foreign responsible or liable for any CREDIT(S) Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended hy Acts 1957, 55th Leg., p. Ill, ch. 54, 9; Acts 1967, 60th Leg., p. 1720, ch. 657, 11, eff. June 17, 1967; Acts 1979, 66th Leg., p. 422, ch. 194, 1, eff. May 17, 1979; Acts 1987, 70th Leg., ch. 93, 26, eff. Aug. 31, 1987; Acts 1991, 72nd Leg., ch.901, 31, eff. Aug. 26, 1991; Acts 1993, 73rd Leg., ch. 215, 2.15, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 375, 28, eff. Sept. 1, 1997. <General Materials (GM) - References, Annotations, or Tables> HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES 2003 Main Volume Acts 1997, 75th Leg., ch. conversion" following "merger". 375 in B (1) inserted "or REFERENCES LAW REVIEW COMMENTARIES Annual survey of Texas law: Corporations. David Simon Sokolow, 37 Sw.L.J. 174 (1983). *186060 Corporations and partnerships. Robert W. Hamilton, 34 Sw.L.J. 231 (1980); Marc H. Folladori, 35 Sw.L.J. 225 (1981); Robert W. Hamilton, 36 Sw.L.J. 227 (1982). Asset acquisitions: Caveat Emptor. James Ryan and Robert Beasley, 53 Tex.B.J. 1222 (1990). Changes in corporate structure and maintenance of long-term contracts. 41 Tex.B.J. 352 (1978). Checklist for negotiating and closing a commercial real estate transaction. William D. Powell, 30 Tex.B.J. 263 (1967). Corporate reorganizations, some current developments. O. Galvin, 42 Tex.L.Rev. 421 (1964). Charles Defending against punitive damages in Texas. 28 S.Tex.L.Rev. 503 (1987). John H. Boswell, Equity participation arrangements between institutional lenders and real estate developers. J. Cary Barton and Robert E. Morrison, 12 St.Mary's L.J. 929 (1981). Sale of entire assets. Carroll Sierk, 26 Tex.B.J. 25 (1963). Shareholders' meetings, determination of a quorum. Kerr, Jr., and Howard Wolf, 43 Tex.L.Rev. 713 (1965). James H. Uniform Business Corporation Act, sale of corporate assets. John R. Williams, 1 Texas Law & Leg. 326 (1947). LIBRARY REFERENCES 2003 Main Volume Corporations k443. Westlaw Topic No. 101. C.J.S. Corporations 655. RESEARCH REFERENCES Encyclopedias TX Jur. 3d Corporations 419, Generally; Where Predecessor Unincorporated. Forms Texas Jurisprudence Pleading & Practice Forms 2d Ed 75:52, Petition-Shareholder's Derivative Action-To Cancel Fraudulent Transfer Of Corporate Assets And For Accounting-Against Two Corporate Defendants And Corporate Officers. Texas Jurisprudence Pleading & Practice Forms 2d Ed 75:81, Introductory Comments. Texas Jurisprudence Pleading & Practice 114:21, Answer-Affirmative Defense-Absence Liability. Forms Of 2d Ed Successor *186061 8 West's Texas Forms 20.15, Acquisition Of Assets For Shares Of Acquiring Corporation. 8 West's Texas Forms 22.15, Form-Acquisition Of Assets For Shares Of Acquiring Corporation. 8 West's Texas Forms 22.18, Shareholders Of Former Subsidiary. Form-Notice To Minority 8 West's Texas Forms 23.1, Introductory Comment. 8 West's Texas Forms 23.5, Resolutions Of Board Of Directors. 8 West's Texas Information Return. Forms 23.8, Form 966-Federal Tax 8 West's Texas Forms 23.10, Revocation Of Dissolution By Shareholder Consent. Treatises and Practice Aids Tx Practice Guide, Bus. Sc Coml Litigation CH 12.1, 12.1. Powers And Duties Of Business Corporations. Tx Practice Guide, Bus. Sc Coml Litigation CH 12. IV, 12. IV. Voting And Management Rights Of Corporate Shareholders. Tx Practice Guide, Bus. Sc Coml Litigation CH 13.1, 13.1. Liability Of Corporations. TX Practice Guide, Personal Injury 2d CH. 4.1, 4 I. Determining Theory To Sue Upon. Texas Practice Guide, Real Estate Litigation CH 2.VII, 2 VII. Disputes Regarding Conduct Of Real Estate Brokers Or Agents Of Brokers And Salespersons. Texas Practice Guide Torts CH 8.H, 8.H. Successor Liability. 13 Tex. Prac. Series 51.1, The Traditional Structure Of A Corporation. 13 Tex. Shareholders. Prac. Series 51.2, The Authority Of The 13 Tex. General. Prac. Series 52.1, Shareholders' Meetings In 13 Tex. Prac. Series 52.2, The Time, Place, Purpose And Call Of Shareholders' Meetings. 13 Tex. Prac. Series 52.6, Eligibility To Vote At Shareholders' Meeting And The Voting List. 13 Tex. Prac. Series 59.6, Corporate Combinations. 13 Tex. Prac. Series 59.7, Procedure For Statutory Merger Or Share Exchange Or Acquisition. *186062 13 Tex. Prac. Series 59.9, Procedure For The Sale Of Substantially All Of The Assets Of The Corporation. 13 Tex. Prac. Appraisal Rights. Series 59.10, Dissenting Shareholders' 20 Tex. Consolidation. Prac. Series 892, Statutory Mergers And 20 Tex. Prac. Series 897, Disposition Of Substantially All The Assets Of A Corporation. 