Document Ed1mN1wxDRZDr4nq2pDbp6YJR

r PLAINTIFF'S EXHIBIT PLAINTIFF'S EXHIBIT OisSSM AGREEMENT 9F PURCHASE THIS AGREEMENT, made this 30th day of June, 1962, by and between PITTSBURGH CORNING CORPORATION, a Pennsylvania corporation, with a prir.cipai office and place of business in Pittsburgh, Pennsylvania (hereinafter called "PC"), and UNION ASBESTOS & RUBBER COMPANY, an Illinois corporation, with a principal office and place of business in Chicago, Illinois (hereinafter called "UNION"/: W ri'KCSSETK: WHEREAS j UNION owns and opeiates a plan :, near Tyler, S.r>i tb County, Texas, for the production of an asbestos type high tempira-u^e insulatu.cn product with filler; ard. WHERTAS, PC does not manufacture a high tersp^rature- msuiation product and therefore is unable to compete in that product zrarke:; and WHEREAS, UNION desires to sell to FC its plant and facilities for the manufacture of such product and PC desires to purchase such plant and facilities to enable it to enter into the high temperature insulation market-. NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, the parties hereto, with intent to be lepally bound, irerebjragree-as-^ollows :--------------------------------------------------------------- --------- --------- l -2- ARTICLE I, DEFINITIONS lc "H-T product" shall mean a product manufactured from amosite asbestos fiber, aiatomaceous earth, sodium silicate, and minor other -ingredients, which -is used for high temperature insulation, commonly known and marketed by UNION as "Unibestos" pipe and block insulation. 2C "H~T product business" shall include nranufactaring, processing, use and sale of the H-T product. 3c "Tyler plant" shall mean all of UNTCITss plant, buildings, structures and other elements of real property at or near Tyler, Smith County, lexac, where UNION manufactures the H-T product, 4c "Blooningt-on plant.1' shall mean UIIICSI*s plant at or near Bloomington, Illinois, where UNION has certain facilities for the manufacture of tn~ K-T product: ARTICLE II. 1R0PERTY TO BE SOLD BY UNION TO Pn 1, UNION shall sell and PC shall buy all that real property, consisting of land and buildings situated at or near Tyler, Smith County, Texas, bounded tine described in UNION'S title guarantee policy issued by Stewart Title Guaranty Company , a copy of which description is attached hereto as Exhibit A and made a part hereof, subject, however to the following: ------------ (aj--Taror-, for, the current year which shall bo prorated at the time of closingc (b) Deed, United States of America tc Owen Development Co, dated Nov, 4, 1947, recorded in Vol. 394, page 112, Deed Records of Smith County, Texas in which certain utility easements and facilities were reserved:, 3~ (c) Deed, United States oi' America to 0 en levaIcvraont dated April 28, 1948, recorded, in Vol, 594, pare 119, said deed records -- reser ation of fissionable naterials, utility operatin'- s.cnre&i&rj. and reservation of cexiain utility easeironts and .facilities. (d; Right of \tay-., Quan Developnient Co, to Texas Power 15 Light Co, dated i4*y 2d, 1948, recorded in. Vol. 596, page 367 # said deed record. ) Right cf way, Oi.en Development Co, i-c t, Louis South oeat-ern Railway Go, of r.'oxas, dated Docenter Ip, 194-7, recorded in *fcl, 583, page 122, said deed records. (f) Deed, Owen Devsloptont Co, tc, 2 te-x rred Gat Co, as ted AV:;"4-?j 1948, recorded in Vol, 600, pa-e 263, said deed records - gas franchise; use of butane, propane or oi):e:' private gat systsss restricted. (E) Right of way, J, V.'0 idunn et v.>: to Houston Oil Conraanr. of Texas 4 dated i-Jarch 4, 1931;. recorded in. Vo.!-. 251, va[ 0 i>8, sal, deed records. (h) Right of way, J. C. Rale tc Texas Power <: Light Co, cateel December 30, 1942, recorded in Vol., 448 > pare 9';, sa-l dec '; .ocur'.s Ri'-fi: cf way. J C, hale to .'Llnclcir hrtiria fi.l to cd-tei-Aml 4. 19/,'i.. records;.- ir '.`oi. /.6! nt: -e Zol. sod deed records RJgn oi way. J. C. hale to ~oath\;; uoru 'iolev-bone Co., ante;? April 2!', !G.44 reccrc.ew in Vcl 461. cu- r 4. said deed records. '- 4- (k) Deed, United States of America to Owen Development Co. dated September 26, 1947, recorded in Vol. 576, page 391, said deed records -- reservation of certain utility easements and facilities; (l) Deed, Owen Development Co. to Union Asbestos and Rubber Co. dated July 23, 1954, filed July 24, 1954 -- reservation of certain utility easements and facilities; (m) Deed, dated July 22, 1954, from Cal-Textile Manufacturing Company to Union Asbestos & Rubber Company, which is recorded in Vol. 773, page 79, of said deed records. together with and including the plant, tanks, and other facilities arid appurtenances thereto* The above descrioed real estate is to be conveyed sueicct also to restrictive covenants affecting the property