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EXHIBIT 10.2
ASSET SALE AND PURCHASE AGREEMENT
Dated May 6, 1994
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TABLE OF CONTENTS
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Paragraph No. Description Page No.
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1. Sale and Purchase of Assets 1
2. Assumption of Liabilities 2
2.1 Assumption by Buyer 2
2.2 Buyer's Acknowledgement 3
3. Purchase Price and Payment 3
3.1 Cash Purchase Price 3
3.2 Assumption of Liabilities 3
3.3 Return of Capital 3
3.4 Allocation of Purchase Price 3
4. The Closing 3
4.1 Date and Time 3
4.2 Transactions at the Closing 4
5. Representations and Warranties 4
5.1 Representations and Warranties
of Sellers 4
5.1.1 Organization and Power 4
5.1.2 Authority Relative to This Agreement 4
5.1.3 Consents and Approvals; No Violation 4
5.1.4 Title 5
5.2 Representations and Warranties of Buyer 5
5.2.1 Organization 5
5.2.2 Authority Relative to This Agreement 5
5.2.3 Consents and Approvals; No Violation 6
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Paragraph No. Description Page No.
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5.2.4 Licenses 6
5.2.5 Litigation and Claims 6
5.2.6 Performance of Assumed Obligations 6
6. Other Covenants and Agreements 7
6.1 Performance of Obligations 7
6.2 Payment of Payables 7
6.3 Payment of Taxes 7
6.4 Responsibility for Costs and Expenses 7
6.5 Compliance with Agreements 7
7. Miscellaneous 7
7.1 Entire Agreement 7
7.2 Waivers and Amendments 8
7.3 Governing Law and Forum 8
7.4 Counterparts 8
7.5 Exhibits 8
7.6 Headings 8
7.7 Binding Effect 8
7.8 Severability 8
7.9 Survival of Provisions 9
7.10 Bulk Transfer Provisions 9
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ASSET SALE AND PURCHASE AGREEMENT
THIS ASSET SALE AND PURCHASE AGREEMENT (the "Agreement") is made as of
May 6, 1994, between Manchester Plastics, Ltd., a corporation amalgamated under
the laws of the province of Ontario, Canada ("Seller") and Larizza Industries,
Inc., an Ohio corporation ("Buyer").
RECITAL
Seller desires to sell and assign to Buyer, and Buyer desires to buy and
assume from Seller, all of Seller's right, title and interest in certain assets
and liabilities of Seller, upon the terms set forth in this Agreement.
THEREFORE, the parties agree as follows:
1. SALE AND PURCHASE OF ASSETS.
Upon the terms set forth in this Agreement, at the Closing (as defined in
Section 4.1), Seller shall sell, convey, assign and deliver to Buyer, and Buyer
shall purchase or assume from Seller, all of Seller's right, title and interest
(as lessee or owner) in and to all of the assets of Seller located at, or
related to, the Seller's Manchester, Williamston (two), Homer or Ann Arbor,
Michigan facilities or the business conducted at such facilities as of the date
of this Agreement (collectively, the "Purchased Assets"). The "Purchased
Assets" include the following:
(a) the land, buildings, improvements and other real estate owned by the
Seller and located in Ann Arbor, Homer, Manchester or Williamston,
Michigan (the "Owned Real Estate").
(b) the lease covering the land and buildings in Williamston, Michigan
leased by Seller, together with the related leasehold estate (the
"Lease").
(c) all structures, facilities, fixtures, machinery, equipment,
furniture, tools, rolling stock, inventories, receivables
(including, without limitation, receivables from other divisions of
Seller, which divisions are not included in the Purchased Assets),
goods, intangibles, other personal property and leasehold
improvements owned or leased by the Seller and at or related to the
Owned Real Estate or the premises covered by the Lease or related to
the business conducted by the Seller at the Owned Real Estate or the
premises covered by the Lease.
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(d) all existing agreements and contracts to which the Seller is a party
that are related to the Owned Real Estate or the premises covered by
the Lease or related to the business conducted by the Seller at the
Owned Real Estate or the premises covered by the Lease, including,
without limitation, the contracts relating to the production of door
panels for the Chrysler Jeep Grand Cherokee (the "Contracts").
