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EXHIBIT 99(b)
AGREEMENT
Agreement dated as of February 14, 2001, among Newcor, Inc., a
corporation organized and existing under the laws of Delaware ("Company"), EXX,
INC., a corporation organized and existing under the laws of Nevada ("Exx"), and
Xxxxx X. Xxxxx, the Chairman of the Board of Directors and Chief Executive
Officer of Exx ("Xxxxx") (collectively, "Parties").
Whereas, Exx and Xxxxx, in the aggregate, are presently the
beneficial owners of 865,800 shares of Common Stock of the Company, par value
$1.00 ("Common Stock"), representing 17.49% of the 4,949,068 shares of Common
Stock outstanding as of the date of this Agreement;
Whereas, Exx and Xxxxx have expressed their desire to
participate, in cooperation with the Company's management, for the benefit of
all the Company's shareholders;
Whereas, in view of the foregoing and in consideration of the
mutual agreements contained in this document, the Company is prepared to expand
the Company's Board of Directors ("Board") and to appoint Xxxxx and another
individual designated by Exx (the "Exx Designee") to the Board, to amend its
Rights Agreement to allow Exx and Xxxxx to obtain an increased ownership
position in the Company, and to agree to certain other covenants as described
below.
NOW, THEREFORE, in consideration of the mutual agreements
contained in, and intending to be legally bound by, this document, the Parties
agree as follows:
Section 1. The Company's Representations and Warranties.
The Company represents and warrants to Exx and Xxxxx
(collectively, the "Stockholders") as follows:
(a) ORGANIZATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) AUTHORITY. The Company has the full power and
authority to execute, deliver and carry out the terms and provisions of this
Agreement and to consummate the transactions contemplated hereby, and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement.
(c) ENFORCEABILITY. This Agreement has been duly and
validly authorized, executed and delivered by the Company and constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(d) CONSENTS AND APPROVALS; NO VIOLATION. The
execution and delivery of this Agreement and the consummation of the
transactions
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contemplated hereby will not conflict with, result in the breach of any of the
terms or conditions of, constitute a default under or violate, accelerate or
permit the acceleration of any other similar right of any other party under, the
certificate of incorporation or by-laws of the Company, any law, rule or
regulation or any agreement, lease, mortgage, note, bond, indenture, license or
other document or undertaking, to which the Company is a party or by which the
Company or its properties may be bound, nor will such execution, delivery and
consummation violate any order, writ, injunction or decree of any federal,
state, local or foreign court, administrative agency or governmental or
regulatory authority or body (each, an "Authority") to which the Company or any
of its properties is subject, the effect of any of which, either individually or
in the aggregate, would impair the ability of the Company to perform its
obligations hereunder.
Section 2. Exx's Representations and Warranties.
Exx represents and warrants to the Company as follows:
(a) ORGANIZATION. Exx is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
(b) AUTHORITY. Exx and Xxxxx have the full power and
authority to execute, deliver and carry out the terms and provisions of this
Agreement and to consummate the transactions contemplated hereby, and have taken
all necessary action to authorize the execution, delivery and performance of
this Agreement.
(c) ENFORCEABILITY. This Agreement has been duly and
validly authorized, executed and delivered by Exx and Xxxxx, and constitutes a
legal, valid and binding agreement of Exx and Xxxxx, enforceable against Exx and
Xxxxx in accordance with its terms.
(d) REPRESENTATION OF OWNERSHIP. Except for the
841,800 shares of Common Stock owned by Exx, and the 24,000 shares of Common
Stock owned by Xxxxx, as of the date of this Agreement, neither Exx, Xxxxx nor
any of their affiliates or associates (for the purposes of this Agreement, the
terms "affiliates" and "associates" shall be defined as such terms are defined
by Rule 12b-2 of Regulation 12 B under the Securities Exchange Act of 1934, as
amended ("1934 Act"), provided that for purposes of this Agreement the Company
and Exx shall not be deemed to be affiliates or associates of each other), (i)
beneficially owns any equity securities of the Company entitled to vote at any
meeting of stockholders of the Company ("Voting Securities") or (ii) possesses
any rights to acquire any Voting Securities except as otherwise discussed in
this Agreement.
