EXECUTION COPY
JPE
EQUITY PURCHASE AGREEMENT
BY AND BETWEEN
QP ACQUISITION #2, INC.,
AND/OR ITS DESIGNEES, AS PURCHASER
AND
ASC HOLDINGS, LLC, AS SELLER
MAY 7, 2002
JPE
EQUITY PURCHASE AGREEMENT
This JPE Equity Purchase Agreement (this "Agreement") is entered into
as of May 7, 2002 by and among ASC Holdings, LLC, a Michigan limited liability
company ("ASC Holdings", ASC Holdings is sometimes referred to as the "Seller"),
the Estate of Xxxxx X. Xxxxxxxx, Deceased (the "Estate"), Xxxxxxxx X. Xxxxxxxx
(the "Beneficiary"), and QP Acquisition #2, Inc., a Delaware corporation ("QP
#2"), and/or its designees ("Purchaser").
RECITALS:
A. The Seller owns the equity securities of the Enterprise set forth on
the attached Exhibit A (the "Seller's Equity Interests").
B. The Enterprise owns the equity securities of certain entities and
certain of such entities own equity securities of other entities (collectively,
all such entities are the "Enterprise Subsidiaries") all as set forth on the
attached Exhibit B.
C. Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, all of the Seller's Equity Interests, on the terms and
subject to the conditions set forth in this Agreement.
D. Seller is not selling pursuant to this Agreement any other assets of
the Seller other than the Seller's Equity Interests.
NOW, THEREFORE, for and in consideration of the foregoing Recitals,
the mutual covenants and undertakings set forth below and other good and
valuable consideration, the receipt and adequacy of which are acknowledged, the
parties agree as follows:
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1. DOCUMENT CONSTRUCTION.
1.1. Definitions. For the purposes of this Agreement, the following terms have
the following meanings:
(a) Closing Date means the date on which the Closing actually
occurs.
(b) Enterprise means the entity listed on the attached Exhibit A.
(c) Knowledge (of the Estate, ASC Holdings or both) means the
actual knowledge of those persons listed on Exhibit C, without
inquiry.
(d) Purchase Price means $30,000.
(e) Other Enterprises means those entities, not including the
Enterprise or Enterprise Subsidiaries as defined in this
Agreement, that are defined as "Enterprises" in the Estate
Purchase Agreement and that are defined as "Enterprises" in
the Hotel/HDC Purchase Agreement.
(f) Other Enterprise Subsidiaries means those entities, not
including the Enterprise Subsidiaries as defined in this
Agreement, that are defined as "Enterprise Subsidiaries" in
the Estate Purchase Agreement and that are defined as
"Enterprise Subsidiaries" in the Hotel/HDC Purchase Agreement.
1.2. Terms Defined Elsewhere in this Agreement. For the purposes of this
Agreement, the following terms are defined in the sections referred to below:
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Term Section
---- -------
Additional Purchase Price 9.3
Agreement Preamble
Beneficiary Preamble
Closing 8.1
Confidentiality Agreement 7.1(a)
Deductible Amount 9.3
Direct Claim 9.5(a)
Disclosure Schedule 7.2(e)
Enterprise Subsidiaries Recital B
Estate Preamble
Estate Loss 9.3
Estate Purchase Agreement 7.2(m)
Existing Books and Records 11.2
Hotel Losses 9.3
Hotel/HDC Purchase Agreement 7.2(m)
Indemnification Notice 9.5(b)
Liens 4.5(c)
Loss(es) 9.1
Notice 12.2
Other Enterprises 1.1(e)
Other Enterprise Subsidiaries 1.1(f)
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Term Section
---- -------
Permitted Liens 7.1(d)(II)(11)
Purchaser Preamble
Purchaser Parties 9.1
Sale 7.1(g)
Seller Preamble
Seller Parties 9.2
Third Party Claim 9.5(b)
1.3. Interpretation.
(a) Whenever the words "include," "includes" or "including" are
used in this Agreement, they will be deemed to be followed by
the words "without limitation."
(b) Whenever the words "herein" or "hereunder" are used in this
Agreement, they will be deemed to refer to this Agreement as a
whole and not to any specific Section.
(c) Whenever a dollar figure ($) is used in this Agreement, it
will be deemed to be United States dollars.
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2. PURCHASE AND SALE OF EQUITY INTERESTS.
At the Closing, Seller shall transfer, sell, assign and otherwise
convey to Purchaser its entire right, title and interest in and to the Seller's
Equity Interests, free and clear of all Liens.
3. PURCHASE PRICE.
3.1. Payment of Purchase Price. Purchaser shall pay the entire Purchase Price on
the later of (i) the twentieth (20th) business day after this Agreement is
signed by Seller, the Estate and Purchaser, and (ii) the Closing, in either case
by wire transfer of immediately available funds to accounts designated by Seller
in writing, which accounts shall be designated before the Closing.
4. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents, warrants and covenants to Purchaser, as of the date of this
Agreement and as of the Closing Date, as follows:
4.1. Authority. ASC Holdings is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Michigan.
ASC Holdings has the requisite limited liability company power and authority and
the Estate has the requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated in this Agreement. The
Beneficiary is the primary beneficiary of the Estate. This Agreement, and the
consummation of the transactions contemplated in this Agreement, have been duly
authorized and approved by all necessary and proper limited liability company or
other action on the part of Seller and the Estate. This
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Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of Seller, the Estate and Beneficiary enforceable against
Seller, the Estate and Beneficiary in accordance with the terms of this
Agreement.
4.2. Non-Violative Agreement. Except as set forth on Schedule 4.4 attached
hereto, neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, will conflict
with, result in the breach or violation of or constitute a default under the
terms, conditions or provisions of ASC Holdings' Articles of Organization or
operating agreement or any other agreement or instrument to which Seller, the
Estate or Beneficiary is a party, or by which Seller, the Estate or Beneficiary
is bound or to which Seller, the Estate or Beneficiary is subject, except for
such conflicts, breaches, violations or defaults that, individually or in the
aggregate, will not prevent, delay or impair the ability of Seller to consummate
the transactions contemplated hereby.
4.3. Brokerage or Finder's Fee. Except as set forth on the attached Schedule
4.3, no broker, finder, agent or similar intermediary has acted for or on behalf
of the Seller in connection with this Agreement or the transactions contemplated
hereby and no broker, finder, agent or similar intermediary is entitled to any
broker's, finder's or similar fee or other commission in connection therewith
based on any agreement, arrangement or understanding with the Seller or any
action taken by the Seller.
