EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
AMONG
LARIZZA INDUSTRIES, INC.,
an Ohio corporation,
LRI ACQUISITION CORP.,
a Delaware corporation,
AND
XXXXXXX & XXXXXX PRODUCTS CO.,
a Delaware corporation,
DATED SEPTEMBER 26, 1995
TABLE OF CONTENTS
Section Number Description Page Number
1 THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Effect on Entities, Articles, Regulations, Officers and
Directors . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Effect on Stock . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Effects on Property, Rights and Liabilities . . . . . . . . . 3
1.4 Surrender of Certificates . . . . . . . . . . . . . . . . . . 4
1.4.1 Larizza Common Shares . . . . . . . . . . . . . . . . . 4
1.4.2 No Registration of Transfers . . . . . . . . . . . . . 4
1.4.3 Full Payment . . . . . . . . . . . . . . . . . . . . . 5
1.4.4 Termination of the Fund . . . . . . . . . . . . . . . . 5
1.4.5 Lost, Stolen, Mutilated or Destroyed Certificates . . . 5
1.4.6 Options, Etc. . . . . . . . . . . . . . . . . . . . . . 5
1.4.7 Appraisal Rights . . . . . . . . . . . . . . . . . . . 5
1.5 Shareholders' Meeting of Larizza . . . . . . . . . . . . . . 6
2 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . 6
2.1 Representation and Warranties of Larizza . . . . . . . . . . 6
2.1.1 Organization and Qualification . . . . . . . . . . . . 6
2.1.2 Subsidiaries . . . . . . . . . . . . . . . . . . . . . 6
2.1.3 Capitalization . . . . . . . . . . . . . . . . . . . . 6
2.1.4 Authority Relative to This Agreement . . . . . . . . . 7
2.1.5 Consents and Approvals; No Violation . . . . . . . . . 7
2.1.6 SEC Reports . . . . . . . . . . . . . . . . . . . . . . 8
2.1.7 Proxy Statement in Connection with the Merger . . . . . 8
2.1.8 Larizza Financial Statements . . . . . . . . . . . . . 8
2.1.9 No Material Adverse Change . . . . . . . . . . . . . . 9
2.1.10 Assets . . . . . . . . . . . . . . . . . . . . . 9
2.1.11 Absence of Undisclosed Liabilities . . . . . . . 9
2.1.12 Tax Liabilities . . . . . . . . . . . . . . . . . 10
2.1.13 Litigation . . . . . . . . . . . . . . . . . . . 11
2.1.14 Pension and Benefit Plans and Compliance with
ERISA . . . . . . . . . . . . . . . . . . . . . . 11
2.1.15 Environmental Matters . . . . . . . . . . . . . . 11
2.1.16 Licenses and Permits . . . . . . . . . . . . . . 12
2.1.17 Insurance . . . . . . . . . . . . . . . . . . . . 12
2.1.18 Conduct of Business Since June 30, 1995 . . . . . 13
2.1.19 Customers . . . . . . . . . . . . . . . . . . . . 13
2.1.20 Brokers and Finders . . . . . . . . . . . . . . . 13
2.1.21 Books and Records of the Companies . . . . . . . 13
2.1.22 Compliance with Laws . . . . . . . . . . . . . . 13
2.1.23 Intellectual Property . . . . . . . . . . . . . . 14
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Section Number Description Page Number
2.1.24 Material Contracts . . . . . . . . . . . . . . . 15
2.1.25 Labor Matters . . . . . . . . . . . . . . . . . . 17
2.1.26 Related Party Transactions . . . . . . . . . . . 17
2.1.27 State Takeover Statutes . . . . . . . . . . . . . 18
2.1.28 Opinion of Financial Advisor, Etc. . . . . . . . 18
2.2 Representations and Warranties of Acquisition . . . . . . . . 18
2.2.1 Organization and Qualification . . . . . . . . . . . . 18
2.2.2 Authority Relative to This Agreement . . . . . . . . . 18
2.2.3 Consents and Approvals; No Violation . . . . . . . . . 19
2.2.4 SEC Reports . . . . . . . . . . . . . . . . . . . . . . 19
2.2.5 Proxy Statement in Connection with the Merger . . . . . 19
2.2.6 Brokers and Finders . . . . . . . . . . . . . . . . . . 20
2.2.7 Parent Merger Action . . . . . . . . . . . . . . . . . 20
3 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1 Access for Audit . . . . . . . . . . . . . . . . . . . . . . 20
3.2 Operation of Business . . . . . . . . . . . . . . . . . . . . 21
3.3 Approval of the Merger . . . . . . . . . . . . . . . . . . . 23
3.4 Exchange Agent Agreement . . . . . . . . . . . . . . . . . . 23
3.5 Updated Schedules . . . . . . . . . . . . . . . . . . . . . . 23
3.6 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.7 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 24
3.8 Further Assurances . . . . . . . . . . . . . . . . . . . . . 24
3.9 Related Party Transactions . . . . . . . . . . . . . . . . . 24
3.10 Resignations . . . . . . . . . . . . . . . . . . . . . . . . 25
3.11 Acquisition Proposals . . . . . . . . . . . . . . . . . . . . 25
3.12 Notice of Actions and Proceedings . . . . . . . . . . . . . . 26
3.13 Notification of Certain Other Matters . . . . . . . . . . . . 26
4 CONDITIONS TO CLOSING AND CLOSING . . . . . . . . . . . . . . . . . 26
4.1 Conditions to Acquisition's and Parent's Obligations . . . . 26
4.1.1 Accuracy of Larizza's Representations and Warranties . 26
4.1.2 Compliance with Covenants . . . . . . . . . . . . . . . 26
4.1.3 Certificate of Larizza Officers . . . . . . . . . . . . 27
4.1.4 Consents . . . . . . . . . . . . . . . . . . . . . . . 27
4.1.5 Shareholder Approval . . . . . . . . . . . . . . . . . 27
4.1.6 No Material Litigation . . . . . . . . . . . . . . . . 27
4.1.7 Delivery of Other Documents . . . . . . . . . . . . . . 27
4.1.8 No Material Change in Schedules . . . . . . . . . . . . 27
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Section Number Description Page Number
4.1.9 Opinion of Counsel . . . . . . . . . . . . . . . . . . 27
4.1.10 No Material Change in the Business of the
Companies . . . . . . . . . . . . . . . . . . . . 28
4.1.11 Stockholder Receivables . . . . . . . . . . . . . 28
4.2 Conditions to Larizza's Obligations . . . . . . . . . . . . . 28
4.2.1 Accuracy of Acquisition's and Parent's Representations
and Warranties . . . . . . . . . . . . . . . . . . . . 28
4.2.2 Compliance with Covenants . . . . . . . . . . . . . . . 28
4.2.3 Certificate of Acquisition's Officers . . . . . . . . . 28
4.2.4 HSR Act . . . . . . . . . . . . . . . . . . . . . . . . 29
4.2.5 Shareholder Approval . . . . . . . . . . . . . . . . . 29
4.2.6 No Material Litigation . . . . . . . . . . . . . . . . 29
4.2.7 Delivery of the Fund . . . . . . . . . . . . . . . . . 29
4.2.8 Opinion of Counsel . . . . . . . . . . . . . . . . . . 29
4.3 The Closing . . . . . . . . . . . . . . . . . . . . . . . . . 30
5 TERMINATION AND ABANDONMENT . . . . . . . . . . . . . . . . . . . . 30
5.1 Termination and Abandonment . . . . . . . . . . . . . . . . . 30
5.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . 31
5.3 Topping Fee . . . . . . . . . . . . . . . . . . . . . . . . . 32
6 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.1 Non-Survival of Representations, Warranties and Covenants . . 32
6.2 Continuation of Directors' and Officers' Indemnification . . 32
6.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 33
6.4 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.5 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.6 Binding Effect; Successors and Assigns . . . . . . . . . . . 34
6.7 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . 34
6.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.10 Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 35
6.12 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . 35
6.13 Interpretation . . . . . . . . . . . . . . . . . . . . . . . 36
6.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 36
7 GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is
made as of September 26, 1995 by and among LARIZZA
INDUSTRIES, INC., an Ohio corporation ("Larizza"), LRI
ACQUISITION CORP., a Delaware corporation ("Acquisition"),
and XXXXXXX & XXXXXX PRODUCTS CO., a Delaware corporation
and the owner of all of the outstanding capital stock of
Acquisition ("Parent").
RECITALS
X. Xxxxxxx and its wholly-owned subsidiaries,
Manchester Plastics, Ltd, an Ontario corporation
("Manchester"), and Xxxxxx Plastics, Inc., a Michigan
corporation ("Xxxxxx", and together with Manchester, the
"Subsidiaries"), are engaged in the business of designing
and manufacturing high-quality, plastic-based components and
systems used in the interiors of automobiles, light trucks,
sport utility vehicles and mini-vans (the "Business").
B. The authorized capital stock of Larizza consists
of 50,000,000 shares of Common Stock, no par value (the
"Larizza Common Shares"), and 10,000,000 shares of Preferred
Stock, no par value (the "Larizza Preferred Shares"), of
which 22,088,107 Larizza Common Shares and no Larizza
Preferred Shares are issued and outstanding. The Larizza
Common Shares are entitled to one vote per share. The
number of Larizza Common Shares outstanding is subject to
change before the "Effective Time of the Merger" (as defined
in Section 4.3) if (i) options are granted under the Larizza
Stock Incentive Plan for Key Employees and such options are
exercised (provided, however, that nothing in this Recital B
will affect the parties' relative rights and obligations
under Section 3.2), or (ii) the Subordinated Note, dated
October 20, 1994, in the principal amount of $1,200,000, is
converted into Larizza Common Shares.
C. The authorized capital stock of Acquisition
consists of 1,000 Common Shares, par value $.01 a share (the
"Acquisition Shares"), all of which are issued and
outstanding and entitled to one vote per share.
D. The respective boards of directors of Larizza
and Acquisition and Parent, as the sole shareholder of
Acquisition, have approved the acquisition of Larizza by
Parent through a merger of Acquisition with and into Larizza
(the "Merger") under the Ohio General Corporation Law (the
"OGCL") and the Delaware General Corporation Law (the
"DGCL") in accordance with the provisions of this Agreement.
E. As a condition to its willingness to enter into
this Agreement, Parent has required that, simultaneously
with the execution hereof, Xxxxxx X. Xxxxxxx, individually
and as trustee of a revocable trust under a Trust Agreement,
dated July 20, 1989 ("Stockholder"), enter into the Stock
Agreement, dated the date hereof (the "Stock Agreement"),
with Parent, pursuant to which, among other things,
Stockholder granted to Parent an option (the "Option") at
the Merger
1
Price per share to purchase all of the Larizza Common Shares
owned by Stockholder, subject to the terms of the Stock
Agreement.
THEREFORE, the parties agree as follows:
1 THE MERGER.
1.1 Effect on Entities, Articles, Regulations,
Officers and Directors. Upon the terms and subject to the
conditions set forth in this Agreement, pursuant to the OGCL
and the DGCL, at the "Effective Time of the Merger" (as
defined in Section 4.3):
(a) Acquisition will be merged with and into
Larizza, which shall be, and is sometimes referred to
in this Agreement as, the "Surviving Corporation".
(b) The Articles of Incorporation of Larizza,
as in effect immediately before the Effective Time of
the Merger, shall be the Articles of Incorporation of
the Surviving Corporation and shall thereafter
continue to be its Articles of Incorporation until
duly altered, amended or repealed, except that, at the
Effective Time of the Merger, such Articles of
Incorporation shall be amended and restated as set
forth in the attached Schedule 1.1(b).
(c) The Code of Regulations of Larizza, as
amended and as in effect immediately before the
Effective Time of the Merger, shall be the Code of
Regulations of the Surviving Corporation and shall
thereafter continue to be its Code of Regulations
until duly altered, amended or repealed, except that,
at the Effective Time of the Merger, such Code of
Regulations shall be amended and restated as set forth
in the attached Schedule 1.1(c).
(d) The directors of Acquisition at the
Effective Time of the Merger shall be the directors of
the Surviving Corporation, and shall hold office from
the Effective Time of the Merger until their
respective successors are duly elected or appointed
and qualified in the manner provided by the Articles
of Incorporation and Code of Regulations of the
Surviving Corporation, or as otherwise provided by
law.
(e) The officers of Acquisition at the
Effective Time of the Merger shall be the officers of
the Surviving Corporation, and shall hold office from
the Effective Time of the Merger until their
respective successors are duly elected or appointed
and qualified in the manner provided by the Code of
Regulations of the Surviving Corporation, or as
otherwise provided by law.
1.2 Effect on Stock. At the Effective Time of the Merger:
(a) Except as otherwise provided in Sections
1.2(b) and 1.2(c), each Larizza Common Share issued
and outstanding at the Effective Time of the Merger,
by virtue of
2
the Merger and without any action on the part of the
holder of such Larizza Common Share, shall no longer
be outstanding and shall be cancelled and retired and
cease to exist, and shall be converted into the right
to receive, upon surrender of the certificate or
certificates representing such shares, $6.50 in cash
per Larizza Common Share, without interest (the
"Merger Price"). Subject to Section 1.2(b),
outstanding certificates which immediately before the
Effective Time of the Merger represented issued and
outstanding Larizza Common Shares ("Stock
Certificates") shall after the Effective Time of the
Merger no longer represent Larizza Common Shares, but
instead shall represent for all purposes the right to
receive the Merger Price multiplied by the number of
shares evidenced by such Stock Certificates.
