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EXHIBIT 10.12
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
XXXXXXX HOLDINGS, INC
and
BMG-MI, INC.
Dated as of January 8, 1997
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of January 8, 1997 (this
"AGREEMENT"), among Xxxxxxx Holdings, Inc., a Michigan corporation ("XXXXXXX
HOLDINGS"), and BMG-MI, Inc., a Michigan corporation ("BMG").
WHEREAS, the Boards of Directors of Xxxxxxx Holdings and BMG have each
determined that it is advisable and in the best interests of their respective
shareholders for Xxxxxxx Holdings to enter into a business combination with BMG
upon the terms and subject to the conditions set forth herein;
WHEREAS, in furtherance of such combination, the Boards of Directors of
Xxxxxxx Holdings and BMG have each approved the merger of Xxxxxxx Holdings
with and into BMG (the "MERGER") in accordance with the applicable provisions
of the Michigan Business Corporation Act (the "MBCA"), and upon the terms and
subject to the conditions set forth herein;
WHEREAS, Xxxxxxx Holdings has approved the merger (the "XXXXXXX MERGER")
of L-E Acquisition, Inc., a Michigan corporation ("L-E ACQUISITION") and
wholly-owned subsidiary of Xxxxxxx Holdings, with and into Xxxxxxx Xxxxx
Corporation, a Michigan corporation ("XXXXXXX") in accordance with the
applicable provisions of the MBCA, upon the terms and subject to the conditions
set forth in the Agreement and Plan of Merger dated as of November 14, 1996, as
amended,(the "XXXXXXX AGREEMENT") among Xxxxxxx, certain shareholders of
Xxxxxxx, BMG, Xxxxxxx Holdings and L-E Acquisition, and the parties thereto
have executed and delivered the Xxxxxxx Agreement; and
WHEREAS, pursuant to the Merger, each outstanding share (a "SHARE") of
common stock of Xxxxxxx Holdings (the "XXXXXXX HOLDINGS COMMON STOCK") shall be
converted into the right to receive the Merger Consideration (as defined in
Section 1.7(a) ), upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, BMG
and Xxxxxxx Holdings hereby agree as follows:
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ARTICLE I
THE MERGER
SECTION 1.1 The Merger.
(a) Effective Time. At the Effective Time (as defined in Section 1.2),
and subject to and upon the terms and conditions of this Agreement, and the
MBCA, Xxxxxxx Holdings shall be merged with and into BMG, the separate
corporate existence of Xxxxxxx Holdings shall cease, and BMG shall continue as
the surviving corporation. BMG as the surviving corporation after the Merger
is hereinafter sometimes referred to as the "SURVIVING CORPORATION."
(b) Closing. Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Section
6.1 and subject to the satisfaction or waiver of the conditions set forth in
Article V, the consummation of the Merger will take place as promptly as
practicable after satisfaction or waiver of the conditions set forth in Article
V, at the offices of Xxxxxx Xxxxxxx PLLC, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx Xxxxx, Xxxxxxxx, unless another date, time or place is agreed
to in writing by the parties hereto.
SECTION 1.2 Effective Time. As promptly as practicable after the
satisfaction or waiver of the conditions set forth in Article V, the parties
hereto shall cause the Merger to be consummated by filing a certificate of
merger as contemplated by the MBCA (the "CERTIFICATE OF MERGER"), together with
any required related certificates, with the Michigan Department of Consumer and
Industry Services, in such form as required by, and executed in accordance with
the relevant provisions of the MBCA (the time of such filing being the
"EFFECTIVE TIME").
SECTION 1.3 Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in this Agreement, the Certificate of Merger
and the applicable provisions of the MBCA. Without limiting the generality of
the foregoing, and subject thereto, at the Effective Time all the property,
rights, privileges, powers and franchises of Xxxxxxx Holdings and BMG shall
vest in the Surviving Corporation, and all debts, liabilities and duties of
Xxxxxxx Holdings and BMG shall become the debts, liabilities and duties of the
Surviving Corporation.
SECTION 1.4 Articles of Incorporation, By-Laws.
(a) Articles of Incorporation. Unless otherwise determined by BMG prior
to the Effective Time, at the Effective Time the Articles of Incorporation of
BMG as in effect immediately prior to the Effective Time, shall be the Articles
of Incorporation of the Surviving Corporation until thereafter amended in
accordance with the MBCA and such Articles of Incorporation.
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(b) By-Laws. Unless otherwise determined by BMG prior to the Effective
Time, the By-Laws of BMG as in effect immediately prior to the Effective Time,
shall be the By-Laws of the Surviving Corporation until thereafter amended in
accordance with the MBCA, the Articles of Incorporation of the Surviving
Corporation and such By-Laws.
