STOCK PURCHASE AGREEMENT
between
NOBLE INTERNATIONAL, LTD.,
CASS RIVER COATINGS, INC.,
XXXX XXXXXXX, XXXXX XXXXXXX,
XXXXX XXXXXXXX, JAN WOJEICHOWSKI
XXX XXXXXXXXX AND XXX XXXX
January ____, 1996
TABLE OF CONTENTS
Page
SECTION 1 Sale and Purchase..................................................1
SECTION 2 Related Agreements.................................................2
SECTION 3 Closing............................................................2
SECTION 4 Representations and Warranties of Sellers..........................3
SECTION 5 Representations and Warranties of Buyer...........................15
SECTION 6 Covenants.........................................................16
SECTION 7 Indemnification...................................................18
SECTION 8 Conditions Precedent to Obligations of Buyer......................20
SECTION 9 Conditions Precedent to Obligations of Sellers....................22
SECTION 10 Termination.......................................................23
SECTION 11 Fees and Expenses.................................................24
SECTION 12 Post Closing Undertakings.........................................24
SECTION 13 Miscellaneous.....................................................24
LIST OF EXHIBITS..............................................................29
INDEX TO DISCLOSURE SCHEDULE..................................................30
1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into as of the
_____ day of January, 1996 by and between NOBLE INTERNATIONAL, LTD., a Michigan
corporation ("Buyer"); CASS RIVER COATINGS, INC., a Michigan corporation
("CRC"); XXXX XXXXXXX ("Xxxxxxx"); XXXXX XXXXXXX ("Xxxxxxx"); XXXXX XXXXXXXX
("Xxxxxxxx"); XXX XXXXXXXXXXXX ("Wojeichowski"); XXX XXXXXXXXX ("Xxxxxxxxx");
and XXX XXXX ("Lamb") (Oldford, Redding, Frampton, Wojeichowski, Xxxxxxxxx and
Xxxx are hereinafter collectively referred to as "Sellers" and individually as
"Seller"). Buyer, CRC and Sellers are collectively referred to herein as the
"Parties".
WHEREAS, Sellers are the sole owners of all of the issued and
outstanding shares of capital stock, being Thirty Thousand (30,000) shares of
common stock, of CRC (the "Shares"); and
WHEREAS, Buyer desires to purchase from Sellers and Sellers desire to
sell to Buyer the Shares upon the terms and conditions set forth herein; and
WHEREAS, Buyer and Sellers executed a letter of intent dated September
20, 1995 (the "Letter of Intent") with respect to the sale of the Shares; and
WHEREAS, as a condition to Buyer's willingness to purchase the Shares
from Sellers, Sellers have agreed to provide certain consulting services to
Buyer and have further agreed not to compete with CRC in the conduct of CRC's
business.
NOW, THEREFORE, in consideration of the mutual covenants and subject to
the terms and conditions herein contained, the Parties hereby agree as follows:
Section 1. Sale and Purchase
1.1 Sale of Shares. Sellers will sell and deliver to Buyer and Buyer
will purchase and receive from Sellers on the Closing Date (as hereinafter
defined), the Shares for a total purchase price (the "Purchase Price") of Two
Hundred Thousand Dollars
($200,000.00 U.S.) (the "Purchase Price").
1.2 Payment. The Purchase Price shall be paid to Sellers (proportionate
to their respective share holdings) as follows:
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(a) The sum of $15,000.00 in immediately available funds upon
execution hereof (the "Deposit"); and
(b) The sum of $185,000.00 in immediately available funds at
the Closing.
The Deposit shall be refunded to Buyer if the transactions contemplated
herein are not consumated as a result of any of the conditions to Closing set
forth in Section 8 not being fulfilled or satisfied in the time and manner
specified.
Section 2. Related Agreements
2.1 Consulting. At the Closing, the Sellers shall each execute and
deliver to CRC a separate Consulting Agreement ("Consulting Agreement")
substantially in the form of Exhibit A attached hereto.
2.2 Option. At the Closing, and as additional consideration for the
sale of Shares, Buyer, and Sellers will enter into an Option Agreement ("Option
Agreement") substantially in the form of Exhibit B attached hereto which shall
provide Sellers the right to purchase twenty-five (25%) percent of the Shares
for one dollar ($1.00) pursuant to the terms of the Option Agreement.
Section 3. Closing
3.1 Place and Time of Closing. Unless otherwise agreed to by the
Parties, the closing of the purchase and sale provided for in this Agreement
(the "Closing") shall take place at the offices of Xxxxxx & Xxxxx, P.C., 000
Xxxx Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx, commencing at 10:00
a.m., Eastern Standard Time, on February 1, 1996 (the "Closing Date").
3.2 Deliveries by Sellers. At the Closing, Sellers shall deliver to
Buyer the following:
a. Certificates representing the Shares in negotiable form,
free and clear of all Encumbrances (hereinafter defined) duly endorsed for
transfer to Buyer;
b. Certificates of each Seller certifying to the accuracy on
the Closing Date of the representations and warranties of Sellers set forth in
Section 4 below;
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c. Resignations effective as of the Closing Date of each of
the officers and directors of CRC whose resignation has been requested by Buyer
prior to the Closing Date;
d. The Minute Book, Stock Transfer Book (containing canceled
stock certificates reflecting all transfers of capital stock prior to the
Closing Date) and Corporate Seal, if any, of CRC;
e. The Consulting Agreements duly executed by each Seller;
f. Such certificates, instruments, documents and other items
as are referred to elsewhere in this Agreement or as Buyer shall reasonably
request.
3.3 Deliveries by Buyer. On the Closing Date, Buyer shall pay or
deliver to Seller the following:
a. The Purchase Price, by cashier's check or wire transfer;
b. A certificate of Buyer certifying to the accuracy on the
Closing Date of the representations and warranties of Buyer set forth in Section
5 below;
c. The Option Agreement duly executed; and
d. Such other items as Sellers shall reasonably request.
Section 4. Representations and Warranties of Sellers
The representations and warranties made by Sellers herein or in any
instrument or document furnished by Sellers to Buyer in connection herewith are
made jointly and severally and shall survive the Closing, and any investigation
made at any time with respect thereto, for a period of five (5) years after
Closing. All such representations and warranties are deemed material and Buyer
is entering into this Agreement relying on such representations and warranties.
Sellers represent and warrant to Buyer that the statements contained in this
Section are true, correct and complete in all respects and do not omit to state
any fact necessary to make them not misleading in any respect and that true,
complete and correct copies of all documents and instruments identified in the
Disclosure Schedule attached to this Agreement have been provided to Buyer. Each
of the representations and warranties made by Sellers hereunder shall be deemed
to have been
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made again on and as of the Closing Date.
