Document EgG8NR74YNqZ7bvJ6X0LbDjN

I STOCK PURCHASE'AGREEMENT. . ; AGREEMENT dated February 18,1969 between-PHILIP' CAREY CORPORATION, an Ohio corporation (hereinafter referred to as "Purchaser"), and DANA.CORPORATION, a Virginia , corporation' (hereinafter referred to as the "Shareholder") . ' . W I T-N .E S S .E T H : . * . . , _ WHEREAS, Purchaser desires to -acquire all the outstanding capital stock of, and a demand, note, in the amount, of .900, GOG made by. Smith & Kanzler .Company, a.-. New Jersey corporation (hereinafter referred to. as . the "Subject Corporation"), and Shareholder, the holder of all .the outstanding capital stock of the -Subject Corporation -* " _ ^ *s , (hereinafter referred to as the "Stock")- and..the payed''jini- ' owner of the aforesaid demand'note (hereinafter referred, to' as the "Demand Note")desires to sell the Stock and the Demand Note to Purchaser; , ; " " . '. *' .. * * . - * NOW, THEREFORE, in consideration .of. the premises. and of the mutual covenants and conditions hereinafter set ' forth the parties hereto hereby agree as-follows-: - DFA000107  1. Transfers and Closing.' . 1.1.- Delivery and' Purchase of Stock.. Subject ` to the terms and conditions set forth in this Agreement . . (a) Shareholder hereby agrees that, on the Closing Date, it will-sell, .transfer, convey and deliver a certificate or certif icates evidencing the Stock against payment therefor of $1,800,000 by certified or official bank check, .and (b) Purchaser hereby agrees to. accept said delivery .and make- said payment. Said certificate -'or certificates 'shall be duly endorsed or accompanied by "appropriate transfer powers duly executed arid shall have all necessary stock transfer tax stamps affixed thereto at the expense of the Shareholder. Shareholder will- also deliver to Purchaser the original minute book (with all- minutes .to- the Closing Date inserted therein) , the original stock transfer .-book current as of the Closing Date, the corporate seal, and such other corporate books' and records of the Subject Corporation as Purchaser may reasonably request. . 1.2. -Delivery of Demand Note and Issuance and Delivery of Purchaser's Note. -Subject to the`terms.arid conditions set forth, in this Agreement, Shareholder hereby agrees that, on the Closing Date, it will sell, transfer, assign, convey and' . deliver the Demand Note endorsed without' recourse to the - order .of Purchaser, against the. issuance, sale and delivery -2DFA000108 by Purchaser to Shareholder of Purchaser*s five-year note ' .dated' the Closing Date in the principal amount of $900,000 ' payable in five equal annual installments o $180,000 each on the first five anniversary dates of the Closing Date ' .' (each such date called a "Principal Payment Date") , bearing- interest (calculated" bn the basis of a 365-day year) from the Closing Date on t^he' unpaid principal amount thereof, pay able on each Principal Payment Date, at the rate of 5-1/2% . per annum (herein referred to. as the- "Purchaser's- Note".) . ** _ . * r ' . / .- 1.3. Closing. ' The Closing of the transactions contemplated by Sections l-.l and 1.2 hereof shall take place at the offices of Strasser, Spiegelberg, Fried & Frank, 120 Broadway, ' N.Y., N.Y., simultaneously with the execution of this Agreement. (The date and time of closing are herein referred to as the " "Closing Date".) . - . 2.. Representations- and Warranties of the Shareholder.' . ' , 1 . . .' . The Shareholder represents and warrants to Purchaser as follows: . . ' .' ' '. , 2.1. Title to Stock. * Shareholder is the .' * .lawful beneficial owner of the Stock and the Demand Note, and the delivery of the Stock and "the Demand Note . ' . DFA000109 pursuant to the provisions, of this Agreement will transfer' to Purchaser legal- and valid title thereto, free and clear of all claimsliens, equities, charges and encumbrances. '. of any kind ..or nature whatsoever.. ' " ,2.2. Authorized Capitalization. The authorized capitalization of the Subject Corporation, consists of 2,000 shares, of Common Stock, without par value, of . which .2,000. shares are issued and outstanding. All of such shares, have been validly issued and are fully paid and non-assessable> with no personal liability attaching to the ownership thereof. . : . 2.3. Options, Warrants, Rights, etc. The Subject Corporation does not have any outstanding options, * warrants, -or ' other rights to ..purchase or convert any obliga tion into shares of its capital' stock, nor has' it agreed to issue or sell ariy shares of its capital stock. Neither the Shareholder nor-the Subject Corporation is a party to - . any written or oral contract`or agreement which grants to any-person any.right of first refusal, option/ or other arrangement to acquire, at any time, from time to time, or upon the happening of stated events', shares of capital . stock of-the Subject Corporation. - -4DFA000110 . . 2.4. Authorization of Agreement. Shareholder . is a corporation .duly organized, validly existing,* and'in*' .good standing under "the ` laws of the Commonwealth of Virginia - and has full corporate authority to execute this Agreement. . The execution and delivery of this Agreement and the consumma- . tion of ali transactions contemplated hereby have been duly, authorized by all requisite corporate authority and action, and the-execution, delivery.and performance of this-Agreement .: and the transactions contemplated hereby will not, with or xwithout the giving of notice and/or the passage of time, conflict with,- or result in the breach or termination of . ' - any provision of,'Or constitute a default under, - the Certificate of Incorporation, any by-lav/, indenture, mortgage, deed of trust or - other instrument or agreement to"which the Shareholder is.a party of by .which it or any of its 'properties or assets may be bound.- . . ' 2.5. Incorporation, Good Standing,,Power, etc. The Subject Corporation is a corporation duly organized, validly existing and in good standing under the laws of the State of' New -5DFA000111 Jersey and is duly qualified and -in good standing in each" . -jurisdiction where such qualification is necessary. ' The- Subject Corporation has all requisite, corporate power to - own, lease.and operate its :property and to carry on its. .. business as now being .conducted. The Subject Corporation does not control,, directly orindirectly, any corporation or business organization and,does not have any ` subsidiary corporations. The copies of the Certificate- . . of Incorporation and the Byr-Laws, all as amended, to date, , and the Minutes of the"'Subject Corporation, which have been .delivered to Purchaser, are.correct and complete.' . , ' . 2.6." Effect of Agreement. The execution, delivery and performance of. this Agreement and the trans actions contemplated hereby will, not, with or without the giving of notice and/or the passage of time, violate any provision of law applicable to the Subject Corporation or conflict with, or result in the breach or te'rmination of any provision of, or constitute a-default.under, or result in the creation of any lien, charge or encumbrance upon any of-the properties or assets of the Subject.Corporation . . ' pursuant -to,the Certificate of' Incorporation, any by-lav/, indenture, mortgage. Underwriters' Laboratory .Cer.t/.fioation, .deed of trust or other instrument or agreement ' to which the Subject Corporation is a party or by - which it or any of its'properties or' assets may be bound, .- ` 6- - DFA000112 except Shareholder makes no warranty or representation as to the.continuation, of .the Subject Corporation's status as . a-distributor of- products of Canadian John^s-Manville Asbestos,. Limited. . - , .' . .' 