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EXHIBIT 10.11
EXECUTION COPY
AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "AMENDMENT") made this
27th day of December, 1996 by and among Xxxxxxx Xxxxx Corporation ("XXXXXXX"),
a Michigan corporation, BMG-MI, Inc. ("BMG"), a Michigan corporation, L-E
Acquisition, Inc. ("NEWCO"), a Michigan corporation, X. Xxxxxxx Xxxxxxxxx, as
"SHAREHOLDERS' AGENT" and Xxxxxxx Holdings, Inc. ("XXXXXXX HOLDINGS"), a
Michigan corporation.
WHEREAS, Xxxxxxx, BMG, Newco, Shareholders' Agent and certain
shareholders of Xxxxxxx entered into an Agreement and Plan of Merger dated as
of November 14, 1996 (the "AGREEMENT") for the merger of Newco with and into
Xxxxxxx, in accordance with the terms and conditions contained in the
Agreement; and
WHEREAS, since entering into the Agreement, the parties negotiated and
agreed to certain changes to the Agreement set forth herein.
NOW, THEREFORE, Xxxxxxx, BMG, Newco and Shareholders' Agent, on behalf of
the shareholders of Xxxxxxx in accordance with Section 7.11 of the Agreement,
in consideration of the premises, agreements and covenants contained herein
(the receipt and sufficiency whereof are hereby acknowledged) and subject to
the satisfaction of the conditions set forth herein, hereby agree to the
following modifications of the Agreement:
1. All references to capitalized terms contained herein which are not
otherwise defined in this Amendment shall have the meanings ascribed to them in
the Agreement.
2. The first paragraph on page one of the Agreement is amended by
replacing "BMG-MI, Inc. ("Parent"), a Michigan corporation" with "Xxxxxxx
Holdings, Inc. ("Parent"), a Michigan corporation, BMG-MI, Inc. ("BMG"), a
Michigan corporation," and is restated as follows:
"AGREEMENT AND PLAN OF MERGER dated as of November 14, 1996, by and
between Xxxxxxx Xxxxx Corporation ("Xxxxxxx"), a Michigan corporation,
Xxxxxxx Holdings, Inc. ("Parent"), a Michigan corporation, BMG-MI, Inc.
("BMG"), a Michigan corporation, L-E Acquisition, Inc. ("Newco"), a
Michigan corporation, the parties named as Shareholders on the signature
page of this Agreement (the "Shareholders"), and X. Xxxxxxx Xxxxxxxxx, as
Shareholders' Agent."
3. The fourth paragraph on page one of the Agreement is amended by
deleting "Parent" after the parenthetical and is restated as follows:
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"WHEREAS, the respective Boards of Directors of each of the Constituent
Corporations deem it advisable and generally to the welfare and advantage
of each, and of all the several and respective holders of their shares,
for Newco to be merged into Xxxxxxx and for all the stock of Xxxxxxx then
outstanding to be converted in the merger into preferred stock of the
Surviving Corporation (as defined below), pursuant to this Agreement and
the applicable laws of the State of Michigan, in a reorganization as
defined by Sections 368(a)(1)(E) of the United States Internal Revenue
Code of 1986, as amended."
4. Section 1.04(c) of the Agreement is amended by adding "or such other
time as shall be mutually agreed to by the Shareholders' Agent and Parent, as
set forth in the certificate of merger," after the word "time," in the second
line and is restated as follows:
"(c) Effective Date. The merger contemplated hereby (the "Merger")
shall become effective at 11:59 p.m., Eastern Standard time, or such
other time as shall be mutually agreed to by the Shareholders' Agent and
Parent, as set forth in the certificate of merger, on the date on which
the filing referred to in Section 1.04(b) is completed. The date upon
which the merger becomes effective is herein referred to as the
"Effective Date.".