(b) Notwithstanding anything in this Agreement
to the contrary, any Larizza Common Shares as to which
the holder of such shares shall have duly perfected
appraisal rights pursuant to the applicable provisions
of the OGCL ("Dissenting Shares") shall be cancelled
at the Effective Time of the Merger and automatically
(by virtue of the Merger and without any action on the
part of the holder of such Larizza Common Shares) be
converted into the right to receive the consideration
required to be paid to such holder pursuant to the
OGCL.
(c) Each Larizza Common Share held in the
treasury of Larizza immediately before the Effective
Time of the Merger shall, by virtue of the merger and
without any action on the part of the holder of such
Larizza Common Share, be cancelled and retired and
cease to exist and shall not be converted into stock
of the Surviving Corporation or of Parent, or the
right to receive cash or any other consideration.
(d) Each right to receive or convert into
Larizza Common Shares then existing shall, by virtue
of the Merger and without any action on the part of
the holder thereof, no longer be outstanding and shall
be cancelled and retired and cease to exist and shall
not be converted into the right to receive or convert
into stock of the Surviving Corporation or of Parent,
or the right to receive cash or any other
consideration in lieu of such Larizza Common Shares.
(e) Each Acquisition Share issued and
outstanding shall, by virtue of the Merger and without
any action on the part of the holder of such
Acquisition Share, be converted into one fully paid
and non- assessable share of Common Stock, no par
value, of the Surviving Corporation, and Parent shall
become, at the Effective Time of the Merger, the sole
shareholder of the Surviving Corporation.
(f) All shares of common stock of the
Surviving Corporation into which Acquisition Shares
are converted, shall be validly issued, fully paid and
non-assessable.
1.3 Effects on Property, Rights and Liabilities. At
the Effective Time of the Merger, the separate corporate
existence of Acquisition will cease (except as may be
continued by operation of law), and Acquisition shall be
merged into Larizza, which, as the Surviving
3
Corporation, shall have all of the rights, privileges,
immunities and franchises, of a public as well as of a
private nature, and shall be subject to all of the
restrictions, disabilities, duties and liabilities, of each
of Larizza and Acquisition as provided in the OGCL and the
DGCL, to the extent applicable. If at any time the
Surviving Corporation shall consider or be advised that any
further assignment or assurances or any other documents are
reasonably necessary or desirable to vest in the Surviving
Corporation, according to the terms of this Agreement, the
title of any property or rights of Acquisition and Larizza,
at the direction of the Surviving Corporation, the last
acting officers and directors of Larizza (without any cost
or expense to them) and Acquisition, as the case may be, or
the corresponding officers and directors of the Surviving
Corporation will execute and make all such proper
assignments and assurances and do all things necessary or
proper and reasonably within their power and authority to
vest title in such property or rights in the Surviving
Corporation. No failure by any officer or director to
comply with the provisions of this Section 1.3 shall have
any effect on the validity of the Merger.
1.4 Surrender of Certificates.
1.4.1 Larizza Common Shares. On or before the
Effective Time of the Merger, Parent or the Surviving
Corporation shall deposit with Chemical Bank or another bank
mutually acceptable to Larizza and Parent (the "Exchange
Agent"), as Exchange Agent, such amount as may be required
to pay the Merger Price multiplied by the aggregate
outstanding Larizza Common Shares pursuant to this Agreement
(the "Fund"). Pending payment of the monies held in the
Fund to the holders of outstanding Stock Certificates, the
Fund shall be held and invested by the Exchange Agent as
Parent directs. Any net profit resulting from, or interest
or income produced by, such investments will be payable to
the Surviving Corporation or Parent, as Parent directs.
Parent will promptly replace any monies lost through any
investment made pursuant to this Section 1.4. As soon as is
practicable after the Effective Time of the Merger, the
Exchange Agent shall forward to each record holder of Stock
Certificates a form of letter of transmittal and
instructions, in form customary for use in effecting the
surrender of stock certificates for payment in a cash
merger. Subject to Section 1.2(b), upon surrender to the
Exchange Agent of such Stock Certificates, together with
such letter of transmittal and instructions for use in
effecting the surrender of such Stock Certificates, duly
executed, the Exchange Agent shall promptly cancel such
Stock Certificates and pay to the persons entitled thereto,
in cash or cash equivalent, the amount to which such persons
are entitled. No interest will be paid or accrued on the
cash payable upon the surrender of the Stock Certificates.
If payment is to be made to a person other than the one in
whose name the Stock Certificate surrendered is registered,
it shall be a condition of payment that the Stock
Certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person
requesting such payment shall pay any transfer or other
taxes required by reason of the payment to a person other
than the registered holder of the Stock Certificate
surrendered or establish to the satisfaction of the
Surviving Corporation that such tax has been paid or is not
applicable.
1.4.2 No Registration of Transfers. After the
Effective Time of the Merger, there shall be no further
registration of transfers on the records of Larizza of
outstanding Stock
4
Certificates. If a Stock Certificate is presented to
Larizza or Parent, it shall be forwarded to the Exchange
Agent for cancellation and payment as provided in this
Section 1.4.
1.4.3 Full Payment. The consideration provided
in this Section 1.4 paid upon the surrender of Stock
Certificates in accordance with the terms and conditions of
this Section 1.4 shall be deemed to be in full satisfaction
of all rights pertaining to such Larizza Common Shares to
which such Stock Certificates relate, and no dividend or
distribution payable to holders of record of the Surviving
Corporation's capital stock shall be paid to any holder of
Stock Certificates.
1.4.4 Termination of the Fund. Any portion of
the Fund (including the proceeds of any investments of the
Fund) that remains unclaimed by the holders of Stock
Certificates for 6 months after the Effective Time of the
Merger shall be returned or repaid to the Surviving
Corporation. Any holders of Stock Certificates who have not
complied with this Section 1.4 before 6 months after the
Effective Time of the Merger shall thereafter look only to
the Surviving Corporation for the Merger Price multiplied by
the holder's Larizza Common Shares, in each case without any
interest on such consideration. If outstanding Stock
Certificates are not surrendered or the payment for them not
claimed before the date on which such consideration would
otherwise escheat to or become the property of any
governmental unit or agency, the unclaimed consideration
shall, to the extent not prohibited by abandoned property or
any other applicable law, become the property of the
Surviving Corporation (and to the extent not in its
possession shall be paid over to it), free and clear of all
claims or interest of any person previously entitled to such
claims. Notwithstanding the foregoing, none of Parent,
Larizza, the Exchange Agent or any other person or entity
shall be liable to any former holder of Larizza Common
Shares for any amount delivered to a public official
pursuant to applicable abandoned property, escheat or
similar laws.
1.4.5 Lost, Stolen, Mutilated or Destroyed
Certificates. If any Stock Certificate has been lost,
stolen, mutilated or destroyed, and if the holder makes an
affidavit of that fact and otherwise complies with the
requirements of this Section 1.4, the Exchange Agent shall
pay to such holder the consideration required pursuant to
this Agreement; provided, however, that the Exchange Agent,
Parent or the Surviving Corporation, in its discretion, may
require the owner of such lost, stolen, mutilated or
destroyed certificate to deliver a bond in such sum as it
may direct as indemnity against any claim that may be made
against any of them or any other party with respect to the
Stock Certificate alleged to have been lost, stolen,
mutilated or destroyed.
1.4.6 Options, Etc. Larizza represents and
warrants that, as of the Effective Time of the Merger, there
will be no outstanding rights to acquire equity securities
of Larizza, except as referenced in Recital B(ii), provision
for which has been made in Section 1.2(d).
1.4.7 Appraisal Rights. Larizza will give
Parent prompt written notice of any written demands for
appraisal and withdrawals of demands for appraisal. Parent
will have the right to control the defense of any such
proceeding, and Larizza will not voluntarily make any
5
payment with respect to any demands for appraisal and will
not, except with the prior written consent of Parent, settle
or offer to settle any such demands.
1.5 Shareholders' Meeting of Larizza. Larizza will
take all action necessary in accordance with applicable law
and its Articles of Incorporation and Code of Regulations to
convene a meeting of its shareholders as promptly as
reasonably practicable following the date hereof to consider
and vote upon the adoption of this Agreement and the
approval of the Merger. At any such meeting, all Larizza
Common Shares then owned by Parent, Acquisition or any other
direct or indirect subsidiary of Parent will be voted in
favor of adoption of this Agreement and the approval of the
Merger. Subject to its fiduciary duties under applicable
law, the Directors of Larizza will recommend that Larizza's
shareholders approve adoption of this Agreement and the
approval of the Merger if such shareholder action is
required.
2 REPRESENTATIONS AND WARRANTIES.
2.1 Representation and Warranties of Larizza.
Larizza represents and warrants to Acquisition and Parent
the following as of the date of this Agreement and as of the
Effective Time of the Merger:
2.1.1 Organization and Qualification. Larizza
and each of the Subsidiaries (collectively, the "Companies")
is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of
incorporation and each has all requisite corporate power and
authority to own or lease its properties and to carry on its
Business as now being conducted or proposed to be conducted.
Larizza has furnished Parent true and correct copies of the
Articles of Incorporation and Code of Regulations (or other
governing instruments), as amended to the date hereof, of
Larizza and the Subsidiaries. Larizza's and each
Subsidiary's Articles of Incorporation and Code of
Regulations (or other governing instruments) as so delivered
are in full force and effect. Each of the Companies is
qualified and in good standing as a foreign corporation to
do business in each other jurisdiction in which the conduct
of its Business or the character of its properties (owned or
leased) makes such qualification necessary and where a
failure to be so qualified has a Material Adverse Effect (as
defined in Section 2.1.9). The attached Schedule 2.1.1
lists all the jurisdictions in which the Companies are
qualified to do business as a foreign corporation.
2.1.2 Subsidiaries. Neither Larizza nor either
of the Subsidiaries has any direct or indirect subsidiaries
and no controlling stock or other equity or ownership
interests in any corporation, association, partnership,
joint venture, or other entity, except for the Subsidiaries.
All shares of capital stock of each of the Subsidiaries are
owned by Larizza free and clear of any adverse claim, as
defined in the applicable Uniform Commercial Code, except
for a pledge of such shares to Bank of America, Illinois
pursuant to the Credit Agreement described in Schedule
2.1.5.
2.1.3 Capitalization. The authorized capital
stock and the outstanding capital stock of each of the
Companies are as listed on the attached Schedule 2.1.3.
Each Larizza
6
Common Share is entitled to one vote. All issued and
outstanding Larizza Common Shares and capital stock of the
Subsidiaries were validly issued and are fully paid,
nonassessable and free of exercisable preemptive rights.
Except as set forth in the attached Schedule 2.1.3, there
are not now, and at the Effective Time of the Merger there
will not be, any outstanding subscriptions, options,
warrants, rights or convertible securities relating to the
issued or unissued capital stock or other securities of the
Companies obligating the Companies to issue, deliver or
sell, or cause to be issued, delivered or sold, additional
shares of capital stock of the Companies or obligating the
Companies to grant, extend or enter into any subscription,
option, warrant, right, convertible security or other
similar agreement or commitment. Since December 31, 1994,
Larizza has not declared or paid any dividend or other
distribution of assets to the holders of Larizza Common
Shares, nor has it repurchased any Larizza Common Shares.
Except for the Amended and Restated Voting Trust Agreement,
dated as of May 4, 1994, as amended, among Xxxxxxx, Xxxxxx
X. Xxxxxxx and the shareholders listed on the signature
pages of the agreement (the "Voting Trust Agreement"), and
except for provisions in employee plans relating to the
pass-through of voting rights, there are not now, and at
the Effective Time of the Merger there will not be, any
voting trusts or other agreements or understandings to which
Larizza or any of the Subsidiaries is a party or is bound
with respect to the voting of the capital stock of Larizza.
2.1.4 Authority Relative to This Agreement.
Larizza has all requisite corporate power to execute,
deliver and comply with its obligations under this
Agreement, subject to approval of its shareholders. The
affirmative vote of a majority of the issued and outstanding
Larizza Common Shares is the only corporate action not
previously taken required in connection with the Merger,
this Agreement or the transactions contemplated hereby or
thereby. Execution, delivery and performance by Larizza of
this Agreement have been duly authorized by all necessary
corporate action on the part of Larizza, subject to approval
of its shareholders. This Agreement has been duly and
validly executed and delivered by Larizza and constitutes a
valid and binding obligation of Larizza, enforceable against
Larizza in accordance with its terms, except as it may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally, and except that it
may be limited by general principles of equity, regardless
of whether such enforceability is considered in a proceeding
at law or in equity.