4.1 Due Incorporation; Good Standing; Qualification; Assumed Names. CRC
is duly organized, validly existing and in good standing under the laws of the
State of Michigan, has all requisite power and authority to own, operate and
lease its properties and to carry on its business as now being conducted and is
duly qualified as a foreign corporation and in good standing in every
jurisdiction in which the failure to so qualify would have a material adverse
affect on its assets, business or condition, financial or otherwise. Schedule
4.1 lists every corporate and assumed name under which CRC has ever transacted
business.
4.2 No Violation to Result. Neither the execution of this Agreement nor
the consummation of the transactions contemplated hereby will (i) violate or
result in a breach of or constitute a default under any provision of the
Articles of Incorporation or By-Laws of CRC; (ii) violate any order, arbitration
award, judgment, decree, law, ordinance, regulation or any other restriction of
any kind or character to which CRC is a party or by which CRC is bound or with
respect to which any property of CRC is subject or is bound; (iii) violate or
result in a breach of or constitute a default (or would result in or constitute
such a breach or default with notice or lapse of time or both) under any
provision of any agreement, permit, instrument, indenture, mortgage, lease or
license to which CRC is a party; or (iv) require the consent of any other person
or the consent of any governmental body, agency or authority.
4.3 Ownership of Shares, Due Execution by Sellers.
a. Sellers are the lawful record owners of the Shares, and the
same are and shall be delivered to Buyer on the Closing Date free and clear of
all pledges, security interests, options, liens, encumbrances and claims or
rights of every kind therein or thereto, and the delivery of such Shares to
Buyer pursuant to the provisions of this Agreement will transfer lawful, valid,
marketable and indefeasible title thereto to Buyer. Sellers, and each of them,
have not entered into any contract or agreement, other than this Agreement, to
sell or otherwise transfer any Shares or grant any rights or interests therein
to CRC or any other person. All legal and other steps necessary for Sellers to
transfer and deliver the Shares to Buyer and perform their obligations hereunder
have been taken.
x. Xxxxxxx and CRC have duly executed and delivered this
Agreement, and this Agreement constitutes a legal, valid and binding agreement
enforceable against Sellers and CRC in accordance with its terms.
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4.4 Authorized and Outstanding Capital Stock. The authorized capital
stock of CRC consists of Thirty Thousand (30,000) shares of common stock. The
Shares shown on Exhibit C are all of the issued and outstanding shares of the
capital stock of CRC on the date of this Agreement. The Shares have been validly
issued and are fully paid and non-assessable.
4.5 No Commitment to Issue Capital Stock or Rights to Acquire Capital
Stock. CRC has not entered into any agreement or made any commitment to sell or
otherwise transfer or issue any shares of capital stock after the date of this
Agreement, nor are there any outstanding options, subscriptions, warrants,
conversion rights or similar rights of any kind convertible into any shares of
the capital stock of CRC.
4.6 Financial Statements. The balance sheets of CRC as of December 31,
1992, December 31, 1993 and December 31, 1994 and the related statements of
income, changes in stockholders' equity and cash flows for the twelve (12) month
periods then ended, together with the notes thereto, and the reviewed financial
statement of CRC for the period ending December 31, 1995 (collectively, the
"Financial Statements") are attached to Schedule 4.6. To Sellers' knowledge, the
Financial Statements are in accordance with the books and records of CRC,
present fairly the financial position and the results of the operations, changes
in stockholders' equity and cash flow of CRC for the periods then ended, and
have been prepared in conformity with generally accepted accounting principles
("GAAP") consistently applied with prior periods except as may otherwise be
indicated in the notes thereto.
4.7 Unreported and Contingent Liabilities. Except as expressly set
forth in the Financial Statements, and except as otherwise incurred by CRC in
the ordinary course of its business during the period from October 31, 1995 to
the date of Closing, CRC has no liabilities or obligations, whether accrued,
absolute, fixed, known or unknown, contingent or otherwise, existing, arising
out of or relating to any transaction entered into, or state of facts existing,
on or prior to the date of this Agreement. For purposes of this Section, the
phrase "in the ordinary course of business" shall not include liabilities
arising out of breach of contract, breach of warranty, tort, infringement or any
violation of law, including, but not limited to, health, safety and
Environmental Laws (as defined below). CRC is not directly or indirectly liable
upon or with respect to, or obligated in any way to provide funds in respect of,
or to guarantee or assume any indebtedness or obligation of any person or
entity.
5
4.8 Absence of Certain Changes; Prospects.
a. Since October 31, 1995 the business of CRC has been
conducted only in the ordinary course, consistent with past practice, and there
has not been (i) any material change in the condition (financial or otherwise),
assets, liabilities, earnings, business or operations of CRC, other than changes
in the ordinary course of business, none of which either singly or in the
aggregate has been materially adverse to CRC; (ii) any damage, destruction,
casualty or other similar occurrence or event (whether or not insured against),
which either singly or in the aggregate materially adversely affects the assets,
liabilities, earnings, business or operations of CRC; (iii) any mortgage or
pledge of or encumbrance attached to any of the properties or assets of CRC;
(iv) any incurring or creation by CRC of any liability, commitment or obligation
except unsecured current liabilities incurred in the ordinary course of
business; (v) any sale, transfer or other disposition by CRC of any of its
assets except inventory sold in the ordinary course of business and except for
machinery and equipment disposed of in the ordinary course of business and
replaced by new or used machinery or equipment of comparable or better value;
(vi) any declaration or payment by CRC of any dividends or other distribution on
or in respect of its capital stock; (vii) any purchase, redemption or other
acquisition by CRC of any shares of its capital stock; (viii) except for Five
Hundred Thousand Dollars ($500,000.00) in actual or accrued year end bonuses and
commissions, any increase in compensation (including, without limitation,
salaries, commissions, bonuses or other forms of non-qualified profit sharing
distributions) paid or payable to any of the shareholders, directors, officers
or key management employees of CRC; (ix) any event, condition or state of facts
that could be reasonably likely to have a material adverse effect on CRC.
x. Xxxxxxx know of no reason to anticipate that the volume of
business that CRC presently enjoys as reflected on the Financial Statements
should not continue or of any reason that the projections made in the business
plans heretofore provided by Sellers to Buyer are not obtainable.
4.9 Corporate Books and Records. All corporate action which has been
taken by the Board of Directors or shareholders of CRC has been fully and
accurately recorded in its minute books and its books and records are true,
correct and complete in all material respects as of the date of this Agreement.