SECTION 1.5 Directors and Officers. The Board of Directors of BMG
immediately prior to the Effective Time shall be the initial Board of Directors
of the Surviving Corporation, each member to hold office in accordance with the
Articles of Incorporation and By-Laws of the Surviving Corporation, and the
officers of BMG immediately prior to the Effective Time shall be the initial
officers of the Surviving Corporation, in each case until their respective
successors are duly elected or appointed and qualified.
SECTION 1.6 Effect on Xxxxxxx Holdings Common Stock. At the Effective
Time, by virtue of the Merger and without any action on the part of BMG,
Xxxxxxx Holdings or their respective shareholders:
(a) Conversion of Xxxxxxx Holdings Common Stock. Each Share issued and
outstanding immediately prior to the Effective Time (excluding any Shares to be
canceled pursuant to Section 1.6(b)) shall be converted into the right to
receive 3.12 shares (the "EXCHANGE RATIO") of validly issued, fully paid and
nonassessable shares ("BMG SHARES") of the Common Stock of BMG ("BMG COMMON
STOCK").
(b) Cancellation. Each Share held in the treasury of Xxxxxxx Holdings and
each Share owned by BMG immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder thereof,
cease to be outstanding, be canceled and retired without payment of any
consideration therefor and cease to exist.
(c) Capital Stock of BMG. Each share of BMG Common Stock issued and
outstanding immediately prior to the Effective Time shall remain outstanding.
(d) Fractional Shares. No certificates or scrip representing less than
one BMG Share shall be issued upon the exchange of any Interests. In lieu of
any such fractional share, each holder of Shares who would otherwise have been
entitled to a fraction of a BMG Share upon exchange of such Shares shall be
issued the appropriate whole number of BMG Shares determined by rounding down
any fraction of 0.5 or less to the nearest whole number of BMG Shares and by
rounding up any fraction greater than 0.5 to the nearest whole number of BMG
Shares.
(e) Adjustments to Share Consideration. The Exchange Ratio shall be
equitably adjusted to reflect fully the effect of any reclassification, stock
split, reverse split, stock dividend, reorganization or recapitalization or
other like change with respect to BMG Common Stock occurring after the date
hereof and prior to the Effective Time.
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SECTION 1.7 Exchange of Shares.
(a) Exchange Procedures. Immediately after the Effective Time, the Shares
shall be surrendered to BMG. Upon surrender of a certificate representing the
Shares ("CERTIFICATE") to BMG for cancellation together with such other
customary documents as may be required, the holder of such Certificate shall be
entitled to receive in exchange therefor (A) certificates evidencing that
number of whole BMG Shares which such holder has the right to receive in
accordance with the Exchange Ratio in respect of the Shares formerly evidenced
by such Certificate, and (B) any dividends or other distributions to which such
holder is entitled (the BMG Shares, dividends and distributions being,
collectively, the "MERGER CONSIDERATION"), and the Certificate so surrendered
shall forthwith be canceled. Until so surrendered, each outstanding
Certificate that, prior to the Effective Time, represented Shares of Xxxxxxx
Holdings Common Stock will be deemed from and after the Effective Time, for all
corporate purposes, to evidence the ownership of the number of full BMG Shares
into which such shares of Xxxxxxx Holdings Common Stock shall have been so
converted. BMG Shares issued in the Merger shall be issued as of and deemed to
be outstanding as of the Effective Time. BMG shall cause all such BMG shares
issued in accordance with the Merger to be duly authorized, validly issued,
fully paid and nonassessable.
(b) No Liability. Neither BMG nor Xxxxxxx Holdings shall be liable to any
shareholder for any Merger Consideration delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(c) Withholding Rights. BMG shall be entitled to deduct and withhold from
the Merger Consideration otherwise payable pursuant to this Agreement to any
holder of Xxxxxxx Holdings Common Stock such amounts as BMG is required to
deduct and withhold with respect to the making of such payment under the Code,
or any provision of state, local or foreign tax law. To the extent that
amounts are so withheld by BMG, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the Shares in
respect of which such deduction and withholding was made by BMG.
SECTION 1.8 No Further Ownership Rights in Xxxxxxx Holdings Common Stock.
The Merger Consideration delivered upon the exchange of Shares in accordance
with the terms hereof shall be deemed to have been issued in full satisfaction
of all rights pertaining to such Shares, and there shall be no further
registration of transfers on the records of the Surviving Corporation of Shares
which were outstanding immediately prior to the Effective Time. If after the
Effective Time, Certificates are presented to the Surviving Corporation for any
reason, they shall be canceled and exchanged as provided in this Article I.