4.4. Consents, Approvals and Authorization. Except as set forth on Schedule 4.4
attached hereto, no consent, approval or authorization of, or designation,
declaration or filing with, or notice to any governmental authority, or any
lenders, lessors, creditors, or others, is required on the part of Seller in
connection with the valid execution and
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delivery of this Agreement or the consummation of the transactions contemplated
in this Agreement, except those that the failure to make or obtain would not,
individually or in the aggregate, prevent, delay or impair the ability of Seller
to consummate the transactions contemplated hereby.
4.5. Ownership of Equity Interests.
(a) Except as set forth on Exhibit A or Exhibit B, as applicable,
(i) no Enterprise or Enterprise Subsidiary directly or
indirectly owns, controls or has any investment or other
interest in any corporation, partnership, joint venture,
business trust or other entity, and (ii) no Enterprise or
Enterprise Subsidiary has agreed, contingently or otherwise,
to share any profits, losses, costs or liabilities of any
person or entity, except as reflected or disclosed in the
respective financial statements of said Enterprise or
Enterprise Subsidiary.
(b) The authorized, issued and outstanding capital stock,
ownership interests and other securities of the Enterprise and
each Enterprise Subsidiary and the record and beneficial
ownership thereof are fully and accurately set forth on
Exhibit A or Exhibit B, as applicable. Except as set forth on
such Exhibits, (i) no person or entity has any preemptive or
other similar rights with respect to any such equity interests
or other securities, and (ii) there are no offers, options,
warrants, rights, agreements or commitments of any kind
(contingent or otherwise) relating to the issuance, voting,
conversion, registration, sale or transfer of any equity
interests or other securities of the Enterprise or any
Enterprise Subsidiary, or obligating the Enterprise, any
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Enterprise Subsidiary or any other person or entity to
purchase or redeem any such equity interests or other
securities or to make capital contributions, advances or loans
to or on behalf of the Enterprise or any Enterprise
Subsidiary. All of the issued and outstanding shares of
capital stock, ownership interests or equivalent equity
interests of the Enterprise and each Enterprise Subsidiary
have been duly authorized and are validly issued and
outstanding, fully paid and non-assessable and have been
issued in compliance with applicable securities and other
laws.
(c) Upon the consummation of the transactions contemplated in this
Agreement, Purchaser will be the owner of the Seller's Equity
Interests free and clear of all adverse claims, security
interests, liens, rights of redemption, claims, options or
encumbrances of any nature whatsoever (collectively, "Liens").
4.6. Disclaimer of Other Representations and Warranties. Seller makes no
representation or warranty to Purchaser except as set forth in this Section 4.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents, warrants and covenants to Seller, as of the date of this
Agreement (except as otherwise set forth herein) and as of the Closing Date, as
follows:
5.1. Good Standing and Authority. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Purchaser has the requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated in this Agreement.
This Agreement, and the
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consummation of the transactions contemplated in this Agreement, have been duly
authorized and approved by all necessary and proper corporate action on the part
of Purchaser. This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of Purchaser enforceable against Purchaser
in accordance with its terms.
5.2. Non-Violative Agreement. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated in this
Agreement, will conflict with, result in the breach or violation of or
constitute a default under the terms, conditions or provisions of Purchaser's
Certificate of Incorporation or bylaws or any other agreement or instrument to
which Purchaser is a party, or by which Purchaser is bound or to which it is
subject, except for such conflicts, breaches, violations or defaults that,
individually or in the aggregate, will not prevent, delay or impair the ability
of Purchaser to consummate the transactions contemplated hereby.
5.3. Brokerage or Finder's Fee. Except as set forth on the attached Schedule
5.3, no broker, finder, agent or similar intermediary has acted for or on behalf
of Purchaser in connection with this Agreement or the transactions contemplated
hereby and no broker, finder, agent or similar intermediary is entitled to any
broker's, finder's or similar fee or other commission in connection therewith
based on any agreement, arrangement or understanding with Purchaser or any
action taken by Purchaser.
5.4. Consents, Approvals and Authorization. Except as set forth on Schedule 5.4
attached hereto, no consent, approval or authorization of, or designation,
declaration or filing with, or notice to any governmental authority, or any
lenders, lessors, creditors, or others, is required on the part of Purchaser in
connection with the valid execution and
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delivery of this Agreement or the consummation of the transactions contemplated
in this Agreement, except those that the failure to make or obtain would not,
individually or in the aggregate, prevent, delay or impair the ability of
Purchaser to consummate the transactions contemplated hereby.
5.5. Review Opportunity. Purchaser shall be deemed to represent and warrant to
Seller, as of the Closing Date, that (i) it has been given an opportunity to
examine such instruments, documents, assets, and other due diligence data
relating to the Enterprise and the Enterprise Subsidiaries as Purchaser has
deemed necessary or advisable in order to make an informed decision relating to
the purchase of the Seller's Equity Interests, and (ii) Purchaser has been
afforded an opportunity to ask questions and to obtain any additional
information necessary in order to verify the accuracy of the information
furnished and (iii) Purchaser has decided to proceed with the transactions
contemplated herein.
5.6. Purchase for Investment. Purchaser will be acquiring Seller's Equity
Interests solely for its own account for investment and not with a view to or
for the distribution thereof. Nothing in this Agreement shall be deemed to
restrict Purchaser from transferring any of the interests it is purchasing after
the Closing.
5.7. Financial Capability. Purchaser has available (either from its immediately
available cash or from available unused capital commitments of the partners of
the entities that own Purchaser, lines of credit or third party financing, or a
combination thereof), and will have available at Closing (subject to payment of
the Purchase Price as contemplated by Section 3.1(a)), funds sufficient to pay
the Purchase Price.
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6. FUTURE DEVELOPMENTS; SURVIVAL.
6.1. Notice of Material Developments. Until the Closing, each party shall give
prompt written notice to the other parties (i) if any representation or warranty
of such party contained in this Agreement becomes untrue, (ii) if it breaches
any covenant under this Agreement, and (iii) of any other material development
affecting the ability of such party to consummate the transactions contemplated
in this Agreement.
6.2. Survival. The representations and warranties set forth in this Agreement
shall survive indefinitely.
7. PRE-CLOSING COVENANTS AND CONDITIONS TO CLOSING.
7.1. Covenants.
(a) Confidentiality.
(i) Until the execution of this Agreement, and except as
otherwise contemplated in this Agreement or required
by law, the parties agree to keep in strict
confidence the fact of and the content of the
negotiations and the agreements among them concerning
the transactions contemplated in this Agreement.
(ii) Until the Closing, except as otherwise provided
herein, any information provided by Seller, the
Enterprise or the Enterprise Subsidiaries to the
Purchaser or its representatives pursuant to this
Agreement, or in connection with the transactions
contemplated hereby, shall be held by recipient and
its representatives in accordance with, and shall be
subject to the terms of, the
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Confidentiality Agreement dated December 16, 2001 by
and between an affiliate of Purchaser and the Estate
("Confidentiality Agreement"), the terms of which are
hereby incorporated in this Agreement.
