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EXHIBIT 2
June 1, 1995
ICO, Inc.
000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Gentlemen:
In connection with the Agreement and Plan of Merger (the
"Agreement") dated June 1, 1995, by and among ICO, Inc. ("ICO"), a Texas
corporation, X.X. Xxxxx, Inc. ("Company"), a Louisiana corporation, RJD
Acquisition Corp., a Louisiana corporation (the "Purchaser"), and the
undersigned, the sole shareholder of Company, pursuant to which the Company will
merge into the Purchaser and the undersigned will receive 94,884 shares of the
common stock of ICO, no par value (the "Shares"), in exchange for 100 shares of
common stock, no par value, of the Company, ICO has required this letter from
the undersigned as a condition and inducement to the issuance of such Shares.
Accordingly, the undersigned hereby represents, warrants and
covenants and agrees as follows:
(1) The undersigned acknowledges that the Shares are being acquired
for investment and not with a view to the distribution or further
resale thereof.
(2) The Shares being received under the Agreement have not been
registered under the Securities Act of 1933 (the "Act") or the blue
sky or securities laws of any state including Texas or Louisiana,
where each Shareholder resides, and, therefore, must be held until
they are registered under the Act and applicable state securities
laws or unless an exemption from such registration is available for
any such proposed sale or transfer. The undersigned further
understands that Rules 144 and 145 under the Act provide a basis for
making routine sales of restricted securities without registration
under the Act but only upon strict compliance with the conditions
set forth in such Rules and that there can be no assurances that the
conditions of such Rules will be satisfied so as to allow a proposed
sale.
(3) The undersigned will not sell, pledge, hypothecate or otherwise
transfer any of the Shares received under the Agreement except or
unless there is in effect a registration statement under the Act
covering such proposed disposition and the disposition is made in
accordance with such registration statement or the undersigned has
notified ICO of the proposed disposition and shall have furnished
ICO with a detailed statement of the circumstances surrounding the
proposed distribution, and, if reasonably requested by ICO, the
undersigned shall have furnished ICO with an opinion of counsel,
reasonably satisfactory to ICO, that such disposition will not
require registration of such Shares under the Act or any state or
securities act.
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EXHIBIT 2
(4) The undersigned acknowledges that ICO has no obligation to
register any of the Shares except as set forth in the Registration
Rights Agreement dated June 1, 1995, between the undersigned and
ICO.
(5) The undersigned acknowledges that a legend will be placed upon
certificates representing the Shares purchased in substantially the
following form:
The securities represented by this Certificate have not been
registered under the Securities Act of 1933 or the laws of any
state and may not be transferred in the absence of (a) an
effective registration statement for the securities under the
Securities Act of 1933 and applicable state laws, or (b) an
opinion of counsel for the corporation that such registration
is not required.
(6) The undersigned has received and reviewed ICO's Form 10-K for
the fiscal year ending September 30, 1994, ICO's Forms 10-Q for the
fiscal quarters ending December 31, 1994 and March 31, 1995, ICO's
Prospectus dated June 7, 1994 and ICO's Forms 8-K filed by it with
the Securities and Exchange Commission since October 1, 1994.
(7) The undersigned and the undersigned's offeree representative, if
applicable, has carefully read the documents referred to in
Paragraph (6) and fully understands their content and has had an
opportunity to ask questions and receive answers from executive
officers of ICO with respect to this investment.
(8) The undersigned, either alone or acting with the undersigned's
offeree representative, has such knowledge and experience in
financial and business matters in general and investments in
particular that he or she is capable of evaluating the merits and
risks of the investment in ICO and has obtained sufficient
information from the documents provided under Paragraph (6) to
evaluate the merits and risks of such investment.
(9) The undersigned has received copies of the annual financial
statements of ICO and other pertinent business and financial records
of ICO and has been provided with current interim financial
statements of ICO. The undersigned has also had an opportunity to
ask questions and receive answers from executive officers of ICO
with respect to its business and operations and its value.
(10) The undersigned irrevocably appoints the Chairman of the Board
and the President of ICO, or either of them, as the true and lawful
proxy of the undersigned to vote all Shares of ICO acquired in the
merger at any annual or special Shareholders' meeting of ICO,
cumulatively or otherwise, on any matter on which shareholders are
entitled to vote.
THIS PROXY IS IRREVOCABLE AND COUPLED WITH AN INTEREST
REGARDING SHARES PURCHASED PURSUANT TO THIS AGREEMENT. THIS PROXY
SHALL EXPIRE UPON THE EARLIEST OF TERMINATION OF EMPLOYMENT OF THE
UNDERSIGNED BY ICO, INC.
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OR ANY DIRECT OR INDIRECT SUBSIDIARY THEREOF, THE TRANSFER OF SUCH
SHARES TO A PERSON NOT AFFILIATED WITH OR AN IMMEDIATE FAMILY MEMBER
OF THE UNDERSIGNED OR TEN YEARS AFTER THE DATE OF THIS AGREEMENT.
The grant of this proxy shall be noted on the certificates for
the Shares.
Very truly yours,
/s/ Xxxxxxx X. Xxxxx, Xx.
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Xxxxxxx X. Xxxxx, Xx.