5. Section 1.05(a) of the Agreement is amended to restate the conversion
ratios and is restated as follows:
"(a) Xxxxxxx common stock. Each share of Xxxxxxx Class A common stock
and Class B common stock outstanding on the Effective Date (except shares
held in the treasury of Xxxxxxx, which shall be canceled) shall be
converted by the merger into 0.118340 shares of fully paid and
non-assessable Series A Preferred Stock of the Surviving Corporation
("Series A Preferred Stock") and 0.012923 shares of fully paid and
non-assessable Series B Preferred Stock of the Surviving Corporation
("Series B Preferred Stock" and together with the Series A Preferred
Stock the "Preferred Stock"). The relative rights, preferences and
limitations of the Series A and Series B Preferred Stock shall be as set
forth in Exhibit A hereto. Notwithstanding the foregoing, no fractional
shares of Series A or Series B Preferred Stock or certificates therefor
or scrip shall be issued in the Merger, but in lieu thereof each record
holder of Xxxxxxx Class A common stock or Class B common stock who would
otherwise be entitled to a fraction of a share of Preferred Stock shall
be paid by Newco an amount in cash equal to (i) such fraction times (ii)
$100.00."
6. Section 1.06(a) of the Agreement is amended by replacing $13,000,000
and 130,000 with $10,000,000 and 100,000, respectively and is restated as
follows:
"(a) On the Effective Date, the certificates evidencing an aggregate of
$10,000,000 (to the nearest whole share) of the Series A Preferred Stock,
with the Series A Preferred Stock valued at $100 per share for such
purposes, into which each Shareholder's Class A common
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stock and Class B common stock of Xxxxxxx has been converted in the
Merger (the "Escrow Shares"), shall be delivered by the Surviving
Corporation to Citizens Bank, as escrow agent (the "Escrow Agent") under
an Escrow Agreement among the Surviving Corporation, the Shareholders'
Agent and the Escrow Agent in the form annexed hereto as Exhibit B (the
"Escrow Agreement"). Each of the Xxxxxxx shareholders shall deposit his
pro-rata share of the Escrow Shares (rounded to the nearest whole number)
determined by multiplying 100,000 times a fraction the numerator of which
is the number of shares of Series A Preferred Stock issuable to such
shareholder under Section 1.05(a) and the denominator of which is the
total number of shares of Series A Preferred Stock issuable pursuant to
the Merger. The Escrow Shares shall be held in escrow under the Escrow
Agreement and shall be distributed to the Shareholders, or returned to
Parent or the Surviving Corporation, pursuant to the terms of the Escrow
Agreement."
7. Section 3.23 of the Agreement is amended to restate the amount of the
payment to be made to the option holders and is restated as follows:
"3.23 Xxxxxxx Stock Options. At or immediately prior to the Effective
Date, each outstanding employee stock option to purchase shares of Class
A common stock and Class B common stock of Xxxxxxx (an "Option") granted
under (i) the Xxxxxxx-Xxxxx Manufacturing Company 1990 Stock Incentive
Plan, as amended (the "1990 Option Plan"), and (ii) any other stock
option plan or arrangement of Xxxxxxx or any Subsidiary (such plans or
arrangements, together with the 1990 Option Plan, are hereinafter
collectively referred to as the "Option Plans"), shall be canceled, and
each holder of any such Option, whether or not then vested or
exercisable, shall be paid by Xxxxxxx, at or immediately prior to the
Effective Date for each such Option, in consideration therefor an amount
in cash determined by multiplying (i) the excess, if any, of $12.994 per
share of Class A common stock and Class B common stock over the
applicable exercise price of such Option by (ii) the number of shares of
Class A common stock and Class B common stock such holder could have
purchased (assuming full vesting of all Options) had such holder
exercised such Option in full immediately prior to the Effective Date.
In addition, each holder of such Options shall be entitled to receive the
"cash payment rights" granted in conjunction with such Options, which in
aggregate will not exceed $502,923, including payments currently due to
Mr. Xxxxxx. The amount of payment relating to the Options and any cash
payment right is set forth in Section 3.23 of the Disclosure Schedule.
Xxxxxxx shall use all reasonable efforts to effectuate the foregoing,
including without limitation amending the Option Plans and obtaining any
necessary consents from Option holders; provided, however, that prior to
the Closing Date, the Board of Directors of Xxxxxxx shall adopt such
resolutions or take such other actions as are permitted and required to
adjust, effective immediately prior to the Effective Date, the terms of
each outstanding Option under the 1990 Option Plan as to which any such
consent is not obtained prior to the Effective Date to provide that such
Option shall be converted into the right, upon exercise of such Option at
any time after the Effective Date,
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to receive an amount in cash equal to $12.994 for each share of Class A
common stock and Class B common stock subject to such Option, plus the
amount of the applicable cash payment rights, or, alternatively, upon the
surrender and cancellation of such Option at any time after the Effective
Date to receive an amount in cash determined by multiplying (i) the
excess, if any, of $12.994 per share of Class A common stock and Class B
common stock over the applicable exercise price of such Option by (ii)
the number of shares of Class A common stock and Class B common stock
subject to such Option, plus the amount of the applicable cash payment
rights, in either case without interest or any other adjustment thereto."