2.1.5 Consents and Approvals; No Violation.
Except as set forth in the attached Schedule 2.1.5, except
for consents or approvals which, if not obtained, or
violations, breaches or defaults which, would not have a
Material Adverse Effect, and except for (i) the approval of
the Merger by Larizza's shareholders under the provisions of
the OGCL, (ii) filings made pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the "Exchange Act") in
connection with the Merger, (iii) the filing of pre-merger
notification reports with the United States Federal Trade
Commission and the Department of Justice and the expiration
or early termination of the waiting period required under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and (iv) compliance with the OGCL
and the DGCL requirements in connection with the Merger,
including the filing of a Certificate of Merger with the
Secretaries of State of Ohio and
7
Delaware, neither the execution and delivery by Larizza of
this Agreement (including all agreements provided for in
this Agreement) nor the performance by Larizza of its
obligations under this Agreement (including all agreements
provided for in this Agreement) (a) will require any consent
or approval of or filing with any governmental agency or
third party, (b) will violate any provision of the Articles
of Incorporation, Code of Regulations or Bylaws of any of
the Companies, (c) will breach, constitute a default (or an
event which, with the giving of notice, the passage of time
or both, would constitute a default) under, result in the
creation of any lien or security interest on any of the
Companies' properties under, accelerate the performance
required by, or result in the termination of, any agreement
to which any of the Companies is a party, or by which any of
its properties may be bound, or (d) will violate any
statute, rule or regulation or any order, writ, injunction
or decree of any court or governmental authority applicable
to any of the Companies or any of their respective
properties.
2.1.6 SEC Reports. Larizza has furnished Parent
and Acquisition with true and correct copies (with exhibits)
of (a) its Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, as filed with the Securities and
Exchange Commission (the "SEC"), (b) its Quarterly Reports
on Form 10-Q for the quarters ended March 31, 1995 and June
30, 1995 as filed with the SEC, and (c) its definitive proxy
statement relating to the 1995 Annual Meeting of
Shareholders of Larizza held on May 30, 1995 (collectively,
the "Larizza SEC Filings"). As of their respective dates,
the Larizza SEC Filings did not contain any untrue statement
of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading,
except any statement or omission therein which has been
corrected or otherwise disclosed or updated in a subsequent
filing with the SEC prior to the date hereof. Since December
31, 1991, Larizza has filed with the SEC all reports and
registration statements and all other filings required to be
filed with the SEC under the rules and regulations of the
SEC.
2.1.7 Proxy Statement in Connection with the
Merger. When the proxy statement to be distributed to
Larizza shareholders in connection with the Merger (the
"Proxy Statement") shall be first mailed to such
shareholders (the "Mailing Date") and at the date of the
meeting of the Larizza shareholders in connection with the
Merger, the information with respect to Larizza set forth in
the Proxy Statement, as ultimately amended and supplemented
by all amendments and supplements thereto, (i) will comply
in all material respects with all applicable requirements of
the Exchange Act and the SEC's rules and regulations under
the Exchange Act, and (ii) will not contain any untrue
statement of a material fact or omit to state a material
fact required to be stated in the Proxy Statement or
necessary to make the statement contained in the Proxy
Statement, in light of the circumstances under which they
are made, not misleading, except that no representation is
made by Larizza with respect to information supplied by or
on behalf of Acquisition or Parent which relates to
Acquisition, Parent or any affiliate or associate of
Acquisition or Parent.
2.1.8 Larizza Financial Statements. Larizza has
delivered to Parent and Acquisition a copy of the audited
consolidated balance sheet of Larizza as at December 31,
1994 and the related audited consolidated statements of
operations, shareholders' equity (deficit) and
8
cash flows for the fiscal year then ended, in each case,
including the Notes to such financial statements (the
"Larizza Financial Statements"). The Larizza Financial
Statements have been prepared in accordance with generally
accepted accounting principles on a basis consistent with
such statements for prior periods and fairly present, in all
material respects, the financial position, results of
operations and cash flows of Larizza as of and for the
fiscal year then ended. Larizza has also delivered to
Parent and Acquisition a copy of the unaudited consolidated
balance sheet of Larizza as at June 30, 1995 and the related
statements of operations and cash flows for the 6 months
then ended (the "Larizza Interim Statements"). The Larizza
Interim Statements fairly present, in all material respects,
the financial position, results of operations and cash flows
of Larizza as of, and for the 6 months then ended.
2.1.9 No Material Adverse Change. Except as set
forth in the attached Schedule 2.1.9, since June 30, 1995,
except for reasonable expenses for legal and financial
advisory services incurred in connection with the
transactions contemplated by this Agreement, there has been
no material adverse change that has had a "Material Adverse
Effect" (as defined below) on the Company or is reasonably
likely to have a Material Adverse Effect on the Company.
For purposes of this Agreement, a "Material Adverse Effect"
means (i) a material adverse effect on the assets, Business,
properties, financial condition or results of operations of
Larizza and the Subsidiaries taken as a whole except as a
result of the seasonal and cyclical nature of Larizza's
business and the automotive supplier industry, or (ii) the
occurrence and continuance of any material disruption of, or
material adverse change in, the financial, banking or
capital markets since the date of this Agreement.
2.1.10 Assets. Except as otherwise
explicitly provided in this Agreement, Parent and
Acquisition acknowledge and agree that the Companies'
properties and assets are "AS IS" and "WHERE IS". The
Companies have good title to, or a valid leasehold or other
possessory interest in, the properties and assets currently
owned or used by them, shown on the Larizza Interim
Statements or acquired after June 30, 1995, free and clear
of any liens, charges, encumbrances or adverse claims
("Liens") except as set forth on Schedule 2.1.10 ("Permitted
Liens") and for properties and assets disposed of in the
ordinary course of business since June 30, 1995. The
operation of the properties and Business of the Companies in
the manner in which they are currently operated does not
violate any zoning ordinances, municipal regulations or
other rules, regulations or laws, except for violations not
reasonably likely to have a Material Adverse Effect. No
covenants, easements, rights-of-way or regulations impair in
any material respect the uses of the Companies' assets for
the purposes for which they are now operated. There are no
pending or, to Larizza's actual knowledge, threatened
condemnation or similar proceedings or assessments affecting
the Companies' assets which would reasonably be expected to
have a Material Adverse Effect. No lease of a material item
of personal property or asset is subject to termination or
modification as a result of the transactions contemplated
hereby.
2.1.11 Absence of Undisclosed Liabilities.
The Companies do not have any obligations or liabilities,
absolute or contingent, including, without limitation,
mortgages or security interests ("Liabilities"), except for
those Liabilities which (i) have been reflected or
9
reserved against in the Larizza Financial Statements or the
Larizza Interim Statements, (ii) have been incurred in the
ordinary course of business, (iii) are not reasonably likely
to have a Material Adverse Effect, or (iv) are described on
the attached Schedule 2.1.11.
2.1.12 Tax Liabilities.
(a) The Companies have timely filed all
federal, foreign, state, county and local Tax Returns
of every nature required to be filed by them, except
where the failure so to file would not reasonably be
likely to have a Material Adverse Effect. All such
Tax Returns are complete and correct in all material
respects. The Companies have duly paid or adequately
accrued in the Larizza Financial Statements or the
Larizza Interim Statements all Taxes to the extent
such amounts have become due and payable, except to
the extent that the failure to do so would not have a
Material Adverse Effect. The Companies have not
executed any presently effective waiver or extension
of any statute of limitations relating to the payment
of Taxes. (For purposes of the preceding sentence,
the term "Companies" shall include former subsidiaries
of any of the Companies for the periods during which
any such corporations were owned, directly or
indirectly, by any of the Companies.) Except as set
forth in the attached Schedule 2.1.12, there are no
pending or, to Larizza's actual knowledge, threatened
claims, assessments, notices, proposals to assess,
deficiencies, adjustments or audits with respect to
any such Taxes owed or allegedly owed by any of the
Companies which remain unpaid, except those for which
adequate provision has been made in the Larizza
Financial Statements or the Larizza Interim Statements
(to the extent required by generally accepted
accounting principles) and which are not reasonably
likely to have a Material Adverse Effect. To
Larizza's actual knowledge, each of the Companies has
withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or
owing to any employee, creditor, independent
contractor or other third party. No claim has been
made by a governmental entity or other tax authority
in a jurisdiction where any of the Companies does not
currently file Tax Returns to the effect that any of
the Companies is or may be subject to Taxes imposed by
the jurisdiction. There are no liens for Taxes upon
the assets of any of the Companies, except liens for
Taxes not yet delinquent. Except as set forth in the
attached Schedule 2.1.12, none of the Companies is a
party to a Tax allocation or Tax sharing arrangement
with another of the Companies. No property of Larizza
or Xxxxxx is, (i) property that would be required to
be treated as owned by another person pursuant to the
safe harbor leasing provisions (now repealed) of the
Code, (ii) tax-exempt use property within the meaning
of Section 168(h) of the Code, or (iii) tax-exempt
bond financed property within the meaning of Section
168(h)(5) of the Code.
(b) For purposes of this Agreement, (i) "Tax"
or "Taxes" includes all federal, state, local, foreign
and other taxes, assessments, or governmental charges
of any kind whatsoever including, without limitation,
income, franchise, capital stock, excise, property,
sales, use, service, service use, leasing, leasing
use, gross receipts, value added, single business,
alternative or add-on minimum, occupation; real and
personal
10
property, stamp, workers' compensation, severance,
environmental, transfer, payroll, withholding,
employment, unemployment and social security taxes, or
other taxes of the same or similar nature, together
with any interest, penalties or additions thereon and
estimated payments thereof, whether disputed or not,
(ii) "Tax Returns" includes all returns, reports,
information returns, forms, declarations, claims for
refund, statements and other documents (including any
amendments thereto and including any schedule or
attachment thereto) in connection with Taxes that are
required to be filed with a government entity or other
tax authority, or sent or provided to another party
under applicable law, and (iii) "Code" means the
Internal Revenue Code of 1986, as amended.
2.1.13 Litigation. There are no claims,
actions, suits, proceedings or investigations pending or, to
Larizza's actual knowledge, threatened against any of the
Companies before or by any court or any municipal or other
governmental department, commission, board, agency or
instrumentality, except (a) as set forth on Schedule 2.1.13,
(b) as set forth in any of Larizza's filings with the SEC
prior to the date hereof or in the notes to the Larizza
Financial Statements or the Larizza Interim Statements, or
(c) for those which could not reasonably be expected to have
a Material Adverse Effect. No inquiry, action, or
proceeding has been instituted, or, to Larizza's actual
knowledge, threatened to restrain or prohibit the
transactions contemplated by this Agreement or seeking
damages on account thereof.
2.1.14 Pension and Benefit Plans and
Compliance with ERISA. None of the Companies has any
"employee welfare benefit plan" (as defined in Section 3(1)
of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) or any "employee pension benefit plan"
(as defined in Section 3(2) of ERISA and not exempted under
Section 4(b) or 201 of ERISA) other than as set forth in
Schedule 2.1.14 (the "Plans"). None of the Companies has
incurred any obligation to contribute to any multi-employer
plan, as defined in ERISA, nor has any of them incurred any
material liability under Title IV of ERISA arising in
connection with the termination of, or complete or partial
withdrawal from, any Plan covered or previously covered by
Title IV of ERISA. Each Plan of the Companies that is
intended to be qualified under Section 401 of the Code, is
so qualified, and each trust forming a part thereof is
exempt from tax pursuant to Section 501 of the Code. Each
such Plan has been maintained in compliance with its terms
and with the requirements prescribed by all statutes,
orders, rules and regulations, including, but not limited
to, ERISA and the Code, which are applicable to such Plans,
except for any such non-compliance which is not reasonably
likely to have a Material Adverse Effect. There does not
exist any accumulated funding deficiency violating Section
412 of the Code (nor would there exist such a deficiency but
for an election by any such plan of an alternate minimum
funding standard), nor has there been issued either a
variance or waiver of the minimum funding standards imposed
by the Code with respect to any such Plan, nor are there any
excise taxes due or, to Larizza's actual knowledge,
hereafter to become due under the Code with respect to the
funding of any such Plan for any Plan year or other fiscal
period ending before the date of this Agreement. There
exists no unfulfilled obligation to contribute to any such
Plan with respect to any Plan year ending on or before the
Effective Time of the Merger, except as shown in the Larizza
Financial Statements or the Larizza Interim Statements.
11
2.1.15 Environmental Matters. Except in
connection with the matters described in the attached
Schedule 2.1.15 or Schedule 2.1.13, none of the Companies
has received any request for information or notice, claim,
assessment, proposed assessment or demand for abatement
notifying any of the Companies that they may have any
liability in respect of environmental matters or alleging a
violation of any law, ordinance or other governmental
regulation regarding the environment or the disposal of
hazardous substances, the violation of, or failure to comply
with, which could reasonably be expected to have a Material
Adverse Effect. Except in connection with the matters
described in the attached Schedule 2.1.15, none of the
Companies has spilled, generated, disposed of or stored any
toxic or hazardous substances in any manner that violates
any presently existing federal, state or local law or
regulation governing or pertaining to such substances nor
have any of the Companies failed to comply in any material
respect with any reporting or other requirements of or under
such laws, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act
(including any disposal or transportation of hazardous
substances at or to any location that is listed or, to the
actual knowledge of Larizza, is proposed for listing or
investigation as a National Priorities List site under such
Act or is the subject of federal, state or local enforcement
actions or other investigations which may lead to claims
against the Companies for clean-up costs, remedial work,
damages to natural resources or other property or personal
injury claims, including, but not limited to, claims under
such Act) and the Resource Conservation and Recovery Act,
the violation of which could reasonably be expected to have
a Material Adverse Effect. Except as set forth in the
attached Schedule 2.1.15, to the actual knowledge of
Larizza, no polychlorinated biphenyls, asbestos or urea
formaldehyde insulation is present at any of the Owned Real
Property or the Leased Real Property, and there are no
underground storage tanks, active or abandoned, at any of
the Owned Real Property or the Leased Real Property. The
Companies have complied in all material respects with the
Occupational Safety and Health Act, as amended (29 U.S.C.
