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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
GWENUC, LLC
AS PURCHASER,
AND
XXXXXXX FINANCIAL SERVICES CORPORATION
THE SOLE SHAREHOLDER OF
MHFC, INC.,
AS SELLER
MARCH 17, 2000
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TABLE OF CONTENTS
Page
ARTICLE I. PURCHASE AND SALE OF THE STOCK.........................................................................1
1.1 PURCHASE AND SALE OF THE STOCK..................................................................1
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1.2 PURCHASE PRICE FOR THE STOCK....................................................................1
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1.3 PAYMENT OF PURCHASE PRICE.......................................................................1
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ARTICLE II. REPRESENTATIONS AND WARRANTIES OF SELLER..............................................................1
2.1 OWNERSHIP OF Shares.............................................................................1
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2.2 POWER AND AUTHORITY.............................................................................2
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2.3 CORPORATE EXISTENCE AND AUTHORITY...............................................................2
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2.4 CAPITALIZATION..................................................................................2
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2.5 SUBSIDIARIES....................................................................................2
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2.6 CONSENTS........................................................................................2
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2.7 NON-CONTRAVENTION...............................................................................2
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2.8 BROKERAGE OR FINDER'S FEE.......................................................................3
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2.9 LITIGATION AND CLAIMS...........................................................................3
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2.10 BALANCE SHEET...................................................................................3
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ARTICLE III. REPRESENTATIONS AND WARRANTIES OF PURCHASER..........................................................3
3.1 ORGANIZATION OF PURCHASER.......................................................................3
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3.2 POWER AND AUTHORITY.............................................................................3
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3.3 NON-CONTRAVENTION...............................................................................3
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3.4 BROKERAGE OR FINDER'S FEE.......................................................................3
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ARTICLE IV. COVENANTS.............................................................................................3
4.1 ACCESS..........................................................................................3
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4.2 BEST EFFORTS....................................................................................4
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4.3 NO OTHER NEGOTIATIONS...........................................................................4
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4.4 RELEASE OF PERMITTED LIENS......................................................................4
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ARTICLE V. CLOSING................................................................................................5
5.1 CLOSING.........................................................................................5
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5.2 SELLER'S DELIVERIES.............................................................................5
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5.3 PURCHASER'S DELIVERIES..........................................................................5
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ARTICLE VI. SURVIVAL..............................................................................................5
6.1 SURVIVAL........................................................................................5
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ARTICLE VII. MISCELLANEOUS........................................................................................6
7.1 GOVERNING LAW...................................................................................6
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7.2 PAYMENT OF EXPENSES.............................................................................6
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7.3 ENTIRE AGREEMENT................................................................................6
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7.4 BENEFIT.........................................................................................6
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7.5 ASSIGNMENT......................................................................................6
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7.6 AMENDMENTS......................................................................................6
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7.7 WAIVER..........................................................................................6
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7.8 VENUE...........................................................................................6
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7.9 NOTICES.........................................................................................6
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7.10 SEVERABILITY....................................................................................7
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7.11 CONSTRUCTION....................................................................................7
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7.12 HEADINGS........................................................................................7
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7.13 COUNTERPARTS....................................................................................7
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7.14 NO THIRD PARTY BENEFICIARY RIGHTS...............................................................7
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made and entered into this ___ day of
March, 2000, by and between XXXXXXX FINANCIAL SERVICES CORPORATION, a Michigan
corporation ("Seller") and GWENUC, LLC, a Michigan limited liability company
("Purchaser").
RECITALS:
A. Seller is the owner of all of the issued and outstanding shares of
equity securities (the "Stock") of MHFC, INC., a Michigan corporation
(the "Company").
B. The Company is engaged in the business of originating manufactured
home finance loans and other services (the "Business").
C. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, all of the Stock on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing Recitals,
the mutual covenants and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which are acknowledged, the parties
agree as follows:
ARTICLE I. PURCHASE AND SALE OF THE STOCK
1.1 PURCHASE AND SALE OF THE STOCK. Contemporaneous with the execution
of this Agreement, Seller will transfer, sell and assign to Purchaser, and
Purchaser will purchase from Seller, on the terms and subject to the conditions
set forth in this Agreement, all of the Stock, free and clear of all liens,
other than the Permitted Liens (as hereinafter defined).