8. Section 2.01 of the Agreement is amended by adding subsection (m) as
follows:
"(m) Xxxxx Xxxxx Sales Corporation. Parent shall have received, in form
and substance reasonably satisfactory to Parent and its counsel, evidence of
the termination of any and all agreements and arrangements between Xxxxxxx and
Xxxxx Xxxxx Sales Corporation ("GESC") along with general releases of any and
all claims which GESC may have against Xxxxxxx."
9. The last sentence of Section 3.01 of the Agreement is amended by
replacing "Parent" with "Parent, BMG" and is restated as follows:
"If the Xxxx-Xxxxx-Xxxxxx Act is applicable to such transactions, Parent,
BMG, Newco, Xxxxxxx and the Shareholders shall make all filings and
provide all documents and information to Governmental Bodies which are
required by said Act and use their respective best efforts to obtain an
early termination of the applicable waiting period under said Act..
10. Section 3.20 of the Agreement is amended by replacing "Parent" in the
first line and as the last word in the Section with "Parent or its Affiliate"
and is restated as follows:
"3.20 Deposit. On the day when this Agreement is fully executed and
delivered by all of the parties hereto, Parent or its Affiliate shall pay
to Xxxxx Xxxxxxxx Xxxxxxxxxx P.L.C., for the benefit of the Shareholders'
Agent, a deposit of $100,000. Such deposit shall be held by Xxxxx
Xxxxxxxx Xxxxxxxxxx P.L.C., for the benefit of the Shareholders' Agent
until the Effective Date or, if the Merger contemplated hereby does not
become effective, until the date when this Agreement is terminated. If
this Agreement is terminated by the Shareholders pursuant to Section
7.09(a)(4), the Shareholders' Agent shall distribute such amount among
the Shareholders in proportion to their holdings of Xxxxxxx capital stock
(without regard to whether such stock is Class A common stock or Class B
common stock). If this Agreement is terminated by Parent, Newco or the
Shareholders pursuant to clauses (1), (2), (3), (5) or (6) of Section
7.09(a), or if the Merger becomes effective, the Shareholders' Agent
shall return said amount to Parent or its Affiliate."
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11. The second sentence of Section 3.21 of the Agreement is amended by
replacing "the deposit of Parent" with "the deposit of Parent or its Affiliate"
and is restated as follows:
"In the event Parent or Newco elects to terminate this Agreement pursuant
to Section 7.09(a)(6), the deposit of Parent or its Affiliate, delivered
in accordance with Section 3.20, shall be immediately refunded to it."
12. Section 3.22 of the Agreement is amended by increasing the redemption
amount from $1.6 million to $1.8 million and is restated as follows:
"3.22 Estate of Xxxxxxxxx X. Xxxxxxxxx Redemption Agreement. Xxxxxxx and
the Estate of Xxxxxxxxx X. Xxxxxxxxx (the "Estate") entered into a
Redemption Agreement on December 15, 1988, as amended (the "Redemption
Agreement"), wherein Xxxxxxx agreed to redeem in cash at the time
specified in the Redemption Agreement certain Class A voting common stock
and Class B non-voting common stock of Xxxxxxx owned by the Estate.
Xxxxxxx shall enter into a First Amendment to the Redemption Agreement to
cause the redemption by Xxxxxxx on the Closing Date of that number of
shares of Class A and Class B common stock of Xxxxxxx which may be
redeemed, consistent with the value of such shares as set forth in
Section 1.05, for an aggregate purchase price not in excess of $1.8
Million and providing that, upon completion of the Merger, the Redemption
Agreement as amended shall terminate and Xxxxxxx shall be released and
discharged from any further obligation thereunder."