4.10 Contracts.
a. Schedule 4.10a. contains a true, complete and
6
correct list of all contracts to which CRC is a party or by which CRC or any of
its properties are bound, whether written or oral (the "Contracts"). Each of the
Contracts is valid, binding and in full force and effect and the continued
validity, effectiveness and enforceability thereof will not be materially
affected by the transactions contemplated by this Agreement. There is no
material default (or any event which, with notice or lapse of time, would
constitute a material default) by CRC or by any other party existing with
respect to the Contracts. CRC is not restricted by any contract or agreement
from carrying on any line of business in any part of the world, including, but
not limited to, the business in which it is now engaged. Sellers and CRC have no
reason to believe that CRC will not be able to fulfill, when due, all of CRC's
obligations under the Contracts.
b. As used in this Agreement, Contracts shall mean and include
the following instruments or arrangements to which CRC is a party or by which
its assets are bound: (i) agreements for the purchase of any machinery or
equipment; (ii) purchase orders, including, but not limited to, blanket purchase
orders; (iii) agreements or orders, including, but not limited to, blanket
purchase orders, for the future sale of products or services; (iv) any agreement
which by its terms does not terminate or is not terminable without penalty to
CRC within one year after the Closing Date; (v) loan agreements, indentures,
promissory notes, installment purchase agreements, conditional sales agreements,
security or pledge agreements, guaranty or other similar type of agreements;
(vi) broker, agency, distributor, sales representative, franchise or other
similar agreements; (vii) consulting contracts; (viii) personal property and
real property leases; (ix) contracts relating to the operation, maintenance or
management of any property; (x) contracts with any government or with any
agency, department or instrumentality of any government; (xi) patent, copyright,
trade secret or trademark license agreements; (xii) Employee Plans as defined
below; or (xiii) contracts with any present or former officer or director of CRC
or with any person related to any present or former officer or director of CRC.
c. Schedule 4.10c. is a true, complete and correct listing of
all licenses used in the operation of CRC, including but not limited to all
licenses pertaining to the Intellectual Property as defined below. CRC holds all
licenses which are or will be necessary to conduct the business of CRC as now
conducted and as reflected in the business plans of CRC heretofore provided to
Buyer. All such licenses are renewable by their terms or in the ordinary course
of business without the need to comply with any special qualification procedures
or to pay any amounts not disclosed to Buyer. No present or former owner,
director, officer
7
or employee of CRC owns or has any proprietary, financial or other interest of
any kind, direct or indirect, in any such license.
4.11 Government Licenses and Permits. CRC possesses all material
federal, state and local licenses or permits, if any, necessary to the conduct
of its business as now operated, and all such licenses and permits are
identified on Schedule 4.11. Such licenses and permits are valid and in full
force and effect and there exists no conflict with the federal, state or local
licenses or permits of others. The consummation of the transactions provided for
in this Agreement will not require the consent of any governmental agency or
authority from whom such federal, state or local licenses or permits were
obtained nor cause any of such licenses or permits to be terminated or become in
default and no action or claim is pending or threatened, to revoke or terminate
any thereof or declare any of them invalid in any respect.
4.12 Employee Matters; Employee Benefit Plans; Employment Agreement and
Similar Arrangements.
a. Schedule 4.12a. contains a true, complete and correct list
of all employee benefit plans and labor and employment agreements or other
similar arrangements to which CRC is or ever has been a party or by which it is
bound (collectively, "Employee Plans" and individually, "Employee Plan"),
including, without limitation, (i) executive compensation, profit-sharing,
deferred compensation, bonus (payable in cash or property), stock option, stock
purchase, pension, retiree health, retiree life, consulting, retirement,
severance, welfare, incentive, or other benefit plan, agreement or arrangement;
(ii) any plan, agreement or arrangement providing for "fringe benefits" or
perquisites to employees, officers, directors or agents, including, but not
limited to, benefits relating to company automobiles, clubs, vacation leave,
child care leave, parenting leave, sabbatical leave, educational, disability,
sickness or personal leave, and medical, dental, hospitalization, life, accident
or disability insurance and other types of insurance and severance; (iii)
employment or consulting agreement, commitment or understanding of any kind; and
(iv) any other "employee benefit plan" (within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")).
b. None of the Employee Plans is a defined benefit plan within
the meaning of Section 3(35) of ERISA, a qualified "pension plan," within the
meaning of Section 3(2) of ERISA or a multi-employer plan within the meaning of
Section 3(37) of ERISA.
c. With respect to each of the Employee Plans, CRC is in
substantial compliance with the requirements provided by any
8
and all statutes, orders or governmental rules or regulations currently in
effect, including, but not limited to, ERISA and the Internal Revenue Code of
1986, as amended (the "Code") applicable to such Employee Plans. CRC has
performed all obligations required to be performed by it under any of the
Employee Plans. CRC is not in default under any Employee Plan nor is any other
party to an Employee Plan in default thereunder. There are no actions, suits or
claims pending or threatened against such Employee Plans or their assets, or
arising out of such Employee Plans.
d. CRC has paid in full, subject only to normal retrospective
adjustments in the ordinary course, all required insurance premiums with regard
to such Employee Plans for policy years or other applicable policy periods
ending on or before the date of this Agreement. CRC is not aware of the
existence of any governmental audit or examination of any Employee Plan or of
any facts or circumstances which would lead them to believe that any such audit
or examination is pending or threatened.
e. CRC has delivered to each participant or other person
entitled to receive such material all plan descriptions, returns, reports,
schedules, notices and similar materials relating to its Employee Plans required
to be provided by law, has filed on a timely basis all returns, reports,
notices, declarations and other documents relating to the Employee Plans
required to be filed with any government agency and has provided copies thereof
to Buyer.
f. CRC has substantially complied with, and is not in material
violation of, applicable federal, state and local equal employment opportunity
laws and other employment or labor statutes, laws and regulations with respect
to its employees, including, without limitation, those involving health, safety,
wage and hour, unemployment, social security and workers' compensation matters.
g. Except as disclosed in Schedule 4.12g, CRC is not a party
to any collective bargaining agreement; no such agreement determines the terms
and conditions of employment of any employee of CRC; no collective bargaining
agent has been certified as a representative of any of the employees of CRC; no
election and no representation campaign is now in progress with respect to any
of the employees of CRC. There is no dispute, grievance, arbitration, unfair
labor practice charge, strike, request for union representation or labor
activity pending or, within the last three (3) years, threatened or filed
against CRC or Sellers nor does CRC know of the occurrence of any event which
would give rise to any such labor activity, dispute, grievance, arbitration,
9
unfair labor practice charge, strike or request for representation.
h. No amounts have been paid or accrued and no amounts are or
will be owing to any employees under any bonus policy of CRC.
4.13 Litigation. Except as disclosed in Schedule 4.13, CRC does not
have, and has not for the past five (5) years had, pending or involving it, or
threatened against it, any claim, action, suit, arbitration proceeding,
governmental proceeding or investigation or other proceeding of any character.