2.7. Financial Statements-. Attached hereto as Schedule A is the Balance Sheet of' the. Subject Corpora- . ' ' ' tion as at August 31,- 19 6 8 and the related Profit and Loss Statement for. the year. then' ended, and the Balance- Sheet of the Subject Corporation as'.at November 30, 1968 (hereinafter referred to as the -"Balance Sheet"}, and`.the related Profit and Loss Statement for-the .three months then ended, all cert- . ' ified by the'Treasurer or Assistant Treasurer of the Subject . Corporation.' Such financial statements have been prepared in accordance with generally accepted accounting principles con-sistently applied and are correctandcomplete, and fairly, present the financial condition and .results of operations of the Subject ' Corporation as at their respective dates and for the respective periods indicated. . Such, financial statements as at August-31, 1968 accurately .reflect the-values at which all assets and liabilities of-'the .Subject Corporation were shown in the certified consolidating financial statements of Shareholder as.at that ' - *. . , date. . ` '. - . ' 2.8. Absence.of Undisclosed Liabilities. The. * " * ,, . w .* t ._ Balance Sheet makes full and-adequate-provision for all obli gations and liabilities, fixed .or contingent, of the Subject . Corporation as .at November 30, 1968,- and at that date, . the Subject Corporation did not.have- any obligations or ., -7- DFA000113 J liabilities, fixed or contingent, in an aggregate amount greater than $10,000, not reflected or reserved against in said Balance Sheet. ..' '. *' . 2.9. Absence of Certain Changes or Events. . . ' Except as set forth oh Schedule B hereto, the Subject Corporation has not, since November 30, 1968, (i) discharged or satisfied any lien or encumbrance.or. paid any obligation . or liability, fixed or - contingent, -to Shareholder or to any ether affiliated company.except for a- cash payment-of $50,000 reduc- ing-the principal amount-of the Demand Note to $900,000; .(ii) mortgaged, pledged or subjected to lien or to any otdier - encumbrance any of its assets or properties; " (iii)'. sold, transferred or leased any-of its assets .or properties, other than the sale of inventory in its usual course of business;' (iv) purchased any securities or investments; (v)v can celled or compromised any debt or claims; .(vi) waived ' Or released'any rights of material value under'.any leases, agreements, patents, trademarks or trade names-.or-with ' . : . . respect to know-how; (vii) entered in to ./any employment contract with any .officer, employee or agent or -paid any bonus ` or special compensation to any officer, employee or agent;- (viii) made any loans or advances to -any officers or- directors; (ix) suffered any. material adverse."change-in financial condition - assets, properties or business; (x) declared any dividend or made any distribution to its shareholder;' (xi) issued' DFAQ00114 or sold any'stocks, bonds, options .or other corporate -` ' ,< . securities or granted any options for the purchase thereof 8- - - '' * or entered into any corraltment with respect thereto: (xii) reclassified or repurchased any. shares, of its capital. stock; or (xiii) entered into any .transaction not in the ordinary course of.business. . . * . 2.10. Tax Matters. The Subject Corporation . has .prepared and filed with the appropriate-United-States, ' state aiid local governmental agencies all tax returns re- quired to be filed, and has paid, or made provisions, for the. payment of, all taxes which have or may become due pursuant to said tax returns -or pursuant to any assessments received by it. The' amount provided for income taxes in the Balance Sheet is-sufficient .for all'accrued and.unpaid United States, state and local taxes, whether-or not disputed, for'the period-ended on the date of the Balance Sheet. The Internal Revenue Service has reviewed the' federal tax returns of the Subject Corporation, for all fiscal.years prior -to and including"- the year ended August' 31, 19 66.- The Subject Corporation has not executed or filed with the Internal Revenue Service ..or. any other tax authority any agreement extending.-the period for. assessment, or collection of- any 'income taxes, except for the automatic .9 O'-day extension . for filing, the-August 31,-1968 return from November 15, 1968 to February 15', 1969. The Subject Cor poration is not,a party to any pending action or proceedings by any governmental'authority for assessment or collection of taxes, nor has any claim far assessment or collection of taxes : been asserted against it.. * - -9- DFA0001.15 ' '2.'ll.-' Title to Properties'?* Absence of liens and Encumbrances. Except, as specifically.disclosed in Schedule C hereto, the Subject Corporation has good and marketable title to all of its properties and assets, whether'real, personal or mixed (including the properties . and assets reflected-in the Balance Sheet) ,- free and clear of-all claims, liens',, charges, encumbrances, restrictions on transfer and.defects of any*'nature whatsoever. ' '- - .-- . 2.12;. List of Documents;. No Default. Annexed' . hereto as Schedule "D is .a true and complete list, including a ' brief description, of the'following: ' . .' ' (a) All real property owned, of record or bene- - ' ' ficially .by the Subject Corporation, .and a brief description of the principal buildings and structures . located thereon; ' . ' - (b). All policies of insurance (with a notation of. . - the .premiums paid thereon) maintained by the Subject . Corporation as the-insured party; * ' . f . (c)' All contracts', agreements, licenses*, . ~ ' . leases, commitments and understandings to. which -it is, . * , bound,'which cither.(i) involve payment by the Subject . * Corporation of .more than $20,000 or (ii.) extend' ' ', ________ (without right of termination by the Subject Corporation) -10- DFA000116 J more than three months from the date hereof other than contracts or commitments for sale of products . in the ordinary course of business), of . .. (iii) personal service contracts not terminable ; by the Subject Corporation on 30 days'- notice, ' . other than- those listed,and described pursuant ' . to other sub-paragraphs of this,Section , 2.12;. . (d) All" collective bargaining agreements, contracts with labor-.unions, employment and consult ing agreements , " executive compensation agreements-, employee pension plans of retirement plans, employee .profit sharing.plans,-employees' stock purchase'and stock option plans, hospitalization insurance, and other plans and agreements providing for employee benefits to which the Subject Corporation is a' party; (e)' The names of' all present directors and officers of tdie Subject Corporation, and the names of all persons holding taix or other powers of ". I attorney .from the Subject Corporation and a * v -.;--uT . . -, . - _ - description of the terms thereof; -' ` " . -11- DFA000117 . (f) The'names of all '.retired' employees, if any, , of the Subject Corporation who are-.'receiving or are . entitled to receive any payments not covered by any pension plan of the Subject Corporation or any union' . pension.plan related to-a collective bargaining'agree- / ment to which the Subject Corporation is a party. ; their ages and their current annual unfunded pension . benefits; ' . -(g) ' The name of'each'bank in which the -Subject Corporation has an account or safe deposit box and the ' .names of all persons authorized:to draw thereon ' or have access- thereto; ' ' :. ' - '. (h) The name of each stock- brokerage firm, if. any, in which the'Subject-Corporation has an account, the names of all persons authorized to purchase and sell securities through such account, and a description of the securities held therein; and ' (i) The names, aiid the related amounts, of any person to which'-the Subject Corporation- is