13. Section 3.24 of the Agreement is amended to reflect the recent
agreement reached with Mr. Xxxxxx and is restated as follows:
"3.24 Xxxxxx Payment. Xxxxxxx shall have entered into an agreement with
Xxxxxxx Xxxxxx ("Xxxxxx") whereby Xxxxxx has (i) resigned any and all
positions he holds with Xxxxxxx, whether as a director, officer, employee
or trustee as of the Effective Date, (ii) released any and all claims he
has against Xxxxxxx or any of the Subsidiaries, other than claims for
accrued employment benefits, and (iii) providing for termination of his
SERP. The cost of settling or terminating the SERP or any payment with
respect thereto shall be a cost for which the Surviving Corporation shall
be considered to have suffered an Adverse Consequence for which
indemnification is required. The actual amount of any such Adverse
Consequence shall be paid to the Surviving Corporation from the Escrow
Shares without reduction, notwithstanding the provisions of Section 6.02.
The agreement shall provide a maximum compensation payment to Xxxxxx of
not more than $1 Million.
14. Section 4.06 of the Agreement is amended by replacing "Parent" and
"the Parent" throughout the Section with "BMG" and is restated as follows:
"4.06 BMG Agreement to Exchange Shares.
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(a) (i) For the purposes of this Section 4.06, the term "Initial
Public Offering" shall mean the first offering of the common stock of BMG
(the "BMG Common Stock") to the public which is (X) exclusively for cash
consideration, (Y) subject to an effective registration statement filed
with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and (Z) underwritten on a firm commitment basis by one
or more underwriters. The Initial Public Offering will be deemed to have
commenced when such registration statement first becomes effective.
(ii) The term "Initial Public Offering Price" shall mean the
price per share to the public of BMG Common Stock specified in the
prospectus included as part of the registration statement referred to
above at the time such registration statement first becomes effective.
(iii) The term "Exchange Ratio" shall mean a number equal to (X)
the redemption value of a share of the Series A Preferred Stock, divided
by (Y) the Initial Public Offering Price.
(b) BMG or the Surviving Corporation shall give written notice to
each registered holder of the Series A Preferred Stock not later than thirty
(30) days following the Initial Public Offering. During the period beginning
on the 60th day after the effective date of the Initial Public Offering and
ending at the end of the 30th day thereafter, each holder of Series A Preferred
Stock may elect in writing (the "Exchange Notice") to exchange up to 50% or
some lesser portion of his shares of Series A Preferred Stock (the "Election
Amount") for a number of shares of BMG Common Stock (or any other class of
capital stock into which such common shares have been converted pursuant to any
reclassification or reorganization) equal to (i) the Election Amount,
multiplied by (ii) the Exchange Ratio; provided, however, that, in the
aggregate, holders of Series A Preferred Stock may not receive more than 25.0%
of the number of shares of BMG Common Stock registered pursuant to the Initial
Public Offering (the "Maximum Exchange Amount"). If the holders of Series A
Preferred Stock make elections that would result in such holders collectively
exceeding the Maximum Exchange Amount, each holder of Series A Preferred Stock
making such an election will receive shares of BMG Common Stock equal to the
number resulting from multiplying his Election Amount by the Exchange Ratio,
then multiplying that result by a fraction, the denominator of which is the
total number of shares of BMG Common Stock which has been requested as a result
of the Exchange Notices and the numerator of which is the Maximum Exchange
Amount. Any holder of Series A Preferred Stock who does not make an election
to exchange his Series A Preferred Stock as provided herein shall cease to have
any rights thereafter to exchange such shares and BMG shall have no
responsibility or liability to any such holder with respect to any such
exchange.
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(c) Before any holder of Series A Preferred Stock shall be entitled to
exchange such stock for shares of BMG Common Stock, he shall (i) surrender the
certificate or certificates for his shares of Series A Preferred Stock, duly
endorsed for transfer, with signatures guaranteed by a national or state bank,
and (ii) give written instructions to BMG (in such form as BMG may reasonably
request) that he elects to convert the same and shall state therein the name or
names in which he wishes the certificate or certificates for shares of BMG
Common Stock to be issued. BMG shall, as soon as practicable thereafter, issue
and deliver to such holder of Series A Preferred Stock, a certificate or
certificates for the whole number of shares of BMG Common Stock to which he
shall be entitled.