(b) Access to Information. Subject to Section 7.1(c) below, from
the date hereof until the Closing Date, Seller will (i) give
to Purchaser, its counsel, financial advisors, auditors and
other authorized representatives reasonable access during
normal business hours and on reasonable notice to the officers
(subject to Section 7.1(c)), properties, books and records of
and relating to the Enterprise and the Enterprise
Subsidiaries, (ii) furnish to Purchaser, its counsel,
financial advisors, auditors and other authorized
representatives such financial and operating data and other
information with respect to the Enterprise and the Enterprise
Subsidiaries as such persons may reasonably request, and (iii)
instruct employees, counsel and financial advisors of the
Enterprise and the Enterprise Subsidiaries to cooperate with
Purchaser in its investigation of the Enterprise and the
Enterprise Subsidiaries. Any information provided, or caused
to be provided, by Seller pursuant to this Section 7.1(b)
shall be subject to the terms of the Confidentiality
Agreement.
(c) Employee and Customer Contact. Notwithstanding Section 7.1(b)
above, prior to the Closing, Purchaser shall not contact any
employee, officer, agent or customer of the Enterprise or any
Enterprise Subsidiary regarding the transactions contemplated
herein without the prior oral or written consent of Seller.
With respect to the foregoing, and except as provided herein,
it is the intention of the
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parties that management of the Enterprise will be contacted
regarding the transactions contemplated by this Agreement
jointly by Purchaser and representatives of Seller, as
appropriate, and that customers of the Enterprise and the
Enterprise Subsidiaries will be contacted jointly by Purchaser
and such members of management as mutually agreed.
(d) Conduct of Business.
(I) From the date hereof through the Closing, except
as otherwise provided for in, or contemplated by,
this Agreement, and except as consented to or
approved by Purchaser in writing, Seller covenants
and agrees that it shall cause the Enterprise and
each Enterprise Subsidiary to be operated in the
ordinary course of business consistent with past
practice and the provisions of this Agreement.
(II) Without limiting the generality of the
foregoing, between the date hereof and the Closing,
unless Purchaser consents otherwise in writing, which
consent will not be unreasonably withheld or delayed,
or except as otherwise provided for herein, Seller
shall:
(1) cause the Enterprise and each Enterprise
Subsidiary to (i) maintain its corporate or
other entity existence, and (ii) maintain
its books and records in accordance with
past practice, and use reasonable best
efforts to maintain in full force and effect
all governmental authorizations;
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(2) cause the Enterprise and each Enterprise
Subsidiary to use reasonable best efforts to
maintain in full force and effect all
insurance policies and binders existing as
of the date hereof;
(3) promptly advise Purchaser in writing of
the written threat of an action or
commencement of an action against the
Enterprise, any Enterprise Subsidiary or
Seller with respect to any dispute, claim,
action, suit, proceeding, arbitration or
investigation which could materially
adversely affect the Enterprise, any
Enterprise Subsidiary or any of its
operations, assets or prospects, or which
challenges or may affect the validity of
this Agreement or any action taken or to be
taken in connection with this Agreement or
the ability of Seller to consummate the
transactions contemplated herein, provided
that, for the purposes of Section 9.1, this
Section 7.1(d)(II)(3) shall not be breached
by Seller unless Seller has Knowledge of
said written threat of an action or
Knowledge of commencement of an action;
(4) cause the Enterprise and each Enterprise
Subsidiary not to: make any change in the
Enterprise's or any Enterprise Subsidiary's
equity structure; grant any option or other
right to purchase capital stock or other
securities of the Enterprise or any
Enterprise Subsidiary; issue or make any
commitment to issue any security of the
Enterprise or any Enterprise Subsidiary,
including any security convertible into
capital stock; grant any registration
rights; or
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purchase, redeem, retire or make any other
acquisition of any shares of any capital
stock or other securities;
(5) cause the Enterprise and each Enterprise
Subsidiary not to amend the certificate or
articles of incorporation or bylaws (or
equivalent governing documents) of the
Enterprise or any Enterprise Subsidiary;
(6) (a) cause the Enterprise and each
Enterprise Subsidiary not to enter into, or
materially amend, any material agreement,
commitment or transaction other than in the
ordinary course of business, consistent with
past practice; (b) without limiting the
generality of the previous clause of this
Section 7.1(d)(II)(6), Seller shall cause
(i) the Enterprise and each Enterprise
Subsidiary (x) not to enter into or modify
any collective bargaining agreement, and (y)
not to writeoff or otherwise discharge any
obligation owed to it by the Other
Enterprises or any Other Enterprise
Subsidiary and (ii) the Enterprise and the
Enterprise Subsidiaries not to enter into
any agreement with ASC Incorporated or any
of its affiliates or with ASC Incorporated,
on the one hand, and Comerica Bank, on the
other hand, or to modify any existing
agreement between any of the parties
referred to in this clause (ii).
(7) (a) cause the Enterprise and each
Enterprise Subsidiary not to enter into any
contract with Seller, the Estate or any
heir, relative (or any entity controlled by
such heir or relative) or any affiliate of
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Seller or the Estate, except that the
Enterprise or any Enterprise Subsidiary may
enter into a contract with Other Enterprises
or Other Enterprise Subsidiaries in the
ordinary course of business consistent with
past practice, unless otherwise restricted
by the terms of this Agreement; and (b)
cause any agreement or other obligation
between the Enterprise or any Enterprise
Subsidiary and Seller, the Estate or any
heir, relative (or entity controlled by such
heir or relative) or affiliate of Seller or
the Estate (other than Other Enterprises or
Other Enterprise Subsidiaries unless
otherwise restricted by the terms of this
Agreement) to be terminated and of no
further force and effect on or before the
Closing, and the Enterprise and each
Enterprise Subsidiary shall have no
obligation or liability in respect thereto.
