exv10w1



 





Exhibit 10.1




Execution Version




AMENDMENT NO.1 TO ASSET PURCHASE AGREEMENT

APRIL 10, 2007




     This
AMENDMENT TO ASSET PURCHASE AGREEMENT and related schedules dated as
of April 10, 2007
(this “Amendment”) is made by and among The Employee Ownership Holding Company, Inc., a Delaware
corporation (“TEOHC”), N & NW Manufacturing
Holding Company, Inc., a California corporation
(“N&NW”), Noll
Manufacturing Company, a California corporation, M & N Plastics, Inc., an Oregon corporation
(“M&N”), and TEOHC Real Estate Holding Company LLC, a Delaware limited liability company
(“TEOHC-REHC”) (TEOHC, N&NW, NOLL, M&N and
TEOHC-REHC are collectively referred to as “Sellers”),
and Noll Acquisition, LLC, a Delaware limited liability company
(“Buyer”).



     The parties hereto are parties to that certain Asset Purchase Agreement dated March 9, 2007
(the “Purchase Agreement”). Capitalized terms used but not otherwise defined herein will have the
meanings given to them in the Purchase Agreement and the accompanying schedules.



     The parties hereto desire to amend the Purchase Agreement and the accompanying schedules.



     NOW THEREFORE, in consideration of the respective warranties, covenants and agreements of the
parties contained herein, and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:




	1.	 	The parties acknowledge and understand that M&N is an Oregon corporation, not a California
corporation, and that the preamble to the Purchase Agreement and the preamble to the
Disclosure Schedule thereto are hereby amended to conform with this understanding so that all
references to “M & N Plastics, Inc., a California
corporation (“M&N”)” shall be amended to
read “M & N Plastics, Inc., an Oregon corporation
(“M&N”). ”
	 
	2.	 	Sellers’ address in Section 11.04(i) (Notices) of the Purchase Agreement is hereby deleted
in its entirety and replaced with the following address:




The Employee Ownership Holding Company

c/o Robert Eddy

14550 Wolfgang Road

Truckee, California 96161





	3.	 	Section 3.06 (Allocation of the Purchase Price) of the Purchase Agreement is hereby amended
by adding the phrase “plus the amount of the Assumed Liabilities as set forth in the Closing
Statement of Net Assets” after the words “The Final Purchase Price” in the first sentence of
Section 3.06.






	4.	 	The Buyer and the Sellers hereby acknowledge and agree that if the portion of the Final
Purchase Price allocated to any parcel of the Real Property post Closing exceeds the amount on
which the transfer tax was paid at Closing, the Buyer and the Sellers each




 









 












	 	 	agree to pay one-half of any additional amounts assessed and to work together to
complete and file any necessary documentation in connection therewith, including but not
limited to, an amended Real Estate Excise Tax Affidavit in Washington and/or an amended
Preliminary Change of Ownership Report in California, as applicable. In addition, the
Sellers and the Buyer hereby acknowledge and agree that if the portion of the Final
Purchase Price allocated to any parcel of the Real Property post Closing is less than the
amount on which the transfer tax was paid at Closing, upon the mutual agreement of the
Buyer and the Sellers, the parties shall work together to complete and file any
documentation necessary to obtain a refund of such overpayment, with any such overpayment
to be paid one-half to the Buyer and one-half to the Sellers. Additionally, the Buyer and
the Sellers hereby acknowledge and agree that any expenses incurred by either party in
connection with the provisions of this Section 4 shall be paid by the party that incurred
such expenses and that any fees associated with any necessary filings shall be split
equally among the Buyer on the one hand and the Sellers on the other.
	 
	5.	 	Attached hereto are supplements to Schedule 3.06 (Allocation of the Purchase Price), Sections
5.13 (Intellectual Property) and 5.14(b) (Litigation) of the Disclosure Schedule and Schedule
7.06 (Employees), which the parties agree will supplement and become part of, but do not
replace, the schedules delivered with the Purchase Agreement.
	 
	6.	 	Except as specifically set forth herein, the Purchase Agreement and the schedules will remain
in full force and effect in all other respects.





* * *




[SIGNATURE PAGE FOLLOWS]





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[Signature Page to Amendment No.1 to Asset Purchase Agreement]




     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
their respective corporate seals to be affixed hereto, all as of the day and year first above
written.