1.2 PURCHASE PRICE FOR THE STOCK. The aggregate purchase price (the
"Purchase Price") for the Stock is Four Hundred Thousand and 0/100 Dollars
($400,000). The Purchase Price shall be adjusted upward or downward, as the case
may be, to equal the price set forth in the Fairness Opinion to be obtained by
Seller with respect to this Agreement. The payment of any additional amount owed
or to be refunded shall occur within ten business days of Seller and Purchaser's
receipt of such Fairness Opinion. The Fairness Opinion shall be based on the
balance sheet attached hereto as Exhibit 2.10.
1.3 PAYMENT OF PURCHASE PRICE. Purchaser will pay the Purchase Price
in cash.
ARTICLE II. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
2.1 OWNERSHIP OF SHARES. Seller is the legal and beneficial owner of
100 shares of Stock, being all of the issued and outstanding shares of Stock,
free and clear of all Liens. Upon consummation of the transactions contemplated
by this Agreement, Purchaser will acquire valid and marketable title to such
shares of Stock, free and clear of all liens, other than the Permitted Liens.
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2.2 POWER AND AUTHORITY. Seller has all requisite power and authority
to enter into this Agreement and all other instruments contemplated hereby, sell
the Stock to Purchaser, and carry out and perform all of Seller's obligations
under this Agreement and all instruments contemplated by this Agreement. This
Agreement is, and all agreements contemplated by this Agreement, when executed
and delivered in accordance with the terms of this Agreement, will be, valid and
binding obligations of Seller, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and general principles
of equity.
2.3 CORPORATE EXISTENCE AND AUTHORITY. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Michigan. The Company has full corporate power and authority, and all
franchises, licenses and permits necessary to own, lease and operate its
properties and assets and to carry on the Business as presently conducted.
2.4 CAPITALIZATION. The Company has 60,000 shares of common stock
authorized and has no other authorized equity securities. All issued shares, and
units of equity securities, of the Company's capital stock have been duly
authorized and validly issued, are fully paid and non-assessable and were issued
by the Company without violating any Requirements of Law. There are no
preemptive or first refusal rights to purchase or otherwise acquire shares of
the capital stock of the Company pursuant to the Governing Documents of the
Company or by agreement or otherwise. There are no outstanding agreements,
commitments, rights, options, warrants or claims of any nature whatsoever for
the issuance, sale, purchase or redemption of any shares of capital stock, or
units of equity securities, of the Company or any securities convertible into or
exchangeable for such shares.
2.5 SUBSIDIARIES. The Company has two Subsidiaries, IJK Insurance
Agency, Inc., a Michigan corporation and MHFC of New Mexico, Inc., a Michigan
corporation. The Company has no obligation or right to purchase any shares of
stock, other securities or any other form of investment or interest in any
person.
2.6 CONSENTS. Other than the releases required pursuant to Section
4.4 hereof, no consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority or any lender, lessor,
creditor, landlord or other person is required in connection with the execution,
delivery, performance of or compliance with this Agreement and the transactions
contemplated by this Agreement.
2.7 NON-CONTRAVENTION. Other than as otherwise provided herein,
neither the execution, delivery, performance of or compliance with this
Agreement and all other agreements contemplated by this Agreement, nor the sale
and delivery of the Stock, nor any other action contemplated by this Agreement
or such other agreements, will (i) violate, conflict with, or constitute a
default or breach under the governing documents of the Company; (ii) constitute
a violation by Seller or the Company of any requirement of law (so long as the
required consents and approvals noted in Section 2.6 are obtained); (iii)
result, or with the passage of time will result, in any breach or violation of,
or be in conflict with, or constitute a default under any document or instrument
binding on or affecting Seller or the Company, so long as the required consents
and approvals noted in Section 2.6 are obtained.
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2.8 BROKERAGE OR FINDER'S FEE. Neither Seller nor the Company has
employed any broker or finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated in
this Agreement.
2.9 LITIGATION AND CLAIMS. Other than claims in the ordinary course
of business, there is no litigation pending against the Company, including,
without limitation, claims by shareholders, members, directors, officers,
employees or creditors against the Company or against any of the assets or
properties of the Company, or any claims which question the validity of this
Agreement, the sale of the Stock or the consummation of any other action
contemplated by this Agreement.
2.10 BALANCE SHEET. The Balance Sheet of the Company shall be, in all
material respects, in the form attached hereto as Exhibit 2.10, upon fulfillment
and consummation of the terms of this Agreement, including but not limited to
the terms of Section 4.4 hereof.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
3.1 ORGANIZATION OF PURCHASER. Purchaser is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Michigan.
3.2 POWER AND AUTHORITY. Purchaser has all requisite power and
authority to enter into this Agreement and all other instruments contemplated
hereby, to purchase the Stock from Seller, and carry out and perform all of
Purchaser's other obligations under this Agreement and all instruments
contemplated hereby. This Agreement is, and all agreements contemplated by this
Agreement, when executed and delivered in accordance with the terms of this
Agreement, will be, valid and binding obligations of Purchaser, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and general principles of equity.