4.14 Assets.
a. Schedule 4.14a. sets forth a true, complete and correct
description or, as applicable, summary description, of all of the assets of CRC.
The assets listed in Schedule 4.14a. constitute all of the assets used in or
necessary to the conduct of CRC's business as it is now being conducted or as it
is planned to be conducted.
b. Except as set forth in the Schedule 4.14b., all of the
assets of CRC are owned by it free and clear of all liens, security interests
and encumbrances. There are no options or rights of any other person to acquire
any such asset. All taxes payable by CRC in connection with the acquisition of
any such assets, including without limitation, property, sales and use taxes,
have been paid in full.
c. To Sellers' knowledge, the machinery and equipment of CRC
are in good working order, ordinary wear and tear exceptedand are usable in the
ordinary course of business of CRC consistent with past practice. Sellers have
not been made aware of any instances where the machinery and equipment do not
conform to applicable laws relating to their construction, use and operation.
d. All personal property in the possession of CRC which is
owned by or in which an interest is claimed by any other person or entity
(whether a customer, supplier or other person or entity), including, but not
limited to, customer owned and/or consigned tooling, equipment, software,
specifications, manuals and other intellectual property, is listed on Schedule
4.14e.
e. Schedule 4.14f. describes all personal property that is
currently being leased by CRC under a capitalized lease arrangement or a true
lease arrangement, the monthly rental payment therefor, the expiration date
thereof and any renewal or purchase options relating thereto. All such leased
personal
10
property is in good working order, ordinary wear and tear excepted. All such
leased property is situated at CRC's business premises and is used or useable by
CRC in the operation of its business.
f. All accounts receivable of CRC have arisen only in the
ordinary course of business consistent with past practice for goods sold or
delivered or services rendered and are collectible in full at the recorded
amounts thereof in the ordinary course of business.
4.15 Real Property.
a. Schedule 4.15a. sets forth by legal description and address
and general description all office, plant and other facilities owned and leased
by CRC (the "Real Property").
b. Except as disclosed on Schedule 4.15b Sellers are not aware
of any instance where the ownership and use of the Real Property by CRC, the
conduct thereon of the business of CRC and the operation and maintenance
thereof, to the extent operated and maintained by CRC, contravene any law, rule,
regulation, ordinance or statute, including those relating to zoning, building,
land use, environmental, health and safety, fire, air, sanitation and noise
control.
c. To Sellers' knowledge the Real Property is in good repair
and condition, normal wear and tear excepted and, to the knowledge of Sellers
and CRC, contains no latent defects, except as may be provided for in paragraph
4.16 below. No pending or threatened condemnation or similar proceeding exists
with respect to the Real Property.
4.16 Environmental Matters.
a. This paragraph 4.16 contains the entire agreement of the
parties regarding environmental matters and shall supersede and control any
other agreement, written or oral, or any other provision of this Agreement which
may conflict with the terms of this paragraph 4.16.
b. As used in this Agreement, the terms "Environmental Law" or
"Environmental Laws" mean any federal, state, or local statute, law, ordinance,
rule or regulation which governs the protection of human health and/or the
environment, including, but not limited to the following: Comprehensive
Environmental Response, Compensation and Liability Act, (42 U.S.C. 9601, et
seq.); the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.); the
Hazardous Materials Transportation Act
11
(49 U.S.C. 801, et seq.); the Toxic Substances Control Act (15 U.S.C. 2601, et
seq.); the Clean Water Act (33 U.S.C. 1251, et seq.); the Clean Air Act (42
U.S.C. 7401, et seq.); or the Michigan Natural Resources and Environmental
Protection Act (M.C.L. 324.101 et seq.).
c. As used in this Agreement, "Hazardous Substance" means any
substance, including but not limited to a gas, liquid or solid, which is
regulated by any Environmental Law or which may be injurious to human health or
the environment.
d. No underground storage tanks or above ground storage tanks
have been installed, used or present on or at the Real Property during Seller's
or CRC's occupancy of the Real Property. Seller and CRC are not aware of any
underground or above ground storage tanks on or at the Real Property.
e. Seller and CRC have no knowledge of any violation,
enforcement action, information request, litigation or other legal or
administrative action concerning the off site treatment, storage, disposal,
handling or recycling of any Hazardous Substance. Seller and CRC warrant that
the operations of CRC with respect to off site treatment, storage, disposal,
handling or recycling have complied with all applicable laws, rules and
regulations. Seller and CRC are not aware of any fact or circumstance which
would give rise to a liability of CRC for damage, loss, judgment, claim, cause
of action, cost, penalty, fine or expense associated with off site treatment,
storage, disposal, handling or recycling of any Hazardous Substance.
f. As a condition precedent to closing, Buyer shall have
access to all information, data, reports, or documentation generated by or on
behalf of, or in possession of Seller or CRC concerning the environmental
condition of the Real Property. As a further condition precedent to closing,
Buyer, and its Lender, shall, in the sole discretion of each, be satisfied with
the environmental condition of the Real Property.
g. It is the intent of the parties that any environmental
conditions of the Xxxxxxx Street property shall be and remain the sole
responsibility of Sellers and that Buyer and CRC shall have no responsibility or
liability for those conditions, except that Buyer and CRC shall be responsible
for any environmental condition caused solely and directly by Buyer or CRC after
the date of closing. It shall be encumbent upon Sellers to establish that any
environmental condition discovered after the date of closing was caused solely
and directly by Buyer or CRC. To that end, Buyer and Sellers agree as follows:
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(i) As a condition precedent to closing, Seller shall have
received a written certification of closure of the Xxxxxxx Street facility from
the Michigan Department of Environmental Quality ("MDEQ"), or, shall have
entered into an Administrative Order by Consent with the State which provides
for and requires Sellers to obtain a closure of the Xxxxxxx Street facility from
the MDEQ; and
(ii) Sellers shall jointly and severally indemnify Buyer and
CRC from and against any damage, claims, causes of action, loss, penalties,
fines (both civil and criminal), judgments, costs or expenses (including actual
attorneys' consultant fees), brought by any party whatsoever, arising at any
time, which result from the environmental condition of the Xxxxxxx Street
facility, except that Sellers shall not be required to indemnify Buyer or CRC
from any claim arising from an environmental condition caused solely and
directly by Buyer or CRC after the date of closing. It shall be encumbent upon
Sellers to establish that any environmental condition discovered after the date
of closing was caused solely and directly by Buyer or CRC. This provision shall
survive closing.