presently. -.'' ' , _ >t . , indebted who is a-shareholder, officer or director, or their respective spouses or children, of the Subject Corporation or of the Shareholder. - '. -12- DFA000118 True and complete copies of .the documents. referred .to in Schedule D have been delivered to Purchaser;' . all .of the rights, contracts, agreements, licenses, ' leases-, commitments and understandings set forth therein are valid and enforceable in accordance with their respective terms for the periods'stated therein; and neither, the Subject- . Corporation nor .'any other party thereto or bound thereby is in default of the performance .of" Its respective obligeCions thereunder, except 'as otherwise set. forth' in Schedule D hereto. . .. . - , - ' 2.13. Litigation. Except as' set forth and fully described in Schedule E hereto, there are no claims, actions, suits, proceedings'or investigations pending, nor, to the knowledge of Shareholder,- threatened against or relating to the Subject Corporation or its assets or pro-1- perties, or in 'any way involving this Agreement or the transactions-contemplated hereby, nor'is there any basis known to the Shareholder.for .any such claim, action, suit, proceeding or investigation. . There is .no order, decree' . or judgment of any kind in existence enjoining or . restraining the Subject Corporation, or any 'of its officers . or employees,.from taking any action -of any kind, nor is the Subject Corporation in default with respect to any order, judgment, writ, injunction or decree of any governmental -13- DFA000119 agency or instrumentality. The Subject Corporation has not waived any statute of limitations with respect .to any. - . ^ .* . of its,liabilities, including any liability, for any taxes- . ' ' (whether income, excise or other). . . 2.14. ' .Books' .and Records. The books and'records of the. Subject Corporation'are. in all material respects, complete and correct, have.been maintained in accordance with good busines practice and accurately reflect" the results of operations of the -Subject Corporation as set forth in the financial.state ments referred to"in Section 2.7 hereof. '. . 2.15. -Other Information. To the 'Shareholder's knowledge, none of the information furnished in writing by the Shareholder or any of its authorized representatives to Pur chaser or any of its representatives prior to.or simultaneously -with' the execution and delivery of .this Agreement is false or misleading or., contains, any material misstatement of fact or . omits to state any material fact required to be stated, to - . ' make the-statement therein not false ormisleading. .. 2.16. '-Brokerage. The Shareholder has not incurred any. obligation or liability, contingent or other-, wise, for brokerage of finders' . fees or agents-' commissions , in connection with this Agreement or the transactions contemplated hereby.- -14- DFA000120 I , 2.17. ; Future' - Conduct of - Business. -The Shareholder does not'know of any present or, future, condition adversely affect the- business of the Subject Corporation from being carried on in essentially the- same-manner as its business is now being conducted, nor'does the Shareholder have any reason to believe' that such a present or future condition exists cr will exist with .respect to the Subject Corporation. '' ' . 2.18.' Patents, Trademarks/ Copyrights. `. Schedule F is ' a true and 'correct-list of patents, trademarks and copyrights (and'applications therefor), belonging to the Subject Corporation, and the validity of such items, and the title, thereto, has n.ot been questioned in any litiga tion to which the Subject Corporation is a party or, to the knowledge of-the Shareholder, in any threatened litigation. ' ' -15- - DFA000121 To the knowledge of the Shareholder, .no use of any trademark' . ' owned by'the Subject Corporation has heretofore been or is now being made, except by the' Subject Corporation of by an entity duly licensed by the Subject-.Corporation,to use the same under an agreement disclosed In Schedule D.` The '. ` Subject Corporation owns all- patents, ..trademarks, . trade names and copyrights necessary to" the conduct of its business as now beingconducted or presently proposed to be ' conducted without known conflict with rights of others. . To the knowledge of Shareholder,, all patents, patent .applica tions and rights of inventions heretofore owned or held by ah . employee- or officer of the Subject Corporation and relating to its- business in any manner have been duly and effectively . transferred to the Subject Corporation. - 2.19. Compliance with Applicable Laws. ` To the knowledge of Shareholder, the conduct by the Subject Corporation of - its business does not violate or infringe any domestic (federal or local) or-foreign-law, .statute, ordinance or regulation or any right, concession,patent, trademark, trade name, copyright,' know how or other proprietary right of others, the enforcement; of which would adversely affect the business of the Subject , -* ' -16- . DFA000122 Corporation or the valrie of its properties or assets; the Subject Corporation is in a' position to comply with- . existing federal or iocal laws heretofore enacted which ' may become effective hereafter, without affecting.the : business of dr the value of its properties or assets. , ` . 2.20../ Ha'chiriery `and -Equipment. All machinery ' arid'equipment owned by the. Subject Corporation is in sub- ' stantially the same'condition and repair, as it was when inspected by the representatives of the Purchaser. ,, 2.21. . Labor Disputes. The Subject Corpora-, tipn is iri compliance with ali Federal and state laws ' respecting employment'and employment practices, terras and- . conditions of employment, wages and hours, and".is not .. engaged in any-'unfair labor practice; there is no unfair labor practice complaint against the Subject Corporation.- pending before the National Labor Relations Board; there is no labor strike or ether labor trouble pending or, to . .'the best knowledge of the Shareholder, threatened against : or affecting the Subject Corporation; no unionrepresenta-" . tion question exists respecting the employees "of .the Subject-. , Corporation; no grievance which might have a material . . - . -17- *' .' DFA000123 adverse effect on the Subject Corporation or the conduct of'its business and no arbitration proceeding arising out of collective, bargaining agreements are pending, and no ' claim therefor exists. '' ' .- . 2.22. -Inventory, Accounts Receivable,' Etc. .. (a) All inventory of the Subject . Corporation reflected on the Balance Sheet consists solely of items of merchantable quality, saleable' (except for defective, obsolete and slow moving merchandise) at regular . prices in the ordinary course of the Subject Corporation's business and are carried on the books of.the Subject Corporation at the lower of cost or market',. cost being determined substan-. tially on the basis of "first in-first out", with.sufficient allowance for defective, obsolete and slow moving merchandise; . ' (b) The accounts receivable of the Subject Corporation as reflected on the Balance. Sheet are bona.fide accounts receivable, fully collectible at their face..amounts less the reserve for bad debt loss, if any,. . reflected in said Balance Sheet. .` . -2.23. Purchase Obligations. Each-unfilled ' purchase order and each other commitment for purchases : . made by the Subject Corporation'was made in the usual and- ' 'ordinary course of its business at" the then current market -18- DFA000124 1 prices and, except as to purchase commitments' listed on Schedule D hereto,do not call for deliveries thereunder, beyond a period of three months from the date hereof or- an executory obligation as of the Closing Date in,excess of $20,0.00. -. .