SECTION 1.9 Tax and Accounting Consequences. It is intended by the parties
hereto that the Merger shall constitute a reorganization within the meaning of
Section 368(a) of the Code.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF XXXXXXX HOLDINGS
Xxxxxxx Holdings hereby represents and warrants to BMG that:
SECTION 2.1 Organization and Qualification. Xxxxxxx Holdings is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has the requisite corporate
power and authority necessary to own, lease and operate the properties it
purports to own, operate or lease and to carry on its business as it is now
being conducted.
SECTION 2.2 Articles of Incorporation and By-Laws. The Articles of
Incorporation and By-Laws of Xxxxxxx Holdings are in full force and effect.
Xxxxxxx Holdings is not in violation of any of the provisions of its Articles
of Incorporation or By-Laws.
SECTION 2.3 Capitalization. The authorized capital stock of Xxxxxxx
Holdings consists of 100,000 shares of Xxxxxxx Holdings Common Stock, of which
75,000 shares are issued and outstanding. All of the outstanding shares of
Xxxxxxx Holdings Common Stock are duly authorized, validly issued, fully paid
and nonassessable, free and clear of all security interests, liens, claims,
pledges, agreements, limitations in Xxxxxxx Holdings' voting rights, charges or
other encumbrances of any nature whatsoever.
SECTION 2.4 Authority Relative to this Agreement and the Xxxxxxx
Agreement. Xxxxxxx Holdings has all necessary corporate power and authority to
execute and deliver this Agreement and the Xxxxxxx Agreement and to perform its
obligations under each agreement and to consummate the transactions
contemplated by each agreement. The execution and delivery of this Agreement
and the Xxxxxxx Agreement by Xxxxxxx Holdings and the consummation by Xxxxxxx
Holdings of the transactions contemplated by each agreement have been duly and
validly authorized by all necessary corporate action, and no other corporate
proceedings on the part of Xxxxxxx Holdings are necessary to authorize this
Agreement or the Xxxxxxx Agreement or to consummate the transactions so
contemplated (other than any required shareholder approval). The Board of
Directors of Xxxxxxx Holdings has determined that it is advisable and in the
best interest of its shareholders for Xxxxxxx Holdings to enter into a business
combination with BMG upon the terms and subject to the conditions of this
Agreement, and have unanimously recommended that shareholders approve and
adopt, as required, the Xxxxxxx Agreement, Xxxxxxx Merger, this Agreement and
the Merger. This Agreement has been duly and validly executed and delivered by
Xxxxxxx Holdings (subject to shareholder approval) and, assuming the due
authorization, execution and delivery by BMG constitutes a legal, valid and
binding obligation of Xxxxxxx Holdings enforceable against it in accordance
with its terms. The Xxxxxxx Agreement has been
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duly and validly executed and delivered by Xxxxxxx Holdings and constitutes a
legal, valid and binding obligation of Xxxxxxx Holdings enforceable against it
in accordance with its terms.
SECTION 2.5 Formation of Xxxxxxx Holdings; No Prior Activities.
(a) Xxxxxxx Holdings was formed solely for the purpose of engaging in the
transactions contemplated by the Xxxxxxx Agreement and this Agreement.
(b) As of the date hereof and the Effective Time, except for obligations
or liabilities incurred in connection with its incorporation or organization
and the transactions contemplated by the Xxxxxxx Merger and this Agreement,
Xxxxxxx Holdings has not and will not have incurred, directly or indirectly,
through any subsidiary or affiliate, any material obligations or liabilities or
engaged in any business activities of any type or kind whatsoever or entered
into any agreements or arrangements with any person.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BMG
BMG hereby represents and warrants to Xxxxxxx Holdings that:
SECTION 3.1 Organization and Qualification; Subsidiaries. BMG is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has the requisite corporate
power and authority to own, lease and operate the properties it purports to
own, operate or lease and to carry on its business as it is now being
conducted.
SECTION 3.2 Articles and By-Laws. BMG'S Articles of Incorporation and
By-Laws are in full force and effect. BMG is not in violation of any of the
provisions of its Articles of Incorporation or By-Laws.
SECTION 3.3 Capitalization. The authorized capital stock of BMG consists
of 100,000 shares of BMG Common Stock of which 78,000 shares are issued and
outstanding, all of which are validly issued, fully paid and nonassessable and
the authorized capital stock of BMG prior to the Merger will consist of 400,000
shares of BMG Common Stock.
