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EXHIBIT 10.67
THIS AGREEMENT made as of the 24th day of September, 1999.
BETWEEN:
JPE, INC.
("JPE US")
-and-
BANK OF NOVA SCOTIA
(the "Bank")
WHERAS:
1. JPE US is the beneficial owner of all of the issued and outstanding
shares of JPE Canada Inc. ("JPE Canada").
2. JPE Canada is indebted or otherwise liable to the Bank (all such
liabilities and indebtedness and outstandings as of the Closing Date,
the "JPE Canada Debt").
3. As part of the security for payment of the JPE Canada Debt to the Bank,
the Bank holds certain security including:
(a) a guarantee by JPE US dated February 4, 1997 of payment of the
JPE Canada Debt (the "JPE Guarantee") up to a certain maximum
amount which exceeds the JPE Canada Debt;
(b) a general assignment of book debts of JPE Canada dated
December 20, 1996;
(c) an intellectual property security agreement dated December 20,
1996 made by JPE Canada, JPE US and the Bank (the "IP Security
Agreement").
4. The Bank has demanded payment of the JPE Canada Debt from JPE Canada
and has demanded payment of the JPE Canada debt from JPE US under the
JPE Guarantee.
5. Plastic Trim, Inc., a wholly-owned subsidiary of JPE US, is indebted or
otherwise liable to JPE Canada in the amount of U.S. $252,583.32 (the
"Plastic Trim - JPE Canada Debt") and JPE Canada is indebted or
otherwise liable to Plastic Trim, Inc. in the amount of U.S. $49,227.79
(the "JPE Canada - Plastic Trim Debt").
6. The Bank and JPE US have agreed to enter into this Agreement to settle
the terms under which the Bank will release JPE US from its obligations
to the Bank under the JPE Guarantee.
7. Pursuant to the provisions of the Bankruptcy and Insolvency Act
(Canada), on February 8, 1999, JPE Canada made an assignment for the
general benefit of its creditors (the "Assignment").
8. Plastic Trim, Inc. is in bankruptcy to the United States Bankruptcy
Code.
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NOW THEREFORE, For value, the parties agree as follows:
1. The Bank hereby agrees that upon delivery to the Bank on or before
October 25, 1999 (the "Closing Date") of each of the following, JPE US
shall thereupon be released and forever discharged from all actions,
proceedings, accounts, debts, sums of money, obligations, claims and
demands, which the Bank now has or may hereafter have against JPE US in
respect of JPE US's obligations to the Bank under the JPE Guarantee:
(a) a certified cheque payable to the Bank in the amount of Cdn.
$86,000;
(b) a certified cheque payable to the Bank in the amount of Cdn.
$92,730.17 in settlement of the Plastic Trim - JPE Canada Debt
and the JPE Canada - Plastic Trim Debt;
(c) an assignments and transfer to the Bank of all royalties
payable by Ventra Group Inc. to JPE US under a Licence
Agreement dated December 20, 1996 made by JPE US as Licensor
in favour of JPE Canada as Licensee relating to certain moulds
and patents (a copy of which Licence Agreement is attached
hereto as Exhibit "A")(the "Licence Agreement"), all in a form
attached hereto as Exhibit "B" and in respect of which all
persons having an interest in such mould and patents shall
have released such interest;
(d) a release by Plastic Trim, inc. in favour of JPE Canada of the
JPE Canada - Plastic Trim Debt in a form attached hereto as
Exhibit "C".
2. JPE US represents and warrants to the Bank as follows:
(a) that the authorized capital of JPE Canada Inc. consists of an
unlimited number of common shares of which 100 common shares
(and no more) have been duly issued and are outstanding as
fully paid and non-assessable (the "JPE Canada Shares");
(b) that no person, firm or corporation has any agreement or
option or any right or privilege capable of becoming an
agreement, including convertible securities, warrants or
convertible obligations of any nature, for the purchase,
subscription, allotment or issuance of any shares or other
securities of JPE Canada (where in this paragraph the words
"shares or other securities of JPE Canada" means for greater
certainty shares or other securities in the capital of only
JPE Canada and not in the capital of JPE US);
(c) that JPE US is the beneficial owner of record of the JPE
Canada Shares with good and marketable title thereto, free and
clear of all encumbrances and, without limiting the generality
of the foregoing, none of the JPE Canada Shares is subject to
any voting trust, shareholder agreement or voting agreement
and no person other than the Bank has any written or oral
agreement or option or right or privilege for the purchase or
acquisition from JPE US of any of the JPE Canada Shares, and
upon completion of the assignment and transfer contemplated
herein, all of the JPE Canada Shares will be owned by the
transferee hereof as the beneficial owner of record, with good
and marketable title thereto;
(d) that prior to the Assignment, the only indebtedness or
obligations of JPE Canada outstanding to JPE US or to and
companies in which JPE US has an ownership interest, or to
which JPE US is related, were the following:
(i) the indebtedness and obligations of JPE Canada under
the Licence Agreement; and
(ii) the JPE Canada - Plastic Trim Debt; and
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(e) that subsequent to the Assignment there is no indebtedness of,
and there are no obligations of, JPE Canada outstanding to JPE
US or to any companies in which JPE US has an ownership
interest, or to which JPE US is related.