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(e) CONSENTS AND APPROVALS; NO VIOLATION. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with, result in the breach of
any of the terms or conditions of, constitute a default under or violate,
accelerate or permit the acceleration of any other similar right of any other
party under, the charter or by-laws of Exx, any law, rule or regulation, or any
agreement, lease, mortgage, note, bond, indenture, license or other document or
undertaking, to which Exx or Xxxxx is a party or by which Exx or Xxxxx or their
properties may be bound, nor will such execution, delivery and consummation
violate any order, writ, injunction or decree of any Authority to which Exx or
Xxxxx or any of their properties is subject, the effect of any of which, either
individually or in the aggregate, would impair the ability of Exx or Xxxxx to
perform their obligations hereunder.
Section 3. Stockholders' Board Representation.
(a) BOARD COMPOSITION. During the term of this
Agreement, the Company agrees to increase the size of the Board to nine (9)
members and not to increase the size of the Board to more than nine (9) members.
In addition, the Company will cause Xxxxx and an Exx Designee who is reasonably
acceptable to a majority of the Board to be appointed to the class of directors
with terms expiring at the Company's annual meeting in 2002. Accordingly, Xxxxx,
Exx and the Company agree that as of the date hereof, the Board will be
reconfigured as follows:
------------------------------------------------------------------------------------------------------
CLASS UP FOR REELECTION IN
2001 2002 2003
---- ---- ----
------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxx Xxxxx Xxxxx
------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx Vacant (to be filled with an Xxxx Xxxxxx
Exx Designee to be approved
by the Board pursuant to
Section 3(b))
------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxx Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------
(b) XXXXX'X AND THE EXX DESIGNEE'S TERMS. Xxxxx and
the Exx Designee will serve in the class of directors with terms expiring at the
Company's annual meeting in 2002 (the "2002 Class"). Xxxxx will be appointed to
the 2002 Class as of the date hereof. The Exx Designee will be appointed to the
2002 Class as soon as practicable, but in no event more than 10 days, following
the Board's reasonable approval of the individual designated by the
Stockholders. If the Exx Designee resigns or is otherwise unable to serve on the
Board (other than as a
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result of failing to be duly elected at the Company's annual meeting in 2002)
the Stockholders will have the sole right to designate his/her replacement,
subject to the reasonable approval of such new designee by the Board. The
Company agrees to nominate Xxxxx and the Exx Designee as part of the Company's
slate of nominees for a subsequent three (3) year term at the Company's annual
meeting in 2002.
(c) COMMITTEE MEMBERSHIP. For so long as Xxxxx continues to
hold office as a director of the Company, the Company agrees to cause Xxxxx to
be elected to serve on the Executive and Audit Committees of the Board;
provided, however, that Xxxxx will not be entitled to serve on the Audit
Committee if his membership on that Committee would violate the rules of the
stock exchange on which the Company's equity securities are then trading.
(d) 2004 ANNUAL MEETING. The Company agrees to cause its
annual meeting of stockholders for year 2004 to be held in the month of May
2004. Prior to the date of the Company's annual meeting in 2004, the Company
shall not amend the notice procedures contained in Article II, Section 8 or
Article III, Section 1 (collectively, the "Notice Provisions") of the Company's
by-laws in a manner adverse to the Stockholders. With respect to the Company's
annual meeting in 2004, if the Stockholders shall deliver a notice to the
Company pursuant to the Notice Provisions that is not in accordance with the
requirements set forth in the Notice Provisions, the Stockholders shall be given
a reasonable period of time, following notice by the Company specifying such
defects in reasonable detail, to cure any defects in such notice. Upon such
cure, such notice shall be deemed to have been timely delivered.
Section 4. Acquisition of Senior Subordinated Debt.
The Company currently has outstanding approximately $125
million of 9 7/8% Series B Senior Subordinated Notes, due 2008 ("Notes"). The
Stockholders will not, and will cause their affiliates and associates not to,
purchase Notes if it would cause the Company to incur taxable income.
Section 5. Restrictions on Stockholders' Stock Purchase.
