EXHIBIT 10.22
EXCHANGE AGREEMENT
This is an Exchange Agreement (the "Agreement") dated as of
February 28, 2002, by and between MSX International, Inc., a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx").
BACKGROUND
The Company issued Company stock to Xxxxxxxxx (the "Original
Stock") pursuant to a purchase agreement dated as of February 28, 2000, and the
Company is also the holder of a promissory note payable by Xxxxxxxxx (the
"Existing Promissory Note") in a principal amount equal to three million dollars
($3,000,000.00). The Original Stock was pledged to the Company pursuant to a
pledge agreement dated as of February 28, 2000 (the "Existing Pledge
Agreement").
Xxxxxxxxx is willing to exchange, and the Company is willing
to receive, (i) an amended and restated promissory note having an aggregate
principal amount of $3,197,609.00 (the "New Note"), (ii) $6,000.00 in cash being
applied to the purchase price of the Original Stock pursuant to ss. 152 of the
Delaware General Corporation Law and reducing the principal amount of the
Existing Promissory Note, and (iii) an amended and restated pledge agreement
(the "New Pledge Agreement") pledging the Original Stock (the "Pledged Stock"),
in exchange for the Existing Pledge Agreement, the Existing Promissory Note and
the accrued interest thereon, as set forth on Exhibit A, on the terms and
conditions provided herein. The New Pledge Agreement and the New Note, together
with this Agreement, are collectively referred to as the "Operative Agreements."
TERMS
Intending to be legally bound, the parties hereto agree as
follows:
ARTICLE I
THE EXCHANGE
1.1. Exchange. Xxxxxxxxx hereby issues to the Company the New Note,
pays to the Company six thousand dollars ($6,000.00) in cash, and executes and
delivers to the Company the New Pledge Agreement, in exchange for the Existing
Pledge Agreement, the Existing Promissory Note and the accrued interest thereon.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants as follows to Xxxxxxxxx:
2.1. Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2.2. Authority and Enforceability. The execution, delivery and
performance of this Agreement and the transactions contemplated hereby, have
been duly authorized by all necessary corporate or other action on behalf of the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes a valid and legally binding obligation of the Company, enforceable
against it in accordance with its terms, except (i) as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect relating to creditors' rights generally, and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be instituted.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX
Xxxxxxxxx represents and warrants as follows to the Company:
3.1. Authority and Enforceability. Xxxxxxxxx has the requisite power,
authority and capacity to execute and deliver the Operative Agreements, to
perform his obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. Each of the Operative Agreements
has been duly and validly executed and delivered by Xxxxxxxxx and constitutes
the legal, valid and binding obligation of Xxxxxxxxx, enforceable against
Xxxxxxxxx in accordance with its terms, except (i) as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect relating to creditors' rights generally, and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be instituted.
3.2. No Violation, etc. The execution, delivery and performance by
Xxxxxxxxx of each of the Operative Agreements does not, and the performance by
Xxxxxxxxx of his obligations under the Operative Agreements and the consummation
of the transactions contemplated hereby and thereby will not, (i) conflict with,
result in any violation of or default under, or result in any person having the
right to terminate or modify, any note, bond, mortgage, license, lease,
contract, commitment, agreement or arrangement to which Xxxxxxxxx is a party or
by which any of his properties or assets are bound or (ii) conflict with,
contravene, or result in any violation of any material judgment, order or
decree, or statute, law, ordinance, rule or regulation, in each case applicable
to Xxxxxxxxx or to any of the property or assets of Xxxxxxxxx. No consent,
approval, license, permit, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign, is
required to be obtained or made by Xxxxxxxxx in connection with the execution
and delivery of any or all of the Operative Agreements or the consummation of
the transactions contemplated hereby or thereby.
3.3. Ownership of Pledged Stock. Xxxxxxxxx is the legal and beneficial
owner of the Pledged Stock and has not assigned, pledged, transferred, or
encumbered in any manner his interest in the Pledged Stock (other than pursuant
to the Existing Pledge Agreement, the New
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Pledge Agreement and the Stockholders' Agreement, as defined below), and his
interest in the Pledged Stock is free and clear of any lien or encumbrance
created by him (except as stated above).
ARTICLE IV
CONDITIONS AND COVENANTS
4.1. Consent. Pursuant to the Amended and Restated Stockholders'
Agreement dated November 28, 2000 (as amended) by and among the Company, Court
Square Capital Limited and other individual signatories (the "Stockholders'
Agreement"), the Company and Xxxxxxxxx shall have executed a consent permitting
Xxxxxxxxx to pledge the Pledged Stock under the New Pledge Agreement.
4.2. Cancellation of Existing Promissory Note. Upon the completion of
the transactions contemplated hereby, the Existing Promissory Note shall be
cancelled and Xxxxxxxxx shall have no liability to the Company under the
Existing Promissory Note.
ARTICLE V
MISCELLANEOUS
5.1. Amendment and Modification. No amendment, modification or
termination of any provision of this Agreement shall be effective unless signed
in writing by or on behalf of the Company and Xxxxxxxxx. Any amendment,
supplement or modification of or to any provision of this Agreement, any waiver
of any provision of this Agreement and any consent to any departure by any party
hereto from the terms of any provision of this Agreement, shall be effective
only in the specific instance and for the specific purpose for which made or
given.
5.2. Survival of Representations and Warranties. All representations,
warranties, covenants and agreements set forth in this Agreement will survive
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
5.3. Successors and Assigns; Entire Agreement. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and understandings
of any and every nature among them as to the subject matter hereof.
5.4. Governing Law. The validity, performance, construction and effect
of this Agreement shall be governed by and construed in accordance with the
internal law of the State of Michigan without giving effect to principles of
conflicts of law.
5.5. Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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5.6. Section Headings. The section headings and paragraph designations
used in this Agreement are for convenience of reference only, and shall not in
any way be construed to modify or restrict any of the terms or provisions
hereof.
5.7. Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
5.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all the parties reflected hereon as the signatories.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers hereunto duly authorized,
as of the date first above written.
MSX INTERNATIONAL, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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EXHIBIT A
Exchanged Promissory Note Accrued Interest
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$3,000,000 $203,609.00
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