3. JPE US agrees upon the request of the Bank at any time, to assign to a
third party to be identified by the Bank (the "Transferee"):
(a) the JPE Canada Shares and to deliver therewith all of the
share certificates evidencing the same duly endorsed in blank
and the corporate books and records relating to JPE Canada;
and
(b) all obligations and amounts due by JPE Canada to JPE US and to
all JPE US's related entities referred to in paragraph 2(d)
hereof (the "Related Debt").
JPE US agrees that the form of the assignment shall be substantially in
the form attached hereto as Exhibit "D":. JPE US further agrees to
arrange for or cause the transfer and assignment of the foregoing if it
can not do the foregoing directly.
4. JPE US appoints any Vice-President from time to time of the Bank as its
attorney, or, his failing, a person to be designated by the Bank from
time to time, with full and irrevocable power and authority to perform
all acts and do all things for and on behalf of JPE US as such attorney
may deem necessary or desirable to assign and transfer the JPE Canada
Shares and said corporate books and records and the Related Debt to the
Transferee. The Bank agrees to provide reasonable detail to JPE US from
time to time of any acts performed or things done by the attorney in
his capacity as attorney as aforesaid.
5. JPE US acknowledges and agrees that the release referred to in
paragraph 1 hereof shall not extend to release JPE US from its
obligations to the Bank under and pursuant to this Agreement.
6. In consideration of JPE US being released hereunder and effective as of
the Closing Date, JPE US hereby releases and forever discharges the
Bank and its officers, directors, employees, agents and representatives
(collectively the "Releasees") of and from all actions, proceedings,
accounts, claims and demands whatsoever which JPE US now has or may
hereafter have against the Releasees in respect of all matters in
connection with JPE Canada, the JPE Canada Shares, the JPE Guarantee,
the Licence Agreement or any other matters or things relating thereto.
7. The parties hereto undertake and agree with each other to execute and
deliver such other documents, papers, matters and assurances as the
other party may reasonably require or request in connection with this
Agreement for the purposes of the more effectual carrying out of the
Agreement. All reasonable expenses in connection with such further
documents, papers, matters and assurances shall be borne by the party
requesting the same.
8. This agreement shall be binding on the successors and assignees of the
parties hereto and shall be governed in all respects by the laws of the
Province of Ontario, and JPE US hereby attorns to the jurisdiction of
the courts of Ontario. This Agreement may be signed in counter part
which taken together shall form one and the same agreement. The parties
agree that signed facsimile documents shall be as binding as originals.
Parties signing by facsimile undertake to promptly forward original
copies to the other party.
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IN WITNESS OF WHICH, the parties have executed this Agreement
under the hands of officers authorized to bind the parties.
JPE, INC.
By: /s/ X.X. Xxxxx
------------------
Name: X.X. Xxxxx
Title: Vice President and Chief Financial Officer
THE BANK OF NOVA SCOTIA
By: /s/ Xxx Xxxxxxxx
----------------------
Name: Xxx Xxxxxxxx
Title: Manager
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LICENSE AGREEMENT
This License Agreement dated this 20th day of December, 1996 (the
"License") is made by and between JPE, Inc., a Michigan corporation,
("Licensor") and JPE Canada Inc., an Ontario corporation formerly known as
1203462 Ontario Inc., ("Licensee").
WHEREAS, Licensor is the owner of certain patents and patent
applications identified on Schedule A attached hereto and, along with any
patents that may have been or will be granted thereon (collectively referred to
herein as the "Patents"); and
WHEREAS, Licensee desires to be licensed under the Patents and Licensor
is willing to grant such a license;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties agree as follows:
1. Grant of License. Licensor hereby grants unto Licensee the
irrevocable, nonexclusive right and license to make, have made, use and sell
throughout the United States, its territories and possessions, Canada and
Mexico, molded parts (the "Parts") using the plastic injection molding process
that falls within the scope of one or more claims of the Patents.