(8) cause the Enterprise and each Enterprise
Subsidiary not to declare or pay any
dividend or other distribution or payment in
respect of the shares of capital stock or
ownership interests of the Enterprise or any
Enterprise Subsidiary;
(9) except as disclosed on the Disclosure
Schedule, cause the Enterprise and each
Enterprise Subsidiary not to pay any bonus
or increase any compensation payable to any
shareholder, owner, director, or executive
employee or enter into (or amend) any
employment, severance or similar agreement
with any shareholder, owner, director or
executive employee;
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(10) except as disclosed on the Disclosure
Schedule, cause the Enterprise and each
Enterprise Subsidiary not to adopt or change
any employee benefit plan or labor policy,
other than in the ordinary course of
business consistent with past practice,
provided, however, Seller shall cause the
Enterprise and each Enterprise Subsidiary
not to add any executive employee or make
any material amendment to any incentive
compensation plan;
(11) (a) cause the Enterprise and each
Enterprise Subsidiary not to (i) sell,
assign, convey, lease, or otherwise dispose
of any material asset or property of the
Enterprise or any Enterprise Subsidiary,
other than in the ordinary course of
business consistent with past practices and
other than to the extent such asset or
property is not used or useful in the
conduct of the business of the Enterprise or
Enterprise Subsidiary, but in each case
subject to the provisions of Section 7.1(g),
or (ii) (except for liens for taxes not yet
due and payable or which are being contested
in good faith by appropriate proceedings,
statutory or common law liens to secure
landlords, lessors or renters under leases
or rental agreements confined to the
premises rented, deposits or pledges made in
connection with, or to secure payment of,
worker's compensation, unemployment
insurance, old age pension programs mandated
under applicable law or other social
security, and statutory or common law liens
in favor of carriers, warehousemen,
mechanics
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and materialmen, statutory or common law
liens to secure claims for labor, materials
or supplies and other like liens "Permitted
Liens"), mortgage, pledge, or impose any
lien or other encumbrance on any material
asset or property of the Enterprise or any
Enterprise Subsidiary; and (b) cause the
Enterprise and Enterprise Subsidiaries not
to close or open or commit to close or keep
open any facility or make any public
announcement in respect to same.
(12) cause the Enterprise and each
Enterprise Subsidiary not to (a) incur or
repay any liability or obligation (whether
absolute or contingent), or make any capital
contribution or otherwise advance any money,
with respect to all of the foregoing, to
Seller, the Estate or any heir, relative (or
entity controlled by such heir or relative)
or any other affiliate of Seller or the
Estate (other than Other Enterprises or
Other Enterprise Subsidiaries, unless
otherwise restricted by the terms of this
Agreement), (b) incur or repay any liability
or obligation (whether absolute or
contingent) to any other person or entity
under any agreement (oral or written) other
than obligations under agreements entered
into prior to the date of this Agreement or
under agreements entered into after the date
of this Agreement in the ordinary course of
business consistent with past practice and,
in each case, not otherwise restricted under
the terms of this Agreement, (c) make any
capital contribution or otherwise
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advance any money to any other person or
entity, or (d) discharge or satisfy any
lien, claim or encumbrance, other than
Permitted Liens or in the ordinary course of
business consistent with past practice
unless otherwise restricted in accordance
with the terms of this Agreement;
(13) cause the Enterprise and each
Enterprise Subsidiary not to enter into any
agreement, whether or not in writing, to do
any of the matters set forth in Section
7.1(d)(II), (1), (4), or (5); or
(14) cause each Enterprise and each
Enterprise Subsidiary not to enter into any
agreement, whether or not in writing, to do
any of the matters set forth in Sections
7.1(d)(II)(2), (3), (6), (7), (8), (9),
(10), (11), or (12).
(e) Transaction Costs. Except as set forth in Section 10.2,
Purchaser shall be responsible for all transaction costs it
incurs in connection with the negotiation and execution of
this Agreement and the transactions contemplated herein prior
to Closing, regardless as to whether the Closing occurs,
including, without limitation, all accountants, attorneys,
brokerage, finder, agent and financial advisor fees and
commissions. Except as expressly provided for in this Section
7.1(e), the Enterprise shall be responsible for all
transaction costs incurred by Seller in connection with the
negotiation and execution of this Agreement and the
transactions contemplated herein prior to Closing, regardless
as to whether the Closing occurs, except for transaction costs
the Estate and ASC Incorporated shall be responsible to pay as
contemplated by the Estate Purchase Agreement.
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(f) Efforts. Subject to the terms and conditions of this Agreement
and applicable law, each of the parties shall act in good
faith and use commercially reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable to consummate
and make effective the transactions contemplated hereby as
soon as practicable, including such actions or things as the
other party may reasonably request in order to cause any of
the conditions to such other party's obligation to consummate
the transactions contemplated by this Agreement to be fully
satisfied.
(g) Exclusivity. Until the Closing or earlier termination of this
Agreement pursuant to Section 10.1, Seller will not, and it
will not permit the Seller's representatives to, directly or
indirectly, encourage, solicit, participate in, continue or
initiate discussions or negotiations with, or provide any
information to, or otherwise cooperate with, any person or
entity with respect to any merger, joint venture, sale of
assets, sale of capital stock, investment or similar
transaction (collectively, a "Sale") involving the Enterprise,
the Enterprise Subsidiaries or any of Seller's direct or
indirect interest therein.
7.2. Conditions Precedent to Purchaser's Obligation. The obligation of Purchaser
to consummate the transactions contemplated in this Agreement at the Closing is
subject to the satisfaction of all of the following conditions, any of which may
be waived (but only in writing) by Purchaser:
(a) Representations and Warranties of Seller. Seller's
representations and warranties set forth in Section 4 hereof
shall be true and correct when made and at
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and as of the Closing Date with the same effect as though such
representations and warranties had been made at and as of such
date.
(b) Termination. This Agreement shall not have been terminated
pursuant to Section 10.1 below.
(c) Delivery of Closing Documents. Seller shall have executed and
delivered, or caused to be executed and delivered an
assignment separate from certificate or other documents
reasonably satisfactory to Purchaser evidencing transfer of
ownership to Purchaser of the Seller's Equity Interests, with
signatures guaranteed.
(d) No Injunction. No federal or state governmental or regulatory
body or court of competent jurisdiction shall have enacted,
issued, promulgated or enforced any statute, rule, regulation,
executive order, decree, judgment, preliminary or permanent
injunction or other order which is in effect and which
prohibits, enjoins or otherwise restrains the consummation of
the transactions contemplated hereby; provided that, the
parties shall use commercially reasonable efforts to cause any
such decree, judgment, injunction or order to be vacated or
lifted.
(e) Accuracy of Disclosure Items; Certification. The disclosure
information and schedules set forth on the attached Exhibit D
(the "Disclosure Schedule") shall be true and correct at and
as of the Closing Date with the same effect as if made on such
date and the persons listed on Exhibit C shall have certified
that to the knowledge of each the information in the
Disclosure Schedule is true, correct and complete at and as of
the Closing Date. In addition, appropriate officers or
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directors of the Enterprise and Enterprises Subsidiaries that
own real property in respect to which Purchaser purchases
title insurance shall execute such non-imputation affidavits
as may be required by the title insurance company.
(f) Performance Covenants. Seller shall have performed or complied
with all of the agreements, covenants and conditions required
by this Agreement to be performed or complied with by Seller
prior to or at the Closing.
