Exhibit 2.2
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (the "Agreement") dated as of August 7, 2001, as
amended and restated as of November 30, 2001, between Textron Automotive
Exteriors Inc., a Delaware corporation ("Exteriors"), and JPS Automotive, Inc.,
a Delaware corporation ("JPS "). Except as expressly defined herein, capitalized
terms used in this Agreement shall have the meaning ascribed to them in the
Purchase Agreement dated as of August 7, 2001, as amended and restated as of
November 30, 2001 (the "Purchase Agreement"), by and among Textron Inc.
("Parent"), Xxxxxxx & Xxxxxx Products Co., a Delaware corporation ("C&A
Products"), and Xxxxxxx & Xxxxxx Corporation, a Delaware corporation.
WHEREAS, the Purchase Agreement provided for the sale of certain of
Parent's automotive trim operations currently managed as a unit of Textron
Automotive Company Inc. a Delaware corporation, to C&A Products and those
entities specified in the Purchase Agreement;
WHEREAS, Exteriors desires to sell and assign to JPS, and JPS desires to
purchase and assume from Exteriors, certain assets, Contracts, other obligations
and liabilities relating to the business conducted by Exteriors; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein and in the Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. Sale and Purchase of Assets. (a) On the terms and subject to the
conditions of this Agreement, at the Closing, Exteriors shall sell, transfer,
assign and deliver to JPS, or cause to be sold, transferred, assigned and
delivered to JPS, free and clear of any Liens (other than Permitted Liens), and
JPS shall purchase and assume from Exteriors, all of Exteriors' right, title and
interest in and to the Transferred Assets. To the extent that the Transferred
Assets consist of written documents (including microfilms and computer files)
which are necessary to the maintenance of Exteriors' records in accordance with
reasonable practice, Exteriors may either deliver to JPS a duplicate copy of
such documents and retain the original or deliver to JPS the original of such
documents and retain a duplicate copy; provided, however, that Exteriors shall
deliver the original of any such document when delivery of the original is
necessary to effectuate the transfer of any Transferred Asset.
(b) For purposes of this Agreement, "Transferred Assets" shall mean
(A) the Evart, Michigan and Americus, Georgia plants (the "Plants")
including, the following used primarily at or related primarily to the Plants:
(i) the real estate, buildings thereon, fixtures, equipment and other
personal property in the buildings,
(ii) Contracts, to the extent their transfer is permitted by their terms,
for products produced at the Plants,
(iii) to the extent their transfer is permitted by Law, all Permits
relating to the Plants issued to Exteriors by any Governmental
Authority;
(iv) all rights in and to products sold (including, without limitation,
products hereafter repossessed or returned and unpaid, Exteriors,
rights of replevin, rescission, reclamation and rights to stoppage in
transit) which were manufactured at the Plants;
(v) all rights of way, easements, appurtenances and similar realty
interests of Exteriors pertaining to the real property on which the
Plants are located;
(vi) all machinery, equipment, furniture, furnishings, vehicles and other
fixed assets used primarily on or relating primarily to the Plants;
(vii) all leases of vehicles and of tangible assets which are used
primarily at or related primarily to the Plants;
(viii) all inventories of raw materials, work-in-progress, spare parts,
replacement and component parts, office and other supplies and
finished goods for the Plants (the "Inventory");
(ix) all Contracts relating primarily to the Plants to the extent their
transfer is permitted by their terms (the "Purchased Contracts"),
including, without limitation, any right to receive payment for
products sold or services rendered, and to receive goods and services,
pursuant to such agreements;
(x) all customer lists relating primarily to the Plants (the "Customer
Lists");
(xi) all pre-paid expenses, credits, deferred charges, advance payments,
security deposits and other prepaid items related primarily to the
Transferred Assets;
(xii) all rights, claims, credits, causes of action or rights of set-off
against third parties related primarily to the Transferred Assets or
the Assumed Liabilities, including, without limitation, unliquidated
rights under manufacturers' and vendors' warranties and rights under
insurance policies covering the Transferred Assets, other than in
relation to liabilities that are the obligations of Exteriors and
rights to xxx for and remedies against past, present and future
infringements of any Intellectual Property rights;
(xiii) all trade accounts and notes receivable and payments for services as
of the Closing Date which arose from the operation of the Plants in
the ordinary course prior to the Closing Date;
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(xiv) all books, records, manuals and other materials (in any form or
medium), including, without limitation, all advertising materials,
catalogues, price lists, correspondence, mailing lists, distribution
lists, photographs, production data, sales and promotional materials
and records, purchasing materials and records, personnel records,
manufacturing and quality control records and procedures, blueprints,
research and development files, records, data and laboratory books,
media materials and plates, accounting records, customer records,
sales order files and litigation files used primarily in or relating
primarily to the Plants;
(xv) all guarantees, warranties, indemnities and similar rights in favor of
Exteriors with respect to any Transferred Asset;
(xvi) any and all of the databases, software, source codes, object codes,
documentation, technical data, manuals, comments and instructions, and
computer processes used primarily at or relating primarily to the
Plants;
(xvii) all goodwill and any other intangible assets related primarily to
the Plants, including without limitation all relationships with
brokers and representatives relating to the sales, marketing,
distribution or promotion of products manufactured in the Plants; and
(xviii) all other assets (other than Contracts) which are used primarily at
or relate primarily to the business of such plants; and
(B) all assets associated with the business conducted at Exteriors' leased
facility located in St. Louis Missouri;
provided, however, that the term Transferred Assets shall not include any
equipment which will be sold by Exteriors pursuant to the transaction described
in Section 5.21 of the Purchase Agreement.