20 Tex. Prac. Series 912, Changes Giving Rise To Right Of Appraisal. 20 Tex. Prac. Liability Claims. Series 932.5, Post-Dissolution Product ANNOTATIONS NOTES OF DECISIONS In general 1 Brokerage fees 7 Damages 10 De facto merger 8 Liability of stockholders Nonprofit corporations 5 Review 11 Subsidiaries 6 Successorship liability 4 Voting rights 2 Waiver or estoppel 9 after sale 3 1. In general See, also, Notes of Decisions under art. 5.06. Under Texas law, officers and directors had fiduciary duty to corporation not to participate in transfer of corporate assets to their proprietorship, not to benefit personally from transfer, and not to use corporate funds for payment of personal bills. In re Jackson, Bkrtcy.N.D.Tex.1992, 141 B.R. 909. Corporations k 312 (5) Under Texas law, constructive trust arose when officers and directors breached fiduciary duty by transferring corporate assets without stockholder approval to proprietorship owned by officers and directors. In re Jackson, Bkrtcy.N.D.Tex.1992, 141 B.R. 909. Corporations k 314(4) Under Texas law, officers and directors breached fiduciary duty to corporation by transferring all corporate assets without stockholder approval to proprietorship owned by participating officers and directors. In re Jackson, Bkrtcy.N.D.Tex.1992, 141 B.R. 909. Corporations k 314(4) *186063 Where sublease agreement, whereby corporate plaintiff, in consideration of rights granted to it under sublease, agreed to payment of $10 and 40% of original issue of capital stock to defendant lessor, was executory in character and specifically stated that it would not become effective until corporate plaintiff received cash or its equivalent of capitalization in the sum of $600,000, and plaintiff never received cash, or its equivalent, contributed to capitalization in the amount of $600,000, condition precedent to delivery of "property", in form of leasehold interest was never contractually accomplished and attempted transfer of 4,000 shares of plaintiff's capital stock was invalid. Vermilion Parish Peat Co. v. Green Belt Peat Moss Co. (Civ.App. 1971) 465 S.W.2d 950, ref. n.r.e.. Corporations k 99(2); Landlord And Tenant k 80(1) 2. Voting rights Where original issue of 4,000 shares of corporate plaintiff's stock to defendant lessor was in contravention of art. 2.16, this article and Const. Art. 12, 6, relating to transfer of corporate shares, since there was no "property actually received" as consideration for issuance of shares because of failure of condition precedent to issuance of shares, act of defendant lessor in attempting to vote shares of stock in subsequent corporate meeting to effectuate transfer of substantially all assets of corporate plaintiff, without affirmative vote of at least two-thirds of outstanding shares of stock was invalid. Vermilion Parish Peat Co. v. Green Belt Peat Moss Co. (Civ.App. 1971) 465 S.W.2d 950, ref. n.r.e.. Corporations k 182.4(3) 3. Liability of stockholders after sale Debt arising out of debtors' breach of their fiduciary duties as officers and directors of corporation by transferring all corporate assets without stockholder approval to proprietorship owned by debtors was nondischargeable on grounds that debtors engaged in defalcation while acting in fiduciary capacity. In re Jackson, Bkrtcy.N.D.Tex.1992, 141 B.R. 909. Bankruptcy k 3357(4) Amount of debtors' nondischargeable obligation arising out of their breach of fiduciary duties as officers and directors of corporation by transferring all corporate assets without stockholder approval to proprietorship owned by officers and directors would be equal to gross amount of funds which they received from proprietorship; account overhead and operating expenses which were incurred by proprietorship during that period would not be deducted. In re Jackson, Bkrtcy.N.D.Tex.1992, 141 B.R. 909. Corporations k 320(12) Where sole stockholders sold all their stock in Delaware corporation to buyer for a note secured by a chattel mortgage on identical chattels owned by Delaware corporation and by a pledge of capital stock of new corporate entity to be formed by buyer and contract bound buyer to dissolve Delaware corporation as soon as he secured a charter for new corporate entity and by contract Delaware corporation was denuded of its assets and purchase price for assets paid to stockholders, stockholders having received funds from which creditors could have collected their