^ ' 3. Representations and ^Warranties' of Purchaser. . " The Purchaser represents and warrants to . Shareholder as follows: . ' . 3.1. Corporate Organization. Purchaser is a corporation duly organized,, validly existing arid in , good standing under the laws of the State of Ohio. ' 3.2. Authorization of Agreement. The execu tion and delivery of this Agreement and the performance by Purchaser of the transactions contemplated herein have been duly authorized by .the Board of Directors of Purchaser. " . 3.3. Purchase of Stock. Purchaser represents that it is purchasing the. .Stock for its own account for' investment and not with a view to distribution and with no present intention of reselling or distributing the same. 3.4., Validity of Purchaser's Note. Pur- ' chaser's Note has. been duly - authorized and validly issued-, and upon delivery will be' a valid and binding obligation of Purchaser. The issuance and delivery of Purchaser's - Note will vest in the Shareholder legal and valid title thereto. ,' ' ' -19- DFA000125 '' .. . 4. .Conditions Precedent to Obligations of - Purchaser .- - 1 .............. . : . All -obligations of Purchaser, including the obligations to make.any payments .on. the Closing Date, nre subject to the .fulfillment on or before the.Closing . Date of each of tht"following "conditions, each of which" . .-"'.a.1'". only by an express" written waiver) ` .:.Lbc sole dl. nn, of Purchaser.. . ; ' ` Accuracy of Representations and Warran ties-. The representations and warranties of the Shareholder herein contained shall be true and correct. ' ' 4.2.' Performance of Agreements. The* Share- header shall have performed'.all obligations' and agreements and .complied with' all covenants and conditions contained in this Agreement to be- performed, or complied with by it at or prior to the Closing Date. ' ' ' 4.-3. . Officer's Certificate-. The Share- ; shall. : *;.-.:ished Purchaser'with an officer's - .--certxficate- ies' . - ihe Closing Date,' to the effect that the-conditions specified in Sections 4.1.and 4.2 above have been fulfilled; DFA000126 I . 4.4. Opinion'of Counsel''for the Shareholder. Pur chaser shall have received an opinion of John F. Tiegland, Staff Attorney of the Shareholder, dated the Closing Date, in form and substance satisfactory to Purchaser and its counsel, to the effect that: . ' . ' (a) The Subject Corporation is a corporation ' duly organized, validly existing and in good stand- . 'ing under .the laws of the State of New Jersey, ... . is duly' qualified and authorized .to do business and in good'standing in each- jurisdiction where such . qualification is required and'has all requisite'power and authority' to own, lease, and operate its property ' and to carry on its business as now being conducted; . . - (b)- The authorized capitalization. of the Subject Corporation and the number of shares of its ' . capital stock issued and outstanding are as set forth in Section 2.2; all- of the issued and outstanding . shares of capital stock of the Subject Corporation . are validly issued, fully paid and non-assessab.le, . with no personal liability attaching to the owner- . ship thereof; and there are no options, warrants, . or other rights to purchase or convert any' obliga tions into shares of the 'Subject Corporation's . capital stock; -21- DFA000127 I (c) Shareholder is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of -Virginia, and has all requisitepower and authority to enter into this Agreement on the terms and conditions set forth herein. ' (d) This Agreement has been duly executed and delivered by the Shareholder and constitutes the legal,' valid and binding obligation of the Shareholder enforceable against it. in accordance with the terms hereof; . .. (e) . |. _. No provision of the Certificate of Incorporation or the By-Laws of Shareholder or the. .Subject Corporation or'of any contracts, agree ments, or other instruments or documents known to such' counsel prevents the Shareholder from trans ferring good title to its shares of Stock in the manner contemplated by this Agreement. ' . ' (f) Title to the Stock and to the Demand Note . will, `upon their delivery hereunder,, be vested in Purchaser, free and clear of all claims, liens, charges and encumbrances whatsoever. .. ' . .' . (g) To the knowledge of .such counsel, the- . execution, delivery, and performance of this Agree ment by the Shareholder will not violate, with or without the giving of notice and/or the passage of time, any provision of law applicable to the - -22- DFA000128 Subject Corporation and will not conflict .with, or result in the breach or termination of any pro- vision of, or constitute a default under,.or result in the creation of any lien, charge, or encumbrance upon . any of the properties or assets of the Subject Corpora-.' tion pursuant to, any corporate'charter, by-law,inden ture, Underwriters Laboratory Certification, mortgage, . deed of- trust or other agreement or-instrument known to' such counsel to which the Shareholder or the Subject Corporation is a' party or bythe Shareholder or- the Subject Corporation or any of the properties or ' assets of the Subject Corporation may be bound; ' (h) To the knowledge of such counsel, the Subject Corporation has good and marketable title to all its properties and assets (including the assets reflected in -the Balance Sheet), free and clear of all claims, liens and encumbrances' except . . as referred to; in the'Balance Sheet; .. (i) To the knowledge of such' counsel/ the . conduct of its business by the Subject Corporation does not violate or infringe any domestic .(federal or local) or foreign.law, statute, ordinance, license, orregulation or any right, concession, patent, trademark, trade name, copyright, know-how, or other proprietary -23- DFA000129 right of others, the -enforcement of which could materially and adversely affect its business.or the value of its properties or assets; '. . (j) To the knowledge of such counsel,noclaim,action, suit, proceeding, or investigation is pending or threatened against or relating to the Subjedt Corporation or its `assets or properties or in any way- involving this Agreement or. the transactions contemplated hereby, and the Subject Corporation is not, to the knowledge of such counsel, in- default with . respect to any order, judgment, suit, injunction or decree' of any governmental agency or instrumentality; '. . . (k) . The trademarks set forth in Schedule F. have been duly registered under the laws. of the United States and of the foreign countries listed thereon, and the Subject Corporation is the owner . of record of such trademarks, free, and clear of all . claims and encumbrances, and such counsel does not . know or have any reason to believe that there are (i) any defects in the title to any such, trademark; <ii) any license or other permission required by .. the Subject Corporation .to enable it or any assignee of such trademark to use any such trademark except as disclosed in Schedule D; .or (iii) any claim asserted against the Subject Corporation for the cancellation of any such trademark or for the infringement of ' the trademark rights of others; and -24- 0FA000130 . i^*) To the best of such counsel's.knowledge belief, the leases and license agreements dis- . . . .closed in' Schedule D are valid and existing on the . ^ . Closing Date and the Subject Corporation is not in *. * default thereunde, r and there * is. no * event which with the laose-of time or the election of any person, or -. . .. . .................... l.