(d) The exchange set forth in this Section 4.06 shall be deemed to have
been made immediately prior to the close of business on the date of surrender
of the shares of Series A Preferred Stock to be exchanged, and the person or
persons entitled to receive the shares of BMG Common Stock issuable upon such
exchange shall be treated for all purposes as the record holder or holders of
such shares of BMG Common Stock on such date. The conversion may, at the
option of any holder tendering shares of Series A Preferred Stock for exchange,
be conditioned upon the closing with the underwriters of the sale of securities
pursuant to the Initial Public Offering, in which event the person(s) entitled
to receive BMG Common Stock upon exchange of the Series A Preferred Stock shall
not be deemed to have exchanged such Series A Preferred Stock until immediately
prior to the day of closing of such sale of securities.
(e) No fractional share shall be issued upon the exchange of any share or
shares of Series A Preferred Stock. All shares of BMG Common Stock (including
fractions thereof) issuable upon exchange of more than one share of Series A
Preferred Stock by a holder thereof shall be aggregated for purposes of
determining whether the exchange would result in the issuance of any fractional
share. If, after the aforementioned aggregation, the exchange would result in
the issuance of a fraction of a share of Common Stock, the Company shall, in
lieu of issuing any fractional share, pay the holder otherwise entitled to such
fraction a sum in cash equal to the market value of such fraction on the date
of exchange, based on the Initial Public Offering Price."
15. Section 6.02 of the Agreement is amended by adding "except with
respect to any Adverse Consequences suffered as a result of a breach or
inaccuracy of the representations set forth in Sections 5.02(z) and 5.02(aa),"
after the phrase "exceeds $50,000 in the aggregate," and by reducing the
indemnification amounts from $13 million and $6.5 million to $10 million and $5
million, respectively, and is restated as follows:
"6.02 Indemnification Provisions for Benefit of Parent and the Surviving
Corporation. If there is any breach or inaccuracy of any of the
representations, warranties or covenants of any Shareholder or Xxxxxxx
contained herein or in any Schedule, Exhibit, certificate or other
document delivered by or on behalf of the Shareholders or Xxxxxxx
pursuant to this Agreement, or if any third party alleges facts that, if
true, would mean that such a breach or
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inaccuracy existed, and provided that within the applicable time periods
specified in Section 6.01 Parent or the Surviving Corporation delivers
to the Shareholders' Agent pursuant to Section 6.04 a claim for
indemnification with respect to such alleged breach or inaccuracy, then
the shareholders of Xxxxxxx as to whom such claim may then be brought
pursuant to Section 6.01 (either severally or jointly and severally, as
provided in Section 7.10(b)), shall indemnify Parent, the Surviving
Corporation and their Affiliates and each of their respective officers,
directors, employees, agents, successors and permitted assigns from and
against all Adverse Consequences that they have suffered or may suffer
caused by, resulting from, arising out of or relating to such breach or
inaccuracy through and after the date of such claim; provided however,
that (i) the Shareholders shall not have any obligation to indemnify any
person under this Section 6.02 unless the amount of Adverse Consequences
suffered by such person by reason of all such breaches or inaccuracies
exceeds $50,000 in the aggregate, except with respect to any Adverse
Consequences suffered as a result of a breach or inaccuracy of the
representations set forth in Sections 5.02(z) and 5.02(aa), at which
point the Shareholders shall be obligated to indemnify such person from
and against all such Adverse Consequences, without any deductible amount,
and (ii) in no event shall the Shareholders have any obligation to
indemnify such persons under this Section 6.02 for an amount, in the
aggregate in excess of $10 million with respect to claims for
indemnification made during the first eighteen months following the
Closing Date and, with respect to claims made after the expiration of
such 18-month period, such amount shall be reduced to $5 million."
16. Section 6.03 of the Agreement is amended by reducing the
indemnification amounts from $13 million and $6.5 million to $10 million and $5
million, respectively, and is restated as follows:
"6.03 Indemnification Provisions for Benefit of the Shareholders. If
there is any breach or inaccuracy of any of the representations,
warranties or covenants of Parent or Newco contained herein or in any
Schedule, Exhibit, certificate or other document delivered by or on
behalf of Parent or Newco pursuant to this Agreement, or if any third
party alleges facts that, if true, would mean that such a breach or
inaccuracy existed, then Parent or Newco shall indemnify the Shareholders
and their respective successors and permitted assigns from and against
all Adverse Consequences that they have suffered or may suffer caused by,
resulting from, arising out of or relating to such breach or inaccuracy
through and after the date of such claim; provided however, that (i)
Parent or Newco shall not have any obligation to indemnify the
Shareholders under this Section 6.03 unless the amount of Adverse
Consequences suffered by the Shareholders by reason of all such breaches
or inaccuracies exceeds $50,000 in the aggregate, at which point Parent
or Newco shall be obligated to indemnify the Shareholders from and
against all such Adverse Consequences, without any deductible amount, and
(ii) in no event shall Parent or Newco have any obligation to indemnify
the Shareholders under this Section 6.03 for an amount, in the aggregate
in excess
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of $10 million with respect to claims for indemnification made during the
first eighteen months following the Closing Date and, with respect to
claims made after the expiration of such 18-month period, such amount
shall be reduced to $5 million.