(g) Approvals. The consents or approvals listed on the attached
Exhibit E shall have been obtained and, except as set forth on
the attached Schedule 7.2(g), no such consent or approval: (a)
shall have been conditioned upon the modification in any
material respect, cancellation or termination of any material
lease, commitment, agreement, easement, right or governmental
authorization of any Enterprise or any Enterprise Subsidiary;
or (b) shall impose on Purchaser, the Enterprise or any
Enterprise Subsidiary any material condition, provision or
requirement not presently imposed upon Seller, the Enterprise
or such Enterprise Subsidiary, or any condition that would be
more restrictive after the Closing on Purchaser, the
Enterprise or any Enterprise Subsidiary than the conditions
presently imposed on Seller, such Enterprise or Enterprise
Subsidiary, as the case may be.
(h) Resignation of Directors and Officers. Purchaser shall have
received resignations from the officers and directors of the
Enterprise and Enterprise Subsidiaries specified on Schedule
7.2(h).
22
(i) Opinion of Counsel. Purchaser shall have received an opinion
of Seller's counsel in the form attached as Exhibit F.
(j) Material Adverse Change. Since the date of this Agreement,
there has not been any material adverse change in the
business, operations, properties, assets, working capital or
condition (financial or otherwise) of the Enterprise and
Enterprise Subsidiaries, taken as a whole, except for changes
caused by general economic or industry-wide conditions which
are not specific to the Enterprise or the Enterprise
Subsidiaries.
(k) Audit. Ernst & Young LLP shall have issued an audit opinion in
respect to the financial statements of JPE, Inc. in respect to
the fiscal year ending December 31, 2001.
(l) Enterprise Board Approval. The Board of Directors of the
Enterprise shall have approved the transactions contemplated
herein, shall have passed appropriate resolutions exempting
from the requirements of Section 780 of the Michigan Business
Corporation Act the transfer of any shares of the Enterprise
to the Purchaser or its affiliates, and the Board of Directors
and the shareholders of the Enterprise shall have amended the
Articles of Incorporation of the Enterprise to include the
provisions of Section 450.1209 of the Michigan Business
Corporation Act.
(m) Estate Purchase Agreement Closing. Either prior to or
contemporaneously with the Closing, affiliates of Purchaser
shall (i) complete or have completed the purchase from the
Estate of equity interests held by the Estate in the Other
23
Enterprises pursuant to the previously executed Equity
Purchase Agreement ("Estate Purchase Agreement") dated May 3,
2002, by and among QP Acquisition #1, Inc., and/or its
designees, as purchaser, and the Estate of Xxxxx X. Xxxxxxxx,
Deceased, as seller, and (ii) execute a Hotel/HDC Equity
Purchase Agreement ("Hotel/HDC Purchase Agreement") by and
between QP Acquisition #1, Inc., and/or its designees, as
purchaser, and the Estate of Xxxxx X. Xxxxxxxx, Deceased, as
seller, under which such purchaser, would acquire interests in
certain Other Enterprises.
7.3. Conditions Precedent to the Seller's Obligation. The obligation of Seller
to consummate the transactions contemplated in this Agreement at the Closing is
subject to the satisfaction of all of the following conditions, any of which may
be waived (but only in writing) by Seller:
(a) Purchaser's Representations and Warranties. The
representations and warranties of Purchaser in Section 5
hereof shall be true and correct when made and at and as of
the Closing Date with the same effect as though such
representations and warranties had been made at and as of such
date.
(b) Performance of Agreement. Purchaser shall have performed and
complied with all of its obligations under this Agreement
which are to have been performed or complied with on or prior
to the Closing Date.
(c) Termination. This Agreement shall not have been terminated
pursuant to Section 10.1 below.
24
(d) No Injunction. No federal or state governmental or regulatory
body or court of competent jurisdiction shall have enacted,
issued, promulgated or enforced any statute, rule, regulation,
executive order, decree, judgment, preliminary or permanent
injunction or other order which is in effect and which
prohibits, enjoins or otherwise restrains the consummation of
the transactions contemplated hereby; provided, that the
parties shall use commercially reasonable efforts to cause any
such decree, judgment, injunction or order to be vacated or
lifted.
(e) Estate Purchase Agreement Closing. Either prior to or
contemporaneously with the Closing, affiliates of Purchaser
shall (i) complete or have completed the purchase from the
Estate of equity interests held by the Estate in a number of
other entities pursuant to the Estate Purchase Agreement and
(ii) execute the Hotel/HDC Purchase Agreement.
8. CLOSING.
8.1. Closing. The closing (the "Closing") of the transactions contemplated in
this Agreement shall take place within ten (10) business days after satisfaction
of each of the conditions precedent set forth in Sections 7.2 and 7.3 above, or
such other date as requested by Seller and which Purchaser approves, which
approval shall not be unreasonably withheld or delayed so long as each of the
conditions precedent set forth in Section 7.2 above have been satisfied. The
Closing shall take place at the offices of the Estate's counsel, Xxxxxxxx Xxxxxx
Xxxxxxxx and Xxxx LLP at 2290 First National
25
Building, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other
location as the Seller and Purchaser may mutually agree.
8.2. To Be Delivered at Closing by the Seller. At the Closing, Seller shall
properly execute and deliver to Purchaser, or cause to be executed and delivered
to Purchaser, the items described in Section 7.2(c) and Section 7.2(e).
8.3. To be Delivered at Closing by Purchaser. At the Closing, Purchaser shall
deliver to Seller (i) a letter from the private equity funds that are
shareholders of Purchaser ("Questor Funds") in the form attached hereto as
Exhibit G, or (ii) the Purchase Price by wire transfer to accounts designated by
Seller as provided in Section 3.1 above.
9. INDEMNIFICATION
9.1. Indemnification of Purchaser. The Seller, Estate and Beneficiary, jointly
and severally, hereby agree to indemnify, defend and hold harmless, Purchaser
and its affiliates, officers, directors, shareholders, managers, members,
employees, independent contractors, agents, successors and assigns
(collectively, the "Purchaser Parties"), for, from and against any and all
liabilities, losses, costs and expenses (including costs and expenses of
investigation), damages, penalties, fines, judgments, awards, settlements,
obligations, indebtedness, taxes, assessments and public charges, of any kind or
nature, whether fixed, actual, accrued or contingent, liquidated or
unliquidated, including reasonable attorneys fees and court costs associated
therewith (each a Loss and collectively, "Losses"), which any of the Purchaser
Parties suffers or for which any of the Purchaser Parties becomes liable and
which are based on, are the result of, arise out of or are otherwise related to,
directly or indirectly, (i) any inaccuracy or misrepresentation in, or breach of
any of Seller's representations or warranties contained in Section 4 of this
26
Agreement, or (ii) any breach or failure of Seller to perform any covenant or
agreement required to be performed by each pursuant to Sections 2, 7.1(d)(II)
(2), (3), (6), (7), (8), (9), (10), (11), (12), and (14), 7.1(e), 9.1, 9.3, 9.4,
9.5, 9.6, 9.7, 11.1, 11.2, 12.5, 12.11 and 12.12 of this Agreement.