SECTION 3.4 Authority Relative to this Agreement and the Xxxxxxx
Agreement. BMG has all necessary corporate power and authority to execute and
deliver this Agreement and the Xxxxxxx Agreement and to perform its obligations
under each agreement and to consummate the transactions contemplated by each
agreement. The execution and delivery of this Agreement and the Xxxxxxx
Agreement by BMG and the consummation by BMG of the transactions contemplated
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by each agreement have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of BMG are
necessary to authorize this Agreement or the Xxxxxxx Agreement or to consummate
the transactions so contemplated (other than any required shareholder
approval). The Board of Directors of BMG has determined that it is advisable
and in the best interest of its shareholders for BMG to enter into a business
combination with Xxxxxxx Holdings upon the terms and subject to the conditions
of this Agreement, and have unanimously recommended that shareholders approve
and adopt, this Agreement and the Merger. This Agreement has been duly and
validly executed and delivered by BMG (subject to shareholder approval) and,
assuming the due authorization, execution and delivery by Xxxxxxx Holdings,
constitutes a legal, valid and binding obligation of BMG enforceable against it
in accordance with its terms. The Xxxxxxx Agreement has been duly and validly
executed and delivered by BMG and constitutes a legal, valid and binding
obligation of BMG enforceable against it in accordance with its terms.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.1 Xxxxxxx Merger. BMG and Xxxxxxx Holdings agree to take all
such reasonable and lawful actions as may be necessary or appropriate in order
to effectuate the Xxxxxxx Merger in accordance with the Xxxxxxx Agreement as
promptly as practicable.
SECTION 4.2 Shareholder Approval. Xxxxxxx Holdings and BMG shall call and
hold shareholder meetings or shall obtain the required written consents of
their respective shareholders, as required under the MBCA, prior to the
Effective Time and in accordance with applicable laws for the purpose of voting
upon the approval of the Merger and the Xxxxxxx Merger.
SECTION 4.3 Consents; Approvals. Xxxxxxx Holdings and BMG shall each use
their reasonable best efforts to obtain all consents, waivers, approvals,
authorizations or orders, and Xxxxxxx Holdings and BMG shall make all filings
required in connection with the authorization, execution and delivery of this
Agreement by Xxxxxxx Holdings and BMG and the consummation by them of the
transactions contemplated hereby, in each case as promptly as practicable.
SECTION 4.4 Loan to BMG North America. At the Effective Time, as a result
of the Merger and such other consideration as the parties have deemed
appropriate and sufficient, Xxxxxxx Holdings shall or shall cause an affiliate
to loan up to $5,000,000 to BMG North America Limited, an affiliate of BMG.
The terms of such loan shall be as reasonably negotiated between the parties,
but in no event shall the rate of interest charged be greater than the rate
paid by Xxxxxxx Holdings or its affiliate on its revolving credit facilities or
the prime rate of NBD Bank, in the event there are no revolving credit
facilities. The loan shall be unsecured and due upon
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demand. BMG and Xxxxxxx Holdings agree to take all such reasonable and lawful
actions as may be necessary or appropriate in order to effectuate this loan
transaction at the Effective Time.
ARTICLE V
CONDITIONS TO THE MERGER
SECTION 5.1 Conditions to Obligation of Each Party to Effect the Merger.
The respective obligations of each party to effect the Merger shall be subject
to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) Xxxxxxx Merger. The Xxxxxxx Merger shall have been consummated in
accordance with all applicable laws, and with evidence of the foregoing
provided to BMG and Xxxxxxx Holdings. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Xxxxxxx Merger shall be in effect, nor shall any proceeding
brought by any administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, seeking any of the foregoing
be pending; and there shall not be any action taken, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to the
Xxxxxxx Merger, which makes the consummation of the Xxxxxxx Merger illegal;
(b) Approval. This Agreement and the Merger shall have been approved and
adopted by the affirmative vote of the holders of a majority of the outstanding
shares of Xxxxxxx Holdings Common Stock and the holders of a majority of the
outstanding shares of BMG Common Stock or appropriate consents of such
shareholders shall have been obtained by each of Xxxxxxx Holdings and BMG;
(c) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court
of competent jurisdiction or other legal restraint or prohibition preventing
the consummation of the Merger shall be in effect, nor shall any proceeding
brought by any administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, seeking any of the foregoing
be pending; and there shall not be any action taken, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to the
Merger, which makes the consummation of the Merger illegal;
(d) Governmental Consents. All authorizations, consents and approvals of
any governmental authority or administrative agency necessary or advisable
shall have been obtained and all applicable waiting periods, and any extensions
thereof, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended shall have expired or otherwise have been terminated; and
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(e) Governmental Actions. There shall not have been instituted, pending
or threatened any action or proceeding (or any investigation or other inquiry
that might result in such an action or proceeding) by any governmental
authority or administrative agency before any governmental authority,
administrative agency or court of competent jurisdiction, nor shall there be in
effect any judgment, decree or order of any governmental authority,
administrative agency or court of competent jurisdiction, in either case,
seeking to prohibit or limit BMG, as the Surviving Corporation, from exercising
all material rights and privileges pertaining to the ownership or operation by
BMG or any of its subsidiaries of all or a material portion of the business or
assets of the Surviving Corporation or any of its subsidiaries, or seeking to
compel BMG or any of its subsidiaries to dispose of or hold separate all or any
material portion of the business or assets of the Surviving Corporation or any
of its subsidiaries, as a result of the Merger or the transactions contemplated
by this Agreement.