(Section Xxxx) (Section Xxxx) 651, et seq.), except to the
extent any failure could not reasonably be expected to have
a Material Adverse Effect.
2.1.16 Licenses and Permits. The Companies
have, and at all relevant times have had, all federal, state
and local governmental licenses, permits, authorizations and
other rights (the "Permits") required by the Companies for
the lawful conduct of their businesses, except to the extent
that the failure to have any such Permit could not
reasonably be expected to have a Material Adverse Effect.
The Companies have complied, and are complying, in all
material respects with the terms and conditions of all such
Permits, and no material violation of any such Permits or
the laws or rules governing their issuance or continued
validity has occurred. No claim has been made by any
governmental authority that any Permit in addition to those
held by the Companies is necessary with respect to the
Business conducted by the Companies.
2.1.17 Insurance. Larizza has provided to
Acquisition and Parent an accurate and complete list of all
material policies of insurance held by any of the Companies.
All such policies are in full force and effect, and no
notice of cancellation has been received or, to Larizza's
actual knowledge, has been sent by the insurer. In
Larizza's judgment, the policies
12
are in amounts and against such risks as are adequate in
relation to the Business of the Companies. All current
premiums under such insurance have been paid.
2.1.18 Conduct of Business Since June 30,
1995. Since June 30, 1995, the Companies have conducted
their Business only in the ordinary course, except (a) as
contemplated by this Agreement, any of the Schedules to this
Agreement, any of the documents referred to in this
Agreement or the Schedules, any of Larizza's filings with
the SEC prior to the date hereof, or any of the Larizza
Financial Statements or the Larizza Interim Statements, (b)
in connection with the transactions contemplated by this
Agreement, or (c) where the failure to do so would not
reasonably be expected to have a Material Adverse Effect.
Except as set forth in the attached Schedule 2.1.18, since
June 30, 1995, there has not been, (i) any declaration,
setting aside or payment of any dividend or other
distribution with respect to its capital stock, (ii) any
change by Larizza in accounting principles used for purposes
of financial reporting, (iii) any entry into any agreement
or understanding, whether written or (if enforceable) oral,
between Larizza or any of the Subsidiaries providing for the
employment of any senior executive of Larizza or the
Subsidiaries (collectively, "Senior Executives") or any
severance or termination benefits payable or to become
payable by Larizza or any Subsidiary to any Senior
Executive, or (iv) except as permitted by this Agreement,
any increase (including any increase effective in the
future) in (A) the compensation, severance or termination
benefits payable or to become payable by Larizza or any
Subsidiary to any Senior Executive (or any increase in
benefits under any change in control severance arrangement
applicable to employees of Larizza and its subsidiaries,
generally) or (B) any bonus, insurance, pension or other
employee benefits (including, without limitation, the
granting of stock options, stock appreciation rights or
restricted stock awards) made to, for or with any Senior
Executive, except for normal increases associated with
regular annual performance evaluations in the ordinary
course of business or normal accruals of benefits under the
terms of any such plan or arrangement.
2.1.19 Customers. To Larizza's actual
knowledge, none of the Companies has received a notice that
any customer of any of the Companies will cease or otherwise
refuse to do business with any of the Companies in the same
manner as such business has been previously conducted with
the Companies as a result of the Merger.
2.1.20 Brokers and Finders. Larizza has
not caused any liability to be incurred to any finder,
broker, or sales agent in connection with the execution,
delivery or performance of, or the transactions contemplated
by, this Agreement, except for fees to its financial
advisor, Xxxxxxx Xxxxx & Co., Inc., for which Larizza will
be responsible, pursuant to the engagement letter attached
Schedule 2.1.20 (the "Merrill Letter").
2.1.21 Books and Records of the Companies.
Larizza has made available to Parent, Acquisition and their
directors, officers, attorneys, accountants and
representatives, true and correct copies of all agreements,
documents and other items listed on the schedules to this
Agreement and all books and records of the Companies. The
books and records of the Companies accurately reflect in all
material respects the transactions to which any of the
Companies is a party or by which their properties are bound.
13
2.1.22 Compliance with Laws. Except as
otherwise disclosed in this Agreement, Larizza and the
Subsidiaries are in compliance with, and have complied with,
all federal, state, local and foreign laws, regulations and
orders applicable to the Business of the Companies to the
extent that non-compliance could reasonably be expected to
have a Material Adverse Effect. Except as set forth in
Schedule 2.1.13, no investigation or review by any
governmental entity concerning any possible violations of
such laws, regulations and orders by Larizza or any of the
Subsidiaries is pending or, to the actual knowledge of
Larizza, threatened, nor has any governmental entity
indicated an intention to conduct the same in each case
other than those the outcome of which could not reasonably
be expected to have a Material Adverse Effect.
2.1.23 Intellectual Property. Schedule
2.1.23 lists or describes all material patents, trademarks,
trade names, service marks, registered copyrights and
registrations and applications therefor used in or necessary
for the conduct of the Business of the Companies as of the
date hereof and all licenses pertaining to any of the
foregoing (collectively, the "Scheduled IP", and, together
with all material trade dress, trade secrets and
unregistered copyrights used in or necessary for the conduct
of the Business of the Companies as of the date hereof,
collectively, the "Intellectual Property"). No material
Intellectual Property is used by the Companies pursuant to a
license from a third party or is licensed by the Companies
to a third party except pursuant to a license listed on
Schedule 2.1.23. Except as set forth on Schedule 2.1.23,
Larizza or one of the Subsidiaries (a) owns free and clear
of all Liens all of the Scheduled IP (other than the
Scheduled IP that is used pursuant to a license disclosed on
Schedule 2.1.23), (b) has the legal right to use all of the
Scheduled IP that is used pursuant to a license, and (c)
owns free and clear of all Liens, or has the legal right to
use, all of the other Intellectual Property as it is used as
of the date hereof. Except as set forth on Schedule 2.1.23,
neither Larizza nor any Subsidiary has received any written
notice (that has not been subsequently satisfied or
withdrawn) nor, to the actual knowledge of Larizza, has
there been any assertion against the Companies of any
infringement, dilution, unfair competition or material
conflict with the asserted rights of others in connection
with the use by the Companies of any of the Intellectual
Property in the conduct of the Business of the Companies.
To the actual knowledge of Larizza, all of the material
patents, copyright registrations and trademark and service
xxxx registrations listed in Schedule 2.1.23 are valid and
in full force and effect, are held of record in Larizza's
name or one of the Subsidiary's names, and, except as set
forth in Schedule 2.1.23, clear of any Liens, and, except as
set forth in Schedule 2.1.23, are not subject to any pending
cancellation or reexamination proceeding or other proceeding
or written claim challenging their extent or validity. With
respect to the Scheduled IP, except as described on Schedule
2.1.23, Larizza or one of the Subsidiaries is the applicant
of record in all pending patent applications and all
applications for trademark, service xxxx or copyright
registration, and no action of opposition or interference or
final refusal is pending or, to the actual knowledge of
Larizza, threatened in connection with any such application.
Except as disclosed on Schedule 2.1.23, no judgment, decree,
rule or order has been rendered by any governmental entity
in any legal proceeding in which any of the Companies was or
is a party relating to the Intellectual Property that would
have a Material Adverse Effect, and neither Larizza nor any
Subsidiary is a party to or, to the actual knowledge of
Larizza, is bound by any contract that
14
limits the use by Larizza or any Subsidiary of any of its
Intellectual Property, except for licensed Intellectual
Property, to the extent such restriction would have a
Material Adverse Effect.
2.1.24 Material Contracts. Listed on
Schedule 2.1.24 are all material contracts of the Companies
other than those described on one of the other Schedules or
as filed as an exhibit to Larizza's SEC Filings filed prior
to the date hereof. Except as listed or described on
Schedule 2.1.24 or one of the other Schedules or as filed as
an exhibit to Larizza's SEC Filings filed prior to the date
hereof, as of the date hereof, neither Larizza nor any
Subsidiary is a party to or bound by any lease, agreement or
other contract or legally binding contractual rights or
obligation (collectively, "Contracts") that is of a type
described below:
(a) Any employment, severance or consulting
Contract with an Employee or Former Employee (as
hereafter defined) that is not terminable at will and
without cost by Larizza or any Subsidiary (other than
any Contract for the employment of any such Employee
or Former Employee implied in law) and which will
either require the payment of amounts by Larizza or
any Subsidiary after the date hereof in excess of
$100,000 per annum under any such individual Contract
or $500,000 for all such Contracts;
(b) Any union or collective bargaining
agreement with any collective bargaining group or
labor union;
(c) Any Contract or series of related
Contracts for capital expenditures or the acquisition
or construction of fixed assets which requires or
require aggregate future payments or expenditures in
excess of $500,000;
(d) Any Contract relating to cleanup,
abatement or other actions in connection with
environmental liabilities;
(e) Any Contract granting to any person a
first-refusal, first-offer or other right to purchase
or acquire any of the Larizza Common Shares or any
other capital stock or other securities of Larizza or
any Subsidiary;
(f) Any license or royalty Contract, or other
Contract with respect to Intellectual Property, which
pursuant to the terms thereof requires future payments
to or by Larizza or any Subsidiary;
(g) Any indenture, mortgage, loan or credit
Contract under which Larizza or any Subsidiary has
borrowed any money or issued any note, bond, indenture
or other evidence of indebtedness for borrowed money,
or guaranteed indebtedness for money borrowed by
others, other than such of the foregoing under which
neither Larizza nor any Subsidiary has any current or
future obligation or liability;
15
(h) Any Contract with any manufacturer's
representative or other sales agent or relating to
distribution or commission arrangements having a
remaining term in excess of one year and which is not
terminable without penalty on 30 calendar days' or
less notice;
(i) Any Contract under which Larizza or any
Subsidiary is, (i) a lessee of real property, (ii) a
lessee of, or holds or uses, any machinery, equipment,
vehicle or other tangible personal property owned by a
third person or entity, (iii) a lessor of real
property, or (iv) a lessor of, or makes available for
use by any third person or entity, any tangible
personal property owned by Larizza or any Subsidiary,
in any such case if the individual Contract or lease
requires annual payments in excess of $100,000;
(j) Any Contract under which any payment would
be classified as a "parachute payment" under Section
280G of the Code;
(k) Any Contract with respect to a joint
venture or partnership arrangement;
(l) Any Contract granting a power of attorney
other than such of the foregoing granted pursuant to
customs forms executed by Larizza or any Subsidiary;
(m) Any Contract with respect to letters of
credit, surety or other bonds or pursuant to which any
of Larizza's or the Subsidiaries' assets or properties
are or are to be subjected to a lien other than a
Permitted Lien;
(n) Any Contract limiting or restricting the
ability of Larizza or any Subsidiary from entering
into or engaging in any market or line of business;
(o) Any guarantee, indemnity, retroactive or
retrospective premium adjustment or similar Contract
pursuant to which Larizza or any Subsidiary could
(whether or not subject to contingencies) be required
to make payments with respect to or as a result of
losses, costs or expenses paid or incurred by another
person or entity providing insurance coverage where
the amount could reasonably be expected to exceed
$100,000;
(p) Any Contract to which, (i) Larizza or any
Subsidiary and (ii) any officers, directors or
Larizza's stockholders or any of its or Larizza's
other affiliates (other than Larizza or such
Subsidiary) are parties;
(q) Any Contract regarding the filing of Tax
Returns or relating, in whole or in part, to the
sharing of tax benefits or liabilities (including tax
indemnities); and
(r) Any Contract which, (i) involves aggregate
future payments by or to Larizza or any Subsidiary in
excess of $250,000 other than a purchase or sales
order or other Contract entered into in the ordinary
course of the conduct of the Business of the
Companies, or (ii) is reasonably likely to result in a
Material Adverse Effect.
16
Except as set forth on Schedule 2.1.24, each Contract listed
or described on Schedule 2.1.24 or one of the other
Schedules is a valid and binding obligation of Larizza and
any Subsidiary that is a party thereto and is in full force
and effect. Except as set forth on Schedule 2.1.24, Larizza
and any Subsidiary that is a party thereto has performed in
all material respects the obligations required to be
performed by it through the date hereof under each of such
Contracts and Larizza and the Subsidiaries are not (with or
without the lapse of time or the giving of notice, or both)
in breach or default in any material respect thereunder, and
as of the Closing will have performed in all material
respects all obligations required to be performed by it
through the Closing Date under each of such Contracts and
not be in such breach or default. Except as described on
Schedule 2.1.24, to the actual knowledge of Larizza, each
party to any such Contract, other than Larizza or any
Subsidiary, is not (with or without the lapse of time or the
giving of notice, or both) in breach or default in any
material respect under any such Contract.