3.3 NON-CONTRAVENTION. Neither the execution, delivery, performance
of or compliance with this Agreement and all other agreements contemplated by
this Agreement, nor the purchase of the Shares, nor any other action
contemplated by this Agreement or such other agreements, will (i) violate,
conflict with, or constitute a default or breach under the governing documents
of the Purchaser; (ii) constitute a violation by Purchaser of any requirement of
law; or (iii) result, or with the passage of time will result, in any breach or
violation of, or be in conflict with, or constitute a default under any document
or instrument binding on or affecting Purchaser.
3.4 BROKERAGE OR FINDER'S FEE. Purchaser has not employed any broker
or finder or incurred any liability for any brokerage fees, commissions or
finders' fees in connection with the transactions contemplated in this
Agreement.
ARTICLE IV. COVENANTS
4.1 ACCESS. Seller has made available to Purchaser and Purchaser's
representatives and agents (including, without limitation, Purchaser's
accountants and legal counsel) access to the
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Company's accountants, attorneys, employees, and other representatives, records,
books of account, assets, properties, operating data and all instruments,
agreements, documents and contracts to which the Company is a party or by which
it is bound, all of which Purchaser agrees will remain confidential and will not
be disclosed to third parties or used by Purchaser for its own purposes if the
transactions contemplated by this Agreement do not become effective; provided,
however, that Purchaser may disclose such information (i) to Purchaser's
attorneys, accountants and other advisors if such advisors agree not to disclose
such confidential information to any third party, or (ii) if compelled to do so
by a court order.
4.2 BEST EFFORTS. Subject to the terms of this Agreement, each of the
parties agrees to use its best efforts to take, or cause to be taken, all action
to satisfy its obligations under this Agreement to consummate the transactions
contemplated in this Agreement, including obtaining any consents, authorizations
and approvals from, and making all filings with, any governmental authority that
are necessary or, in the judgment of Seller and Purchaser, desirable in
connection with the consummation of such transactions.
4.3 NO OTHER NEGOTIATIONS. So long as this Agreement is in effect,
Seller will not offer the Shares, or the Business or assets of the Company, for
sale to, or carry on negotiations with respect to such sale with, any person
other than Purchaser.
4.4 RELEASE OF PERMITTED LIENS. The assets of the Company are
currently encumbered or subject to sale and repurchase arrangements between
Xxxxxx Commercial Paper, Inc. and the Company, and between the Company and
Seller (collectively, the "Permitted Liens"). Contemporaneous herewith, Seller
shall cause the Company and the Company's assets to be released from the
obligations associated with the Permitted Liens (the "Permitted Lien
Obligations") and from the Permitted Liens. In conjunction with such release,
Purchaser agrees that it shall cause the Company, at Seller's written direction:
(i) to execute one or more promissory notes (collectively the "Replacement
Note") in an aggregate amount not to exceed $2,700,000 together with appropriate
collateral documents on terms similar to the documents evidencing the Permitted
Liens and the Permitted Lien Obligations, in favor of a replacement lender or
lenders (collectively, the "Replacement Lender"); and (ii) execute any and all
other documents which may be required by the Replacement Lender or by Seller to
cause the Balance Sheet of the Company to be, in all material respects, in the
form of Exhibit 2.10.
4.5 COVENANTS REGARDING LOAN. If the Replacement Lender is Dynex
Financial, Inc. ("Dynex) or any affiliate of Dynex, the Replacement Note shall
mature one year from the date hereof, the Company shall agree not to xxxxx x
xxxx on any of its assets (except for purchase money security interests and
capital leases) or make any distribution in excess of $40,000 per year to its
members while any amounts are owing under the Replacement Note, and the Company
shall use its best efforts to sell its Loans on a commercially reasonable basis
as soon as practicable and apply to the proceeds from any such sale to the
payment of the Replacement Note.
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ARTICLE V. CLOSING
5.1 CLOSING. The Closing will be held at the offices of Jaffe, Raitt,
Heuer & Xxxxx, Professional Corporation, Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx, contemporaneous with the execution of this Agreement (the
"Closing Date").
5.2 SELLER'S DELIVERIES. On the Closing Date, Seller will execute and
deliver, or cause to be executed and delivered to Purchaser the following (the
"Seller's Deliveries"):
5.2.1 Assignment Separate from Certificate for the Stock in
form acceptable to Purchaser.