and any discrepancies, conflicts cr shortsper in area or boundary lines, or any encroachments or any overlapping of irr.provon cats which a corroc t survey would snow,provided, however, that the same do not affect the existing improvements or restrict, interfere with cr limit in cxy manner the existing or continued 'use of suid property for the purposes foi* which it is new being used_ UNION shall also sell and transfer to K! all personal property including equipment, machinery (including idle and salvaged equipment), vehicles, fixtures, furniture and all other items pertaining to UNION-s business and-opera tionc^ ut t.hs Tylei1 plan-to> and all-of the oqui ymeat, -machinery---------and other property pertaining to UKIOH's H-T product business and operations at UNION'S Bloomington plant which is specifically listed in Rider A attached hereto and made a part hereof. All of the foregoing real and personal property (wherever located) ip hereinafter called the "H-T product property." -5- 2C At ths closing, UNION shall convey to FC the real property described in paragraph 1 above by deed of general warranty conveying good and marketable title in fee simple to said premises free and clear of all liens and encumbrances, except as stated in. paragraph 1 above,, the title to which shall be insured in rC;s name but at UNION:s expense in an amount of not less than 60,000 by Stewart Title Guaranty Company; The aforementioned deed shall bear the federal and state documentary tax stamps required to be affixed thereto (the cost of which 3hall be borne by UNION)* * At the closing, UNION will also dolivcr possession of 3uch premises to PC; and all reel estate taxes, assessments and utility charges, if any. shall be prorated as of the closing datet in addition, at the closing, UNION will transfer, set over and deliver to PC by general conveyance and good and sufficient bill of sale, in the forms as attached hereto as Exhibits B & 0, all of the K--T product property to the extent net conveyed, by the aforesaid general warranty deed. ?c the bill of sale covering ths property at Bloomington there will be attached an inventory comprising a listing of items identical to that in Rider A hereto- F0 will be entitled to take possession cf all of the K-T product property at the closing* UNION warrants that, except as may be stated in paragraph 1 above, it lias a good and marketshie title to all the H-T product property, free and clear of all liens and encumbrances, UNION further warrants that such dc-ed of conveyance and bill of sale will effect the conveyance and transfer to R cf a good and marketable title to all of the above described H-T product propertyc -----------3*- The closing--date--for--tne purciw property to be conveyed and transferred hereunder shall be July 2, 1962 and shall be as of June 30, 1962. and shall take place at a place which may be lawfully appropriate for such closing to be designated by UNION, -6 - 4. Promptly after the closing, UNION shall, under the supervision of PC's designated representatives, have all of the H-T product property (or such of it that PC shall designate to UNION) located at the Bloomington plant dismantled, packed and shipped at such time and to such place or places as PC shall specify, at PC's expense and prior to October 15, 1962. If PC has made no designation by such date, UNION shall have the right to dispose of such property as it sees fit for UNION'S own account. 5. In accordance with the provisions of Article IV below, within a reasonably prompt time after the closing date hereunder, UNION shall sell and PC shall buy UNION'S H-T product inventory, wherever located, except such raw amosite asbestos fiber as UNION may request to be withheld, pertain ing to UNION'S manufacture and sale of the H-T product. ARTICLE III. PAYMENT BY PC TO UNION FOR REAL PROPERTY. PLANT AND FACILITIES PC shall pay UNION on the closing date. July 2, 1962, the sum of $750,000 by certified or cashier's check, representing the purchase price of the H-T product property. ARTICLE IV. PC'S PURCHASE OF INVENTORY 1. On June 28, 1962, UNION will cause, or has caused, its plants to be shut down for the purpose of taking a complete physical inventory of all raw material, shipping supplies, work-in-process, factory and operating pertaining to its manufacture and sale of the H-T product both at the Tyler 7 and Bloomington plants. UNION shall give, or has given, PC timely notice of the taking of such physical inventory and PC shall have the right to have present, or has had present, at the taking thereof certified public accountants and other representatives to audit and verify the adequacy and accuracy of such inventory. Said inventories will promptly be, or have been, reviewed and those raw materials (certain amosite asbestos fibers) which