9.2. Indemnification of the Seller. Purchaser hereby agrees to indemnify, defend
and hold harmless the Seller, the Estate and the Beneficiary and their
respective heirs, personal representatives, officers, directors, shareholders,
managers, members, employees, independent contractors, agents, successors and
assigns (collectively, the "Seller Parties") for, from and against any and all
Losses which the Seller Parties suffer or for which a Seller Party becomes
liable and which are based on, are the result of, arise out of or are otherwise
related to any of the following:
(a) any inaccuracy or misrepresentation in, or breach of any
representation or warranty of Purchaser contained in Section 5
of this Agreement; and
(b) any breach or failure of Purchaser to perform any covenant or
agreement required to be performed by Purchaser pursuant to
this Agreement.
9.3. Remedies Exclusive. Seller makes no representation or warranty to Purchaser
except as specifically set forth in Section 4 of this Agreement and Purchaser
makes no representation or warranty to Seller except as specifically set forth
in Section 5 of this Agreement. Except as contemplated by this Agreement, no
person has been authorized by Seller to make any representation or warranty
relating to the Enterprise, the Enterprise Subsidiaries or otherwise in
connection with the transactions contemplated hereby and, if made, such
representation or warranty may not be relied upon by Purchaser as having
27
been authorized by Seller. Seller has not been involved in operating the
Enterprise or the Enterprise Subsidiaries. Seller has asked the employees of the
Enterprise and Enterprise Subsidiaries to cooperate with the Purchaser in
conducting the Purchaser's due diligence. Seller assumes that the employees of
the Enterprise and the Enterprise Subsidiaries have cooperated with the
Purchaser, but Seller has not been directly involved in the due diligence and,
therefore, is not totally aware of the level of cooperation. The Purchaser
represents and warrants to Seller that as of the date of this Agreement (and,
unless Purchaser notifies Seller to the contrary before the Closing, as of the
Closing Date), Purchaser has no knowledge of any facts or circumstances that
would cause any of the information set forth in any representation, warranty, or
covenant of the Seller in this Agreement or on the Disclosure Schedule to be
untrue or incorrect. The Purchaser agrees that, if at any time prior to the
Closing Date the Purchaser becomes aware of facts or circumstances which would
cause any of the information set forth in any representation, warranty, or
covenant of the Seller in this Agreement or on the Disclosure Schedule to be
untrue or incorrect the Purchaser will immediately notify Seller of such facts
or circumstances. The indemnification provided for in this Section 9 shall be
the sole and exclusive remedy of Purchaser against Seller, the Estate and the
Beneficiary, on the one hand, and of Seller and the Beneficiary against
Purchaser, on the other hand, for any Losses from and after the Closing.
Notwithstanding anything to the contrary contained in this Agreement, neither
Seller, the Estate nor the Beneficiary on the one hand, nor the Purchaser, on
the other hand, shall have any liabilities, including with respect to any
Losses, whatsoever to the other party under this Agreement after the Closing
Date, regardless of whether such liabilities shall be in contract, tort, equity
or otherwise, except
28
for such liabilities as are specifically provided for in Sections 9.1 and 9.2
and except for liabilities based on fraud or willful misconduct. No party hereto
shall be liable for any indemnification pursuant to this Section 9 unless and
until the Closing has occurred. Seller and Beneficiary shall have no liability
for indemnification pursuant to Section 9.1 above (except in the case of fraud
or willful misconduct) until the aggregate for all Losses hereunder suffered by
Purchaser Parties, Hotel Losses suffered by the Hotel Purchaser Parties and the
Estate Losses suffered by the Estate Purchaser Parties exceeds the sum (for the
purpose of this Section 9.3, such sum is referred to as the "Deductible Amount")
of Fifty Thousand Dollars ($50,000) and then only for such Losses, Hotel Losses
and Estate Losses, in the aggregate, that exceed the Deductible Amount. Hotel
Losses shall mean "Losses" as defined in the Hotel/HDC Purchase Agreement,
Estate Losses shall mean "Losses" as defined in the Estate Purchase Agreement,
Hotel Purchaser Parties shall mean "Purchaser Parties" as defined in the
Hotel/HDC Purchase Agreement, and Estate Purchaser Parties shall mean "Purchaser
Parties" as defined in the Estate Purchase Agreement. The aggregate liability of
Seller and Beneficiary to Purchaser Parties, Hotel Purchaser Parties and Estate
Purchaser Parties for indemnification pursuant to Section 9.1 above, Section 9.1
of the Estate Purchase Agreement and Section 9.1 of the Hotel/HDC Purchase
Agreement, in the aggregate, shall not exceed $55,000,000 plus the "Additional
Purchase Price" (defined in the Estate Purchase Agreement), except in the case
of fraud or willful misconduct of Seller, the Estate or the Beneficiary.
9.4. Tax Benefits; Available Insurance. The amount of any Loss suffered
hereunder shall be determined after taking into account all amounts to which the
indemnified party is entitled and actually receives under the provisions of all
agreements and/or insurance
29
policies with third parties (i.e., actual insurance policies, and not
self-insurance or retention programs), subject to offset for any increase in
premiums attributable to such losses or payments made in respect of such Losses.
The parties agree to use reasonable efforts to collect amounts available under
any such agreement or insurance policy. Losses for which Seller Parties are
liable hereunder shall be net of any actual tax savings realized by Purchaser,
the Enterprise or the Enterprise Subsidiaries relating to such Losses.
9.5. Procedures.
(a) In the event that any of the Purchaser Parties or any of the
Seller Parties has a claim for indemnification under Section
9.1 or 9.2, as the case may be, other than a Third Party Claim
(a "Direct Claim"), the party asserting such claim shall
provide a written notice to the other party, which notice
shall state the facts giving rise to an alleged basis for the
claim and the amount of liability, to the extent known,
asserted against the other party by reason of the claim;
provided that the failure of the indemnified party to give the
indemnifying party prompt notice as provided herein shall not
relieve the indemnifying party of any of its obligations
hereunder except to the extent that the indemnifying party is
prejudiced thereby.
(b) If any legal proceedings are instituted or any claim or demand
is asserted by any person not a party to this Agreement in
respect of which any of the Purchaser Parties or the Seller
Parties may seek indemnification pursuant to the provisions
hereunder (a "Third Party Claim"), the indemnified party shall
promptly cause written notice (the "Indemnification Notice")
of the assertion of any such claim or demand, the notice and
basis of such claim or demand and the amount thereof, to the
extent known, to be made to the indemnifying party.