4.17 Tax Returns, Etc. CRC has filed all tax returns and reports
required to be filed by it with the United States federal government, with any
state and with any other jurisdiction within the time period required by law,
including but without limitation, returns of federal, state, local and foreign
income taxes. All such returns and reports are true and correct and all taxes,
interest, penalties, assessments or deficiencies shown to be due or claimed to
be due on such tax returns and reports or which is otherwise owing or may become
owing (as determined by a subsequent tax audit) in connection with the conduct
by CRC of its business have been paid in full or are properly accrued for on the
books and records of CRC. True and complete copies of all federal, state, local
and foreign income tax returns for the past three (3) years (together with
copies of any examination reports of federal, state, local and foreign tax
authorities relating thereto) have been furnished to Buyer. No agreements have
been made by or on behalf of CRC for any waiver or for the extension of any
statute of limitations governing the time of assessment or collection of any
taxes. CRC and Sellers have received no notice of any pending or threatened
audit by the IRS, or any state or local agency, related to CRC's tax returns or
tax liability for any period, and no claim for assessment or collection of taxes
has been asserted against CRC. There are no federal, state or local tax liens
outstanding against any of CRC's assets, properties or business.
4.18 Compliance with Laws Generally. CRC has substantially complied
with all laws, rules, regulations and ordinances
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affecting its business. There are no existing or, to the knowledge of Sellers
and CRC, proposed laws, rules, regulations or ordinances of such a nature as
could be expected to materially adversely affect the continued conduct of CRC's
business in the manner presently carried on and conducted.
4.19 Intellectual Property.
a. Schedule 4.19a. contains a true, complete and correct list
(by specific name, registration or general description, as appropriate) of all
patents, patent applications, unregistered copyrights, copyright registrations
and applications, trade and service names and marks and registrations and
similar applications and registrations of intellectual property and all computer
software (including without limitation all operating systems, applications
programs, source and object code and all documentation thereof and manuals
relating thereto), trade secrets, know-how, show-how, inventions,
specifications, information systems, designs, processes, data, records and other
intellectual property owned by CRC or as to which CRC is a licensee or licensor
(the "Intellectual Property"). Except as disclosed on Schedule 4.19 a., CRC does
not have any obligation to compensate any person for the use of any Intellectual
Property rights and has not granted to any person any license, option or other
rights to use in any manner any of the Intellectual Property.
b. No employee of CRC is in default under any agreement
relating to the right of such employee to be employed by CRC relating to the
intellectual property of others. The Intellectual Property that is not leased or
purchased from third persons was developed entirely by the employees of CRC
during and in the course of their employment by CRC and does not include any
intellectual property made prior to their employment by CRC or that of any
previous employer.
c. The consummation of this Agreement will not affect the
continuation, validity or effectiveness of CRC's right, title and interest in
the Intellectual Property. No party has ever filed a claim against CRC or
Sellers alleging that it or any of them has violated, infringed on or otherwise
improperly used the intellectual property rights of such party. CRC has not to
Sellers' knowledge violated or infringed any trademark, trade name, service
xxxx, service name, patent, copyright or trade secret or other intellectual
property right held by others.
4.20 Insurance. Schedule 4.20 lists all policies of property, liability
and workers' compensation insurance and similar insurance covering CRC and its
properties. All such
14
policies are in full force and effect on the date of this Agreement.
4.21 Broker. Neither CRC nor Sellers have engaged any broker, finder or
agent with respect to the transactions contemplated by this Agreement.
4.22 Updating of Disclosure Schedules and Exhibits. If after the date
of this Agreement there shall be any material change in the matters disclosed in
any disclosure schedule or any material inaccuracy in any part of any disclosure
schedule shall come to the attention of Sellers or CRC, Sellers will promptly
inform Buyer thereof.
Section 5. Representations and Warranties of Buyer.
The representations and warranties made by Buyer herein shall survive
the Closing for a period of five (5) years after the Closing. The
representations and warranties in this Section are deemed material and Sellers
are entering into this Agreement relying on such representations and warranties.
Buyer represents and warrants to Sellers that the statements contained in this
Section are true, correct and complete. Each of the representations and
warranties made by Buyer hereunder shall be deemed to have been made again on
and as of the Closing Date.
5.1 Due Incorporation and Good Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Michigan.
5.2 Authorization and Approval of Agreement. Buyer has all requisite
corporate power and authority to enter into this Agreement and to perform the
obligations required to be performed by its hereunder. All corporate proceedings
required of Buyer for the execution and delivery of this Agreement and for the
consummation of the transactions provided for herein have been duly taken.
5.3 Ability to Carry Out Agreement. The execution and delivery of this
Agreement by Buyer and the performance by Buyer of its obligations hereunder
will not conflict with, violate or result in any breach of or constitute a
material default under any provisions of the governing charter of Buyer or of
any of the provisions of any indenture, mortgage, lease, agreement, license,
permit, instrument, order, arbitration award, judgment, decree,
law, ordinance, regulation or any other restriction of any kind or character to
which Buyer is a party.
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5.4 No Broker Involved. Buyer has not expressly or impliedly engaged
any broker, finder or agent with respect to the transactions contemplated by
this Agreement.
5.5 Investment Representation. Buyer is acquiring the Shares for
investment purposes and not with a view to, or for resale in connection with,
any distribution of the Shares.
Section 6. Covenants.
6.1 Covenants of Sellers. Unless otherwise first consented to in
writing by Buyer, Sellers covenant and agree that from the date of this
Agreement to the Closing Date, they will (i) not sell, transfer or otherwise
dispose of any Shares or any right or interests therein, (ii) take all steps
necessary to deliver the Shares free and clear of liens and encumbrances and
(iii) not take any action that will cause any of the representations and
warranties made herein to be inaccurate on the Closing Date.
6.2 Affirmative Covenants of Sellers. From the date of this Agreement
to the Closing Date, Sellers will cause CRC to:
a. Carry on its business in a good and diligent manner
consistent with prior practice and only in the usual and ordinary course and use
reasonable efforts to preserve its business organization intact and conserve the
good will and relationships of its customers, suppliers and others having
business relations with it;
b. Maintain its corporate existence and good standing in its
jurisdiction of incorporation and in each other jurisdiction in which it is
required to be qualified to do business as a foreign corporation;
c. Duly and timely file or cause to be filed all reports and
returns required to be filed with any governmental body, agency or authority and
promptly pay or cause to be paid when due all taxes, assessments and
governmental charges including interest and penalties levied or assessed, unless
diligently contested in good faith by appropriate proceedings;
d. Maintain and keep in good order and repair, consistent with
past practice, all buildings, offices, shops and other structures, and all
machinery, tools, equipment, fixtures and other tangible personal property; and
e. Maintain in full force and effect all existing policies of
insurance except for replacements or renewals in the
16
ordinary course of business.