UNION desires to retain, and those finished goods which in PC's determination are obsolete or damaged will be deleted from the inventory list and the remaining items priced out at the following established values. The valuation principle of lower of cost or market shall be used to establish values for raw material and work-in-process (and only the raw material constituent of work-in-process will be considered for the purpose of valuing work-in-process). Finished stock will be valued at the average of Tyler plant cost of production for k'arch, April and May, 1962. It is understood that UNION will leave, or shall have left, for PC a sufficient supply of raw materials to allow production to proceed at the Tyler plant for at least a four month period under normal usage. At or promptly after the closing, UNION will transfer, set over and deliver to FC by good and sufficient bill of sale all of such inventory. UNION warrants it has a good and marketable title to all of such inventory free and clear of all liens and encumbrances. UNION further warrants that all such inventory is in usable and marketable condition. UNION further warrants that such bill of sale will effect the transfer to PC of a good and marketable title to all such inventory free and clear of all liens and encumbrances. PC will be entitled to take possession of such inventory at the closing and in that connection UNION shall promptly deliver such inventory to such place as PC shall direct, -8 - at PC's expense. PC will pay UNION for the value of such inventory purchased by it no later than July 15, 1962, which payment shall be in addition to the amount payable to UNION under Article III hereof. ARTICLE V. PROVISIONS RELATING TO THE PROPERTY TO BE SOLD 1, UNION shall not, without PC's prior written consent, remove, sell, lease, dispose of, mortgage or otherwise encumber the K-T product property or any portion thereof. UNION warrants that it has not taken any such action with respect to any of such property and that it has maintained all of such property wherever located in substantially the same state, condition and location as it was with respect to the Tyler plant on January 25, 1962, and with respect to the Bloomington plant on February 20. 1962, the respective dates of the first inspections of said plants by representatives of PC0 ARTICLE VI. PROVISIONS APPLICABLE TO PC'S ENTRY INTO PRODUCTION OF THE H-T PRODUCT 1. Upon the execution of this agreement, PC, by its agents and representatives, shall have full and complete access to UNION'S H~T product business and operations, both at the Tyler and Bloomington plants; and to all information and personnel concerned with the conduct and operation of UNION'S H-T product business, including the right to examine and evaluate inventory and inventory records, sales, marketing, customer service and distribution methods and facilities. However, such right of access and examination shall be exercised so as not to interfere with UNION'S opera tions and UNIOM's reasonable determination of what constitutes its operations relative to the H7T product business at Bloomington or elsewhere (other than at Tyler) shall be binding. Subsequent to closing, UNION will -9- take appropriate steps which will enable FC to so conduct such operations after the closing, and UNION, by its agents and representatives, will extend full cooperation and assistance to PC's agents and representatives to effect the successful transition of the conduct and operation of the H-T product business from UNION to FC. Such cooperation and assistance shall be extended for such period of time as may reasonably be necessary to effectuate such transition and shall include, but not be limited to: (a) the effective communication to PC's agents and representatives of the know-how which UNION is required to disclose and transfer to PC pursuant to paragraph 5 of this Article VI, and (b) the introduction by UNION, through its agents and representatives, of PC's designated representatives to UNION'S H-T product customers, and in that connection the identification of PC as UNION'S successor in the H-T product business. 