2.1.25 Labor Matters. Except as set forth
in Schedule 2.1.25 or Schedule 2.1.13,
(a) none of the Companies is a party to an
unexpired collective bargaining agreement or other
unexpired material contract or agreement with any
labor organization or other representative or
employees nor is any such contract being negotiated,
(b) there is no material unfair labor
practices charge or complaint pending nor, to the
knowledge of Larizza, threatened, with regard to
employees of any of the Companies,
(c) there is no labor strike, material
organized slowdown, material organized work stoppage
or other material organized labor controversy in
effect or, to the knowledge of Larizza, threatened
against any of the Companies,
(d) as of the date hereof, to the knowledge of
Larizza, no representation question exists and no
campaigns are being conducted to solicit cards from
the employees of any of the Companies to authorize
representation by any labor organization,
(e) neither Larizza nor any Subsidiary is a
party to, or is otherwise bound by, any consent decree
with any governmental authority relating to employees
or employment practices of Larizza or any Subsidiary
which is material to Larizza and its Subsidiaries
taken as a whole, and
(f) the Companies are in compliance with all
applicable agreements, Contracts and policies relating
to employment, employment practices, wages, hours and
terms and conditions of employment of the employees
except where failure to be in compliance with each
such agreement, Contract and policy is not,
individually or in the aggregate, reasonably likely to
have a Material Adverse Effect.
17
2.1.26 Related Party Transactions. Except
as set forth on Schedule 2.1.26, since January 1, 1995,
there have been no Contracts, transactions or payments by or
between Larizza and any of its Subsidiaries, on the one
hand, and Stockholder or any director, officer, employee,
shareholder or affiliate of any of the foregoing on the
other hand, other than (i) with respect to persons who are
not officers or directors of Larizza, those in the ordinary
course of Larizza's business, and (ii) those disclosed in
the exhibits to Larizza's SEC Filings filed prior to the
date hereof.
2.1.27 State Takeover Statutes. None of
this Agreement, the Merger, the Stock Agreement, the Option
or the transactions contemplated hereby or thereby are
subject to the provisions of (a) Section 1701.831 of the
OGCL, (b) Chapter 1704 of the OGCL, (c) Section 1707.043 of
the OGCL, or (iv) Articles IVB and IVC of the Articles of
Incorporation of Larizza. No other "fair price", "merger
moratorium", "control share acquisition" or other anti-
takeover statute or similar statute or regulation applies or
purports to apply to the Merger, this Agreement, the Stock
Agreement, the Option or any of the transactions
contemplated hereby or thereby.
2.1.28 Opinion of Financial Advisor, Etc.
Larizza has received the opinion of Xxxxxxx Xxxxx Xxxxxx
Xxxxxx & Xxxxx to the effect that, as of the date hereof,
the consideration to be received by the holders of the
Larizza Common Shares in the Merger is fair to such holders
from a financial point of view. Prior to the date hereof,
Larizza or its representatives contacted all persons or
entities that they believed might be realistic acquirors of
the Company ("Other Potential Bidders" and, together with
Parent and Acquisition, "Bidders") and offered to furnish to
them substantially the same information furnished to Parent
and to submit a proposal to acquire the Company on
substantially the same terms and conditions made available
to Parent. All Bidders were treated substantially equally
in connection with the transaction giving rise to this
Agreement.
2.2 Representations and Warranties of Acquisition
and Parent. Acquisition and Parent, jointly and severally,
represent and warrant to Larizza the following as of the
date of this Agreement and as of the Effective Time of the
Merger:
2.2.1 Organization and Qualification.
Acquisition and Parent are each corporations, duly
organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation and each has all
requisite corporate power and authority to own or lease its
properties and to carry on its business as now being
conducted or proposed to be conducted. Parent and
Acquisition have furnished Larizza true and correct copies
of their Certificates of Incorporation and Bylaws, as
amended to date, and such Certificates of Incorporation and
Bylaws as so delivered are in full force and effect. Each
of Acquisition and Parent is qualified and in good standing
as a foreign corporation to do business in each other
jurisdiction in which the conduct of its business or the
character of its properties (owned or leased) makes such
qualification necessary and where a failure to be so
qualified has a material adverse effect on the business,
financial condition or results of operations of Parent and
its Subsidiaries, taken as a whole (a "Parent MAE").
18
2.2.2 Authority Relative to This Agreement.
Each of Acquisition and Parent has all requisite corporate
power to execute, deliver and comply with its obligations
under this Agreement. Execution, delivery and performance
by each of Acquisition and Parent of this Agreement have
been duly authorized by all necessary corporate action on
the part of Acquisition and Parent and do not require the
approval of Parent's shareholders. This Agreement has been
duly and validly executed and delivered by Acquisition and
Parent and constitutes a valid and binding obligation of
Acquisition and Parent, enforceable against Acquisition and
Parent in accordance with its terms, except as it may be
limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally, and except that it
may be limited by general principles of equity, regardless
of whether such enforceability is considered in a proceeding
at law or in equity.
2.2.3 Consents and Approvals; No Violation.
Except as set forth in the attached Schedule 2.2.3, except
for consents or approvals which, if not obtained, or
violations, breaches or defaults which, would not have a
Parent MAE, and except for (i) filings made pursuant to the
Exchange Act in connection with the Merger, (ii) the filing
of pre-merger notification reports with the United States
Federal Trade Commission and the Department of Justice and
the expiration or early termination of the waiting period
required under the HSR Act, and (iii) compliance with the
OGCL and the DGCL requirements in connection with the
Merger, including the filing of a Certificate of Merger with
the Secretaries of State of Ohio and Delaware, neither the
execution and the delivery by Acquisition or Parent of this
Agreement (including all agreements provided for in this
Agreement) nor the performance by Acquisition and Parent of
their obligations under this Agreement (including all
agreements provided for in this Agreement) (a) will require
any consent or approval of or filing with any governmental
agency or third party, (b) will violate any provision of the
Certificate of Incorporation or Bylaws of Acquisition or
Parent, (c) will breach, constitute a default (or an event
which, with the giving of notice, the passage of time or
both, would constitute a default) under, result in the
creation of any lien or security interest on Acquisition's
or Parent's properties under, accelerate the performance
required by, or result in the termination of, any agreement
to which Acquisition or Parent is a party, or by which any
of their properties may be bound, or (d) will violate any
statute, rule or regulation or any order, writ, injunction
or decree of any court or governmental authority applicable
to Acquisition or Parent or any of their respective
properties.
2.2.4 SEC Reports. Parent has furnished Larizza
with true and correct copies (with exhibits) of (a) its
Annual Report on Form 10-K for the fiscal year ended January
29, 1995, as filed with the SEC, (b) its Quarterly Reports
on Form 10-Q for the first two fiscal quarters of its
current fiscal year, as filed with the SEC, and (c) its
definitive proxy statement relating to the 1995 Annual
Meeting of Shareholders of Parent (collectively, the "Parent
SEC Filings"). As of their respective dates, the Parent SEC
Filings did not contain any untrue statement of a material
fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances in
which they were made, not misleading, except any statement
or omission therein which has been corrected or otherwise
disclosed or updated in a subsequent filing with the SEC
prior to the date hereof. Since December 31, 1991, Parent
has
19
filed with the SEC all reports and registration statements
and all other filings required to be filed with the SEC
under the rules and regulations of the SEC.
2.2.5 Proxy Statement in Connection with the
Merger. The information supplied in writing by or on behalf
of Acquisition or Parent which relates to Acquisition,
Parent or any affiliate or associate of Acquisition or
Parent expressly for inclusion in the Proxy Statement, as
ultimately amended and supplemented by all amendments and
supplements thereto, at the Mailing Date and at the date of
the meeting of the Larizza shareholders in connection with
the Merger, (i) will comply in all material respects with
all applicable requirements of the Exchange Act and the
SEC's rules and regulations under the Exchange Act, and (ii)
will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated in the
Proxy Statement or necessary to make the statement contained
in the Proxy Statement, in light of the circumstances under
which they are made, not misleading.
2.2.6 Brokers and Finders. Neither Acquisition
nor Parent has caused any liability be incurred by Larizza
or any of its Affiliates to any finder, broker, or sales
agent in connection with the execution, delivery, or
performance of, or the transactions contemplated by, this
Agreement.
2.2.7 Parent Merger Action. Subject to the
terms hereof, Parent, as the parent corporation of
Acquisition, will cause Acquisition to take all actions and
to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective as promptly as
possible the transactions contemplated by this Agreement.
3 COVENANTS.
3.1 Access for Audit. Between the date of this
Agreement and the Effective Time of the Merger, Larizza
shall, and shall cause the Subsidiaries and its and their
respective officers, directors, employees and agents to,
give Parent and Acquisition and their respective officers,
directors, employees, counsel, accountants, agents,
designees and other authorized representatives full access
during normal business hours to all of the facilities,
assets, properties, books of account, leases, agreements,
commitments, records and personnel of the Companies and to
furnish the other parties or their representatives with all
such information concerning the Companies as Parent or
Acquisition may request so that Parent and Acquisition may
have a full opportunity to make a full business, financial,
accounting and legal audit of the Companies' assets,
liabilities and business and affairs and to assure
compliance by Larizza with all of its covenants,
representations and warranties under this Agreement or to
facilitate Parent's financing of the transactions
contemplated hereby. Such audit shall not materially
disrupt or interfere with Larizza's normal business
operations. This audit may include, among other things:
(a) review and copying of books, records,
contracts, financial statements, tax returns and other
material documents of the Companies;
20
(b) physical inspection of each of the assets
and facilities of each of the Companies;
(c) an audit of all contracts of each of the
Companies; and
(d) discussions with governmental agencies,
customers, vendors, and creditors of each of the
Companies.
3.2 Operation of Business. Between the date of this
Agreement and the Effective Time of the Merger, except as
otherwise expressly consented to in writing by the other
parties or otherwise disclosed in this Agreement:
(a) The Companies will carry on their
businesses generally and in all material respects in
the regular and ordinary course, consistent with past
practice, except in connection with the transactions
contemplated by this Agreement or in connection with
any other offer to acquire the Larizza Common Shares
or the assets of any of the Companies to the extent
not prohibited by this Agreement, and, subject to the
foregoing exceptions, will use reasonable efforts to
preserve intact their present business organizations.
Without limiting the foregoing, none of the Companies
will, directly or indirectly, without the prior
written consent of Parent, except in connection with
the transactions contemplated by this Agreement:
(i) sell, dispose of or encumber any of
its assets, except for sales to customers in the
ordinary course of business, dispositions of
assets in the ordinary course of business and
encumbrances pursuant to existing loan
arrangements;
(ii) declare or pay any dividend or other
distribution in respect of its capital stock;
(iii) (A) change its Articles of
Incorporation, Code of Regulations, Bylaws, or
authorized or issued capital stock or rights to
acquire its capital stock, (B) issue, sell or
deliver any shares of capital stock or any other
securities of any of them, (C) issue any
securities convertible into or exchangeable for,
or options, warrants to purchase, scrip, rights
to subscribe for, calls or commitments of any
character whatsoever relating to, or enter into
any contract with respect to the issuance of,
any shares of capital stock or any other
securities of any of them, or (D) purchase or
otherwise acquire or enter into any contract
with respect to the purchase or voting of shares
of their capital stock, except that Larizza may
issue Larizza Common Shares in accordance with
currently outstanding convertible indebtedness;
(iv) incur any indebtedness for borrowed
money or issue any debt securities (other than
in the ordinary course of business);
21
(v) enter into or modify any material
contract, except in the ordinary course of
business, unless to do so would not reasonably
be expected to have a Material Adverse Effect or
pay any finder's or advisory fees in connection
with the Merger except as provided in the
Xxxxxxx Letter;
(vi) terminate, modify, assign, waive,
release or relinquish any material contract
rights or amend any material rights or claims,
except as contemplated by this Agreement, unless
to do so would not reasonably be expected to
have a Material Adverse Effect;
(vii) except as required by state and
federal minimum wage laws, except for the
bonuses described in Schedule 2.1.18 and except
pursuant to existing plans or policies,
agreements, or budgets, (i) increase any salary
or grant any bonus or perquisite to any
director, officer or employee, or (ii) adopt or
amend any plan or any compensation plan for,
enter into any employment agreement or severance
arrangement with, make any loan to, or enter
into any material transaction of any other
nature with, any officer, director or (except in
the ordinary course of business) employee;
provided that Larizza may terminate existing
compensation and loan arrangements on terms
acceptable to Parent and Acquisition;
(viii) make any material capital
expenditures, other than in the ordinary course
of business or pursuant to existing budgets;
(ix) assume, guarantee, endorse or
otherwise become liable or responsible (whether
directly, contingently or otherwise) for the
obligations or liabilities of any other person
or entity;
(x) make any loans, advances or capital
contributions to or investments in any person or
entity, other than to or in (A) any existing
Subsidiary, (B) any supplier or customer as an
extension of credit in the ordinary course of
business, consistent with past practice, (C)
Larizza, (D) to employees, other than officers
and directors, in the ordinary course of
business, and (E) Xxxxxx X. Xxxxxxx and Xxxxxx
X. Xxxxxx, Xx. as described in Schedule 4.1.11;
(xi) sell, dispose, license, fail to keep
in effect or otherwise dispose of any material
Intellectual Property;
(xii) make any change in any method of
accounting or accounting practice except as may
be required by law or by generally accepted
accounting principles;
(xiii) make, change, revoke or permit
to be made changed or revoked, any material
election with respect to Taxes;
22
(xiv) enter into, or permit to be entered
into, any closing or other agreement or
settlement with respect to Taxes; or
(xv) enter into any contract, agreement,
commitment or arrangement to do any of the
foregoing, other than in the ordinary course of
business.