17. Sections 7.04(a), 7.05, 7.07 and 7.11 of the Agreement are amended by
replacing "Parent" throughout each Section with "Parent, BMG" and each Section
is restated as follows:
"7.04 Notices. All notices, demands, claims, requests, undertakings,
consents, opinions and other communications which may or are required to
be given hereunder or with respect hereto shall be in writing, shall be
given either by personal delivery or by mail, facsimile transmission,
telegraph, telex or similar means of communication, and shall be deemed
to have been given or made when personally delivered, when delivered to
the telegraph or telephone company, charges prepaid, and otherwise when
received, addressed to the respective parties as follows:
(a) If to Parent, BMG or Newco:
BMG-MI, Inc.
0000 Xxxxx Xxxxxxxx, Xxx. 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, President
With copy to:
Xxxxxx Xxxxxxx PLLC
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxxxxxx, Xx., Esq.
or to such other address as Parent, BMG or Newco may from time to time
designate by notice to Xxxxxxx and the Shareholders' Agent with respect
to future notices, demands and other communications to Parent, BMG or
Newco;"
"7.05 No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the parties to this
Agreement and their respective successors and permitted assigns. All
discussions and negotiations by Parent, BMG, Newco, or any person on
behalf of Parent, BMG or Newco, with any person pertaining to the subject
matter of this Agreement shall not be deemed to be on behalf of any
person in his individual capacity or as a representative or agent for
Oxford, but rather shall be deemed to be solely on behalf of Parent, BMG
or Newco."
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"7.07 Amendments and Waivers. No amendment of any provision of this
Agreement, and no postponement or waiver of any such provision or of any
default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be valid unless such amendment,
postponement or waiver is in writing and signed by or on behalf of
Parent, BMG, Newco, Xxxxxxx and the Shareholders acting through the
Shareholders' Agent. No such amendment, postponement or waiver shall be
deemed to extend to any prior or subsequent matter, whether or not
similar to the subject-matter of such amendment, postponement or waiver.
No failure or delay on the part of Parent, BMG, Newco, Xxxxxxx, the
Shareholders or the Shareholders' Agent in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise
of any other right, power or privilege."
"7.11 Agency. Each shareholder of Xxxxxxx hereby irrevocably appoints X.
Xxxxxxx Xxxxxxxxx as the agent of such Shareholder for all purposes
relating to or in connection with any transaction contemplated by or
relating to this Agreement and to be carried out prior to, at or after
the Closing (including, without limitation, approving any modifications
or amendments to this Agreement and the appointment of the Escrow Agent
and execution and delivery of the Escrow Agreement), and each shareholder
of Xxxxxxx hereby authorizes Parent, BMG, Newco and Xxxxxxx to rely upon
the agency created hereby and releases Parent, BMG, Newco and Xxxxxxx
from any and all liability to such shareholder of whatever nature arising
out of or relating to such agency, to the same extent as though any act
committed or omitted by X. Xxxxxxx Xxxxxxxxx pursuant to such agency had
been committed or omitted by such shareholder."
18. Section 7.08 of the Agreement is amended by deleting "(other than its
obligations with respect to the Preferred Stock)" and is restated as follows:
"7.08 Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign this Agreement or
any of such party's rights, interests or obligations hereunder without
the prior approval of the other parties hereto, except that all (but not
less than all) of the rights, interests and obligations of any
Shareholder may be assigned pursuant to the will of such Shareholder or
the laws of intestate succession, and except that Parent may (i) assign
any or all of its rights and interests hereunder to one or more of its
Affiliates and (ii) designate one or more of its Affiliates to perform
its obligations hereunder; except that in any event Parent shall remain
responsible for the performance, by itself or its assignee, of all of its
obligations hereunder."