30
Except as otherwise provided herein, the indemnifying party
shall have the right, at its option and expense and by giving
notice of its election to do so within fifteen (15) days of
the giving of the Indemnification Notice by the indemnified
party, to defend against, negotiate, or settle any such claim
or demand with counsel selected by the indemnifying party and
reasonably acceptable to the indemnified party. The
indemnified party shall have the right to participate in the
defense, negotiation and/or settlement of any such Third Party
Claim with counsel of its own choosing; provided that, after
notice from the indemnifying party to the indemnified party of
the indemnifying party's election to take control of the
defense, negotiation and/or settlement of any Third Party
Claim, the indemnifying party shall not be liable to the
indemnified party for any legal or other expenses incurred by
the indemnified party in connection with the defense,
negotiation and/or settlement thereof. Notwithstanding the
foregoing, with respect to any Third Party Claim, the defense,
negotiation and/or settlement of which the indemnifying party
has taken control, the indemnifying party shall pay the
reasonable fees and expenses of the indemnified party's
separate counsel if (i) a conflict or potential conflict
exists between the indemnified party and the indemnifying
party that would make such separate representation advisable
or (ii) the named parties to any such Third Party Claim
include both the indemnified party and indemnifying party and
the indemnified party in good faith determines that defenses
are available to it that are unavailable to the indemnifying
party. An indemnifying party may not settle any such Third
Party Claim or demand without the consent (which consent shall
not be unreasonably withheld,
31
conditioned or delayed) of the indemnified party unless such
settlement requires no more than a monetary payment for which
the indemnified party is fully indemnified or involves other
matters not binding upon the indemnified party. An
indemnifying party shall not be liable for any settlement of
any such claim or demand effected without its prior written
consent, which consent shall not be unreasonably withheld,
conditioned or delayed in respect to the settlement of a Third
Party Claim as to which the indemnifying party has not taken
control of the defense, negotiation and/or settlement. In the
event the indemnifying party shall fail to respond within
fifteen (15) days after the Indemnification Notice is given,
then the indemnified party may retain counsel and conduct the
defense thereof as it may in its sole discretion deem proper,
at the sole cost and expense of the indemnifying party. The
parties agree to cooperate fully with each other in connection
with the defense, negotiation or settlement of any such legal
proceeding, claim or demand.
9.6. Payment. With respect to any Third Party Claim for which indemnification is
payable hereunder, such indemnification shall be paid by the indemnifying party
promptly upon the earlier of (i) the entry of a judgment against the indemnified
party and the expiration of any applicable appeal period; (ii) the entry of a
non-appealable judgment or final appellate decision against the indemnified
party; or (iii) the closing under any settlement agreement. With respect to any
Direct Claim for which indemnification is payable hereunder, such
indemnification shall be paid by the indemnifying party promptly upon the
earlier of (i) the indemnifying party agreeing to same, or (ii) the entry of a
judgment against the indemnifying party and the expiration of any applicable
32
appeal period, or (iii) the entry of a non appealable judgment or final
appellate decision against the indemnifying party.
9.7. Indemnification Amounts. To the extent permitted by law, any payment for
indemnification hereunder shall be treated as an adjustment to the Purchase
Price.
10. TERMINATION.
10.1. Termination. This Agreement may be terminated at any time before the
Closing:
(a) by the mutual consent of Seller and Purchaser;
(b) by Seller (i) if any of the conditions set forth in Section
7.3 above have not been fulfilled, satisfied or waived by May
31, 2002, or (ii) if Purchaser breaches any representation,
warranty, covenant or agreement set forth in this Agreement
and with respect to any such breach that is capable of being
cured, Purchaser fails to cure same within five (5) calendar
days after Notice of Seller with respect thereto; or
(c) by Purchaser (i) if any of the conditions set forth in Section
7.2 above have not been fulfilled, satisfied or waived by May
31, 2002 or (ii) if Seller breaches any representation or
warranty contained in Section 4 of this Agreement, or breaches
or fails to perform any covenant or agreement set forth in
Sections 2, 6.1, 7.1(a)(i), 7.1(b), 7.1(d), 7.1(f), 7.1(g),
8.1, 8.2 and 12.11 of this Agreement and with respect to any
such breach that is capable of being cured, Seller fails to
cure same within five (5) calendar days after Notice of
Purchaser with respect thereto.
10.2. Effect of Termination. If terminated in accordance with Section 10.1
above, as the sole and exclusive remedy of either party, this Agreement shall be
null and void and
33
have no further force or effect, except as provided in the remaining provisions
of this Section 10.2 and in Section 7.1(a) above. In the event a party
terminates this Agreement as a result of a breach by another party, then such
non-breaching party shall be entitled to recover from the defaulting party all
out-of-pocket expenses incurred by it (including, without limitation, reasonable
legal, consulting and accounting fees and expenses) in connection with the
transactions contemplated by this Agreement and shall be entitled to any costs
of enforcement (including without limitation, reasonable legal fees and
expenses). Notwithstanding the foregoing or anything in this Agreement to the
contrary, in the event the Closing does not occur due to an inaccuracy of any
item set forth on the Disclosure Schedule, the sole and exclusive remedy
available to Purchaser under this Agreement and in contract, tort, equity or
otherwise, will be to terminate this Agreement pursuant to Section 10.1(c)(i)
above in which event this Agreement shall be null and void and have no further
force or effect except as provided in Section 7.1(a) above.
10.3 Specific Performance. In the event a party would have the right to
terminate this Agreement pursuant to Sections 10.1(b)(ii) or 10.1(c)(ii) of this
Agreement as a result of a breach by another party, then such non-breaching
party may elect to seek to specifically enforce this Agreement as against the
breaching party and in such event the non-breaching party shall be entitled to
any costs of enforcement (including, without limitation, reasonable legal fees
and expenses), but if said party obtains specific performance of this Agreement
and this Agreement is not terminated, then said party shall not be entitled to
the out-of-pocket expenses otherwise reimbursable under Section 10.2 above.
34
11. POST-CLOSING COVENANTS.
11.1. Further Assurances. The Seller and Purchaser agree that, from time to time
after the Closing Date, each of them will execute and deliver such further
instruments of conveyance and transfer and take such other action as may be
reasonably requested by the other party to carry out the purposes and intents of
this Agreement and the transactions contemplated hereby.
11.2. Maintenance of Books and Records. Purchaser agrees to (i) hold the
Enterprise's books and records as they exist on the Closing Date regarding the
ownership of the equity interests in the Enterprise and the Enterprise
Subsidiaries which are the subject of Seller's representation in Section 4.5
(the "Existing Books and Records") and not to destroy or dispose of any thereof
for a period of 3 years from the Closing Date or such longer time as may be
required by law, and (ii) following the Closing Date afford the Seller and each
of its employees, accountants, legal counsel and other agents, during normal
business hours, upon reasonable request, reasonable access to the Existing Books
and Records if such access is requested for any legitimate and reasonable
purpose. Seller will bear all out-of-pocket costs and expenses incurred by it or
by Purchaser, the Enterprise or the Enterprise Subsidiaries in connection with
its requests for access; provided, however, that nothing herein shall limit any
of the Seller's legal rights of discovery.