6.3 Covenants of CRC and Sellers. Unless otherwise first consented to
in writing by Buyer, Sellers from the date of this Agreement to the Closing Date
will not cause or permit CRC to:
a. Amend its Articles of Incorporation or By-Laws;
b. Authorize for issuance, issue or deliver any additional
shares of its capital stock or securities convertible into or exchangeable for
shares of its capital stock, or issue or grant any right, option or other
commitment for the issuance of shares of its capital stock or of such
securities, or split, combine or reclassify any shares of its capital stock;
c. Except as provided in paragraph 4.8 a.(viii),
Declaredeclare or pay any dividend or authorize or make any distribution on or
in respect of, or directly or indirectly purchase, retire or redeem or otherwise
acquire any shares of its capital stock;
d. Except as provided in paragraph 4.8 a.(viii), Incurincur
any liability, commitment or obligation, except unsecured current liabilities
incurred in the ordinary course of business;
e. Borrow, or agree to borrow, any funds other than under and
pursuant to its existing loan agreements;
f. Sell, transfer or otherwise dispose of assets except for
the sale or disposition of obsolete or damaged tangible personal property and
except for the sale of inventory in the ordinary course of business;
g. Except for amounts committed for emergency repairs, make
any material capital commitments;
h. Mortgage, pledge or encumber any of its assets or guaranty
the obligations of any person;
i. Make any adjustments in the salary rate of, or authorize
any bonus payments to or consulting arrangements with, any officer or management
employee except for increases in salary or wage rates and the payment of bonuses
consistent with past practices;
j. Terminate or reduce any insurance coverage;
k. Commit a default under or breach of any material contract;
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l. Amend, modify or cancel any material contract or waive any
material right under any material contract;
m. Enter into any contracts or agreements of the kind that
would have constituted a material contract if such contract or agreement had
been in existence on the date of this Agreement;
n. Take any action that will cause any of the representations
and warranties made herein to be inaccurate on the Closing Date.
Section 7. Indemnification.
7.1 Indemnification by Sellers. Sellers, jointly and severally, shall
indemnify and hold Buyer and its directors, officers, employees and agents
harmless from and against all losses, damages, deficiencies, liabilities, costs
and expenses (including interest, penalties and reasonable attorneys' fees and
expenses) ("Loss" or "Losses") suffered by any of them to the extent resulting,
directly or indirectly, from (i) any misrepresentation or breach of warranty
with respect to the representations and warranties made in Section 4 above; (ii)
any breach, nonfulfillment or default by Sellers or CRC in the performance of
any of the covenants and agreements made by Sellers or CRC herein or in any
schedule, certificate, instrument or agreement delivered pursuant hereto; (iii)
any liability or obligation of Sellers; (iv) any liability or obligation of CRC
arising or accruing prior to the Closing Date and not disclosed to Buyer herein;
or (v) the actions or omissions of CRC or any of its officers, shareholders,
employees or agents prior to the Closing Date, including without limitation, any
claim which is based upon negligence, strict liability or any implied or express
representation, warranty or agreement made or alleged to have been made by any
of them or imposed by operation of law in connection with any service performed
or action taken prior to the Closing Date, irrespective of when any claim is
instituted. For purposes of this Section, a loss suffered by CRC shall be deemed
a loss suffered by Buyer.
7.2 Indemnification by Buyer. Buyer shall indemnify and hold Sellers
harmless from and against any Losses suffered by Sellers to the extent
resulting, directly or indirectly, from (i) any misrepresentation or breach of
warranty with respect to the representations and warranties made in Section 5
above, and (ii) any breach, nonfulfillment or default by Buyer in the
performance of any of the covenants and agreements made by Buyer herein or in
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any certificate, instrument or agreement delivered pursuant hereto.
7.3 Notice and Defense.
a. If Buyer or Sellers, or any of them, (the "Claimant")
desire to make a claim against the other (the "Indemnitor") under this Section
7, the Claimant shall promptly notify Indemnitor in writing of any claim or
demand as to which Claimant is entitled to claim indemnification, the section
under which such claim is being made and, to the extent known, the amount and
circumstances surrounding such claim.
b. In the event that any claim is asserted by any third person
against a Claimant, Indemnitor shall promptly advise Claimant whether it
disputes its liability and, in that case, whether it desires to employ counsel
of its choice to defend such claim. If so, (i) the Claimant shall be kept fully
informed of all developments and furnished copies of all relevant papers; (ii)
the Indemnitor shall diligently prosecute the defense; and (iii) Claimant shall
have the right to participate, at his or its own expense and through counsel
selected by him or it, in the defense of any such claim. If the conditions of
the foregoing provision are not met, or if the Indemnitor chooses not to control
the defense, the Claimant shall have the right, but shall have no obligation, to
assume and control the defense of such claim or suit at the expense of the
Indemnitor. The Indemnitor, or if the conditions to the foregoing provision are
not met, the Claimant, shall have the right to pay, compromise or settle any
such claim with the consent of the Claimant or the Indemnitor, as the case may
be, which consent shall not be unreasonably withheld or delayed. Notwithstanding
the foregoing, if Buyer determines in good faith that the claim involves issues
or matters that could have a materially adverse effect on the business,
operations, assets or prospects of CRC or Buyer or any affiliate of Buyer, Buyer
shall have the right to control the defense or prosecution of such claim and its
expenses and costs therefor shall be included as part of the indemnification
obligations of the Seller hereunder. Claimant and Indemnitor shall cooperate
with each other and make available to each other and their representatives all
available records or other materials required by them for their use in
contesting any such liability or claim.
c. In the event that a claim for indemnification not involving
a third person claim is asserted against the Claimant, the Indemnitor shall
notify the Claimant within thirty (30) days whether or not it disputes the
claim. If the Indemnitor fails to dispute the claim within that period, the
claim shall be deemed conclusively as a liability of the Indemnitor hereunder.
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7.4 Survival of Representations, Warranties and Covenants. All
representations, warranties and covenants set forth in this Agreement shall
survive the Closing for a period of five (5) years, except as otherwise
specifically provided. Any claim made by Buyer or Sellers, or any of them, for
indemnification under this Section 7 must be made, if at all, by written notice
delivered to Sellers or Buyer, as the case may be, prior to the expiration of
five (5) years following the Closing Date. A claim hereunder shall be considered
to be timely made if notice is delivered within the aforesaid five (5) year
period, even if such claim is not finally resolved or determined until a
subsequent time.
7.5 Recovery Limits. Any recovery by Buyer for indemnification shall be
limited as follows: (i) Buyer shall not be entitled to recover any amount for
indemnification claims under this Section 7 unless and until the aggregate
amount which Buyer is entitled to recover in respect of such claims exceeds Ten
Thousand ($10,000.00) Dollars (the "Deductible"), in which event the entire
amount which Buyer is entitled to recover in respect of all such claims, less
the Deductible, shall be payable; and (ii) the maximum amount recoverable by
Buyer for indemnification claims under this paragraph 7 shall in the aggregate
be equal to Two Million ($2,000,000.00), Dollars less the Deductible.