(b) The Companies will use reasonable
commercial efforts to maintain their relationships
with suppliers and customers, preserve their
respective business organizations intact, and to keep
available the services of their present employees.
3.3 Approval of the Merger. As soon as reasonably
practicable after the date of this Agreement, Larizza will
take all action necessary in accordance with the Exchange
Act, the OGCL and its Articles of Incorporation and Code of
Regulations to call, give notice of, and convene a meeting
(the "Meeting") of Larizza shareholders to consider and vote
upon the approval and adoption of this Agreement and the
Merger. As of the date of this Agreement, the Board of
Directors of Larizza has determined, based in part upon the
financial analysis performed by its financial advisors, that
the Merger is advisable and in the best interests of the
shareholders of Larizza and, subject to the fiduciary duties
of Larizza's directors (as determined in good faith by a
majority of Larizza's directors, based as to legal matters
on a written opinion of legal counsel), shall recommend that
Larizza's shareholders approve and adopt this Agreement and
any other matters to be submitted to Larizza's shareholders
in connection therewith. Larizza shall use reasonable
efforts to solicit and secure from its shareholders such
approval and adoption, subject to the fiduciary duties of
the directors of Larizza (as determined in good faith by a
majority of Larizza's directors, based as to legal matters
on a written opinion of legal counsel). Acquisition shall
cause its Board of Directors and shareholders, and Parent
shall cause its Board of Directors, to approve this
Agreement and the Merger contemplated by this Agreement and
shall provide evidence of such approvals to Larizza at the
Closing.
3.4 Exchange Agent Agreement. Larizza, Acquisition
and Parent shall execute an exchange agent agreement with
the Exchange Agent in customary form for a cash merger and
deliver it to the other parties to such agreement at the
Closing.
3.5 Updated Schedules. Between the date of this
Agreement and the period ending two business days before the
Effective Time of the Merger, Larizza, Acquisition and
Parent shall update the Schedules to this Agreement to the
extent necessary to make their representations and
warranties contained in this Agreement true and accurate as
of the Effective Time of the Merger and shall provide such
updated Schedules to the other parties at or before the
Effective Time of the Merger; provided, however, that the
furnishing of any such updated Schedule will not operate to
cure any prior breach of any representation, warranty or
covenant herein except and only to the extent agreed to in
writing by Parent in its sole discretion.
3.6 Consents. At or before the Effective Time of
the Merger, Larizza shall use its reasonable efforts to
obtain all of the consents and approvals required to be set
forth in Section 2.1.5 or Schedule 2.1.5 and Acquisition and
Parent shall use their reasonable efforts to
23
obtain all of the consents and approvals required to be set
forth in Section 2.2.3 or Schedule 2.2.3, including, without
limitation, any consents required from the Larizza's
lenders; provided that the foregoing shall not require
Larizza, Acquisition or Parent to agree to make any
divestiture of a significant asset in order to obtain any
consent or approval. Each party shall deliver evidence of
such consents to the other parties at or before the
Effective Time of the Merger.
3.7 Confidentiality. Between the date of this
Agreement and the earlier of the Closing Date or the
termination of this Agreement, Larizza, Acquisition and
Parent will hold in confidence all confidential and
proprietary information and trade secrets of the other
parties that are marked as such and that are disclosed to
them in connection with their investigation of any of the
other parties and this Agreement, subject to any legal
requirement that any of such parties disclose such
information. None of Larizza, Acquisition or Parent will
make any oral or written public disclosure or publicity
release concerning the existence or subject matter of this
Agreement or the transactions contemplated by this Agreement
without first making a good faith attempt to obtain the
prior approval of, or concurrence in, the contents of such
statement by the other parties, which approval or
concurrence will not be unreasonably withheld or delayed;
provided that nothing in this Agreement will prevent any
party from commenting on prior public announcements or from
making any statement it determines in good faith may be
required by law (including securities laws) or the rules or
policies of any securities exchange on which its stock is
listed.
3.8 Further Assurances. Subject to the terms and
conditions of this Agreement and to the fiduciary duties of
the directors of Larizza (as determined in good faith by a
majority of Larizza's directors, based as to legal matters
on a written opinion of legal counsel), each of Larizza,
Acquisition and Parent will use its reasonable efforts
promptly to prepare, execute and deliver to the other
parties such lists, instruments and documents and to
cooperate with the other parties in such other respects as
any other party or parties may from time to time, before or
after the Closing, reasonably request in order to carry out
the intent and the purposes of this Agreement. Larizza and
Parent shall make such filings as are required to cause the
applicable waiting period under the HSR Act to commence and
expire as soon as practicable and to notify the other
parties promptly of its receipt of any request or
communication by the Federal Trade Commission or the
Antitrust Division of the Department of Justice relating to
such filings; provided that the foregoing shall not require
Larizza, Acquisition or Parent to agree to make any
divestiture of a significant asset in order to obtain any
waiver, consent or approval. Each party shall supply all
information, execute all instruments and documents, make all
proper assurances and do all things reasonably necessary or
proper to permit or assist the other parties to perform the
acts contemplated by this Agreement, including, without
limitation, the preparation of the HSR Act filings and
responses to requests for additional information and the
Proxy Statement.
3.9 Related Party Transactions. Between the date of
this Agreement and the Effective Time of the Merger,
24
(a) none of the Companies will enter into any
transactions between the Companies and Stockholder or
other Affiliates of Larizza with respect to the
Business of the Companies,
(b) none of the Companies will acquire
ownership interest, directly or indirectly, in any
supplier or customer of the Companies with respect to
the Business of the Companies, and
(c) none of the Companies will incur any
obligations or liabilities that will exist at the
Effective Time of the Merger to any Subsidiary or
other affiliate of Larizza other than obligations and
liabilities that arise in the ordinary course of
business on an arm's-length basis.
3.10 Resignations. Effective as of the Effective
Date of the Merger, Larizza will deliver to Acquisition and
Parent the written resignations of such of the Companies'
directors and officers and of the trustees, plan
administrators and fiduciaries of the Plans, as Acquisition
or Parent may request.
3.11 Acquisition Proposals. Between the date of this
Agreement and the Effective Time of the Merger,
(a) neither Larizza nor any of the
Subsidiaries may, directly or indirectly, and each
will instruct and otherwise cause Stockholder and its
other Affiliates that are controlled by Larizza, and
the officers, directors, employees, agents or advisors
or other representatives or consultants of Larizza not
to, encourage, solicit, initiate, engage or
participate in discussions or negotiations with, or
provide information to, any person or entity (other
than Parent, Acquisition or subsidiaries, affiliates
or representatives of any of the foregoing) in
connection with any tender offer, exchange offer,
merger, consolidation, business combination, sale of
substantial assets, sale of securities, liquidation,
dissolution or similar transaction involving Larizza
or any of its subsidiaries or divisions, including,
without limitation, Manchester (any such proposal,
offer or other transaction being hereinafter referred
to as an "Alternative Proposal"), and
(b) Larizza will notify Parent immediately if
any such inquiries or proposals are received by, any
such information is requested from, or any such
negotiations or discussions are sought to be initiated
or continued with, it;
provided, however, that nothing contained in this Section
3.11 will prohibit the Board of Directors of Larizza from,
directly or indirectly, to the extent applicable, (i)
complying with Rule 14e-2 promulgated under the Exchange Act
with regard to an Alternative Proposal, or (ii) furnishing
information and access to any person or entity making an
unsolicited request therefor (a "New Bidder"), and may
engage in and participate in discussions and negotiations
with such person or entity concerning an Alternate Proposal
involving Larizza or any of its Subsidiaries or divisions,
if and solely to the extent that Larizza's Board of
Directors determines in its good
25
faith judgment, based as to legal matters on a written
opinion of legal counsel, that the failure to furnish such
information to the New Bidder would constitute a breach of
fiduciary duty by the Larizza Board of Directors. Nothing
in this Section 3.11 alone will (x) permit Larizza to
terminate this Agreement, (y) permit Larizza to enter into
any agreement with respect to an Alternative Proposal for as
long as this Agreement remains in effect (it being agreed
that for as long as this Agreement remains in effect,
Larizza will not enter into any agreement with any person
for an Alternative Proposal), or (z) affect any other
obligation of Larizza under this Agreement.
3.12 Notice of Actions and Proceedings. Larizza will
promptly notify Parent of any actions, suits, claims,
investigations or proceedings commenced or, to the knowledge
of Larizza, threatened in writing against, relating to or
involving or otherwise affecting Larizza or any of the
Subsidiaries which, if pending on the date hereof, would
have been required to have been disclosed in writing
pursuant to any Schedule required hereby or which relates to
the consummation of the Offer or the Merger.
3.13 Notification of Certain Other Matters. Without
limiting the generality or effect of any other provision
hereof, Larizza will promptly notify Parent of:
(a) any written notice or other written
communication from any third party alleging that the
consent of such third party is or may be required in
connection with the transactions contemplated by this
Agreement;
(b) any written notice or other written
communication from any governmental entity in
connection with the transactions contemplated hereby;
(c) any fact, event, development, occurrence,
condition or act that constitutes a Material Adverse
Effect or is reasonably expected to result in such an
effect; and
(d) any lawsuit filed against Larizza, or any
of its directors or officers, or any appraisal
proceeding, relating to the Merger.
4 CONDITIONS TO CLOSING AND CLOSING.
4.1 Conditions to Acquisition's and Parent's
Obligations. The obligations of Acquisition and Parent
under this Agreement are subject to the satisfaction of each
of the following conditions at or before the Closing;
provided that Acquisition and Parent may waive the
satisfaction of any such condition pursuant to a writing
signed by Acquisition and Parent:
4.1.1 Accuracy of Larizza's Representations and
Warranties. The representations and warranties of Larizza
in this Agreement, including, without limitation, the
representations and warranties in Section 2.1, shall be
true, accurate and correct at and as of the Closing Date,
with the same force and effect as though such
representations and warranties had been made at and as of
the Closing Date; provided, that this condition shall not
apply to any
26
untruth, inaccuracy or incorrectness of any representation
or warranty that does not (i) have a Material Adverse
Effect, or (ii) renders the Merger invalid, causes any
material provision of this Agreement to be unenforceable or
materially impinges on Parent's ownership of the shares of
the Surviving Corporation after giving effect to the Merger.
4.1.2 Compliance with Covenants. All material
actions, undertakings, covenants or agreements required to
be performed by Larizza at or before the Closing shall have
been so performed or complied with, in all material
respects, on or before the Closing Date.
4.1.3 Certificate of Larizza Officers. Larizza
shall have delivered to Acquisition and Parent a
Certificate, dated as of the Closing Date, signed by the
chief executive and principal financial officers of Larizza
on behalf of Larizza (without any personal liability of such
officers) certifying as to the fulfillment of the conditions
specified in Sections 4.1.1 and 4.1.2.
4.1.4 Consents. Larizza shall have obtained the
approvals and consents to the transactions contemplated by
this Agreement required to be set forth in Section 2.1.5 or
Schedule 2.1.5 to the extent that the failure to obtain any
such approval or consent would have a Material Adverse
Effect. The required statutory waiting period under the HSR
Act shall have terminated and no condition shall have been
imposed with respect thereto which is not reasonably
acceptable to Parent, in its discretion.
4.1.5 Shareholder Approval. This Agreement
shall have been approved and adopted by the requisite vote
of the holders of Larizza Common Shares in accordance with
the OGCL and Larizza's Articles of Incorporation and Code of
Regulations.
4.1.6 No Material Litigation. No action or
proceeding shall have been instituted, threatened or
concluded by any governmental instrumentality, agency or
other person before any court or governmental agency to
restrain, prevent or materially restrict this Agreement or
delay the consummation of the transactions contemplated by
this Agreement.
4.1.7 Delivery of Other Documents. Larizza
shall have delivered the documents required to be delivered
by Larizza pursuant to this Agreement.
4.1.8 No Material Change in Schedules. There
shall have been no material adverse change in the
information required to be contained in the Schedules to
this Agreement.
4.1.9 Opinion of Counsel. Acquisition and
Parent shall have received the favorable opinion of counsel
to Larizza, dated the Closing Date, substantially to the
effect that:
(a) Each Company is duly organized, validly
existing and in good standing under the laws of its
jurisdiction of incorporation, and is duly qualified
under the laws of the State of Michigan to transact
business in such State. Larizza has all requisite
corporate power and authority to execute, deliver and
comply with its obligations under
27
the terms of this Agreement. Execution, delivery and
performance of this Agreement have been duly
authorized by all necessary corporate action on the
part of the Larizza.