5.2.2 All stock certificates representing the Shares.
5.2.3 The Company's Minute Book.
5.2.4 Such other documents and instruments as are contemplated
in this Agreement or Purchaser or Purchaser's counsel may reasonably
request in order to evidence or consummate the transactions
contemplated in this Agreement or to effect the purpose or intent of
this Agreement.
5.3 PURCHASER'S DELIVERIES. On the Closing Date, Purchaser will
execute and deliver, or cause to be executed and delivered, to Seller (the
"Purchaser's Deliveries"):
5.3.1 The Purchase Price.
5.3.2 Such other documents as may be reasonably requested by
Seller.
ARTICLE VI. SURVIVAL
6.1 SURVIVAL. The representations and warranties contained in this
Agreement will survive for two (2) years following the Closing.
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ARTICLE VII. MISCELLANEOUS
7.1 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Michigan.
7.2 PAYMENT OF EXPENSES. Except as otherwise expressly provided in
this Agreement, each party will pay all fees and expenses, including legal and
accounting fees, incurred by it in connection with the transactions contemplated
by this Agreement.
7.3 ENTIRE AGREEMENT. This Agreement and all other documents and
instruments delivered pursuant to this Agreement constitute the full and entire
understanding and agreement between the parties with respect to the transactions
herein contemplated and supersede all prior understandings, agreements or
letters of intent relating thereto.
7.4 BENEFIT. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their permitted successors and assigns.
7.5 ASSIGNMENT. Purchaser may assign this Agreement and all of its
rights hereunder to any person, in which event the assigned portion of
Purchaser's rights will inure to the benefit of such assignee, and the
obligations, warranties and representations of Purchaser will be deemed to be
the joint and several obligations, warranties and representations of Purchaser
and Purchaser's assignee.
7.6 AMENDMENTS. Any modification or amendment to this Agreement will
be effective only if in writing and executed by the parties to this Agreement.
7.7 WAIVER. Waiver by any party of any breach of any provision hereof
will not operate or be construed as a waiver of any subsequent or similar
breach.
7.8 VENUE. The parties agree that all actions or proceedings arising
in connection with this Agreement and all documents delivered pursuant to it,
shall be tried and litigated only in the courts of the State of Michigan and of
the United States for the Eastern District of Michigan. Each of the parties
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts. Each of the parties
irrevocably consents to the service of process out of any such courts in any
such action or proceedings by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party at its address set forth herein,
such service to become effective ten (10) days after such mailing. Nothing in
this Agreement shall affect the right of any party hereto to service process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against any other party to this Agreement or their respective properties
in any other jurisdiction. Each of the parties irrevocably waives any right it
may have to assert the doctrine of forum non conveniens or to object to venue to
the extent any proceeding is brought in accordance with the provisions of this
paragraph.
7.9 NOTICES. Any and all notices, requests, demands and other
communications permitted under or required pursuant to this Agreement shall be
in writing and shall be deemed given if
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personally delivered, if mailed, postage prepaid, certified or registered mail,
return receipt requested, or if provided by facsimile or other electronic means
with a copy mailed, to the parties at the addresses set forth below, or at such
other addresses as they may indicate by written notice given as provided in this
Section:
If to Seller:
Xxxxxxx Financial Services Corporation
000 X. Xxxxx Xx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to Purchaser:
Gwenuc, LLC
00000 Xxxxxxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
7.10 SEVERABILITY. In case any provision of this Agreement or any
agreement or instrument executed in connection herewith will be invalid, illegal
or unenforceable, such provision will be enforced to the fullest extent
permitted by applicable law, and the validity, legality and enforceability of
the remaining provisions hereof and thereof will not in any way be affected or
impaired thereby.
7.11 CONSTRUCTION. Seller and Purchaser acknowledge and agree that
each of them has equally participated in the final wording of this Agreement and
this Agreement will be construed equally against each party.
7.12 HEADINGS. The headings of the articles and sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
7.13 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed an original and all of which together will be
considered one and the same agreement.
7.14 NO THIRD PARTY BENEFICIARY RIGHTS. This Agreement is not intended
to and will not benefit any Persons other than Seller and Purchaser and will not
create any third party beneficiary rights in any Person.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
SELLER: PURCHASER:
XXXXXXX FINANCIAL SERVICES GWENUC, LLC
CORPORATION, a Michigan limited liability company
a Michigan Corporation
By: /s/ Xxxxxx X. Xxxxx By: Xxxx X. Xxxxxxxx
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Its: CEO Its: Member
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