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EXHIBIT 2.1
EXECUTION COPY
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FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
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THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (the "First
Amendment") is made and entered into as of the 28th day of October 1997, by and
among MACHINE TOOL AND GEAR, INC., a Michigan corporation ("Seller"), XXX X.
XXXXXXX, XXXXXX X. XXXXXXX, XXXXXX X. XXXXXXX, XXXXXX X. XXXXXXX, AND XXXXXXX
X. XXXXXXX ("Indemnitors"), JMJ AND COMPANY, a Michigan co-partnership ("JMJ"),
and NEWCOR, INC., a Delaware corporation ("Buyer").
RECITALS
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A. Seller, Indemnitors, JMJ and Buyer entered into an Asset
Purchase Agreement dated as of October 1, 1997 (the "Agreement"), but
subsequently have determined that certain amendments to the Agreement are
necessary and appropriate and therefore wish to amend the Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements, representations and warranties hereinafter set forth, Buyer,
Seller, Indemnitors and JMJ agree as follow:
1. Section 3.01 of the Agreement shall be and hereby is amended
and restated in its entirety to read as follows:
"3.01 Purchase Price. The total consideration for the
purchased Assets and for the Seller's and Indemnitors' agreements not to
compete pursuant to the Non-Competition Agreement and the Employment
Agreements shall be Twenty-Seven Million Four Hundred Fifty Thousand
Dollars ($27,450,000.00) to be paid to Seller and (unless the Xxxxx
Property becomes an Excluded Asset as provided in Section 2.01(k),
in which event no amount shall be paid to JMJ) Four Hundred Thousand
Dollars ($400,000.00) to be paid to JMJ (collectively, the "Purchase
Price"), subject to any adjustments made in connection with the Plant
Properties and the Xxxxx Property pursuant to Section 2.01(j) and
2.01(k)."
2. Subsection 3.02 (d) of the Agreement shall be and hereby is
amended and restated in its entirety to read as follows:
"(d) On the Closing Date, a promissory note bearing simple
interest at the rate of 8% per annum and secured by a security interest in
the Assets (which shall expressly permit sales of Assets in the ordinary
course of business) shall be executed by Buyer in favor of Seller in the
amount of Twenty-Two Million Two Hundred Fifty Thousand Dollars
($22,250,000.00) and (unless the Xxxxx Property becomes an Excluded Asset
as provided in Section 2.01(k), in which event no amount shall be paid to
JMJ) a promissory note bearing simple interest at the rate of 8% per annum
and secured by a lien on the Xxxxx Property shall be executed by Buyer in
favor
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of Seller in the amount of Four Hundred Thousand Dollars ($400,000.00) to
JMJ, respectively;"
3. Section 4 of the Agreement shall be and hereby is amended and
restated in its entirety to read as follows:
"4. ALLOCATION OF PURCHASE PRICE.
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The Purchase Price shall be allocated between the Assets and the
non-competition provisions contained in the Non-Competition Agreement and
the Employment Agreements as follows:
Assets: $27,200,000.00
Xxxxx Property (unless an Excluded
Asset pursuant to Section 2.01(k)): 400,000.00
Non-competition provisions
contained in the Non-Competition
Agreements and the Employment
Agreements ($50,000 to each of the
five (5) Indemnitors): $ 250,000.00
The amount allocated to the Assets shall be further allocated among the
various categories and classifications of the Assets discussed in Section
2.01 above. On or before the Closing Date, Seller and Buyer shall agree
upon an allocation of the Purchase Price among the Assets in accordance
with Section 1060 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the related Treasury Regulations. If the parties cannot
agree, Buyer, at Buyer's sole expense, shall cause an independent
appraiser selected by Buyer, to prepare a schedule allocating the Purchase
Price among the Assets. The allocation set forth on such schedule shall
be reasonably satisfactory to Seller. Seller, Indemnitors, JMJ and Buyer
agree that after such allocation is agreed upon (i) Seller, Indemnitors,
JMJ and Buyer shall use such allocation for all purposes related to the
valuation of the Assets, including, without limitation, in connection with
any federal, state, county or local tax returns filed after such
allocation shall be agreed upon, and (ii) unless required to do so in
accordance with a "determination" as defined in Section 1313 (a) (1)
of the Code. Neither Seller, Indemnitors, JMJ nor Buyer shall take any
position in any tax return, tax proceedings tax audit or otherwise that is
inconsistent with such allocation."
4. Except as amended hereby, the Agreement is ratified and confirmed in
all respects.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the date and year first above written.
"SELLER"
MACHINE TOOL AND GEAR, INC.,
a Michigan corporation
By: /s/ Xxx X. XxXxxxx
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Xxx X. XxXxxxx
Its: President
"BUYER"
NEWCOR, INC., a Delaware corporation
By:
-----------------------------------
W. Xxxx Xxxxxxxxx
Its: President
"INDEMNITORS"
/s/ Xxx X. XxXxxxx
--------------------------------------
Name: Xxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the date and year first above written.
"SELLER"
MACHINE TOOL AND GEAR, INC.,
a Michigan corporation
By:
-----------------------------------
Xxx X. XxXxxxx
Its: President
"BUYER"
NEWCOR, INC., a Delaware corporation
By: /s/ W. Xxxx Xxxxxxxxx
---------------------------------
W. Xxxx Xxxxxxxxx
Its: President
"INDEMNITORS"
--------------------------------------
Name: Xxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
--------------------------------------
Name: Xxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
--------------------------------------
Name: Xxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
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"INDEMNITORS" (continued from
previous page)
---------------------------------
Name: Xxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
---------------------------------
Name: Xxxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
"JMJ"
JMJ and Company
---------------------------------
Name: Xxx XxXxxxx
Partner
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"INDEMNITORS" (continued from previous page)
/s/ Xxxxxx X. XxXxxxx
-----------------------------------
Name: Xxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxxx X. XxXxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
"JMJ"
JMJ and Company
/s/ Xxx XxXxxxx
-----------------------------------
Name: Xxx XxXxxxx
Partner
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