-*s v. :become a'default .by the Subject Corpora - - ..tion'.thereunder. ' '- . . - 4.5. Actions / Prbceedrnq-s-,. etc. All-actions, proceedings, instruments and documents requited to carry out '.the transactions contemplated by this Agreement .or incidental thereto and all related legal matters shall have been . .rrecisoj<ably satisfactory to and approved by. Messrs. .Strasser, Spiegelberg, Fried & Frank, counsel for Purchaser. . - ' 4.6.. Resignations. Purchaser shall have. received signed resignations, effective on the Closing Date, of such directors and officers of the Subject _Xkr-r>/-ra-Irion as Pur-chaser- shall have requested. - - .- - . . `5. Conditions Precedent to Obligations of Shareholder. All obligations of Shareholder are subject to the fulfillment in accordance with -the provisions of this - Agreement of each of the following conditions, each of- - which may be waived -'but only by an express written waiver) at the sole discreter-n of Shareholder: ' -25- DFA000131 5.1. Accuracy of Representations and War- ranties. The representations arid warranties of Purchaser herein contained shall be true and correct. ' ' ' 5.2. Opinion' of Counsel for Purchaser. Shareholder shall'have received an opinion of Messrs. Strasser, Spi'egelberg, Fried-6 Frank, counsel for' Pur , chaser, dated the Closing:Date, in'form and substance satisfactory to .Shareholder' and its counsel, to the effect that: ' " - ` ' (a). Purchaser ,is a corporation duly organized., validly .existing and in good standing under the laws of the State of Ohio. '' (b) The execution and delivery of. this ' Agreement and the performance by Purchaser of the transactions contemplated herein have' been duly * ' authorized by the Board of Directors of Purchaser. (c) Purchaser's Note has been duly authorized and validly issued, and, upon delivery, will be a . ' valid and binding obligation of Purchaser, and will vest in the Shareholder legal and valid title thereto. 6. Tndemnification. 6.1. Indemnification.' The Shareholder agrees to reimburse and indemnify Purchaser against and in respect of -26- DFA000132  (a) any loss, liability or damage to-Pur- . chaser or the Subject Corporation, in excess of the reserve for bad debt loss, if any, reflected in the. - Balance Sheet, resulting from the noncollection of any . receivable ,(other than receivables owing by the Pur chaser) referred to in Section 2.22(b) hereof; ; (b)' any loss,, liability or ddiiage to Purchaser.or the Subject Corporation arising from any ' ..breach of"any representation or warranty' contained herein; ' (c). all obligations and liabilities of .the Subject Corporation whether accrued, fixed, contingent or otherwise, aggregating in excess of $10,000, arising on or before November 30, 19 68 to the extent, not reflected or reserved against in the Balance Sheet; , .(d) all obligations and liabilities ofr or claims against, the Subject Corporation between November 30, 1968 and the Closing Date except for those arising in .the ordinary course of business of the Subject Corporation and except for' those disclosed pursuant to this Agreement; ' .- ' . (e) all reasonable costs and expenses ' (including reasonable attorneys* fees) incurred in connec tion with- any action, suit, 'proceeding, demand or judgment incident to any of .the matters indemnified against in.this Section 6.1 -27- DFA000133 ' 6; 2. Notice' of Claim. . If Purchaser' shall be aware of any state of-facts which threatens' to give rise to any matter subject to indemnification pursuant to Section-6.1 hereof,. ' Purchaser shall send a written notice to Shareholder briefly setting forth such"facts. Shareholder shall have the right (without prejudice to Purchaser's rights .under this Agreement) at its sole cost and expense, to defend against any claim giving rise . to any such-liability, expense or loss/ including; if necessary/ a defense in the name of Purchaser or Subject*Corporation, who shall cooperate with Shareholder in the preparation of such defense, but ` shall be entitled'to be reimbursed by Shareholder for the out-of- 1 pocket costs and expenses or any liability incurred by them in connection therewith. In the event Shareholder .undertakes such a defense,Shareholder shall be entitled to be represented by counsel of its own choosing. A "defense" in the sense-of the foregoing , shall be deemed to include the affirmative action for the. collec tion of the accounts, receivable .referred to in' Section 2.22(b) hereof ' 6^3. . Other Remedies.' -Nothing contained in ' .this Agreement shall be`deemed to limit or affect the . - obligations of the Shareholder under this Agreement or.to . preclude Purchaser from proceeding against the Shareholder ' to enforce .the obligations of the Shareholder under this Agreement, to the extent permitted thereby, or from pur suing any other legal remedy or right provided in this -28- DFA000134 Agreement or any other agreement or by law, and such remedies , may be pursued separately or cumulatively .after such exercise and exhaustion. . '. . 71. General. ' , - 7.1. Expenses.. Each party hereto shall pay all of its town expenses incident to this Agreement .and the.transactions contemplated hereby, including all fees of its counsel .and accountants.. ' 7.2. Survival of Representations. All of the representations, warranties, covenants and agreements of the parties hereto herein contained or contained in * any.document furnished or to be furnished.hereunder shall survive the Closing and the payment of any part or all of ' the purchase price. .. - '' . . . . 7.3. ' Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall.be sent by registered or certified mail, return receipt requested, postage prepaid, or delivered personally (a) if. to the Shareholder, to Dana Corporation, 4100 Bennett Road,. Toledo, Ohio 43601 , Attention of . Secretary, with copies to the same address. Attention of Corporate Legal-Counsel, and (b) if-to Purchaser, .to Philip Carey Corporation, 320 South Wayne Avenue, .Cincinnati, Ohio, 42515, Attention of the President,with copies to Messrs. ' Strasser, Spiegelberg,.Fried & Frank, 120. 3road-?ay, New York, Me:? York 10005, Attention of Lewis A. Stern, Esq., or to such other address as any of the parties hereto shall have _ DFA000135 specified in writing to. the other party' hereto. . 7.4. Further Assurances. The Shareholder will execute and deliver to Purchaser all such further ' instruments and documents as Purchaser may -.reasonably, request in order to,perfect the transfer to Purchaser of the shares of Stock and the Demand Note. '" , 7.5.' Entire Agreement.. This Agreement con- ' stitutes- the entire agreement' between the parties and ' ' supersedes all.prior agreements and understandings, oral and written,, between the parties hereto with respect to the .subject matter hereof . '. . . . 7.6. Binding Effect, Benefits. This Agree ment shall inure to the benefit of and be binding upon the parties hereto, their successors, and assigns'; nothing in thisAgreement expressed or implied is intended to confer on any other person, other than the parties' hereto, any rights, remedies, agreements, understandings, obligations or liabilities under or. by reason of this Agreement. . ' 1,1. Sections and Other Headings. The sections and-other headings contained in this Agreement are for reference purposes only and shall not affect the . meaning or interpretation .of this Agreement.- ' 7.8 , ' Counterparts . This Agreement may be executed in any number of counterparts, each of which, shall be deemed to be an original and all of which together shall DFA000136  be deemed to be one and the same instrument. . .7.9. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the' laws of the State of Ohio. .. .' ' 7.10- Insurance . - It is contemplated that all insurance coverage for the Subject Corporation under blanket policies maintained by the Shareholder will be can celled by the Shareholder .on the Closing Date and the Pur- chaser will on said date, arrange other coverage for-the ' Subject Corporation. Promptly after receipt thereof, the' Shareholder shall.pay over to the Subject Corporation any and all amounts or credits received by it as .refunds of.premiums paid in respect of such cancelled'insurance coverage. 