During the term of this Agreement, without the prior consent
of the Company's Board (specifically expressed in a resolution adopted by a
majority of the Board other than Xxxxx or the Exx Designee (hereinafter referred
to as a "Disinterested Majority of the Board")):
(a) The Stockholders will not acquire, or permit any
affiliate or associate of the Stockholders to acquire, directly or indirectly,
or in
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conjunction with or through any other person, by purchase or otherwise,
beneficial ownership of any additional shares of Common Stock or any other
Voting Securities of the Company, if such acquisition would cause the
Stockholders and their affiliates and associates, directly or indirectly, to
beneficially own more than:
- 23.5% of all Voting Securities outstanding prior to December
31, 2001; or
- 25.5% of all Voting Securities outstanding prior to December
31, 2003; or
- 27.5% of all Voting Securities outstanding prior to December
31, 2004; or
- 30% of all Voting Securities outstanding prior to December
31, 2005.
(b) The Stockholders will not engage in, propose,
encourage or in any way participate in (or permit any investment banker,
attorney, accountant or any other representative retained by them to take any
such action as part of such retention), a tender offer or exchange offer
(whether pursuant to Section 14(d) of the 1934 Act or otherwise) with respect to
the Company's Voting Securities, or otherwise attempt to acquire or acquire
Voting Securities of the Company by any means other than open market or
privately negotiated transactions in conformance with Section 5(a) above.
Section 6. Restrictions of Certain Other Actions.
Until December 31, 2003, except (i) upon the prior written
invitation of a Disinterested Majority of the Board or (ii) as otherwise
permitted by this Agreement, the Stockholders will not and will not permit any
affiliate or associate of the Stockholders to:
(a) make, or in any way participate in, any "solicitation" of "proxies"
(as such terms are defined or used in Regulation 14A under the 0000 Xxx) with
respect to any Voting Securities of the Company (including by the execution of
actions by written consent), become a "participant" in any "election contest"
(as such terms are defined or used in Rule 14a-11 under the 0000 Xxx) with
respect to the Company or seek to advise, encourage or influence any person or
entity with respect to the voting of any Voting Securities of the Company;
provided, however, that the Stockholders shall not be prevented hereunder from
being a "participant" in support of the management of the Company, by reason of
the membership of the Stockholders' designees on the Company's Board or the
inclusion of the Stockholders' designees on the slate of nominees for election
to the Board proposed by the Company;
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(b) initiate, propose or otherwise solicit, or
participate in the solicitation of, stockholders for the approval of one or more
stockholder proposals relating to the Company (whether pursuant to Rule 14a-8
under the 1934 Act or otherwise) or knowingly induce any other individual or
entity to initiate any stockholder proposal relating to the Company; provided,
however, that this Agreement shall not be deemed to prevent the Stockholders
from taking actions that are necessary in order to perfect their rights to
propose their own slate of directors or shareholder proposals at the Company's
annual meeting in 2004 so long as such actions do not involve the filing of a
proxy statement or otherwise involve the public announcement of an election
contest or shareholder proposals;
(c) form, join or in any way participate in a "group,"
act in concert with any other person or entity or otherwise take any action or
actions which would cause it to be deemed to be part of a "group" (for purposes
of Section 13(d) of the 0000 Xxx) (other than to the extent such person is a
part of the "group" whose members consist solely of the Stockholders and their
affiliates and associates), with respect to any equity securities of the
Company;
(d) participate in or encourage the formation of any
group which owns or seeks or offers to acquire beneficial ownership of any
equity securities of the Company or rights to acquire such securities or which
seeks or offers to affect control of the Company or for the purpose of
circumventing any provision of this Agreement;
(e) otherwise act (or permit any investment banker,
attorney, accountant or any other representative retained by them to take any
action as part of such retention), alone or in concert with others (including by
providing financing for another party), to publically seek or offer to control
or influence, in any manner, the management, Board of Directors or policies of
the Company; provided, however, that this provision shall not prevent the Exx
Designee or Xxxxx from participating in, or otherwise seeking to affect the
outcome of, discussions and votes of the Board with respect to matters coming
before it;
(f) solicit, seek or offer to effect, negotiate with,
or make any public statement or proposal, whether written or oral, either alone
or in concert with others, to the Board of Directors of the Company, to any
director or officer of the Company, or to any other stockholder of the Company,
with respect to: (A) any form of business combination or transaction involving
the acquisition of Voting Securities of the Company by the Stockholders or their
affiliates or associates,
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including, without limitation, a merger, tender offer, exchange offer or
liquidation of the Company's assets; (B) any request to amend, waive or
terminate the provisions of this Agreement; or (C) any proposal or other
statement inconsistent with the terms and intent of the Agreement; provided,
however, that the Stockholders and their affiliates and associates may discuss
the affairs and prospects of the Company, the status of the Stockholders'
investments in the Company and any of the matters described in clauses (A)
through (C) of this paragraph at any time, and from time to time, with the Board
of Directors of the Company or any director or executive officer of the Company,
the Stockholders may discuss any matter, including any of the foregoing, with
their outside legal and financial advisors, if as a result of any such
discussions the Stockholders are not required to make, and otherwise do not
make, any public announcement or filing under the 1934 Act otherwise prohibited
by this Agreement as a result thereof and Xxxxx and the Exx Nominee shall not be
prohibited from delivering any letter to the Company to be filed with the
Securities and Exchange Commission pursuant to the requirements of Item 6 of
Form 8-K or any successor provision; or
(g) knowingly instigate or encourage any third party
to take any of the actions enumerated in this Section 6.