2. Royalty: Mandatory Minimum. Licensee agrees to pay Licensor
royalties equal to three percent (3%) of the net selling price of all Parts sold
by or on behalf of Licensee with a annual minimum royalty, regardless of sales
levels of Parts, of CDN $100,000, payable CDN$25,000 quarterly. The term "net
selling price" means the invoice price less quantity and cash discounts thereon
actually allowed and less sales, use and other similar taxes and any
transportation or delivery charges borne by Licensee. Except as otherwise
provided above, no royalty shall be due on Parts which are not accepted by the
customer and when royalties shall have been paid on such Parts, they shall be
credited against any future royalties to be paid hereunder.
3. Reports: Time of Royalty Payments. Within fifteen (15) days of the
end of each calendar quarter, Licensee shall render a written report to Licensor
setting forth the total net sales by Licensee of the Parts during such quarter
along with the payment to Licensor of the royalty amount due thereon. Licensee
agrees to make and keep full and accurate books and records showing the sales of
Parts sold under the License in sufficient detail to enable royalties payable
hereunder to be determined, and further agrees that Licensor and its
representatives shall be permitted to inspect such books and records from time
to time, during regular business hours, as contain any data material to the
computation of royalties hereunder, and to make copies thereof to the extent
necessary to verify the royalty reports and payments provided by this License.
4. Enforcement of Licensed Patents. It is mutually understood and
agreed that Licensee shall have the right to call to the attention of Licensor
any infringement of the patent rights set forth in Schedule A hereof, which
infringement, if continued, might affect the rights of Licensee herein, and if
after giving notice to Licensor, Licensor does not file suit or cause such
alleged infringement to cease within a period of six (6) months from the date of
such notice, then Licensor agrees to grant Licensee the right to xxx in its own
name, at its own expense and for its own benefit, any such infringer under any
of the patents listed or included in Schedule A.
5. Improvements by Licensee: Assignment to Licensor. Licensee agrees to
disclose promptly to Licensor any improvements owned or acquired by Licensee.
Licensee further agrees that any such improvements shall be the property of, and
properly assigned to, Licensor, who may make, or have made for it, use and sell,
including the right to sublicense, such improvement without restriction, and
Licensee shall retain a perpetual nonexclusive royalty-free right to make, use
and sell Parts using such improvements. Licensee also agrees, whenever requested
to do so by Licensor and at Licensor's cost and expense, to execute any and all
documents and to take any and all action which may be necessary or appropriate
to assign and transfer to Licensee all the right, title and interest in and to
such improvements.
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6. Option to Purchase Patents. In the event Licensor sells
substantially all of the assets of, or all of the common stock of, Licensee to
an unrelated third party, Licensee shall have the option to purchase the Patents
and all then existing claims for infringement thereof, at the greater of (i) the
book value of the Patents then on Licensor's books and (ii) the fair market
value of the Patents. In the event Licensee exercises such option, Licensee
shall grant to Licensor a perpetual, irrevocable, royalty-free, nonexclusive
license to make, use and sell Parts.
7. Duration. This License granted herein shall continue until the
expiration of the last expiring Patent or any additions thereto as covered in
Schedule A hereof, it being understood that Schedule A shall be considered as
amended from time to time by the addition thereto of any further applications or
divisions of applications covering improvements developed by either Licensor or
Licensee as to the subject matter contained in the Patents, and Licensor hereby
agrees that such new applications or divisions thereof shall automatically be
included in the License.
8. Termination. The parties agree that the failure of Licensee to make
and render any statement or to make any payment as required by this License
shall give Licensor the right to cancel this License by giving Licensee thirty
(30) days' notice in writing of its election to do so, provided, however, if
within thirty (30) days after delivery of any such notice Licensee shall have
cured its default, then this License shall remain in force the same as if no
breach or default had occurred on the part of Licensee.
9. Succession. This License shall be binding upon and shall inure to
the benefit of the respective successors of the parties hereto, provided that,
the License or any rights granted hereunder may not be assigned, transferred,
conveyed, or encumbered by Licensee, except with the written consent of Licensor
and any attempt to so transfer shall be voided and not merely voidable.
10. Entire Agreement. This agreement constitutes the entire agreement
between the parties hereto relating to the specific subject matter hereof. There
are no terms, obligations, covenants, representations, or conditions other than
those contained herein. No variation or modification of this agreement or waiver
of any of the terms or provisions hereof shall be deemed valid unless in writing
and signed by both parties hereto.