7.11. Agreement with Shareholder. At the Closing, the Subject Corporation shall enter into a Supply and Technical Information Agreement substantially in the form annexed hereto as Schedule G, with the Shareholder. ' ' . IN WITNESS WHEREOF, -the parties hereto have caused this Agreement'to be executed in their corporate names by an officer thereunto dulyauthorized as of the date first above written. " ' '. . PHILilP CAREY CORPORATION . By: Cx'- DANA CORPORATION -3] DFA000137 SCHEDULE A SMITH & .KANZLER FINANCIAL STATEMENTS The undersigned ,S. W. .Gustafson, Treasurer of Smith' & Kanzler Company, hereby certifies.that this Schedule A contains- true and complete copies of the Balance Sheet of Smith & Kanzler Company as- at August 31, 1968 and the . related Profit and- Loss 'Statement' for the- year then .ended,7' and the Balance Sheet of Smith & Kanzler -Company as at November 30, 196'S and-the related Profit and Loss Statement for the three months then ended. - S. W. Gustafson, Treasurer Smith 6 Kanzler Company DFA000138 SMITH & KANZLER COMPANY . BALANCE SHEET August' 31, 1968 . - . Assets * ** ' Current Assets: - . . --- Cash . Accounts Receivable, less allowance for doubtful .accounts: Customers . ' ' ... Victor Division of Dana Corporation . 'Inventories . ,, * Erepaid. expanses _ . -. ' ' $ $239,257 57,479 " ' ' 1,149 296,735 359,016- 11,094 Other Assets, at cost -' ' . .. * 667,995 - . 200,000 Land, buildings, machinery and equipment, at cost Less - depreciation '' ' . . 2,596,335. 894,333 1,702,005 $2,570,000 ' Liabilities and Stockholders1 Equity ' Current Liabilities: Accounts payable: Dana Corporation Ocher . . . ' ' ' Note payable to Dana Corporation;.due on demand .Interest 5-1/2Z '. .Stockholders' equity: . Common Stock'- no par value'- Authorized - 2,000 shares ' - Issued - 2,000 shares- - Net income (loss) retained for use in the business -' . . ., ' $ 20,329 69,744 $ 90,073 ' 950,000 2,000,000 (470,073) 1,529,927 ... $2,570,000 DFA000139  SMITH & KAKZLER COMPANY STATEMENT OF INCOME Year Ended August 31, 1968 Net sales Other income (net) $1,777,803 16,602 1.794,405 Costs and expenses (including depreciation of $154,467):. . . ' ' ' . Cost of sales .. ' $1,527.,285 Selling, general and administrative ' . v expenses 179,029 Interest expense - Dana Corporation . 54,703 ' " . '1,761,017 Net income ` .' - $ 33,388 .' STATEMENT OF NET INCOME (LOSS') RETAINED FOR USE- IN THE BUSINESS Year Ended August 31, 1968' Balance at August 31," 1967 Net income . Balance at August 31, 1968 $ (503,461) 33,388 $ (470,073) DFA000140 1 ' SMITH & KANZLER COMPANY .. BALANCE SHEET - . - November 30, 1968 Assets Current Assets:. ' . . . 1 Cash - ' $ Accounts Receivable, less allowance for doubtful accounts: Customers. ' $ -247,832 Victor Division of Dana Corporation , - '74,539 ' Inventories ' ' - ' . Prepaid expenses ` ` '. . ' Other Assets, at cost . ' '" 65,244 322,371. 351,894 9,066 ' 748,575' 200,000.'. . Laud, building, machinery and equipment. Less - depreciation ' ' : cost ' . . ` " 2,596,364 ' 933,317 1,663,047 $2,611,622 Liabilities and Stockholders1 Equity Current Liabilities: Accounts payable: Dana Corporation . Other - Accrued payroll . Other accrued expenses Note payable to Dana Corporation, due on demand Interest 5-1/27, . ' '` Stockholders' equity: ' .. Common stock - no par value . Authorized -..2,000 shares Issued - 2,000 shares Net income (loss) retained for use in the business `' '' $ 3,957 70,441 '- * ' . $ 74,398 . 5,163 30,069 ' 109,635 ,' 950,000 "-. . ' ; . 2,000,000 (448,013) 1-, 551,937 $2,611,622 DFA000141 1 . . SMITH Sc KANZLER COMPANY . STATEMENT OF INCOME . -Three. Months Ended November 30, 1968 Net Sales Other Income - net : ., ` ? 600,842 . - ______. 7,780 608,622 - Costs' and expenses (including depreciation of _ $38,984)': .' , .' , - . ` * Cost of sales , .. . $ 531,592 .. Selling, general-and administrative . 41-,908' .. - , Interest expense - Dana Corporation !13,062 " 586^562 Met income . . . $ 22,060 STATEMENT OF NET INCOME (LOSS) RETAINED FOR USE IN THE BUSINESS .Three Months Ended November 30, 1968 - Balance at August 31, 1963 . $ (470,073) ' Net income .. Balance at November 30, 1968 . _____ 22,060 <: (448,013) OFA000142  -SCHEDULE B . OF . SMITH & KANZLER STOCK PURCHASE AGREEMENT . Payments mads by Smith & Kanzler Company to Dana Corporatiovi from November '30, 1968 to February 1, 1969. Item. . 'Amount Administrative Expense for- October, November, December and January . . , -. ' $ 7,400.00 Interest Payments; for November, ; ,' December and January ' . 13,062,51 ' $20,462.51 . Less Credit . , ;___ 397.35 . Total Payment . $20,065.16 (Note: An - additional payment will be due for administrative expense and - interest for the period from February 1, 1969 to date of closing; -further, there will .be a charge of $1664 for'the'leased'car. .sold to Smith & Kanzler at book value.) . . * DFA000143 ... SCHEDULE C ' . OF .. .' SMITH & KANZLER STOCK PURCHASE AGREEMENT No Exceptions. DFA000144 . SCHEDULE D .. OF . SMITH & KANZLER STOCK PURCHASE AGREEMENT (a) Real Property. ., Smith & Kanzler is the owner of the premises known as 1414 ' ' . East. Linden Avenue, Linden, New Jersey and buildings- and' structures thereon,- substantially as shown on survey map dated June 18, 1964 and prepared by Frank P. Koczur of Elizabeth, New Jersey. : (b) Policies, of- Insurance.. " . Aetna Life Insurance Company . Hartford, Connecticut` ' Group Policy No. T-47699 executed A.ugust 1, 1968, - to take effect August l/-1967 with rider executed' ' July 25, 1968, to take effect August 1,' 1567. . Type of Coverage: Basic Life`Insurance; no pre- . payment of premiums (paid monthly., for preceding month) Aetna Life insurance Company ' Hartford, Connecticut .' Group Policy No. CG-47599 executed July 1, 1966 to . take effect April 10, 1966 with first rider- executed ' July.28, 1968 to taka effect August 1, 1967 and second rider (adding provisions relating to Medicare) executed'February 28, 1968 to take effect August 1, ' . 1967. This policy originally covered Accidental. Death .and Dismemberment and Basic-Hospital-Medical-Surgical benefits.- The Hospital-Medical-Surgical coverage was . cancelled effective August 31, 1968 by mutual egreercen .. . with the insurer, leaving only Accidental Death and Dismemberment coverage in effect. A rider reflecting this last mentioned change has not been received from ' ' the insurer. No prepayment of premiums (paid monthly for .preceding month). . .' . DFA000145 (b) Cont'd. * Smith & Kanzler is. a subscriber' to .. New Jersey Blue Cross-Blue Shield Coverage, . effective October 31, 1968 as per Hospital Service Plan of ' ' ' New Jersey (Series 1962 as- amended) and Medical- , Surgical Plan of New Jersey (Series 1965 as amended). . Prepaid one month in advance. " . . Liberty Mutual Insurance Company ' . Liberty Mutual" Building ' 240 So. Harrison Street ' .. East Orange, New Jersey . , " Policy No. GS 1-832-064547-01-TD 32-NJ ' -` Private Plan No; 069-10925 - . ' Type Coverage: New.Jersey Disability Benefit Plan , ` (Sickness' & Accident). ... . Premium not prepaid (paid quarterly for preceding " quarter) . (c) Contracts of Smith & Kanzler which involve the payment by Smith & ICancl'er of more than $20,000 or extend for a period of more than 3 months from February 1, 1969: ' 1. ' ' Agreement dated April 29, 1966 with Keystone Roofing Manufacturing Company, providing for the-consignment of glass reinforced paper at their plant in York, Pennsylvania, for an indefinite period terminable on . ninety days vrritten notice. 