Section 7. Right of First Negotiation; Sale of the Company.
(a) If, at any time or from time to time, a majority
of the Board decides to cause the Company to solicit proposals to effect a Sale
of the Company (as defined below), then the Stockholders shall have the right,
for a period of 20 days ("days" refers to calendar days throughout this
Agreement) following the Board's determination to solicit such proposals, to
make a bona fide proposal to the Board to effect a Sale of the Company. If the
Stockholders deliver such proposal, then the Board shall be required to
negotiate in good faith with the Stockholders for a period of 20 days in order
to attempt to reach a definitive agreement with respect to such proposal. The
approval of any such agreement with the Stockholders will be subject to the
Board's determination, in good faith, in a manner consistent with its fiduciary
duties, with the advice of its counsel and its financial advisers, that entering
into such agreement with the Stockholders is in the best interest of the
stockholders (and debt holders, if applicable) of the Company.
(b) For the avoidance of ambiguity, if the Board is
presented with a bona fide unsolicited offer from a third party, the Company
shall not be required to provide the Stockholders the opportunity to make a
proposal as set forth in (a) above if the Board reasonably determines, with the
advice of its counsel and financial advisers, that such actions would be
reasonably likely to result in a breach of its fiduciary duties.
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(c) For purposes of this Agreement, a "Sale of the Company"
shall mean:
(i) any transaction in which any person (other than
the Company, an employee stock ownership plan or other pension, stock
bonus or stock incentive plan of the Company or any of its
subsidiaries) is or becomes the beneficial owner of an amount of Voting
Securities greater than 50% of the outstanding Voting Securities; or
(ii) a merger (other than a merger for the purpose of a
name change, forming a holding company or to effect a change in the
Company's state of incorporation), combination or, in any one or more
related transactions, sale of all or substantially all of the Company's
assets, as a result of which the directors of the Company immediately
prior to such transaction do not represent a majority of the Board, or
the stockholders of the Company immediately prior to such transaction
do not continue to own equity securities representing more than 50% of
the vote and of the equity of the Company or the ultimate controlling
corporation following such merger or combination or succeeding to
ownership of all or substantially all of the Company's assets.
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Section 8. Approved Sale; Consideration.
(a) APPROVED SALE. Notwithstanding any other
provisions of this Agreement, if the Board shall notify the
Stockholders in writing that the Company has entered into a definitive
agreement with respect to a Sale of the Company (an "Approved Sale"),
the Stockholders will be free to make a superior offer to the Board to
effect a Sale of the Company for a period of 30 days after receiving
notice of an Approved Sale. If the Stockholders do not make a superior
offer or the Board determines, in good faith in a manner consistent
with its fiduciary duties, with the advice of its counsel and its
financial advisers, not to enter into a definitive agreement with
Stockholders with respect to a Sale of the Company during such 30 day
time period, subject to Section 8(b), the Stockholders will, and will
cause their affiliates and associates to, consent to and raise no
objections to the Approved Sale, waive any appraisal or dissenters'
rights in respect of such Approved Sale on the terms approved by the
Board, including, without limitation, (i) if the Approved Sale is
structured as a sale of Common Stock, the Stockholders will sell their
Common Stock and any and all rights to acquire Common Stock on the
terms and conditions approved by the Board; (ii) if the Approved Sale
is structured as a merger or consolidation, the Stockholders will vote
in favor thereof and will not exercise any dissenters' rights of
appraisal they may have under applicable law; and (iii) if the Approved
Sale is structured as a sale of all or substantially all of the assets
of the Company, the Stockholders will vote in favor thereof and, if
applicable, will vote in favor of the subsequent dissolution or
liquidation of the Company.