Section 8. Conditions Precedent to Obligations of Buyer
Buyer's duties to perform its obligations under this Agreement are
subject to the fulfillment on or before the Closing Date of each of the
following conditions:
8.1 Representations, Warranties and Covenants. The representations and
warranties of Sellers set forth herein shall be accurate in all material
respects on the Closing Date to the same extent as if made on and as of such
date, and Sellers and CRC, as the case may require, shall have complied with or
performed all agreements, covenants and conditions on their or its part to be
performed or complied with on or prior to the Closing Date.
8.2 Legal Actions. No suit, action or other proceeding by any third
party shall be threatened or pending before any court or governmental agency
seeking to restrain or prohibit, or to obtain damages or other relief in
connection with, this Agreement or the consummation of the transactions
contemplated hereby or which is likely to materially adversely affect the value
of the assets and businesses of CRC.
20
8.3 Consulting Agreement. CRC and each Seller shall have entered into
the Consulting Agreement and Buyer shall have received assurance satisfactory to
it in its reasonable discretion that all key management and other key employees
of CRC identified by Buyer shall continue their employment with CRC following
the Closing on terms and conditions substantially the same as their current
employment terms.
8.4 Option Agreement. Buyer, CRC and Seller shall have entered into the
Option Agreement
8.5 Comfort Letter. Buyer shall have received a comfort letter from, or
limited purpose audit by, independent public accountants regarding the financial
condition of CRC as of December 31, 1995 which comfort letter shall be to the
sole satisfaction of Buyer.
8.6 Approval. This Agreement and the transaction contemplated hereby
shall have been duly approved by the Board of Directors and shareholders of CRC
and Buyer.
8.7 Manufacturing Representative Agreement. CRC shall enter into a
manufacturers representative agreement with Xxxxxxx & Associates ("Xxxxxxx").
The agreement will provide for a seven year term through December 31, 2002,
commission rates equal to the current percentage rates, right of first refusal
to cover selected accounts and a six month termination clause. Upon termination,
the Company will be paid one-half (1/2) commissions for a period of two years on
all purchase orders and outstanding purchase quotations through the date of
termination. There shall be a meeting with Xxxxxxx to identify specific
customers to be represented by Xxxxxxx. Any customers not specifically
identified as customers to be covered by Xxxxxxx will be then offered to Skandy
Corporation for coverage by it.
8.8 Certificate of Good Standing. Sellers shall have delivered to Buyer
a Certificate of Good Standing from the Michigan Corporation and Securities
Bureau certifying that as of a date reasonably close to the Closing, CRC is a
Michigan corporation in good standing and authorized to transact business in
Michigan.
8.9 Lien Search. Buyer shall have received UCC lien searches in form
and content satisfactory to Buyer.
8.10 Title Policy. Sellers shall have delivered to Buyer an ALTA
Owner's commitment for title insurance in the amount of Two Hundred Fifty
Thousand Dollars ($250,000.00) and issued by
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Metropolitan Title Company for the property commonly known as 00 Xxxxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxx showing marketable and clear title free and clear of all
liens and encumbrances except as acceptable by Buyer.
8.11 Opinion of Counsel. Buyer shall have received an opinion of
counsel to Sellers dated as of the Closing Date in form and substance reasonably
satisfactory to Buyer.
8.12 No Material Adverse Change. From November 1, 1995 to the Closing
Date, there shall have been no material adverse change in the financial
condition, assets, business or prospects of CRC.
8.13 Waiver. Buyer shall have the right to waive the foregoing
conditions, or any of them, wholly or in part; provided, however, that no such
waiver shall be deemed to have occurred unless the same is set out in writing
and executed by Buyer.
8.14 Environmental. Seller shall have performed the obligations
required by paragraph 4.16.
Section 9. Conditions Precedent to Obligations of Sellers
The duty of Sellers and CRC to perform the obligations which this
Agreement imposes upon them is subject to the fulfillment, on or before the
Closing Date, of each of the following conditions:
9.1 Representations, Warranties and Covenants. All representations and
warranties made by Buyer herein shall be accurate in all material respects on
and as of the Closing Date and Buyer shall have performed and complied with all
agreements, covenants and conditions on its part to be performed or complied
with on or prior to the Closing Date.
9.2 Legal Actions. No suit, action or other proceeding by any third
party shall be threatened or pending before any court or governmental agency
seeking to restrain or prohibit, or to obtain damages or other relief in
connection with, this Agreement or the consummation of the transactions
contemplated hereby.
9.3 Consulting. Each Seller and CRC shall have entered into a
Consulting Agreement.
9.4 Waiver. Sellers shall have the right to waive the foregoing
conditions, or any of them, wholly or in part; provided, however, that no such
waiver shall be deemed to have occurred unless the same is set out in writing
and executed by Seller.
22
9.5 Certificate of Good Standing. Buyer shall have delivered to Sellers
a Certificate of Good Standing from the Michigan Corporation and Securities
Bureau certifying that as of a date reasonably close to the Closing, Buyer is a
Michigan corporation in good standing and authorized to transact business in
Michigan.
9.6 Opinion of Counsel. Sellers shall have received an opinion of
counsel to Buyer dated as of the Closing Date in form and substance reasonable
satisfactory to Sellers.
Section 10. Termination
10.1 Termination. This Agreement and the transactions contemplated
herein may be terminated and abandoned at any time prior to the Closing Date
under the following circumstances:
a. By mutual consent of Buyer and Sellers.
b. By Buyer and Sellers, if the Closing shall not have taken
place on or prior to March 31, 1996, provided that the party so terminating this
Agreement is not then in default hereunder.
c. By the party or parties adversely affected in the event any
of the conditions set forth in Sections 8 and 9 have not been fulfilled by the
Closing Date and the performance or fulfillment thereof has not been waived by
such party or parties.
10.2 Procedure on Termination; Exclusive Remedy. Upon the termination
of this Agreement under the provisions of Section 10.1 above, no party hereto
shall have any liability or further obligation to any other party to this
Agreement, except that if either Buyer or Sellers (in this case a "Defaulting
Party") fails or refuses to tender full performance of its obligations under
this Agreement within the time period specified in Section 10.1(b) above for any
reason other than a failure of the other party to fulfill a condition set forth
in Section 8 or 9, as applicable, and as a result thereof the other party (the
"Terminating Party") terminates this Agreement in the manner herein
contemplated, the Defaulting Party shall pay to the Terminating Party, as the
Terminating Party's sole remedy for the Defaulting Party's failure or refusal to
close the transaction contemplated by this Agreement, the actual costs incurred
by the Terminating Party in anticipation of the consummation of the transaction
and in negotiating the transaction with the Defaulting Party.