2. UNION will furnish PC promptly -after the execution of this agreement with co of all vri'cxa:: contracts, leaser, licenses, patents patent applies' one arc; agreements., and wall advise PC as to the terar of a il oral agreements and mderstaud.inrs, if any, relaxing to UNI0!!;s conduct and operation of the H-T product business, and ax K-'s request, UJIOK will execute such instruments and perform such other acts and obtain-i -if possible, such consents, as cay be necessary to assign to K> the interest of IFICK to any or* all of such contracts, leasex, patents, patent applications, licenses.. agreements and undorstandiagr., These shall include, bat shall not bo ' limited"xc ~arrang5s:ents"'coocerhin~' the fcilowSrg Ttelorl ' 1( (&,' Raw materials, ii.nclud.ui;- supplies of amosite asbestos fiber (.t) Supplies (c) Utilities (d) professional services (e ) Technical agreements pertaining to the iiceusim cf patents, patent appliestier and trademarks, trademark apclieations 4 and ti.c. discloso-ve acquisition and/or use of know-hown (f) Transportation and transportation equijacent (g) Sa les and sales s gar cites {h) Via roheue ing V-!./ Assignment of patents , -atent applications, tredeisarks,. trademark applications and copy-rights; 3, At or promptly after* the closing UNION will transfer, set over and deliver to ?C ail corrcopoiaieooe. reports and ether papers an its possession pertaining to UlUCd's conduct and operation of the IVT product business which shall induce, without, limitation., research, iccluiical and operating reports, credit irl'orirrrtoon, operating manuals end irstractions. correspondence with customers. sales department records, shipping department records, customer -Lists, salesmen ;s call reportsf engineering drawings and prints* and all. other pertinoat plart decirx date UNION warrents that there are no rc.strictten3 on its right to transfer ouch items to FC, If any of tee papers trur-efoivu '<" r~ pursuant to tire paragraph contair composite data, K- shall be imtiwr'. to ur- iu.;v :n cn.-> thereof., as UNION s aiviss K; por-tain to the conduct or operation el the H~T product business *>, UM.)N ha-, dieclesed to PC all existing, threatened or potential suits for patent infringement or other legal action which nay 11 - be pending cr contemplated by or against UNION with respect to any phase of its conduct or operation of the H-T product business. In connection with such disclosure, UNION certifies to PC that there are no other such suits pending or, to the best of UNION'S knowledge and belief, threatened or potential, and further warrants to the best of UNION'S knowledge that practice by PC of the know-how to be delivered by UNION to PC will not infringe any existing, unexpired U. S. Letters Patent. 5, At or promptly after the closing, UNION will execute and deliver to PC appropriate instruments whereby UNION assigns and transfers to PC all of its patents and patent applications and its trademarks, "Unibestos", "Super Unibestos'', and "Superbestos", and trademark applications,- permaining to the H^T product business, subject, however, to prior rights and licenses thereunder, if any, granted to others, as specified in writing by UNION; also UNION will disclose and transfer to PC and. subject to any rights heretofore granted by UNION as specified in writing by UNION, vill grant to PC the exclusive right to use and disclose to others all of its know-how pertaining to the H-T product business, and UNION shall hereafter refrain from disclosing or granting rights to use such know-how to any person, firm or corporation. "Know-how" shall consist of both written and unwritten data and information and shall include, bu; r.ot be limited to, all trade secrets, formulae, recipes, research, technical engineering, production data and procedures, pertaining to the H-T product business, including, without limitation, its manufacture, evaluation, storage, shipment and use, UNION warrants that there are no restrictions on its right to disclose or transfer such know-how to PC, or to authorize PC to use such know how, UNION represents that it has continuously used the above-mentioned trade marks in commerce throughout the United States since October 14, 1936, in the case of "Unibestos", and August 19, 1936, in the case of "Super Unibestos". At PC's expense, UNION will furnish PC with proof reasonably available to UNION of the continuous use by UNION of the trademarks "Unibestos" and "Super Unibestos" 12 - and will furnish PC, at PC's expense, with such other assistance as PC may require to register and protect these trademarks, 6. UNION will pay or reimburse PC for all taxes, assessments and utility charges which may be made against PC or the property acquired hereunder as a result of, or pertaining to, the conduct or operation of the H-T product business by UNION to the closing date, 7, UNION will indemnify PC against liability and hold it harm-ess from loss in respect of any claim which may be asserted against PC arising from, or as a result of, or related to UNION'S conduct or operation of the H-T product business to and including the closing date hereof, whether such claim is asserted in respect of UNION'S obligation under any contract or agreement which, at PC's request, it has assigned to PC pursuant to paragraph 2 of this Article VI, or otherwise. UNION recognizes its responsibility to its customers for claims, if any, for damages caused by or arising out of the manufacture and sale