(e) all of Seller's licenses and permits that are related to the Owned
Real Estate or the premises covered by the Lease or related to the
business conducted by the Seller at the Owned Real Estate or the
premises covered by the Lease.
(f) all of Seller's files, records and related information that are
related to the Owned Real Estate or the premises covered by the
Lease or related to the business conducted by the Seller at the
Owned Real Estate or the premises covered by the Lease.
(g) all of Seller's patents, copyrights, trade names, trademarks and
service marks, know-how and goodwill that are related to the Owned
Real Estate or the premises covered by the Lease or related to the
business conducted by the Seller at the Owned Real Estate or the
premises covered by the Lease.
2. ASSUMPTION OF LIABILITIES.
2.1 Assumption by Buyer. Buyer shall, by appropriate instruments to be
executed and delivered at the Closing, agree to perform, pay or discharge, to
the extent not previously performed, paid or discharged, and to assume in full
all obligations and liabilities of Seller relating to the Purchased Assets,
other than the "Excluded Liabilities" (as defined below) (collectively, the
"Assumed Liabilities"). "Excluded Liabilities" means (i) any liabilities of
the Seller (including, without limitation, any such liabilities to the Buyer)
not relating to the Purchased Assets, and (ii) the liabilities and obligations
of the Seller to the banks (the "Banks") which are parties to the Credit
Agreement, dated as of January 18, 1989, as amended, and related documents, or
which are parties to the Credit Agreement, dated as of December 23, 1991, as
amended, and related documents (collectively, the "Credit Documents"). The
"Assumed Liabilities" include the following to the extent not paid as of the
date of this Agreement and to the extent they are not Excluded Liabilities and
to the extent they are related to the Purchased Assets: (i) any liability or
obligation reflected or reserved against in Seller's books, records or
financial statements, (ii) trade accounts payable, accruals and other current
liabilities of the Seller, (iii) all of the Seller's obligations for services,
goods, equipment
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or supplies regardless of whether delivered before, on or after the Closing,
(iv) all obligations, responsibilities or liabilities of Seller under the Lease
or under the Contracts, (v) all obligations or liabilities of the Seller with
respect to its employees, including salaries, commissions, bonuses, vacation
pay, sick pay, severance pay, employee benefits, and unemployment taxes, and
(vi) all obligations or liabilities of the Seller to Buyer.
2.2 Buyer's Acknowledgement. Buyer acknowledges and agrees that the
Seller's sale of the Purchased Assets to Buyer is in reliance upon, and
conditioned upon, Buyer's assumption of the Assumed Liabilities and that the
total aggregate consideration to be paid by Buyer for the Purchased Assets is
based upon and reflects Buyer's assumption and performance of the Assumed
Liabilities.
3. PURCHASE PRICE AND PAYMENT.
3.1 Cash Purchase Price. For and in consideration of the sale of the
Purchased Assets by Seller to Buyer pursuant to the terms of this Agreement,
within 14 days of the date of the execution of this Agreement Buyer shall pay
to Seller $20,625,000 (U.S.) in cash (the "Purchase Price").
3.2 Assumption of Liabilities. As additional consideration for the sale
of the Purchased Assets to Buyer, Buyer shall assume and agree to perform the
Assumed Liabilities. Buyer shall execute appropriate instruments requested by
Seller to evidence Buyer's assumption of the Assumed Liabilities.
3.3 Return of Capital. An amount of the Purchased Assets with a fair
market value equal to $35 million (Canadian) less the amount of Canadian
dollars that could be purchased with the Purchase Price (at the spot exchange
rate on the Closing Date) shall be distributed to Buyer as of the Closing Date
as a return of paid-up capital, and the Seller's capital shall be reduced by
the same amount.
3.4 Allocation of the Purchase Price. The aggregate consideration for
the Purchased Assets shall be allocated among the Purchased Assets as agreed
upon by the parties. The parties agree that such allocation shall be
conclusive and binding for all purposes, and Buyer and Seller shall each file
all income or other tax returns in a manner consistent with such allocation.
4. THE CLOSING.
4.1 Date and Time. The sale and purchase of the Purchased Assets
pursuant to this Agreement shall be closed and consummated (the "Closing") at
10:00 a.m. on May 6, 1994, or at such other time as may be mutually agreeable
to the parties (the "Closing Date").