23
Section 11. Fees and Expenses
11.1 CRC's Accounting and Legal Fees and Expenses. All legal and
accounting fees and expenses incurred by Sellers and CRC for services rendered
in connection with the transactions contemplated by this Agreement shall be paid
by CRC up to an amount not to exceed $15,000. Any fees and expenses incurred by
Sellers or CRC exceeding the initial $15,000 shall be the sole responsibility of
Sellers.
11.2 Other Fees and Expenses. All other fees and expenses incurred by
any party to this Agreement shall be the sole responsibility of and paid by the
party who incurred such fees and expenses.
Section 12. Post Closing Undertakings
12.1 Release of Personal Guaranty. Following the Closing, CRC shall
promptly obtain releases for Sellers' personal guaranties on any bank debt,
lease finance debt and any other debt of CRC which is specifically set forth in
Exhibit D.
12.2 Related Party Liability. After the Closing, any related party
liabilities currently owed by CRC to the Sellers or their related entities will
be carried and maintained in its current form. Related party liabilities shall
specifically include, without limitation, any mortgage debt owed on the Real
Property. Additionally, Sellers shall subordinate any mortgage debt to any bank
or finance company providing mortgage lending in connection with expansion of
the Enterprise Street facility.
12.3 Corporate Governance. After the Closing, and until such time as
the Consulting Agreements terminate or expire, the Board of Directors of CRC
shall be comprised of the following: (i) the President of CRC by virtue of his
position; and (ii) two (2) members selected by Sellers; and (iii) two (2)
members selected by Buyers.
Section 13. Miscellaneous
13.1 Cooperation Following the Closing. Following the Closing Date,
Sellers and Buyer shall deliver to the other such further information and
documents and execute and deliver such further instruments and agreements as the
other shall reasonably request in order to consummate or confirm the
transactions provided for herein, to accomplish the purpose of this Agreement or
to assure the other the benefits of this Agreement.
24
13.2 Benefits and Burdens. This Agreement shall inure to the benefit of
and shall be binding upon CRC, Sellers and Buyer and the successors and
permitted assigns of Buyer, and the respective heirs and representatives of
Sellers. Buyer may assign its rights and obligations hereunder to an entity to
be formed.
13.3 Amendment. This Agreement may be amended only by an instrument in
writing signed by Sellers, CRC and Buyer.
13.4 Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing
(including telecommunications) and shall be deemed to have been duly given if
personally delivered (in the case of personal delivery to CRC or Buyer, such
delivery shall be made to an officer of the party to whom directed) or sent by
(i) telex, telecopy or other wire transmission with request for assurance of
receipt; or (ii) Federal Express or other overnight air express and receipted
for by the recipient or an agent of the recipient; or (iii) registered or
certified United States mail, postage prepaid and return receipt requested. All
notices delivered to a party to this Agreement or to legal counsel for such
party other than by personal delivery, telex, telecopy or other wire
transmission shall be sent to the following addresses:
If to CRC: With a copy to:
Cass River Coatings, Inc. ________________________________
Attn: ________________________ ________________________________
______________________________ ________________________________
______________________________ ________________________________
If to Sellers: With a copy to:
Xxxx Xxxxxxx ________________________________
______________________________ ________________________________
________________________________
________________________________
25
With a copy to:
Xxxxx Xxxxxxx ________________________________
______________________________ ________________________________
________________________________
________________________________
________________________________
Xxxxx Xxxxxxxx With a copy to:
______________________________ ________________________________
________________________________
________________________________
________________________________
Jan Wojeichowski With a copy to:
______________________________ ________________________________
________________________________
________________________________
________________________________
With a copy to:
Xxx Xxxxxxxxx ________________________________
______________________________ ________________________________
________________________________
________________________________
Xxx Xxxx With a copy to:
______________________________ ________________________________
________________________________
________________________________
________________________________
If to Buyer:
Noble International Ltd.
Attn: Xxxx Xxxxx
00 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
or to such other address or to such other person or persons designated in
writing by such party or counsel, as the case may be. Notices delivered
personally or pursuant to subsection (i) above shall be deemed to have been
received on the day delivered or sent, or, if delivered on a national holiday in
the United States or Canada, on the day following the holiday. Notices delivered
pursuant to subsections (ii) or (iii) above shall be deemed to have been
received on the second business day (that is not a national holiday in the
United states or Canada) following the day sent whether or not such notice was
actually received on
26
such day.
13.5 Entire Agreement; Attachments.
a. This Agreement and all exhibits and schedules referred to
herein and all agreements and instruments to be delivered by the parties
pursuant hereto represent the entire understanding and agreement between the
parties with respect to the subject matter hereof and supersede all prior oral
and written and all contemporaneous oral negotiations, commitments and
understandings between the parties (including, without limitation, the Letter of
Intent) except as expressly provided herein.
b. If the provisions of the disclosure schedules or any
Exhibit to this Agreement are inconsistent with the provisions of this
Agreement, the provisions of this Agreement shall prevail. The disclosure
schedules and Exhibits attached hereto or to be attached hereafter are hereby
incorporated as integral parts of this Agreement.
13.6 Headings. The section headings in this Agreement are intended
solely for the convenience of the parties and in no way alter, modify, amend,
limit or restrict the contractual obligations of the parties.
13.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument, and, when signed by all
of the parties hereto, shall become legally binding on such parties effective as
of the date set forth at the beginning of this Agreement.
13.8 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Michigan, without reference
to choice of laws rules or principles.
13.9 Severability. The invalidity and enforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first above written.
NOBLE INTERNATIONAL, LTD.
By: ________________________
Its: ________________________
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CASS RIVER COATINGS, INC.
By: ________________________
Its: ________________________
_____________________________
XXXX XXXXXXX, Shareholder
_____________________________
XXXXX XXXXXXX, Shareholder
_____________________________
XXXXX XXXXXXXX, Shareholder
_____________________________
JAN WOJEICHOWSKI, Shareholder
_____________________________
XXX XXXXXXXXX, Shareholder
_____________________________
XXX XXXX, Shareholder
20/95001001/pur.agr
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LIST OF EXHIBITS
Exhibit A Consulting Agreement
Exhibit B Option Agreement
Exhibit C List of Shares
Exhibit D List of Debts
20/95001001/pur.agr
29
INDEX TO DISCLOSURE SCHEDULE
4.1 Assumed Names
4.10a. Contracts
4.10c. Licenses
4.11 Government Licenses
4.12a. Employee Benefit Plans and Employment Agreements
4.14a. Assets
4.14b. Encumbered Assets
4.14e. Customer Owned Equipment
4.14f. Leased Personal Property
4.15a. Real Property
4.19a. Intellectual Property
4.20 Insurance
20/95001001/pur.agr
30