(b) This Agreement constitutes the valid and
binding obligation of Larizza, enforceable against
Larizza in accordance with its terms, except as may be
limited by bankruptcy, reorganization, insolvency,
moratorium, so-called fraudulent transfer or other
similar laws relating to or affecting the enforcement
of creditors' rights generally, and subject to general
principles of equity, regardless of whether such
enforceability is considered in a proceeding at law or
in equity.
(c) Larizza's execution and delivery of this
Agreement and its performance and compliance with the
terms thereof do not violate (i) the Articles of
Incorporation or the Code of Regulations of Larizza or
(ii) any laws known to such counsel to be applicable
to Larizza where such violation would reasonably be
expected to have a material adverse effect upon the
validity, performance or enforceability of any of the
terms of this Agreement applicable to Larizza.
(d) No consent, approval, authorization or
order of, or registration or filing with, any
governmental agency or body of the United States of
America or the State of Michigan is legally required
as a condition to the execution and delivery by
Larizza of this Agreement, other than the approval of
Larizza's shareholders in accordance with the with the
OGCL, filings with respect to the Merger pursuant to
the OGCL, and any of the foregoing under the HSR Act
or the Exchange Act.
4.1.10 No Material Change in the Business
of the Companies. There shall have been no fact, event,
development, occurrence, condition or act that constitutes a
Material Adverse Effect or is reasonably expected to result
in such an effect.
4.1.11 Stockholder Receivables. All
amounts due to Larizza (including, without limitation in
respect of the receivables listed on Schedule 4.1.11) from
any stockholder of Larizza shall have been fully paid.
4.2 Conditions to Larizza's Obligations. The
obligations of Larizza under this Agreement are subject to
the satisfaction of each of the following conditions at or
before the Closing; provided that Larizza may waive the
satisfaction of any such condition pursuant to a writing
signed by Larizza:
4.2.1 Accuracy of Acquisition's and Parent's
Representations and Warranties. The representations and
warranties of Acquisition and Parent in this Agreement,
including, without limitation, the representations and
warranties in Section 2.2, shall be true, accurate and
correct at and as of the Closing Date, with the same force
and effect as though such representations and warranties had
been made at and as of the Closing Date; provided, that this
condition shall not apply to any untruth, inaccuracy or
incorrectness of any representation or
28
warranty that does not (i) have a Parent MAE, or (ii)
renders the Merger invalid or causes any material provision
of this Agreement to be unenforceable.
4.2.2 Compliance with Covenants. All actions,
undertakings, covenants, or agreements required to be
performed by Acquisition, Parent or both at or before the
Closing, including, without limitation, the covenants of
Acquisition and Parent in Section 3, shall have been
performed or complied with, in all material respects, on or
prior to the Closing Date.
4.2.3 Certificate of Acquisition's Officers.
Acquisition and Parent shall have delivered to the Larizza a
Certificate, dated as of the Closing Date, signed by the
chief executive and chief financial officers of Acquisition
and of Parent on behalf of Acquisition and Parent (without
any personal liability of such officers), certifying as to
the fulfillment of the conditions specified in Sections
4.2.1 and 4.2.2;
4.2.4 HSR Act. The required statutory waiting
period under the HSR Act shall have terminated and no
condition shall have been imposed with respect thereto which
is not reasonably acceptable to Parent in its discretion,
and (except for conditions on the Parent or the Surviving
Corporation only) to Larizza in its discretion.
4.2.5 Shareholder Approval. This Agreement
shall have been approved and adopted by the requisite vote
of the holders of Larizza Common Shares in accordance with
the OGCL and Larizza's Articles of Incorporation and Code of
Regulations.
4.2.6 No Material Litigation. No temporary
restraining order or preliminary or permanent injunction
shall be issued and in effect which enjoins the Merger.
4.2.7 Delivery of the Fund. Acquisition shall
have deposited the Fund with the Exchange Agent.
4.2.8 Opinion of Counsel. Larizza shall have
received the favorable opinion of counsel to Acquisition and
Parent, dated the Closing Date, substantially to the effect
that:
(a) Acquisition and Parent are each validly
existing and in good standing under the laws of the
state of their incorporation. Acquisition and Parent
have all requisite corporate power and authority to
execute, deliver and comply with their obligations
under the terms of this Agreement. Execution,
delivery and performance of this Agreement have been
duly authorized by all necessary corporate action on
the part of Acquisition and Parent.
(b) This Agreement constitutes a valid and
binding obligation of Acquisition and of Parent,
enforceable against Acquisition and Parent in
accordance with their terms, except as may be limited
by bankruptcy, reorganization, insolvency, moratorium,
so-called fraudulent transfer or other similar laws
relating to or affecting the enforcement
29
of creditors' rights generally, and is subject to
general principles of equity, regardless of whether
such enforceability is considered in a proceeding at
law or in equity.
(c) Acquisition's and Parent's execution and
delivery of this Agreement and their performance and
compliance with the terms thereof do not violate (i)
the Certificate of Incorporation or the Bylaws of
Acquisition or Parent or (ii) any laws known to such
counsel to be applicable to Acquisition or Parent
where such violation would reasonably be expected to
have a material adverse effect upon the validity,
performance or enforceability of any of the terms of
this Agreement applicable to Acquisition or Parent.
(d) No consent, approval, authorization or
order of, or registration or filing with, any
governmental agency or body of the United States of
America or the State of Delaware is legally required
as a condition to the execution and delivery by
Acquisition or Parent of this Agreement, other than
filings with respect to the Merger pursuant to the
DGCL, and any of the foregoing under the HSR Act or
the Exchange Act.
4.3 The Closing. Subject to the terms and
conditions of this Agreement, the Closing under this
Agreement shall be held at 10:00 a.m. local time at the
offices of Xxxxx, Day, Xxxxxx & Xxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx as soon as practicable after the
satisfaction or waiver of the conditions precedent to the
Closing or on such other day and time as Acquisition, the
Parent and Larizza shall mutually agree upon (or failing
such agreement, not later than five business days after such
satisfaction or waiver of such conditions); provided that
Larizza may extend the Closing Date to January 3, 1996, or
to such other day as Acquisition, Parent and Larizza shall
mutually agree upon, by written notice to Parent and
Acquisition. The consummation of the transactions
contemplated by this Agreement at such place and time are
sometimes referred to in this Agreement as the "Closing",
and such date is sometimes referred to as the "Closing
Date". On the Closing Date, or as soon thereafter as
practicable, the parties will execute and file with the
Secretaries of State of the State of Ohio and Delaware
Certificates of Merger in accordance with the OGCL and the
DGCL, and the parties will take such other and further
actions in connection with the actions required by this
Section 4.3 as may be required by Delaware or Ohio law to
make the Merger effective as soon as practicable after the
time of such filing. The Merger will become effective upon
the filing of the last of the Certificates of Merger with
the Secretaries of State of Ohio and Delaware in accordance
with the OGCL and the DGCL, unless a later date is specified
in the Certificates of Merger, in which case the Merger
shall become effective at such later date (the "Effective
Time of the Merger"). At the Effective Time of the Merger,
Acquisition will be merged with and into Larizza.
5 TERMINATION AND ABANDONMENT.
5.1 Termination and Abandonment. Regardless of
whether this Agreement or the Merger has been approved by
Larizza's shareholders, this Agreement may be terminated and
the Merger may be abandoned at any time before the Effective
Time of the Merger:
30
(a) by mutual action of the Boards of
Directors of Larizza, Acquisition, and Parent; or
(b) by the Boards of Directors of Acquisition
and Parent if the conditions set forth in Section 4.1
shall not have been complied with or performed in any
material respect and such noncompliance or
nonperformance shall not have been cured or
eliminated, after 30 days written notice (or by its
nature cannot be cured or eliminated), on or before
February 29, 1996 (the "Drop Dead Date"); or
(c) by the Board of Directors of Larizza if
the conditions set forth in Section 4.2 shall not have
been complied with or performed in any material
respect and such noncompliance or nonperformance shall
not have been cured or eliminated, after 30 days
written notice (or by its nature cannot be cured or
eliminated), on or before the Drop Dead Date; or
(d) by the Board of Directors of Larizza,
Acquisition or Parent if the Effective Time of the
Merger does not occur on or before the Drop Dead Date;
provided, however, that the right to terminate this
Agreement under this Section 5.1(d) will not be
available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of,
or resulted in, the failure of the Effective Time of
the Merger to occur on or before the Drop Dead Date;
or
(e) by either Parent and Acquisition, on the
one hand, or Larizza, on the other hand, if either one
(or any permitted assignee hereunder) is restrained,
enjoined or otherwise precluded by an order, decree,
ruling, injunction or other action (other than an
order or injunction issued on a temporary or
preliminary basis) of a court, domestic or foreign, of
competent jurisdiction or other governmental entity
from consummating the Merger or making the acquisition
or holding by Parent or its subsidiaries of the Stock
Certificates or shares of common stock of the
Surviving Corporation illegal and all means of appeal
and all appeals from such order, decree, ruling,
injunction or other action have been finally
exhausted; or
(f) by the Board of Directors of Larizza if
(i) a New Bidder makes a bona fide offer on or before
the Effective Time of the Merger, (ii) Larizza's Board
of Directors determines in its good faith judgment,
based as to legal matters on a written opinion of
legal counsel, and in the exercise of its fiduciary
duties that such offer is more favorable to Larizza's
shareholders than the Merger, and (iii) Larizza gives
Parent at least 10 calendar days prior written notice
of its intent to terminate this Agreement under this
Section 5.1(f); provided, however, that the
termination right provided in this Section 5.1(f) will
terminate if, within such 10-day period, Parent
notifies Larizza that it will match, in all material
respects, the terms and provisions of such other offer
(whereupon the parties will execute an appropriate
amendment hereto); or
31
(g) by the Board of Directors of Parent or
Acquisition, if (i) the Board of Directors of Larizza
shall not have recommended or shall withdraw, modify
or change its recommendation relating to the Merger in
a manner adverse to Parent or shall have resolved to
do any of the foregoing, or (ii) the Board of
Directors of Larizza shall have recommended to the
stockholders of Larizza that they accept or approve,
or Larizza or any of its Subsidiaries shall have
agreed to accept an Alternative Proposal.
5.2 Effect of Termination. Except as provided in
Section 5.3 with respect to the Topping Fee or in Section
6.3 with respect to the confidentiality agreement, and
except for an intentional breach of this Agreement (provided
that no claim for intentional breach of this Agreement shall
survive the Closing), if this Agreement is terminated and
the Merger is abandoned, this Agreement shall be void and
have no effect, and no party to this Agreement shall have
any liability to any other party or its shareholders,
directors, officers, employees or agents with respect to
this Agreement or the Merger, and each party shall be
responsible for its own expenses.
5.3 Topping Fee. If the Board of Directors of
Larizza terminates this Agreement and abandons the Merger
pursuant to Section 5.1(f), or if the Board of Directors of
Parent or Acquisition terminates this Agreement and abandons
the Merger pursuant to Section 5.1(g)(i) or (ii), then
Parent shall receive from Larizza the sum (the "Topping
Fee") of (i) $4,300,000 and (ii) the amount, not to exceed
$1,700,000, of all costs and expenses incurred by Parent and
Acquisition relating to this Agreement, the transactions
contemplated hereby and the financing therefor, including
without limitation, the fees, disbursements and charges of
counsel to Parent, Acquisition and any financing source for
which Parent or any of its affiliates is responsible,
financial advisory fees (not in excess of customary
financial advisory fees if payable to affiliated entities),
accounting fees and expenses, due diligence costs, and all
other out-of-pocket fees, costs and expenses.
Notwithstanding any other provision hereof, Larizza will not
have the right to terminate this Agreement under Section
5.1(f) unless the Topping Fee has been paid in full prior
thereto.
6 MISCELLANEOUS.
6.1 Non-Survival of Representations, Warranties and
Covenants. Except as provided in Section 1.4 with respect
to the payment for the Larizza Common Shares, in Section 6.2
with respect to directors' and officers' indemnification and
insurance or in Section 6.3 with respect to the
confidentiality agreement, regardless of any investigation
at any time made by or on behalf of any party to this
Agreement or of any information any party may have in
respect thereof, notwithstanding any other term or condition
of this Agreement, all representations, warranties,
covenants and agreements contained in this Agreement or made
pursuant to, or in connection with, this Agreement, the
Merger or the transactions contemplated by this Agreement
(including, without limitation, any certificates,
instruments, opinions or other documents delivered at the
Closing by or on behalf of the parties or any of their
directors, officers, employees, agents, accountants or
attorneys) shall automatically terminate (without further
action) at and upon the Closing and they shall have no
effect after the Closing and no claim whatsoever may be
brought
32
after the Closing alleging a breach of any representation or
warranty or any other failure to comply with the terms and
provisions of this Agreement or any of such other documents.