2. , .. Agreesent dated December .6, 1963, v?ith Philadelphia QuartzCompany, providing forpartial.annual requirements of Sodium Silicate, for a .period of one year (on total amount of 740,000 lbs. maximum). ,.3. Agreement dated January 7, 1969, with E. I. duPont ae. Nemours & Company, for partial annual requirements fox ' . Sodium Silicate for a period of one year (on total amount of 200,000 lbs.' maximum) . . 4. Agreement dated Kay 21, 1968, with B. F. Goodrich Chemical Company, providing for free lease of tank ' . cars for temporary storage of' liquid latex.' Contract' . is for an indefinite period-and terminable on notice. DFA000146 (c) Cont'd. 5, Agreement dated December 15, 1966, with Standard Trucking'Company, Inc. providing for contract trucking services for an indefinite period of time, terminable. * .on thirty days written notice. . -6. Agreement'dated. August 15, 1967, with Dr..Morris Lieff, . . providing, for his consulting services, for a .period-of ' two years, terminable by mutual consent. ` ' 7. Agreement dated June 3, 1968, with F. W. Dodge Company, ' for a period of one year for sales'.leads. . License'Agreements of Smith.& Kanzler Company: - 1. Spraycraft- license agreement dated January 26, 1S6S . ... with Bradford Insulations (W;A.).' License is limited . to State of Western Australia and is for a term of- 10 years at a royalty of 3% of net sales. ' . 2. Spraycraft license agreement dated Kay 12; 1S64 with Bradford -Insulations (S.A.) . License is limited to .. State of South Australia and is for a term of 10 years at a royalty of 3% of net sales. . .3; Spraycraft license agreement dated March 15, 1967 with .Western Chemical and Manufacturing Company. License . granted is exclusive for the Western United States .(as * 'defined) for a-term of 5 years at a royalty of $20/ton. 4. Spraycraft license agreement dated October 24, 1967 with . ' Cartier Insulation Ltd. License granted is exclusive for '* ' Canada-for-a term of 5 years at a .royalty of $15/tdn. (d) Collective .Bargaining Agreement. dated October-23, 1967 . .- between Smith 5c Kanzler Company and United Packing House, ` - Food and.Allied Workers * Agreement' effective until October 1, 197.0. Supplemental Agreements dated October 23, 1967, April 23, 1963 and November 13, 1968. ~ Pension Agreement dated January 23, 1968 (to take effect frpm October 1, 1967 to October 1, 1970) between Smith 5c Kanzler Company-and United Packing House, Food and Allied Workers.- . Pension Trust Agreement dated April 11, 1968 (effective' October 1, 1967) between Smith & Kanzler .Company and Continental Illinois National Eank and Trust Ccaipany of Chicago, Illinois. (Note: Consulting agreement and hospitalization insurance . set forth abova.) . . . DFA000147 (e) Directors-of Smith-& Kanzler Company: ' ' R. M. Burns (resigned Jan. ' 16,- 1969 and not replaced) R. C. McFherson . .' ' M. R. Gavin . ' Officers of Smith & Kanzler Company: _' ' -' * R. M. Burns - President (resigned Jan. 16, 1969 & not S. W. Gustafson - Secretary-Treasurer ' replaced) E. W. Walley - Assistant Secretary ' . ' ... No outstanding powers of attorney. . (f) Smith & Kanzler does ..net have any-retired employees 'receiving, ' or entitled'to receive, any payee nts. from Smith & Kanzler, -with the `exception of J. Brady, a retired employee viho earns wages from Smith & Kanzler as a part-time watchman. (g) Smith & Kanzler does not. maintain any safe deposit box. ` . Below is a list of all bank accounts maintained by Smith & Kanzler, together with a list of all persons entitled .to draw thereon. ' . -- Bank Account 1. Fidelity .Union-Trust Company Newark, New Jersey Regular #309-409-1 2'. Fidelity Union Trust Company Newark, New Jersey - - -` Payroll #300-399-8 . ' Authorized to Draw (Ar.v Two) J.'-A. Martino-. S'. VI. Gustafson . R. K. Burns J. A. Johnson -K. B. Wittman R.,"S,. -KcGranahan. Anne Geddes Stekien (Any One) S. VI.. Gustafson R..M. Burns ' J. A. .Johnson ' J. A. Martino R. S. McGranahan (h) Smith &. Kanzler does not maintain any account v?ith any stock brokerage firm. . . (i) Smith & Kanzler is not indebted to any officer or director, . or relative thereof. DFA000148 , SCHEDULE E ' OF . SMITH & KANZLER STOCK PURCHASE AGREEMENT .. Smith &,Kanzler Company-is not involved in any pending or : threatened. litigation, or subject to any order or decree of any governmental, agency or instrumentality, except as follov7s; . . (!) ' Automobile accident claim which arose prior to 1968. Claim turned over to Jamas S. Kemper 'Agency, Inc > , 20 North Hacker Drive, Chicago, Illinois.. Covered by Lttmbermen's Mutual Casualty Cb.'s Policy No..FGL 7590. . ' (2)' Workman's Compensation*claim filed by A. E. Binger. Claim turned over to .James S.-Kemper , Agency, Inc. Claim No. 031C 66831X - Jan. 9, iS65. DFA000149 . SCHEDULE F - , OF . SMITH & KAK2L-ER STOCK PURCHASE AGREEMENT TRADEMARK REGISTRATIONS ' - OF SMITH & KANZLER COMPANY M=rk SPRAYCRAFT JETBESTGS JETBEST. HEZ-10 U. S. TRADEMARK REGISTRATIONS . . ' R.eg. No. . Date- .. ' 715,627 - May 23, .1561' 553,514 . August 10, 1954 VO ' 593,513 . / * . August 10, 1 405,553 . ` - April .11, 1564 SPEAYCRAFT CANADIAN TRADEMARK REGISTRATION 130,659 April 26, 1563 . DFA000150 SoLJ^ Gr AGREEMENT . AGREEMENT made this//r<iay of February, 19.69 by . and between DANA CORPORATION, a Virginia corporation having its principal office at Toledo', Ohio (herein called "Dana") and SMITH & KANZLER COMPANY, a New Jersey corporation .' having its principal office at Linden, New Jersey (herein '' *^ ,, called "S & K") . '. - ' ^ WHEREAS, S .6' K-was'formerly a wholly-owned sub sidiary of Dana and the primary supplier of certain gasketing materials fco Dana; .. - WHEREAS, Dana desires to maintain a reliable source of said gasketing materials and whereas S & K desires to . continue selling said gasketing materials to Dana; .. . WHEREAS, Dana has heretofore supplied S & K with certain proprietary information relating to the formulation * and manufacture of said gasketing materials; and '.WHEREAS ,='-S 6 K recognizes`-'Dana' s proprietary ' interest in. said information;. ' NOW, THEREFORE, the parties hereto have agreed as follows: - ' ' 1. Purchase of Gasketing Material by Dana. For a i . . period of one year beginning with the date of this Agreement, Dana hereby agrees to purchase all of'its requirements of DFA000151 2. the.following designated gasketing materials from S & K, . ' .and-S & K agrees to sell to Dana its requirements of.such gasketing materials: " ' ' . 6564 . . S &' K PRODUCT NUMBERS , 6597' '6108 6282A . .622.2 .` .6506 - ' Subject to S & K delivering acceptable product in Accord- . ` . ance with.Dana's releases, Dana agrees to use'only No- 6506 , inthe manufacture of Victocor 150 for all applications . where No. 6506 is approved. . ' 2. Purchase Orders fi Releases. Dana shall issue . to S & K one-year blanket purchase orders for each of the ' products specified in paragraph 1, and against such purchase orders, Dana shall issue weekly releases specifying the . products and amounts to.be shipped by S & K. S & K agrees ..to 'accept such- purchase orders and shall ship promptly against said releases. The terms and conditions of..sale printed on said purchase' orders of Dana shall not be controlling between .the parties: Except as otherwise provided in this Agreement, and except as typewritten or manually written on the face of Dana's purchase order, the provisions of the Uniform Commercial Code shall control the terms and conditions of sale of gasketing material sold pursuant to this Agreement. DFA000161 I ' . 