12. MISCELLANEOUS.
12.1. Public Announcement. On or after the execution of this Agreement the
parties may agree on a joint public announcement or one party may consent, in
writing, to the other party's proposed public announcement, which consent shall
not be unreasonably withheld, conditioned or delayed, provided that such consent
shall not be required for any
35
public announcement required by law. Any such public announcement not required
by law shall not include disclosure of the Purchase Price. Nothing herein shall
prevent the owners of Purchaser or their affiliates from disclosing any
information to their partners, prospective partners or lenders.
12.2. Notices. Any notice, election, demand, request, consent, approval,
concurrence or other communication (collectively, a "Notice") given or made
under any provision of this Agreement shall be deemed to have been sufficiently
given or made for all purposes only if it is in writing and it is: (a) delivered
personally to the party to whom it is directed; (b) sent by registered or
certified mail or overnight express mail, postage and charges prepaid, addressed
to the party to whom it is directed, at his, her or its address set forth below;
or (c) e-mailed to the party to whom it is directed, at his, her or its e-mail
address set forth below:
If to the Seller, the Estate or the With a required copy to:
Beneficiary:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
Xxxxxxxx X. Xxxxxxxx 2290 First National Building
00000 Xxxxx Xxxx Xxxxxxx, XX 00000
Xxxxxx Xxx, XX 00000 Attn: G. Xxxxx Xxxxxx, Esq.
e-mail: XXX@xxxxxxxx.xxx
36
If to Purchaser: With a required copy to:
c/o Questor Drinker Xxxxxx & Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxx, XX 00000
e-mail: xxxxxx@xxxxxxxxxxx.xxx e-mail: xxxx.xxxxx@xxx.xxx
Attn: Xxxxx Xxxxx, Vice President Attn: Xxxx Xxxxx
Unless any other provision of this Agreement expressly provides to the contrary,
any Notice shall be effective upon receipt if delivered personally or if
emailed, five days after mailing by registered or certified mail and the first
business day after sent if sent by overnight express mail.
12.3. Headings. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
12.4. Construction. This Agreement shall be construed and enforced in accordance
with the laws of the State of Michigan without regard to its conflicts of law
principles.
12.5. No Assignment; Benefit. No Party may assign its rights and obligations
under this Agreement without the prior written consent of the other parties;
provided, however, that Purchaser may, at its election, assign this Agreement to
any one or more of its affiliates or direct or indirect wholly owned
subsidiaries so as long as Purchaser remains fully liable for all of its
obligations hereunder. This Agreement shall be binding on and inure to the
37
benefit of the parties and their respective estates, heirs, personal
representatives, successors and permitted assigns.
12.6. Entire Agreement. This Agreement, including the Exhibits attached or to be
attached to it, is and shall be deemed to be the complete and final expression
of the agreement between the parties as to the matters contained in and related
to this Agreement and supersedes any previous agreements between the parties
pertaining to such matters, including, without limitation, that certain letter
of intent between the Estate and Questor Management Company LLC, as Agent, dated
January 16, 2002, as amended, including, specifically, paragraph 18 of such
letter.
12.7. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall be considered
one and the same agreement. Photostatic or facsimile reproductions of this
Agreement may be made and relied upon to the same extent as originals.
12.8. Waiver. The waiver by any party of any breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent or
similar breach.
12.9. Amendment. This Agreement may only be amended by written agreement
executed by all of the parties.
12.10. No Third Party Beneficiaries. The rights and obligations of the parties
under this Agreement are for the benefit of the parties hereto, and neither any
creditor of any of the parties, nor any officer or employee of any Enterprise or
Enterprise Subsidiary nor any other person or entity (other than a successor in
interest to any of the parties, the
38
Purchaser Parties or Seller Parties), shall have the right to rely on or enforce
the provisions of this Agreement as a third-party beneficiary or otherwise.
12.11. Confidential Information. From and after the Closing, unless expressly
consented to in writing by Purchaser, Seller and Beneficiary shall not, and
shall use best efforts to cause all their affiliates not to, directly or
indirectly, use or disclose to any third person, any trade secret, financial
data, customer list, pricing or marketing policies or plans or other proprietary
or confidential information relating to Purchaser, the Enterprise or any
Enterprise Subsidiary.
12.12 Jurisdiction; Venue; Services of Process. Each of the parties irrevocably
submits on an exclusive basis to the jurisdiction of any Michigan State or
United States Federal court sitting in Xxxxx County in any action or proceeding
arising out of or relating to this Agreement, or the transaction contemplated
hereby. Each of the parties irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
any such action or proceeding. Each of the parties consents to the service of
copies of the summons and complaint or any other process that may be served in
any such action or proceeding by the mailing or delivering of a copy of such
process to such party at its address specified in or pursuant to Section 12.2.
Each of the parties agrees that a final non-appealable judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
[remainder of page intentionally left blank]
39
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of May 7, 2002.
"PURCHASER"
QP Acquisition #2, Inc.
By: /s/ Xxxxx Xxxxx
----------------------------
Its: Secretary
---------------------------
"ASC HOLDINGS"
ASC Holdings, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Its: Chief Executive Officer
----------------------------
THE "ESTATE"
The Estate of Xxxxx X. Xxxxxxxx,
Deceased
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------
Its: Personal Representative
----------------------------
THE "BENEFICIARY"
/s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxxx
40
INDEX OF EXHIBITS AND SCHEDULES
EXHIBIT
-------
A Seller's Equity Interests
B Enterprise Subsidiaries
C Knowledge
D Disclosure Schedule
E Required Consents
F Seller's Counsel's Opinions
G Questor Funds letter
SCHEDULE
--------
4.3 Seller's Brokerage or Finder's Fee
4.4 Seller's Required Consents, Approvals and Authorizations
5.3 Purchaser's Brokerage or Finder's Fee
5.4 Purchaser's Required Consents, Approvals and Authorizations
7.2(g) Exceptions to Required Consents
7.2(h) Resignation of Directors and Officers
EXHIBIT A
SELLER'S EQUITY INTERESTS
9,441,420 shares of Common Stock and 1,952,352 shares of Preferred Stock of JPE,
Inc., a Michigan corporation, which shares of Common Stock represent 67% of the
outstanding and issued Common Stock of such Company, and which shares of
Preferred Stock represent 99% of the outstanding and issued Preferred Stock of
such Company. See attached Appendix 1 of outstanding stock options.