(b) CONSIDERATION. The obligations of the Stockholders
with respect to an Approved Sale are subject to the requirement that
(i) upon the consummation of the Approved Sale, all of the holders of
each class of the Company's stock shall receive the same form and
amount of consideration per stock class; (ii) if holders of any class
of stock are given an option as to the form and amount of consideration
they will receive, all holders of such class of stock will be given the
same option and (iii) the Stockholders shall be entitled to receive
value for their shares of Common Stock in any such transaction that is
above the Stockholder's average cost basis in those shares.
Section 9. The Company's Covenants.
In order to effect the terms of this Agreement, the
Company agrees to immediately amend its Stockholders Rights Plan to
allow Exx and Xxxxx to acquire additional Common Stock as provided by
this Agreement.
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Section 10. Release of Claims; Covenant Not to Xxx.
(a) RELEASE OF CLAIMS.
(i) The Stockholders and their respective affiliates,
associates, representatives, executors, heirs, administrators,
successors, assigns, officers, directors, partners, shareholders,
employees, subsidiaries, advisors and agents ("Stockholder Releasing
Parties"), for good and sufficient consideration, the receipt of which
is hereby acknowledged, release and absolutely forever discharge the
Company and its respective affiliates, associates, representatives,
executors, heirs, administrators, successors, assigns, officers,
directors, partners, shareholders, employees, subsidiaries, advisors
and agents ("Company Released Parties"), from any and all actions,
claims, suits, charges, demands and causes of action of every kind and
nature whatsoever, whether known or unknown, foreseen or unforeseen,
existing at the date of this Agreement, including but not limited to
those arising out of any event, occurrence, act or omission that was in
any way referenced in the demand letter, pleadings, depositions or
trial in connection with Exx, Inc. v. Newcor, Inc., C.A. No. 18536-NC,
filed in the Court of Chancery for New Castle County, Delaware (the
"220 Suit").
(ii) The Company and its respective affiliates,
associates, representatives, executors, heirs, administrators,
successors, assigns, officers, directors, partners, shareholders,
employees, subsidiaries, advisors and agents ("Company Releasing
Parties"), for good and sufficient consideration, the receipt of which
is hereby acknowledged, release and absolutely forever discharge the
Stockholders and their respective affiliates, associates,
representatives, executors, heirs, administrators, successors, assigns,
officers, directors, partners, shareholders, employees, subsidiaries,
advisors and agents ("Stockholder Released Parties"), from any and all
actions, claims, suits, charges, demands and causes of action of every
kind and nature whatsoever, whether known or unknown, foreseen or
unforeseen, existing at the date of this Agreement, including but not
limited to those arising out of any event, occurrence, act or omission
that was in any way referenced in the demand letter, pleadings,
depositions or trial in connection with the 220 Suit.
(iii) Each of the Company Releasing Parties and the
Stockholder Releasing Parties warrant that they have not assigned any
alleged claim that is the subject of this release to any other person
or entity, and they are not aware of any claim or potential claim other
than those being released.
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(iv) This release and Agreement are not, and shall not
be construed to be, an admission of any breach of duty, liability or
other wrongdoing whatsoever by the Company Released Parties or the
Stockholder Released Parties, and neither the release nor the Agreement
shall be offered or used as an admission or evidence of any breach of
duty, liability or other wrongdoing whatsoever.
(v) The Stockholder Releasing Parties agree, as soon
as practicable after the date hereof, to take all steps necessary to
dismiss the 220 Suit with prejudice as a result of a mutual settlement,
with each party to bear its own costs. The Stockholder Releasing
Parties also hereby revoke any and all stockholder proposals and
demands for the election of directors in 2001 previously delivered to
the Company.