3. . -3. Inventory Levels. `Dana shall give S & K quarterly ` (3-month) 'forecasts' of Dana's requirements.for each of the products specified in paragraph 1. In-the event that Dana's requirements of any such product in a quarter (as reflected by the total amount of Dana's releases for such quarter) shall be'less than the amount forecast, then the difference between such amounts shall be included'in Dana's forecast for the ..following quarter. From time to time, Dana shall specify'rea sonable . .minimum inventory- levels- (not in excess of the minimum forecast for the then'current quarter) to be main tained by S & K for each of the products' designated in paragraph 1, and S & K shall use its best efforts to maintain such minimum inventory levels. S 5 K shall report to Dana on a weekly basis its inventory of the products specified in paragraph 1. . Inventory of products held by S & K for- sale ' to Dana shall be maintained by S & K on a "first-in - first out" basis.- As soon as practicable after the end of the last' quarter of the one-year purchase order period^ Dana shall - . purchase all of S & K's inventories of the products specified in paragraph 1 at the end of said period, .provided that Dana shall not be required to purchase inventory of any such product in excess of the sum of ' (i)- the minimum inventory level last specified by Dana for such product, and . DFA000162 4. . . * {ii)> if Dana's- requirements for such product' for the last quarter shall have been- less, than the amount forecast"' for such .quarter, the difference between its'actual requirements and the amount of such forecast and '' . - (iii) any.reasonable additional amounts of inventory of such-product which S & K may have on-hand at the- end of said period. '. . -' . 4. Prices. Gasketing material sold by -S fi K to Dana pursuant to thisAgreement - shall be at the prices shown on the attached Schedule "A". It is. a.gr'eed- that the prices of Schedule ."A" are subject to verification by the parties within 30 days hereof of the 'raw -material costs submitted to Philip Carey Corporation by S & K, as shown on Schedule "B". In the event that it shall be determined that said raw material costs do hot -truly reflect the. actual raw . material' costs of S & ,K at 1st February, 19 69, then the prices of Schedule "A" shall be changed to directly .reflect any such 'differences. Payment of S & K!s invoices by Dana shall be - made on the basis of net 15th prox. '. 5. Product Specifications. S & K warrants and agrees that all gasketing materials sold by S K to Dana pur suant to this Agreement shall be made in accordance -with the DFA000163 formulas of S & K and Dana for such mai~erxals and shall meet the present specifications of S & K and Dana V to ooo. < Ua- for such gasketing materials. Any change in said " * * 4 ... * * formulas and specifications, shall- be made "only with the prior written ' consent of Dana. S & K further warrants' that all gasketing material sold by S & K to Dana pursuant to this Agreement shall be free of defects in material and workmanship. Except as "expressly set forth in this paragraph 5, S & K makes no warranty, express or implied, ' including any warranty of merchantability, fitness for any partic-alar purpose, or non-infringement of- .claims -df: any adversely held patents, in respect of gasketing materials sold pursuant'to this Agreement. 6. Returns. In the event that any gasketing material shipped pursuant to this Agreement dees not meet the specifications sat for it and is. not accepted -by Dana, Dana shall notify S & K of - its deci sion net to accept such cateric.l and the reasons for' its decision. Such non-accepted material shall be held by -Dana for inspection "by S & IC for" a period , not to exceed -30 days from the date of said notice, and within said period, S & K,shall issue full, credit for such mater ial and disposal. instructions to Dana. If in the opinion of Dana such non-accepted material can be used in. certain of Dana's pro due-- tion, even though such material does not meet the specifications set for. it, a special selling price may be negotiated by the parties. 7. Proprietary Information. S K recognizes Dana's proprietary interest in the formulas, specifications, and all other information, . relating to the following designated products: 6. . . .' ; ' . . S & K Produce Number. 6537 _ S & K Produce dumber 6564 S & IC Produce Number 6506 S 6c K Produce Number" 6222 . .. S & K Produce Number 6856 ` Vietolex 258 . 70 Board " . ./ .' .. " ' S 6c K agrees to use its best efforts to maintain in confidence all information relating to the above designated`products,- and agrees not to use such information for its own benefit or for the benefit of any third party. S 6 K further agrees not to"-produce or sell to anyone other than Dana," of a third party designated in writing by ' Dana, the-above designated products. The obligations of this para graph" 7 shall net extend to such information that is, or becomes (without disclosure b} S & K), freely available to the public or such information .that was known-to, and freely discloseable by, Philip Carey Corporation, as evidenced by their \nritten. records deted prior to the date of this Agreement. S & K's obligations under this para graph 7 shall subsist ar.d continue for a period cf te: years frere .the date of this. Agreement. - - 8. Export Shipments. When requested by Dana, S & IC sy *;.l pre pare (i) shipments of gasketing materials sold-by S & K pursuant to this .Agreement and (ii) shipments of S &. IC Product No. 6356 sold by S & K to Dana, for export shipment to foreign licensees of Dene. The cost of such preparation shall be at the expense of Dana and shall be separately stated by S 6 K on its invoices to Dana. The price of S .6: K Product No. 6356 shall be mutually agreed upon by the parties. DFA000165 t 7 . 9. Force Majeur.' The obligations of the parties under this Agreement and under the' purchase-orders issued by Dana and accepted by S & K, shall be subject to delay or impossibility in .performance caused by war, fire, floods,- accidents, strikes, acts of God or the public' enemy, governmental requisitions,, priority orders, inability to obtain material, delays in transportation or any other causes similarly or otherwise- beyond the power of the'affected party to .con trol. , ' . ' 10. Entire Agreement; This Agreement constitutes the entire agreement and understanding of the parties relative to the subject matter hereof and shall be binding on and inure, to the successors * , ` ' - of either -party, but shall not be assigned by either party without the prior written consent of the other party.' . In Witness' Whereof, the parties have caused this Agreement - to be executed. ` -. , .' * . Sl-IITII & KAKZLZX CCS?JY ' CORPORATE SEAL Attest: By. DANA COIO? ORATION CORPORATE SEAL A.ttest: DFA000166 SCHEDULE A ' . OF AGREEMENT BETWEEN ' DANA AND SMITH & KANZLER , Product No. 6564 .' . . ' " '' .6597 ,6108 6222 ` ` .' 6282-A ' ` 6506 .' . Caliper Range (in inches) * .013 to .018 . .023 to .028 . . .028 to .033 .033 to .038 ' . 038. to .043 .043 to .048 .048 to .068 ' .0,38 to .043 .017 to .028 ' . Over .022 to .026.029 to .035 .040 to .046 .058 to .066 .066 (laminated) .025 to .030 . .014 to .017 .018 to .023 ' .023 to .027 .028 to .032 . .036 to .040 ' . Price-FOB Linden. N.J. $275.60/ton $260.00/ton $234.00/ton ' $239.20/ton ' $234;00/ton $239-. 20/ton $275.60/ton $242..05/ton $254.93/ton $514.10/ton $471.70/ton $450.50/ton $450.50/ton $578.76/ton $311.57/ton. $0. 31/sq.' yd. $0;35/sq.. yd. $0.43/sq. yd. $0.59/sq. yd. $0.66/sq. yd. DFA000167 I SCHEDULE B OF AGREEMENT BETWEEN .DAKA AED SMITH & KAEZLER PRODUCT NO. . 6564 .. ` .6597 610S ' 6222 ' 62S2-A . 6506 CALIPER .(In Inches) . ". . All Calipers, of Schedule A - .030/.043 ' ,.017/. 028 - ' . All Calipers of Schedule A .025/.030 . All-Calipers of Schedule A FURNISH COST $103.93/.ton $i06.81/ton $82.39/ton $260.98/ton $106.66/tcn $269.42/ton DFA000168