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4.2 Transactions at the Closing. At the Closing the parties shall take
the following actions and execute and deliver the following documents:
(a) Seller shall deliver to Buyer a Bill of Sale and Assignment and
Assumption of Leases, Contracts and Liabilities in the form attached as
Exhibit 4.2(a). Buyer shall deliver to Seller appropriate instruments of
assumption of the Assumed Liabilities, including the Bill of Sale and
Assignment and Assumption of Leases, Contracts and Liabilities in the
form attached as Exhibit 4.2(a).
(b) Seller shall deliver to Buyer warranty deeds in the form
attached as Exhibit 4.2(b) transferring the Owned Real Estate to Buyer.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of Seller. Seller represents and
warrants to Buyer the following as of the date of this Agreement:
5.1.1 Organization and Power. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the Province
of Ontario. Seller has all requisite corporate power and authority to own,
lease, and operate its assets, properties and business and to carry on its
business as now being conducted.
5.1.2 Authority Relative to This Agreement. Seller has full
corporate power and authority to enter into and perform this Agreement. The
execution, delivery and performance by Seller of this Agreement have been duly
and validly authorized on behalf of the Seller by its Board of Directors and,
if necessary, its shareholder. No other corporate action by the Seller is
necessary to authorize Seller's execution and performance of this Agreement.
This Agreement has been duly and validly executed and delivered by the Seller
and constitutes a valid and binding agreement of the Seller, enforceable
against the Seller in accordance with its terms, except as it may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditors' rights and except that the remedy of specific
performance and injunctive and other forms of equitable relief are subject to
equitable defenses and to the discretion of the court before which any
proceedings may be brought.
5.1.3 Consents and Approvals; No Violation. Except for any
consents required under the Credit Documents, customer or supplier purchase
orders, service agreements, insurance policies, licenses and permits, and
leases being assigned to, and assumed by, Buyer pursuant to this Agreement
(which consents the parties acknowledge are not being obtained and which are
hereby waived), and except as set forth in the attached Exhibit 5.1.3, neither
the execution nor the performance by the Seller of this Agreement, (a) will
require any authorization, consent or approval of any governmental or
regulatory authority or of any other person or entity, the absence of which
would have a material adverse effect on the business of Seller, (b) will
conflict with, or breach any provision of, the Articles of
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Incorporation or bylaws of the Seller, (c) will conflict with, in any material
respect, violate or breach, in any material respect, any provision of, or
require the consent of any governmental agency or body or any third party, the
absence of which would have a material adverse effect on the business of
Seller, under, any of the provisions of any material authorization or order of
any governmental agency or body or any third party, or any material note,
lease, agreement or other instrument or obligation to which the Seller is a
party, or by which it or any of its properties or assets may be bound, or (d)
will violate, in any material respect, any material order, injunction, or
arbitration award, or any statute, rule, regulation or ruling of any court or
governmental authority, Canadian, United States or foreign, applicable to the
Seller or to any of the Purchased Assets.
5.1.4 Title. Except for those liens and encumbrances relating
to assets described in UCC financing statements currently on file listing the
Seller as debtor, except for liens and encumbrances in favor of the Banks in
connection with the Credit Documents, and except as set forth in the attached
Exhibit 5.1.4, Seller has good, valid and marketable title to all of the
Purchased Assets (except for Purchased Assets subject to leases assumed by
Buyer pursuant to this Agreement) free and clear of all liens, encumbrances,
security interests, mortgages and leases in favor of third parties. Seller has
good and valid leasehold interests in all of the Purchased Assets subject to
leases assumed by Buyer pursuant to this Agreement.
5.2 Representations and Warranties of Buyer. Buyer represents and
warrants to the Seller the following as of the date of this Agreement:
5.2.1 Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Ohio.
Buyer has all requisite corporate power and authority to own, lease and operate
its assets, properties and business and the Purchased Assets and to carry on
its business and the business related to the Purchased Assets as now being
conducted.