2. Purchase Price. (a) The purchase price for the Transferred Assets shall
be eighty four million seven hundred thirty nine thousand nine hundred seventy
one dollars ($84,739,971) minus the estimated amount of Assumed Liabilities
which are treated as liabilities for income tax purposes as of the Closing Date
(the "Purchase Price"). The estimate of said Assumed Liabilities shall be made
by the parties in good faith shortly prior to the closing. JPS shall deliver to
Exteriors at the Closing a promissory note in the principal amount of the
Purchase Price bearing 11% interest compounded annually and payable quarterly in
arrears maturing on the fifth anniversary of the Closing. Such note shall have
terms and provisions as are acceptable to both Exteriors and JPS.
(b) Real property, personal property and other ad valorem Taxes of
Exteriors related to the Transferred Assets shall be allocated between JPS and
Exteriors on the basis of a daily proration and the net amount owing from JPS to
Exteriors or from Exteriors to JPS on ac-
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count of such proration shall be paid promptly upon written request by the party
entitled to receive such payment. If an assessment for the tax period that
includes the Closing Date (the "Current Period") has not been made by the time
that payment is due under the preceding sentence, a tentative payment shall be
made at that time based on the assessment for the immediately preceding tax
period, and JPS or Exteriors, as the case may be, shall make an appropriate
adjusting payment within 10 days following receipt of the assessment for the
Current Period.
(c) Upon the terms and subject to the conditions of this Agreement and the
Purchase Agreement, at the Closing JPS shall, by appropriate instruments to be
executed and delivered at Closing, assume and agree to buy, perform and
discharge in accordance with the terms thereof, when due all of the liabilities
and obligations related primarily to the Plants on the Closing Date of whatever
kind or nature, absolute or contingent, known or unknown, whenever arising (the
"Assumed Liabilities").
(d) On terms and subject to the conditions of this Agreement, the closing
of the transactions contemplated hereby (the "Closing") shall take place at the
offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New
York, New York at 8:00 a.m. (New York time) as promptly as practicable, but no
later than the second business day following the satisfaction or waiver of the
conditions set forth in Section 3 (other than conditions which by their nature
are to be satisfied at Closing, but subject to those conditions) or at such
other time, date or place as JPS and Exteriors may agree. The date on which the
Closing occurs is hereinafter referred to as the "Closing Date"
3. Conditions. The obligation of each party to complete the purchase of the
Plants by JPS are subject to the satisfaction on or prior to the Closing Date of
the conditions set forth in Section 6.1 of the Purchase Agreement. The
obligations of JPS to complete the purchase of the Plants is subject to the
satisfaction on or prior to the Closing Date of the conditions set forth in
Section 6.2 or the Purchase Agreement. The obligations of Exteriors to complete
the sale of the Plants is subject to the satisfaction on or prior to the Closing
Date of the conditions set forth in Section 6.3 or the Purchase Agreement.
4. Rescission. In the event that the Closing pursuant to the Purchase
Agreement does not occur within two business days after the Closing pursuant to
this Agreement, Exteriors and JPS shall rescind the purchase of the Transferred
Assets and the assumption of the Assumed Liabilities by JPS.
5. Termination. This Agreement may be terminated at any time prior to the
Closing by either Exterior or JPS if the Purchase Agreement has been terminated.
6. Miscellaneous. (a) This Agreement shall be construed and the rights and
duties of the parties determined in accordance with the laws of the State of
Delaware.
(b) This Agreement shall inure to the benefit of and shall be binding upon
the parties hereto and their respective assigns and successors.
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(c) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(d) This Agreement may be amended only by a written agreement signed by JPS
and Exteriors.
(e) Any notice, request, instruction or other document to be given
hereunder by any party to another party shall be given in the manner and to the
parties specified in the Purchase Agreement.
(f) In case any term, provision, covenant or restriction of this Agreement
is held to be invalid, illegal or unenforceable in any jurisdiction. the
validity, legality and enforceability of the remaining terms, provisions,
covenants or restrictions, or of such term provision, covenant or restriction in
any other jurisdiction, shall not in any way be affected or impaired thereby.
(g) In the event of any conflict between this Agreement and the agreements
attached as Exhibits 2, 3A, 3B, 3C and 4 to the Purchase Agreement, the latter
agreements shall apply.
(h) Upon the reasonable request of JPS, Exteriors shall on and after the
Closing Date execute and deliver to JPS such other documents, releases,
assignments and other instruments as may be required to effectuate completely
the transactions contemplated hereby, and to otherwise carry out the purposes of
this Agreement. Upon the reasonable request of Exteriors, JPS shall on the
Closing Date execute and deliver to Exteriors such other documents, releases,
assignments and other instruments as may be required to effectuate completely
the transactions.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase
Agreement to be executed and delivered as of the date and year first written
above.
TEXTRON AUTOMOTIVE EXTERIORS INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and Deputy General
Counsel
JPS AUTOMOTIVE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, General Counsel
and Secretary
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