of its H-T products which heretofore have been sold or distributed by UNION prior to closing date, and in the event of any such claim, UNION will promptly notify PC of any such claim which may be asserted against UNION in respect to the H-T product which it had made, used or sold prior to closing date, 8(a). With respect to orders for the H-T product received by UNION from its customers by June 29, 1962, fci delivery after the closing (which orders arc listed in Rider B hereto axtached), FC will, subsequent to the closing, supply UNION with its requirements of the H-T product to fill such orders, regardless of the dates of delivery; PC's price to UNION with respect to each order which UNION places with PC pursuant to this paragraph 8(a) shall be at UNION'S net price to customer less five (5) points of list. 13 8(b), With respect to orders for the H-T product received by UNION from its customers after June 29, 1962, for delivery within sixty (60) days of July 2, 1962 (ninety (90) days in the case of Mundet Cork Company), PC will, subsequent to the closing, supply UNION with its requirements of the H~T product to fill such orders; PC's price to UNION with respect to each order which UNION places with PC pursuant to this paragraph 8(b) shall be at UNION'S net price to its customer less five (5) points of list, but in no e/ent shall PC's net price to UNION be less than zero list less nineteen (r9) points of list, 8(c), In the event that, within sixty (60) days after July 2, 1962, any one of UNION'S distributor-applicators shall give UNION bona fide advice of a commitment which UNION had made to such customer on or before June 29, 1962 to supply it with a quantity of the H-T product cn the basis of which such customer had bid a specific construction job on or before June 29, 1962, UNION shall notify PC of all such commitments not later than September, 3. 1962; UNION may from time to time thereafter until October 1, 1962- notify PC: of additional such commitments, in an aggregate amount not to exceed $25,000, as to winch UNION'S customers shall have advised it subsequent to September 3, 1962; and PC will supply UNION with its require ments of the H-T product to fill such commitments which ultimately mature into orders, regardless of the dates of delivery; PC's price to UNION with respect to each order whicITURTON places witn PC pursuant-'t5~thi5~praTagraph 6(c) shall be UNION'S net price to its customer less five (5) points of list, but in. no event shall PC's net price to UNION be less than zero list less nineteen (19) points of list. 14 8(d). With respect to all sales of the H~T product made by PC to UNION pursuant to this paragraph 8, PC will make shipments to domestic destinations designated by UNION:, ARTICLE VII. PROVISIONS RELATING TO _________________ UNION'S EMPLOYEES 1. PC shall have no obligation to hire or continue the employment of any person now in the employ of UNION, 2. Promptly after the execution of this agreement, UNION will submit to PC a list of all of UNION'S employees, wherever located, whose duties are currently and primarily involved in its H-T product business and opera tions, including those in sides and customer technical service, UNION will make available to PC all pay and performance records of such employees. UNION will interpose no objection to employment by PC of these individuals, tut will cooperate to the extent it is able to get such of them as PC may cesire to employ to accept employment, 3. In the case of any such employee with whom PC does net reach satisfactory terms of employment, UNION shall, upon PC:s request, endeavor to retain the services of such employees and make them available tc PC for a period not to exceed six (6) months. PC shall reimburse UNION for the cost of such employee's wage or salary during the period in which such employee:s services are utilized by PC. 4. During the period from the closing date to withTn three-(3) months thereafter, UNION will make available to PC such of its other employees not 15 covered by paragraph 2 of this Article rlT who possess technical-, opera, marketing> or other skills, who nsy be useful to PC in its initial conduct and operation cf the H-T product business ; and PC shall 'nave the right to consult with such amployoes from timo to time during such period as it shall reasonably deer, necessary. Such consulting services shall he at no cost tc FCj except for subsistence and travel expanses of such employees during such period* b, Should PC desire Id utilize the consulting services of any of suer, employees of UNION beyond said period of three (3) months, UNION, at PC's request, if possible and with the employee's consent, will make available to PC any such employee for an additional period not to exceed twelve (12) months. PC shall pay UNION for