claims were liable for judgment creditor of Delaware corporation to extent of funds received. World Broadcasting System, Inc. v. Bass (Sup. 1959) 160 Tex. 261, 328 S.W.2d 863. Corporations k 545(1) *186064 4. Successorship liability Genuine issue of material fact, precluding summary judgment under Texas law for successor corporation on products liability claim, existed as to whether successor could be accountable for tort liability incurred by its fully-owned subsidiary, which successor completely controlled. Watkins v. Black & Decker (U.S.), Inc., S.D.Tex.1995, 882 F.Supp. 621, opinion withdrawn and vacated on reconsideration. Under Texas law, former employee could not impose liability on his former employer's successor-in-interest for alleged wrongful termination in violation of Texas law by former employer, absent allegation that successor corporation expressly assumed liabilities of former employer. McKee v. American Transfer and Storage, N.D.Tex.1996, 946 F.Supp. 485. Corporations k 445.1 Asbestos supplier failed to preserve for review its claim that it should not have been held liable as successor to entity that allegedly supplied asbestos to worker's employer; supplier did not specifically plead .successorship defense, that issue was not tried by consent of parties, and no jury question was submitted. Celotex Corp. v. Tate (App. 13 Dist. 1990) 797 S.W.2d 197, writ dismissed by agreement. Appeal And Error k 173(2) Jx' Asbestos supplier's defense of "successorship liability" was matter constituting avoidance in toxic tort action and, therefore, supplier was obligated to plead that matter specifically; supplier's claim that it did not expressly assume liabilities of its alleged predecessor was independent ground for denial of worker's heirs' cause of action that in no way rebutted any factual propositions underlying action. Celotex Corp. v. Tate (App. 13 Dist. 1990) 797 S.W.2d 197, writ dismissed by agreement. Pleading k 78 Statute governing successor corporation's liability fo predecessor's obligations does not confer right to acquire assets without acquiring liability; it limits successor liability when purchaser has already acquired assets without expressly assuming liabilities. ACS Investors, Inc. v. McLaughlin (App. 5 Dist. 1995) 913 S.W.2d 664, writ granted, reversed 943 S.W.2d 426, rehearing overruled. Corporations k 445.1 *186065 Even if successor corporation's acquisition of predecessor's assets was, in itself, legal act, it could still constitute intentional act of interference with contract that imposed tort liability for damages. ACS Investors, Inc. v. McLaughlin (App. 5 Dist. 1995) 913 S.W.2d 664, writ granted, reversed 943 S.W.2d 426, rehearing overruled. Torts k 12 Under Texas law requiring that the successor corporation must have expressly assumed liability to impose liability for a predecessor's torts, provision of asset-acquisition agreement in which successor expressly assumed "ordinary course of business" liabilities and obligations would not encompass assumption of liability for predecessor's alleged torts against workers who used its products. Lockheed Martin Corp. v. Gordon (App. 1 Dist. 2000) 16 S.W.3d 127, review denied. Corporations k 445.1 ____ The purchase of all or substantially all of the property or assets of the seller corporation does not make the acquiring entity responsible or liable for any liability or obligation o the selling corporation unless the acquiring entity expressly assumes the liability or obligation, or unless another statute expressly provides to the contrary. Shapolsky v. Brewton (App. 14 Dist. 2001) 56 S.W.3d 120, rehearing overruled, review denied. Corporations k 445.1 Publisher which purchased the assets of a debtor, in a sale approved by the bankruptcy trustee, was not a "mere continuation" of debtor, subject to debtor's liabilities, and debtor's contacts with Texas could not be attributed to publisher for purposes of establishing personal jurisdiction. Shapolsky v. Brewton (App. 14 Dist. 2001) 56 S.W.3d 120, rehearing overruled, review denied. Corporations k 579 (.5); Courts k 12(2.5) 5. Nonprofit corporations Country club's mere filing of statement with secretary of state on printed form stating it was filed pursuant to requirement of F of art. 9.14 that statement be filed in connection with annual report for franchise tax purposes which gave only name of corporation, address of its initial registered office and name of its registered agent did not convert club from nonprofit