SECTION 5.2 Additional Conditions to Obligations of BMG. The obligations
of BMG to effect the Merger are also subject to the following conditions:
(a) Representations and Warranties. The representations and warranties of
Xxxxxxx Holdings contained in this Agreement shall be true and correct in all
material respects at and as of the Effective Time;
(b) Agreements and Covenants. Xxxxxxx Holdings shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it at or prior to the
Effective Time; and
(c) Consents Obtained. All material consents, waivers, approvals,
authorizations or orders required to be obtained, and all filings required to
be made, by Xxxxxxx Holdings for the due authorization, execution and delivery
of this Agreement and the consummation by it of the transactions contemplated
hereby and by the Xxxxxxx Agreement shall have been obtained and made by
Xxxxxxx Holdings.
(d) Opinion of Financial Advisor. BMG shall have received the advice of
its financial advisor, XxXxxxxx & Company Securities, Inc., that in its
opinion, the Exchange Ratio set forth herein is fair to the holders of BMG
Common Stock from a financial point of view.
SECTION 5.3 Additional Conditions to Obligation of Xxxxxxx Holdings. The
obligation of Xxxxxxx Holdings to effect the Merger is also subject to the
following conditions:
(a) Representations and Warranties. The representations and warranties of
BMG contained in this Agreement shall be true and correct in all material
respects on and as of the Effective Time;
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(b) Agreements and Covenants. BMG shall have performed or complied in all
material respects with all agreements and covenants required by this Agreement
to be performed or complied with by it on or prior to the Effective Time; and
(c) Consents Obtained. All material consents, waivers, approvals,
authorizations or orders required to be obtained, and all filings required to
be made, by BMG for the authorization, execution and delivery of this Agreement
and the consummation by them of the transactions contemplated hereby and by the
Xxxxxxx Agreement shall have been obtained and made by BMG.
ARTICLE VI
TERMINATION
SECTION 6.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time by mutual written consent of BMG and Xxxxxxx
Holdings.
SECTION 6.2 Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 6.1, this Agreement shall forthwith become
void and there shall be no liability on the part of any party hereto or any of
its affiliates, directors, officers or shareholders.
SECTION 6.3 Fees and Expenses. All fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expenses, whether or not the Merger is
consummated.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 Amendment. This Agreement may be amended by the parties
hereto by action taken by or on behalf of their respective Boards of Directors
at any time prior to the Effective Time; provided, however, that, after
approval of the Merger by the shareholders of Xxxxxxx Holdings and BMG, as
applicable, no amendment may be made which by law requires further approval by
such shareholders without such further approval. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto.
SECTION 7.2 Waiver. At any time prior to the Effective Time, any party
hereto may with respect to any other party hereto (a) extend the time for the
performance of any of the obligations or other acts, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto, or (c) waive compliance with any
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of the agreements or conditions contained herein. Any such extension or waiver
shall be valid only if set forth in an instrument in writing signed by the
party or parties to be bound thereby.
SECTION 7.3 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 7.4 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to
the fullest extent possible.
SECTION 7.5 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof.
SECTION 7.6 Assignment. No party may assign this Agreement or any of such
party's rights, interests or obligations hereunder without the prior approval
of the other party hereto.
SECTION 7.7 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement, including, without limitation, by way of subrogation.
SECTION 7.8 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement
herein, nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
SECTION 7.9 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Michigan
applicable to contracts executed and fully performed within the State of
Michigan.
SECTION 7.10 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when
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executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
[This space intentionally left blank.]
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IN WITNESS WHEREOF, BMG and Xxxxxxx Holdings have caused this Agreement
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
BMG-MI, INC.
By:
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Name: Xxxxxx Xxxxxx
Title: President
XXXXXXX HOLDINGS, INC.
By:
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Name: Xxxxxx Xxxxxx
Title: President
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