(b) COVENANT NOT TO XXX. During the term of this Agreement,
the Parties agree not to, and to cause their affiliates, associates,
representatives, executors, heirs, administrators, successors, assigns,
officers, directors, partners, shareholders, employees, subsidiaries, advisors
and agents, not to initiate or continue any actions, claims, suits, demands for
arbitration, or causes of action of every kind and nature whatsoever arising out
of or related to the ownership of the Company's Common Stock by the Stockholders
or the actions or omissions of any of the Company's directors, officers or
employees, against each other or any of the Released Parties of the other party
except for actions, claims, suits, demands for arbitration, or causes of action
relating to either: (1) violations of any contractual relationship between the
Company and the Stockholders (including this Agreement), or (2) intentional
misconduct, such as fraud or misappropriation, intentional violations of the
law, or other intentional wrongdoing by either of the Parties and/or their
affiliates, associates, representatives, executors, heirs, administrators,
successors, assigns, officers, directors, partners, shareholders, employees,
subsidiaries, advisors and agents.
Section 11. Term of Agreement.
This Agreement shall remain in effect from February 14, 2001 until
December 31, 2005, provided that the Stockholders shall have the right to
terminate this Agreement, upon 5 days' notice, in the event that the Company's
Notes are called in advance of the date on which such Notes are currently due.
Notwithstanding the foregoing, the provisions of Sections 10, 11 and 12 shall
survive termination of this Agreement.
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Section 12. Miscellaneous Provisions
(a) AMENDMENT AND MODIFICATION. This Agreement may be
amended, modified and supplemented only by written agreement of the Stockholders
and the Company (approved by a Disinterested Majority of the Board).
(b) NOTICES. All notices, requests, demands and other
communications required or permitted shall be made in writing by hand-delivery,
telecopier (with written confirmation) or air courier guaranteeing overnight
delivery:
(i) If to the Stockholders, to:
EXX, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Attention: Chief Executive Officer
Xxxxx Xxxxx
c/o Exx, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
with a copy to:
Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
or to such other person or address as the Stockholders shall furnish to the
Company;
(ii) If to the Company, to:
Newcor, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Secretary
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
or to such other person or address as the Company shall furnish to the
Stockholders in writing.
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All such notices, requests, demands and other communications
shall be deemed to have been duly given; at the time delivered by hand, if
personally delivered; when receipt acknowledged, if telecopied; and on the next
business day, if timely delivered to an air courier guaranteeing overnight
delivery.
(c) SEVERABILITY. Whenever possible, each provision of
this Agreement shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall fail to be
in effect only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement or of any such provision.
(d) ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but except as
otherwise provided for or permitted herein neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party hereto
without the prior written consent of the other party.
(e) GOVERNING LAW. This Agreement and the legal
relations among the parties hereto shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its
conflicts of law doctrine.
(f) JURISDICTION AND VENUE. Each of the Company and
the Stockholders hereby agree that any proceeding relating to this Agreement
shall be brought in the state of Delaware. Each of the Company and the
Stockholders hereby consents to personal jurisdiction in any such action brought
in any such Delaware court, consents to service of process by registered mail
made upon such party and such party's agent and waives any objection to venue in
any such Delaware court or to any claim that any such Delaware court is an
inconvenient forum.
(g) COUNTERPARTS. This Agreement may be executed
simultaneously 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.
(h) HEADINGS. The headings of the Sections of this
Agreement are inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this Agreement.
(i) ENTIRE AGREEMENT. This Agreement sets forth the
entire agreement and understanding of the parties hereto in respect of the
subject
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matter contained herein, and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, relating to the subject matter hereof.
(j) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by a party of any covenants or
agreements contained in this Agreement will cause the other party to sustain
injury for which it would not have an adequate remedy at law for money damages.
Therefore each of the parties hereto agrees that in the event of any such
breach, the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and preliminary and permanent
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief.
(k) THIRD PARTIES. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any person
or corporation, other than the parties hereto and their successors or assigns,
any rights or remedies under or by reason of this Agreement; provided, however,
it is specifically agreed that each of the Released Parties of the Company and
the Stockholders are deemed to be direct third party beneficiaries of Section 10
of this Agreement and each of them shall be entitled to the benefits of, and be
permitted to enforce, the provisions of Section 10 as if they were a party to
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first above written.
NEWCOR, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------------
Title: President and CEO
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EXX, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------
Title: Chairman and CEO
---------------------------------------
/s/ Xxxxx X. Xxxxx
----------------------------------------------
XXXXX X. XXXXX
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