5.2.2 Authority Relative to This Agreement. Buyer has full
corporate power and authority to enter into and perform this Agreement. The
execution, delivery and performance by Buyer of this Agreement have been duly
and validly authorized on behalf of Buyer by its Board of Directors. No other
corporate action by Buyer is necessary to authorize Buyer's execution and
performance of this Agreement. This Agreement has been duly and validly
executed and delivered by Buyer and constitutes a valid and binding agreement
of Buyer, enforceable against Buyer in accordance with its terms, except as it
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights and except that the remedy of
specific performance and injunctive and other forms of equitable relief are
subject to equitable defenses and to the discretion of the court before which
any proceedings may be brought.
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5.2.3 Consents and Approvals; No Violation. Except for any
consents required under the Credit Documents, customer or supplier purchase
orders, service agreements, insurance policies, licenses and permits, and
leases being assigned to, and assumed by, Buyer pursuant to this Agreement
(which consents the parties acknowledge are not being obtained and which are
hereby waived), and except as set forth in the attached Exhibit 5.2.3, neither
the execution nor the performance by Buyer of this Agreement, (a) will require
any authorization, consent or approval of any governmental or regulatory
authority or of any other person or entity, the absence of which would have a
material adverse effect on Buyer's business, (b) will conflict with, or breach
any provision of, the Articles of Incorporation or bylaws of Buyer, (c) will
conflict with, in any material respect, violate or breach, in any material
respect, any provision of, or require the consent of any governmental agency or
body or any third party, the absence of which would have a material adverse
effect on Buyer's business, under, any of the provisions of any material
authorization or order of any governmental agency or body or any third party,
or any material note, lease, agreement or other instrument or obligation to
which Buyer is a party, or by which it or any of its properties or assets may
be bound, or (d) will violate, in any material respect, any material order,
injunction, or arbitration award, or any statute, rule, regulation or ruling of
any court or governmental authority, United States or foreign, applicable to
Buyer or to any of its properties or assets.
5.2.4 Licenses. Buyer has obtained, or will obtain as soon as
practicable after the date of this Agreement, all licenses, permits, bonds,
certifications, registrations, authorizations and approvals necessary to
Buyer's operation of, and ownership and use of, the Purchased Assets.
5.2.5 Litigation and Claims. There is no action, lawsuit, or
proceeding pending or threatened, nor is there any claim or investigation
against Buyer in any court or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or before any arbitrator that would preclude Buyer from
consummating the transactions contemplated by this Agreement, preclude Buyer
from performing all of the obligations assumed by it under this Agreement, or
materially adversely affect Buyer from performing all of the obligations
assumed under this Agreement. Buyer is not subject to any consent decree,
order, writ, decree, injunction, judgment or other finding or determination of
any court or before any Federal, State, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, in connection with any such proceeding to which Buyer is an affected
party and which is applicable to Buyer's consummation of the transactions
contemplated by this Agreement or its performance of this Agreement.
5.2.6 Performance of Assumed Obligations. Buyer has all
necessary and appropriate power, capacity and authority to, and Buyer shall,
perform all obligations and responsibilities assumed by Buyer pursuant to this
Agreement.
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6. OTHER COVENANTS AND AGREEMENTS.
6.1 Performance of Obligations. Buyer shall perform any and all duties
and obligations of Seller with respect to the Purchased Assets from and after
the date of this Agreement, including, without limitation, all duties or
obligations imposed pursuant to the Assumed Liabilities, the Contracts and the
Lease or by any governmental body or agency or pursuant to any foreign,
federal, state or local law, rule, regulation or ordinance, including, but not
limited to, correction of any existing violations of any foreign, federal,
state or local law, rule, regulation or ordinance, whether or not any of such
duties, obligations or violations existed before the date hereof.
6.2 Payment of Payables. After the date of this Agreement, Buyer shall
make all payments and do all other things to cause the Assumed Liabilities
assumed by Buyer pursuant to Section 2.1 to be paid in the ordinary course of
business.
6.3 Payment of Taxes. Buyer shall be responsible for, and shall
discharge, all taxes, assessments, interest and penalties, including property
and ad valorem taxes, with respect to the Purchased Assets relating to periods
on or after the date of this Agreement.
6.4 Responsibility for Costs and Expenses. Buyer shall be responsible
for, and shall pay, all costs and expenses of any nature whatsoever arising
from, or in any way connected with or related to, the Purchased Assets and
incurred on or after the date of this Agreement, including, without limitation,
rent or other payments arising with respect to leases, carrying costs,
operating expenses and other costs and expenses, costs for materials and
equipment, and cost of repairs. Seller shall have no costs or expenses
whatsoever with respect to such Purchased Assets on or after the date of this
Agreement.