11. Governing Law. This License shall be construed under and governed
by the laws of the State of Michigan, United States of America, and the parties
hereby submit to the jurisdiction of the courts of that state.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed in duplicate by their duly authorized representatives as of the day
and year first above written.
JPE, INC JPE CANADA, INC.
By: /s/ By: /s/
Title: Vice President Title: Secretary
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SCHEDULE "A"
LETTERS PATENT
Patent No. Date Patentee Title
---------- ---- -------- -----
5,484,278 01/16/96 Xxxx Xxxxxx Blow-Out Vent Valve
5,511,967 04/30/96 Xxxx Xxxxxx Self-Contained Gas Injector
PATENTS & PATENT APPLICATIONS IN COUNTRIES FOREIGN TO THE U.S.
Country Patent/Appln No. Date Title
------- ---------------- ---- -----
Brazil PI9500620-6 02/13/95 Blow-Out Vent Valve
Canada 2,141.697 02/02/95 "
France 9501573 02/10/95 "
Germany 19504339.1 02/10/95 "
Japan 25061/95 02/14/95 "
Mexico 950931 02/14/95 "
United Kingdom 9502566.4 02/10/95 "
Brazil PI9500621.-4 02/13/95 Self Contained Gas Injector Nozzle
Canada 2,141,698 02/02/95 "
France 9501572 02/10/95 "
Germany 19504409.6 02/10/95 "
Japan 25544/95 02/14/95 "
Mexico 950932 02/14/95 "
United Kingdom 9502561.5 02/10/95 "
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EXHIBIT "B"
ASSIGNMENT
TO: The Bank of Nova Scotia (the "Bank")
AND TO: Ventra Group Inc. and all assignees from Ventra Group Inc.
(collectively "Ventra")
RE: Licence Agreement dated December 20, 1996 made by JPE, Inc. as
Licensor in favor of JPE Canada Inc. as Licencee relating to certain
molds and patents, a copy of which is attached hereto as Exhibit "A"
(the "Licence Agreement")
The undersigned, JPE, Inc. ("JPE US") hereby refers to:
1. The Licence Agreement.
2. All right, title and interest of JPE US in and to all payments and
amounts now or hereafter due to US under or pursuant to the Licence
Agreement (the "Licence Amounts").
The undersigned, for value, hereby:
1. Transfers and assigns absolutely to the Bank all of the Licence Amounts
2. Gives notice to Ventra, which notice shall be irrevocable without the
accompanying written consent of the Bank, to pay all Licence Amounts to
the Bank and not to JPE US.
3. Authorizes the Bank to take whatever actions, including court
proceedings, the Bank deems necessary or advisable including action and
proceedings in the name of JPE US to enforce payment to the Bank of all
Licence Amounts.
4. Agrees to execute and deliver such other documents, papers, matters and
assurances as the Bank may reasonably require or request in connection
with this Assignment for the purposes of the more effectual carrying
out of this Assignment provided that all reasonable expenses in
connection with such further documents, papers and assurances shall be
borne by the Bank.
5. Agrees that payment by Ventura to the Bank of the Licence Amounts as
they become due shall release Ventura to the extent of such payment
from its obligations to pay the Licence Amounts to JPE US.
6. Agrees that Ventura may rely on this document as entitling and
requiring Ventura to pay all Licence Amounts to the Bank.
7. Agrees that the Licence Agreement is in full force and effect and
acknowledges and agrees to the transfer of the Licence Agreement under
the Assignment dated February 8, 1999 by the Bank of Ventra.
Dated this 21st day of October, 1999.
JPE, INC.
By: /s/ X.X. Xxxxx
------------------
Name: X.X. Xxxxx
Title: Vice President and Chief Financial Office
(I have authority to bind the Corporation)
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TO: JPE, Inc.
For value, the Bank:
(a) agrees with JPE US to provide reasonable detail to JPE US from time to
time of any action or proceedings taken by the Bank in the name of JPE
US under the provisions of paragraph 3 above; and
(b) agrees that as against the Bank, nothing in the foregoing Assignment
shall adversely affect any right JPE US has, at the sole expense of
JPE US, to intervene in any proceedings that challenge the
enforceability or validity of the rights of JPE US to the moulds or
patents described in the License Agreement.
Dated this 20th day of October, 1999.