19. Article VII of the Agreement is amended by adding a new Section 7.14
as follows:
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"Section 7.14 Parent Merger with BMG. Parent and BMG have agreed,
pursuant to the terms of the Agreement and Plan of Merger between Parent
and BMG (the form of which is attached hereto as Exhibit E), to
consummate a business combination immediately following and conditioned
upon the consummation of the Merger, whereby Parent will merge with and
into BMG, the separate corporate existence of Parent will cease and BMG
will continue as the surviving corporation."
20. Article VIII of the Agreement is amended by deleting the definition of
"Parent" and by adding the following definitions:
" "BMG" means BMG-MI Inc., a Michigan corporation.
"Parent" means Xxxxxxx Holdings, Inc, a Michigan corporation."
21. The reference to "Newco Preferred Stock" in the first recital of the
Escrow Agreement attached as Exhibit B to the Agreement, and each reference
throughout the Escrow Agreement, is amended to change such references to
"Xxxxxxx Preferred Stock" and the recital is amended and restated as follows:
"WHEREAS, pursuant to an Agreement and Plan of merger dated as of
November 14, 1996 to which Newco, the Shareholders and the Shareholders'
Agent are parties (the "Merger Agreement"), Newco is to be merged with
and into Xxxxxxx and in the merger the Class A common stock and Class B
common stock of Xxxxxxx held by the Shareholders is to be converted into
Series A and Series B Preferred Stock of Xxxxxxx (the "Xxxxxxx Preferred
Stock"); and"
22. Section 7 of the Escrow Agreement is amended to allow for the payment
of dividends on the escrowed shares to the holders of the Xxxxxxx Preferred
Stock, and is amended and restated as follows:
"7. All cash dividends paid upon the Xxxxxxx Preferred Stock in the
Escrow Fund shall be paid to the registered holder of the Xxxxxxx
Preferred Stock. Such Shareholders shall be entitled to vote such
Xxxxxxx Preferred Stock upon all matters submitted to the holders of
Xxxxxxx Preferred Stock for their vote. All non-cash distributions upon
such Xxxxxxx Preferred Stock shall be held by the Escrow Agent as part of
the Escrow Fund."
23. The first sentence of Exhibit C to the Agreement is restated as
follows:
"Related to Section 1.06(c), if any item has not been accounted under
GAAP that item shall be adjusted in the closing balance sheet without
regard to consistency or materiality, except that with respect to
materiality, no such item shall be adjusted until the aggregate of all
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adjustments equal or exceed $100,000, and then the adjustment shall only
be the amount in excess of $100,000."
24. The fourth full paragraph on page 2 of Exhibit C is restated as
follows:
"Fixed assets exclude obsolete or other unusable property or equipment.
A fixed asset inventory of all items will be completed on the Closing
Date, as may be appropriate to verify such fixed assets. All unlocated
items will be removed from the property ledger. Fixed asset lives are as
follows:
Buildings 30 years Furniture 5.0 years
Machinery 9.5 years Computers 5.0 years
Equipment 9.5 years"
25. Section 5.02(b) of the Agreement is amended to delete in its entirety
the sentence, "The Current Financial Information has been reviewed by Xxxxxxx
Xxxxxx and Xxxxxx P.L.C. and reflects any recommendations made by Xxxxxxx
Xxxxxx and Xxxxxx P.L.C. in such reviews."
26. Except as specifically amended by this Amendment, all provisions of
the Purchase Agreement shall remain in full force and effect. This Amendment
shall govern in the event that there is a conflict between the Purchase
Agreement and this Amendment.
[This space intentionally left blank]
12
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
day and year first above written.
XXXXXXX XXXXX CORPORATION
By:
------------------------------------------
Name: X. Xxxxxxx Xxxxxxxxx
Title: Chairman & Chief Executive Officer
BMG-MI, INC.
By:
------------------------------------------
Name: Xxx X. Xxxxxxxxxxx, Xx.
Title: Secretary
L-E ACQUISITION, INC.
By:
------------------------------------------
Name: Xxx X. Xxxxxxxxxxx, Xx.
Title: Secretary
XXXXXXX HOLDINGS, INC.
By:
------------------------------------------
Name: Xxx X. Xxxxxxxxxxx, Xx.
Title: Secretary
---------------------------------------------
X. Xxxxxxx Xxxxxxxxx, as Shareholders' Agent
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