such additional consultation services a sum amounting to IbO% of each such employee's wage or salary, plus subsistence and travel expense;, during sued additional perioc, 6- UNION will pay in full to all employees whose services with UNION shali be terminated by it all amounts, whether in the form of regularcompensation, bonus, commission, overtime, sick leave, reimoursement of expenses, or otherwise., owing to or accrued in respect of such employees through the closing date. UNION will indemnify PC against liability and hold it harmless from any claim asserted against PC by any employee arising from his employment by UNION prior to the closing date; provided, however, UNION will not be required to indemnify PC for any claim except to the extent it accrued-orior to the c.'.osingdate, UNION wilT~pay ail-amounts wnich are owing or accrued through the closing date in respect of federal, state and iocal taxing bodies, and insurance, hospitalization, vacation, pension plans and other fringe Denefits for such employees. 7, UNION has informed PC of the terms of ell understandings and agreements, written or otherwise, with any of its employees whose duties in any respect pertain to the H-T product, and has furnished PC with copies of all such written understandings or agreements. UNION represents that, to the best cf its knowledge and information, it has fully disclosed to PC all such understandings and agreements and that there are no others. Except to the extent that it has agreed or may hereafter specifically agree in writing, FC assumes no contract or other obligation or liability of any nature whatsoever under any contract, agreement, understanding or practice between UNION and any of its employees or their representatives. ARTICLE VIII. OTHER PROVISIONS 1. UNION agrees that, for a period of not more than five (5) years after the closing date, it will not engage in the United States in the pro duction and/or sale of any high temperature insulation product containing asbestos with which it will compete with PC in respect of PC's H-T product business, nor will it invest in any organization which is in such business PC recognizes that, apart from the H-T product business, UNION offers the following lines of insulating and packing products, containing asbestos, which UNION sells: Insubestos felt; Insutape; Wovenstone; Insutube; Type H insulation; Type SF insulation; asbestos cloth and textiles; asbestos tape; asbestos tubing; asbestos wick and rope; asbestos yarn; -asbestos-packing;- -and U narcoboard.--Foam purposes-of--this-paragraph-;-------------PC acknowledges that the continuation by UNION of sales of products of these lines in the sizes, shapes, and densities in which UNION now offers - 17 - same for sale according to its most recent UNARCO general sales catalogue does not and will not constitute competition with PC in respect of its H-T product business. Such acknowledgment shall not be construed to limit UNION'S right to vary the sizes, shapes and densities of its abovementioned products in any way, subject only to the limitation contained in the first sentence of this paragraph 1. 2. Any controversy or claim arising from or relating to this agree ment, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association and judgment upon the award rendered may be entered in any court having jurisdiction hereof. 3. Notwithstanding any presumption to the contrary, all covenants, conditions and representations contained in this agreement, which, by their nature, expressly or impliedly, involve performance, in any particular, after settlement, or which cannot be ascertained to have been fully performed until after settlement, shall survive settlement. This provision shall be effective as to all such covenants, conditions and representations notwith standing that as to some of them, it is expressly stated that they survive. 4. UNION agrees that if compliance with the Bulk Sales Acts of Texas or Illinois, or bo~h, is required, that in consideration of PC waiving such compliance, UNION shall indemnify and hold PC harmless from and against the claims of any creditor for whose benefit such statute or statutes were enacted. ___ 5.__ This agreement, together with Exhibits A, B and C and Riders A and 3 hereto attached, constitute the entire agreement between PC and UNION relative to the subject matter hereof, and there are no understandings or warranties of any kind except as expressly set forth herein and in said exhibits. 18 IN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the day and year first above written. ATTEST: /s/ Evelyn A. Heil Assistant Secretary -ST; /s/ Jerome S. Weiss Secretary PITTSBURGH CORNING CORPORATION 3y /s/ Russell Brittingham President (SEAL) UNION ASBESTOS & RUBBER COMPANY By /s/ Edwin E. Hokin President (SEAL)