6.5 Compliance with Agreements. Buyer shall observe and comply with all
covenants, terms and provisions, expressed or implied, contained in the
agreements, the Contracts, the Lease and all other contracts pertaining to
Seller's interest in the Purchased Assets.
6.6 Assistance after Closing. Seller shall cooperate with Buyer after
the Closing to the extent reasonably necessary to transfer of record title to
any titled vehicles and to transfer any licenses or permits into Buyer's name.
7. MISCELLANEOUS.
7.1 Entire Agreement. This Agreement (including the Exhibits to this
Agreement) contains the entire agreement among the parties with respect to the
purchase and sale of the Purchased Assets and the other transactions
contemplated by this Agreement and supersedes all prior agreements, commitments
and discussions, written or oral, with respect to such transactions, which are
merged into this Agreement and shall be of no further force or effect.
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7.2 Waivers and Amendments. This Agreement may be amended, modified, or
superseded, and the terms and conditions of this Agreement may be waived, only
by a written instrument signed by the parties or, in the case of a waiver, by
the party waiving compliance. No delay on the part of any party in exercising
any right, power or privilege under this Agreement shall operate as a waiver of
such right, power or privilege, nor shall any waiver on the part of any party
of any right, power or privilege under this Agreement, nor any single or
partial exercise of any right, power or privilege under this Agreement,
preclude any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege under this Agreement.
7.3 Governing Law and Forum. This Agreement is being executed in the
State of Michigan and shall be governed by and construed in accordance with the
laws of the State of Michigan, except that if any provision of this Agreement
would be illegal, void, invalid or unenforceable under such laws in connection
with a suit or proceeding validly instituted in another jurisdiction, then the
laws of such other jurisdiction shall govern insofar as is necessary to sustain
the validity or enforceability of the terms of this Agreement.
7.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.5 Exhibits. The Exhibits to this Agreement are a part of this
Agreement as if set forth in full in this Agreement.
7.6 Headings. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
7.7 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties to this Agreement and their respective permitted
successors and assigns; provided that the parties may not assign or transfer
any of their rights or delegate any of their obligations under this Agreement
without the prior written consent of the other party, and any purported
assignment or transfer by any party that is not in compliance with the
foregoing is void.
7.8 Severability. The provisions of this Agreement shall be deemed
severable, and if any provision of this Agreement is determined to be illegal
or invalid under applicable law, such provision may be changed to the extent
reasonably necessary to make the provision, as so changed, legal, valid and
binding. If any provision of this Agreement is determined to be illegal or
invalid in its entirety, such illegality or invalidity shall have no effect on
the other provisions of this Agreement, which shall remain valid, operative and
enforceable
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7.9 Survival of Provisions. The provisions and the rights and
obligations of the parties set forth in Sections 2, 3.2 and 6 shall survive and
be binding upon and fully enforceable against the parties and their respective
successors and assigns as applicable at all times on or after the date hereof,
in accordance with their terms, except as otherwise expressly provided by this
Agreement.
7.10 Bulk Transfer Provisions. If the bulk transfer provisions of the
applicable states' Uniform Commercial Codes were applicable to the transactions
contemplated by this Agreement, it would be impracticable to comply with such
provisions. Accordingly, Seller covenants to hold Buyer harmless from any
claims and demands of creditors of Seller arising out of any failure of Buyer
to comply with the bulk transfer provisions of the Uniform Commercial Code if
such provisions would be applicable, except for claims and demands in
connection with the Assumed Liabilities.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BUYER:
LARIZZA INDUSTRIES, INC.
By: /s/ TERENCE C. SEIKEL
Its: Chief Financial Officer
SELLER:
MANCHESTER PLASTICS, LTD.
By: /s/ TERENCE C. SEIKEL
Its: Chief Financial Officer
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EXHIBIT INDEX
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Exhibit Number Description
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4.2(a) Bill of Sale and Assignment and
Assumption
4.2(b) Warranty Deeds
5.1.3 Additional Required Consents
5.1.4 Additional Liens
5.2.3 Required Consents
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