corporation into one operated for profit; thus, approval of sale of club's property by two-thirds vote of shareholders present at shareholders' meeting, rather than two-thirds vote of all outstanding shares, was proper. Argue v. Golfcrest Country Club (Civ.App. 1970) 461 S.W.2d 248. Clubs k 9 *186066 6. Subsidiaries Generally, parent corporation has separate legal existence from its subsidiaries under Texas law, and parent and subsidiary corporations should be treated separately unless circumstances suggest that distinction between corporate entities should be disregarded. Watkins v. Black & Decker (U.S.), Inc., S.D.Tex.1995, 882 F.Supp. 621, opinion withdrawn and vacated on reconsideration. 7. Brokerage fees Listing agreement, which was entered into by corporation, was not a "sale, lease, exchange or other disposition" of land within meaning of this article and, thus, fact that shareholders refused to authorize sale of corporation's property to purchaser procured by real estate brokers did not preclude recovery of brokerage commission under the listing agreement. Padre Sands, Inc. v. Cawood (Civ.App. 1980) 595 S.W.2d 896, ref. n.r.e.. Brokers k 63(1) 8. De facto merger No de facto merger occurred between acquiring corporation and selling corporation where selling corporation's assets were purchased for cash rather than stock; thus, even assuming that de facto merger doctrine rendering acquiring corporation liable for liabilities or obligations of selling corporation, even though not expressly assumed, could properly be applied in case arising before legislature abolished doctrine, worker injured while operating machine manufactured by selling corporation could not recover damages under that theory. Suarez v. Sherman Gin Co. (App. 5 Dist. 1985) 697 S.W.2d 17, ref. n.r.e.. Corporations k 445.1 "De facto merger" doctrine imposing liability of corporation on purchaser of its assets, and "mere continuation" doctrine imposing liability upon successor corporations regardless of manner in which assets are acquired may not be applied under Texas law. Mudgett v. Paxson Mach. Co. (App. 13 Dist. 1986) 709 S.W.2d 755, ref. n.r.e.. Corporations k 445.1 9. Waiver or estoppel Where shareholders' motion asking leave of court to file supplemental petition in action against corporation arising out of alleged improper sale of corporation's property, asserting waiver and estoppel on part of corporation to claim that it was operating under Nonprofit Corporation Act was not brought to attention of court, supplemental petition was not matter that was before court, and therefore, there was no pleading of affirmative defenses of waiver and estoppel. Argue v. Golfcrest Country Club (Civ.App. 1970) 461 S.W.2d 248. Pleading k 276 *186067 Alleged defects in sale of auditor's assets from one shareholder to another, after auditor completed its franchise compliance audit for city, did not preclude auditor's suit against city to recover amounts due for audit, where sale was subsequently ratified. Municipal Administrative Services, Inc. v. City of Beaumont (App. 6 Dist. 1998) 969 S.W.2d 31. Municipal Corporations k 254 10. Damages In action by minority stockholder against corporation and several of its directors alleging violation of SEC rule proscribing manipulative and deceptive devices and violation of this article and arts. 5.11, 5.12 and 5.13 dealing with rights of minority shareholders, evidence was sufficient for a jury to find that the state law had been violated and that exemplary damages were proper for such violation. Coffee v. Permian Corp., C.A.5 (Tex.)1973, 474 F.2d 1040, certiorari denied 93 S.Ct. 2736, 412 U.S. 920, 37 L.Ed.2d 146, rehearing denied 94 S.Ct. 41, 414 U.S. 882, 38 L.Ed.2d 129. Securities Regulation k 308 Under Texas law, corporation is entitled to recover all damages sustained by it as result of breach of fiduciary duty by officer or director, including lost profits. In re Jackson, Bkrtcy.N.D.Tex.1992, 141 B.R. 909. Corporations k 319(8) 11. Review Court of Appeals would decline to address issue of whether a violation of statute prohibiting sale of all of corporation's assets without approval of two-thirds of outstanding shares results in a per se breach of fiduciary duty, in minority shareholder's action against majority shareholder of closely held corporation, since majority shareholder did not make specific objection to relevant jury instruction. Balusik v. Kollatschny (App. 1 Dist. 2002) 2002 WL 1822360, Unreported. Appeal And Error k 215 (1)