THE BANK OF NOVA SCOTIA
By: /s/ X. Xxxxxxxx
-------------------
Name: X. Xxxxxxxx
Title: Manager
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EXHIBIT "C"
TO: JPE Canada Inc. ("JPE Canada")
For value, the undersigned Plastic Trim, Inc., hereby releases and forever
discharges JPE Canada and its officers, directors, employees, agents and
representatives (collectively the "Releasees") of and from all actions,
proceedings, accounts, claims and demands whatsoever which the undersigned now
has or may hereafter have against the Releasees in respect of all matters in
connection with JPE Canada or any other matters or things related thereto.
Dated the 21st day of October, 1999.
PLASTIC TRIM, INC.
By: /s/ X.X. Xxxxx
------------------
Name: X.X. Xxxxx
Title: Vice President and Chief Financial Officer
(I have authority to bind the Corporation)
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EXHIBIT "D"
ASSIGNMENT
TO: The Bank of Nova Scotia (the "Bank")
AND TO: (the "Transferee")
RE: JPE Canada Inc.
For value, the undersigned, JPE, Inc. ("JPE US") hereby:
1. Represents and warrants to you as follows:
(a) that the authorized capital of JPE Canada Inc. ("JPE Canada")
consists of an unlimited number of common shares of which 100
common shares (and no more) have been duly issued and are
outstanding as fully paid and non-assessable (the "JPE Canada
Shares");
(b) that no person, firm or corporation has any agreement or option or
any right or privilege capable of becoming an agreement, including
convertible securities, warrants or convertible obligations of any
nature, for the purchase, subscription, allotment or issuance of
any shares or other securities of JPE Canada (where in this
paragraph the words "shares or other securities of JPE Canada"
means for greater certainty shares or other securities in the
capital of only JPE Canada and not in the capital of JPE US);
(c) that JPE US is the beneficial owner of record of the JPE Canada
Shares with good and marketable title thereto, free and clear of
all encumbrances and, without limiting the generality of the
foregoing, none of the JPE Canada Shares is subject to any voting
trust, shareholder agreement or voting agreement and no person
other than you has any written or oral agreement or option or right
or privilege for the purchase or acquisition from JPE US of any of
the JPE Canada Shares, and upon completion of the assignment and
transfer contemplated herein, all of the JPE Canada Shares will be
owned by the Transferee as the beneficial owner of record, with a
good and marketable title thereto;
(d) that prior to the assignment for the general benefit of the
creditors made on February 8, 1999 by JPE Canada (the
"Assignment"), the only indebtedness or obligations of JPE Canada
outstanding to JPE US or to any companies in which JPE US has an
ownership interest or to which JPE US is related are the following
(collectively, the "Related Debt"):
(i) the indebtedness and obligations of JPE Canada under the
License Agreement dated December 20, 1999 made between
JPE, Inc. as licensor in favour of JPE Canada Inc. as
licensee relating to certain moulds and patents; and
(ii) the indebtedness or obligations of JPE Canada to Plastic
Trim, Inc.; and
(e) that after the Assignment there is no indebtedness of, and there
are no obligations of JPE Canada outstanding to JPE US or to any
companies in which JPE US has an ownership interest or to which JPE
US is related.
2. Assigns and transfers to the Transferee absolutely:
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(a) the JPE Canada Shares together with all of the share certificates
evidencing the same duly endorsed in blank and corporate books and
records relating to JPE Canada, which share certificate and
corporate books and records are delivered herewith; and
(b) the entire amount of the Related Debt together with all evidence of
the same which is delivered herewith.
3. JPE US appoints any Vice-President from time to time of the Bank as its
attorney, or, his failing, a person to be designated by the Bank from time
to time, with full and irrevocable power and authority to perform all acts
and do all things for and on behalf of JPE US as such attorney may deem
necessary or desirable to assign and transfer the JPE Canada Shares and
said corporate books and records and the Related Debt to the Transferee.
The Bank agrees to provide reasonable detail to JPE US from time to time of
any acts performed or things done by the attorney in his capacity as
attorney as aforesaid.
4. Agrees to execute and deliver such other documents, papers, matters and
assurances as the Transferee or the Bank may reasonably require or request
in connection with this Assignment for the purposes of the more effectual
carrying out of this Assignment, provided that all expenses in connection
with such further documents, papers and assurances shall be borne by the
party requesting the same.
Dated this 21st day October, 1999
JPE, INC.
By: /s/ X.X. Xxxxx
------------------
Name: X.X. Xxxxx
Title: Vice President and Chief Financial Officer
(I have authority to bind the Corporation)