	 	 	 	 	 	 	 	 	 
	SELLERS:	 	THE EMPLOYEE OWNERSHIP HOLDING COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	/s/ Robert E. Eddy	 	 
	 	 	By:	 	Robert E. Eddy	 	 
	 

	 	 	 	Its:  President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	N & NW MANUFACTURING HOLDING COMPANY, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	/s/ Robert E. Eddy	 	 
	 	 	By:	 	Robert E. Eddy	 	 
	 

	 	 	 	Its:  President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	NOLL MANUFACTURING COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	/s/ Robert E. Eddy	 	 
	 	 	By:	 	Robert E. Eddy	 	 
	 

	 	 	 	Its:  President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	M & N PLASTICS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	/s/ Robert E. Eddy	 	 
	 	 	By:	 	Robert E. Eddy	 	 
	 

	 	 	 	Its:  President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TEOHC REAL ESTATE HOLDING COMPANY LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	/s/ Robert E. Eddy	 	 
	 	 	By:	 	Robert E. Eddy	 	 
	 

	 	 	 	Its:  President	 	 
	 
	 	 	 	 	 	 	 	 
	BUYER:	 	NOLL ACQUISITION, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	/s/ Timothy Heasley	 	 
	 

	 	By:	 	Timothy Heasley	 	 	 	 
	 

	 	 	 	Its:  Secretary	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	GUARANTOR:	 	GIBRALTAR INDUSTRIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	/s/ Timothy Heasley	 	 
	 

	 	By:	 	Timothy Heasley	 	 	 	 
	 

	 	 	 	Its:  Secretary	 	 
	 

	 	 	 	 	 	 

	 	 






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SCHEDULE 3.06

ALLOCATION OF PURCHASE PRICE




Schedule 3.06
is deleted in its entirety and replaced as follows:




Allocation
of Purchase Price



The Sellers and Buyer will report the allocation of the sum of the Final Purchase Price plus
the amount of the Assumed Liabilities as set forth in the Closing Statement of Net Assets, which
shall be prepared by the Buyer, and mutually agreed by Seller, within One Hundred and Eighty (180)
days after the Closing Date, in all tax returns and forms (including without limitation, Form 8594
filed with the Sellers’ and Buyer’s respective federal income tax returns for the taxable year that
includes the Closing Date) and in the course of any tax audit, tax review, or tax litigation
relating thereto. The Sellers and Buyer shall each deliver to the other a copy of the Form 8594 it
files with its respective federal income tax return.




***





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SELLERS DISCLOSURE SCHEDULE




SECTION 5.13

INTELLECTUAL PROPERTY



The attachment to Schedule 5.13 titled “Intellectual Property — Patents” is hereby deleted in its
entirety and replaced as follows:




Schedule 5.13

Intellectual Property — Patents




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Title	 	Country	 	Application No.	 	Patent No.	 	Issue Date	 	Owner
	Foundation Vent
	 	US	 	 	08/015,605	 	 	 	5444947	 	 	 	8/29/1995	 	 	Noll Manufacturing Co.
	Foundation
Ventilator
	 	US	 	 	08/064,404	 	 	 	5460572	 	 	 	10/24/1995	 	 	Noll Manufacturing Co.
	Foundation Vent
	 	US	 	 	08/156,412	 	 	 	5496213	 	 	 	3/5/1996	 	 	Noll Manufacturing Co.
	Exhaust Vent*
	 	US	 	 	08/152,288	 	 	 	5662522	 	 	 	9/2/1997	 	 	Noll Manufacturing Co.
	Foundation Vent
	 	Canada	 	 	2113982	 	 	 	2113982	 	 	 	5/5/1998	 	 	Noll Manufacturing Co.
	Exhaust Vent
	 	Canada	 	 	2111157	 	 	 	2111157	 	 	 	3/22/2005	 	 	Noll Manufacturing Co.








 




			
	*	 	This patent was the subject of an enforcement action filed by Noll. See Noll Mfg.
Co. v. Fresh Air Mfg. Co., No. 03-CV-5484 (W.D. Wa). The district court granted Defendants motion
for summary judgment based on non-infringement on September 7, 2004. Noll appealed and the Federal
Circuit affirmed the district court on May 13, 2005. See Noll Mfg. Co. v. Fresh Air Mfg. Co., No.
05-1034 (Fed. Cir.).





***




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SELLERS DISCLOSURE SCHEDULE




SECTION 5.14

LITIGATION



The following disclosure is added to Section 5.14(b) of the Seller’s Disclosure Schedule:





	3.	 	Noll was sued by and is a named defendant in a civil lawsuit styled Rangel v. Barajas, Case
No. CV 031977 (March 8, 2007) filed in California Superior Court, San Joaquin County.





* * *




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BUYER’S SCHEDULE 7.06



Buyer’s Schedule 7.06 is hereby deleted in its entirety and replaced as follows:



Non- Transferring Employees



Robert E. Eddy




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