6.2 Continuation of Directors' and Officers'
Indemnification. Larizza will indemnify and hold harmless,
and after the Closing Date, the Surviving Corporation and
Parent, jointly and severally, will indemnify and hold
harmless, each present and former employee, agent, director
or officer of Larizza or of the Subsidiaries and the
Stockholder party to the Stock Agreement (the "Directors and
Officers") from and against any and all claims arising out
of or in connection with activities in such capacity, or on
behalf of, or at the request of, Larizza (including, without
limitation, the Merger and the other transactions and
performance provided for, or required by, this Agreement or
the Stock Agreement), to the fullest extent permitted under
applicable law and, in addition (if not prohibited by
applicable law), to the fullest extent provided in the
applicable Articles of Incorporation, Code of Regulations
and Bylaws in effect at the date of this Agreement. The
Surviving Corporation and Parent, jointly and severally,
will continue the indemnification, advancement of expenses
and limitation of liability provisions currently provided by
the applicable Articles of Incorporation, Code of
Regulations and Bylaws for a period of not less than six
years after the Closing Date. If any claim or claims are
asserted or made within such six year period, all rights to
indemnification in respect of any such claim or claims shall
continue until disposition of any and all such claims.
Without limiting the foregoing, Larizza, and after the
Closing Date, the Surviving Corporation and Parent, jointly
and severally, will advance expenses incurred with respect
to the foregoing, as they are incurred, to the fullest
extent permitted under applicable law, if the person on
whose behalf the expenses are advanced provides an
undertaking (which need not be secured) to repay such
advances if it is ultimately determined in a final,
non-appealable judicial proceeding that such person is not
entitled to indemnification.
6.3 Entire Agreement. This Agreement, including the
Schedules, agreements, documents, certificates and
instruments referred to in this Agreement, embodies the
entire agreement and understanding of the parties to this
Agreement with respect to the subject matter of this
Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to in this
Agreement. This Agreement supersedes all prior agreements,
commitments and understandings, written or oral, between the
parties with respect to such subject matter, and any such
prior agreements or understandings are merged into this
Agreement; provided, however, that the Confidentiality
Agreement previously entered into by Larizza and Parent
shall survive the execution, delivery and termination of
this Agreement.
6.4 Amendments. This Agreement may be amended only
by a written instrument signed by the parties to this
Agreement; provided, that after approval of the Merger by
the shareholders of Larizza, no amendment may be made that
decreases the consideration to which Larizza's shareholders
are entitled pursuant to this Agreement or otherwise
materially adversely affects the shareholders of Larizza
without the further approval of Larizza's shareholders.
33
6.5 Waivers. At any time before the Effective Time
of the Merger, regardless of whether this Agreement has been
approved by Larizza's shareholders, (i) Acquisition and
Parent may extend the time for the performance of any of the
obligations or other acts of Larizza or, subject to the
provisions of Section 6.4, waive compliance with any of the
agreements of Larizza or with any conditions to the
obligations of Acquisition or Parent, or (ii) Larizza may
extend the time for the performance of any of the
obligations or other acts of Acquisition or Parent or,
subject to the provisions of Section 6.4, waive compliance
with any of the agreements of Acquisition or Parent or with
any conditions to the obligations of Larizza. Any agreement
on the part of a party to this Agreement concerning any such
extension or waiver shall be valid if set forth in an
instrument in writing signed on behalf of such party by a
duly authorized officer. No failure or delay on the part of
any party in exercising any right, power or privilege under
this Agreement or under the documents delivered in
connection with 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
under this Agreement or the exercise of any other right,
power or privilege. The rights and remedies under this
Agreement are cumulative and are not exclusive of any rights
or remedies which any party may otherwise have at law or in
equity.
6.6 Binding Effect; Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of
the parties to this Agreement and their respective permitted
successors and assigns. None of Larizza, Acquisition or
Parent may assign or transfer any of their rights or
delegate any of their obligations under this Agreement
without the prior written consent of the other parties, and
any purported assignment or transfer by any of them shall be
void; provided that Acquisition will have the right to
assign to Parent or any direct or indirect wholly-owned
subsidiary of Parent any and all rights and obligations of
Acquisition under this Agreement, including, without
limitation, the right to substitute in its place Parent or
such a subsidiary as one of the constituent corporations in
the Merger (such subsidiary assuming all of the obligations
of Acquisition in connection with the Merger); provided that
any such assignment will not relieve Parent or Acquisition
from any of its obligations hereunder. Except for Section
6.2 (which is intended to be for the benefit of directors,
officers, agents and employees to the extent contemplated
thereby and their beneficiaries, and may be enforced by such
persons or entities), this Agreement is not intended to, nor
will it confer upon any other person or entity (other than
the parties hereto) any rights or remedies. Except as
otherwise expressly provided herein, this Agreement is
binding upon and is solely for the benefit of the parties
hereto and their respective successors, legal
representatives and assigns.
6.7 Expenses. Except as provided in Section 5.3 or
Section 6.12 (if applicable), each party to this Agreement
shall pay its own costs and expenses incident to this
Agreement and the transactions contemplated in this
Agreement, including, without limitation, attorneys' fees,
brokerage, finder or financial advisor fees and accounting
fees.
6.8 Severability. If any provision of this
Agreement is held to be illegal, invalid or unenforceable,
such illegality, invalidity or unenforceability shall have
no effect on the other
34
provisions of this Agreement, which shall remain valid,
operative and enforceable. In addition, in lieu of such
illegal, invalid or unenforceable provision, there shall be
added automatically as a part of this Agreement a provision
as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal,
valid and enforceable.
6.9 Notices. Any notice or other communication
required or which may be given under this Agreement shall be
in writing and either delivered personally to the addressee,
telegraphed, telecopied or telexed to the addressee, sent by
overnight courier to the addressee or mailed, certified or
registered mail, postage prepaid, and shall be deemed given
when so delivered personally, telegraphed, telecopied or
telexed to the addressee, or, if sent by overnight courier,
one business day after the date so sent, or, if mailed,
three business days after the date of mailing, as follows:
If to Larizza: Larizza Industries, Inc.
000 Xxxx Xxx Xxxxxx Xxxx, Xxxxx 0000
Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
With Copies To: Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
If to Acquisition
or Parent: Xxxxxxx & Xxxxxx Products Co.
000 XxXxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
With Copies To: Xxxxxxx & Xxxxxx Products Co.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
And: Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Any or the foregoing may change its address for notices by
notice to the other parties.
35
6.10 Knowledge. When used in this Agreement, the
term "knowledge" or "actual knowledge" (or any variation of
knowledge) of Larizza shall refer to the actual conscious
awareness of Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X.
Xxxxxx or Xxxxxxx X. Xxxxxxx.
6.11 Governing Law. Except to the extent that Ohio
law is mandatorily applicable to the Merger or the rights of
the shareholders of Larizza, this Agreement shall be
governed by, and construed in accordance with, the laws of
the State of Delaware (regardless of the laws that might
otherwise govern under applicable Michigan principles of
conflicts of law) as to all matters, including, but not
limited to, matters of validity, construction, effect,
performance and remedies.
6.12 Attorneys' Fees. If any party commences an
action against any other party to enforce any of the terms,
covenants, conditions or provisions of this Agreement or
because of a default by a party under this Agreement, the
prevailing party in any such action shall be entitled to
recover its reasonable attorneys' fees, costs and expenses
incurred in connection with the prosecution or defense of
such action from the losing party.
6.13 Interpretation. The headings contained in this
Agreement are solely for the purpose of reference, are not
part of the agreement of the parties and shall not in any
way affect the meaning or interpretation of this Agreement.
All references to "Sections" and "Schedules" in this
Agreement are, unless specifically indicated otherwise,
references to sections of, and Schedules to, this Agreement.
Whenever the singular is used, the same shall include the
plural and vice versa, where appropriate. Words of any
gender shall include each other gender where appropriate.
The Schedules to this Agreement are a part of this Agreement
as if set forth in full in this Agreement.
6.14 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. This Agreement may be executed by
facsimile signatures.
7 GLOSSARY. The following words and phrases are
defined in the following Sections of this Agreement:
Word or Phrase Section
Acquisition . . . . . . . . . . . . . . . Introductory Paragraph
Acquisition Shares . . . . . . . . . . . Recital C
Actual Knowledge . . . . . . . . . . . . Section 6.10
Agreement . . . . . . . . . . . . . . . . Introductory Paragraph
Alternative Proposal . . . . . . . . . . Section 3.11(a)
Bidders . . . . . . . . . . . . . . . . . Section 2.1.28
Business . . . . . . . . . . . . . . . . Recital A
Closing . . . . . . . . . . . . . . . . . Section 4.3
Closing Date . . . . . . . . . . . . . . Section 4.3
36
Word or Phrase Section
Code . . . . . . . . . . . . . . . . . . Section 2.1.12(b)
Companies . . . . . . . . . . . . . . . . Section 2.1.1
Contracts . . . . . . . . . . . . . . . . Section 2.1.24
DGCL . . . . . . . . . . . . . . . . . . Recital D
Directors and Officers . . . . . . . . . Section 6.2
Dissenting Shares . . . . . . . . . . . . Section 1.2(b)
Drop Dead Date . . . . . . . . . . . . . Section 5.1(b)
Effective Time of the Merger . . . . . . Section 4.3
ERISA . . . . . . . . . . . . . . . . . . Section 2.1.14
Exchange Act . . . . . . . . . . . . . . Section 2.1.5
Exchange Agent . . . . . . . . . . . . . Section 1.4.1
Fund . . . . . . . . . . . . . . . . . . Section 1.4.1
HSR Act . . . . . . . . . . . . . . . . . Section 2.1.5
Xxxxxx . . . . . . . . . . . . . . . . . Recital A
Intellectual Property . . . . . . . . . . Section 2.1.23
Knowledge . . . . . . . . . . . . . . . . Section 6.10
Larizza . . . . . . . . . . . . . . . . . Introductory Paragraph
Larizza Common Shares . . . . . . . . . . Recital B
Larizza Financial Statements . . . . . . Section 2.1.8
Larizza Interim Statements . . . . . . . Section 2.1.8
Larizza Preferred Shares . . . . . . . . Recital B
Larizza SEC Filings . . . . . . . . . . . Section 2.1.6
Liabilities . . . . . . . . . . . . . . . Section 2.1.11
Liens . . . . . . . . . . . . . . . . . . Section 2.1.10
Mailing Date . . . . . . . . . . . . . . Section 2.1.7
Manchester . . . . . . . . . . . . . . . Recital A
Material Adverse Effect . . . . . . . . . Section 2.1.9
Meeting . . . . . . . . . . . . . . . . . Section 3.3
Merger . . . . . . . . . . . . . . . . . Recital D
Merger Price . . . . . . . . . . . . . . Section 1.2(a)
Xxxxxxx Letter . . . . . . . . . . . . . Section 2.1.20
New Bidder . . . . . . . . . . . . . . . Section 3.11
OGCL . . . . . . . . . . . . . . . . . . Recital D
Option . . . . . . . . . . . . . . . . . Recital E
Other Potential Bidders . . . . . . . . . Section 2.1.28
Parent . . . . . . . . . . . . . . . . . Introductory Paragraph
Parent MAE . . . . . . . . . . . . . . . Section 2.2.1
Parent SEC Filings . . . . . . . . . . . Section 2.2.4
Permits . . . . . . . . . . . . . . . . . Section 2.1.16
Permitted Liens . . . . . . . . . . . . . Section 2.1.10
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Word or Phrase Section
Plans . . . . . . . . . . . . . . . . . . Section 2.1.14
Proxy Statement . . . . . . . . . . . . . Section 2.1.7
Scheduled IP . . . . . . . . . . . . . . Section 2.1.23
SEC . . . . . . . . . . . . . . . . . . . Section 2.1.6
Senior Executives . . . . . . . . . . . . Section 2.1.18
Stock Agreement . . . . . . . . . . . . . Recital E
Stock Certificates . . . . . . . . . . . Section 1.2(a)
Stockholder . . . . . . . . . . . . . . . Recital E
Subsidiaries . . . . . . . . . . . . . . Recital A
Surviving Corporation . . . . . . . . . . Section 1.1(a)
Tax Returns . . . . . . . . . . . . . . . Section 2.1.12(b)
Tax/Taxes . . . . . . . . . . . . . . . . Section 2.1.12(b)
Topping Fee . . . . . . . . . . . . . . . Section 5.3
Voting Trust Agreement . . . . . . . . . Section 2.1.3
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth in the introductory
paragraph of this Agreement.
ACQUISITION: LRI ACQUISITION CORP.
By: /s/ Xxxxxxxxx Xxxxxxx
Its: Director
LARIZZA: LARIZZA INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Its: CEO
PARENT: XXXXXXX & XXXXXX PRODUCTS CO.
By: /s/ Xxxxxx X. Xxxxxx
Its: President and Chief
Executive Officer
39
SCHEDULE INDEX
Schedule Number Description
1.1(b) Form of Restated Articles of Incorporation
1.1(c) Form of Restated Code of Regulations
2.1.1 States In Which Qualified
2.1.3 The Companies' Authorized and Outstanding Stock and Options
2.1.5 Larizza Consents and Approvals
2.1.9 Larizza Changes Since June 30, 1995
2.1.10 Larizza Permitted Liens
2.1.11 Larizza Undisclosed Liabilities
2.1.12 Larizza Tax Audits
2.1.13 Larizza Litigation
2.1.14 Larizza ERISA Plans
2.1.15 Larizza Environmental Matters
2.1.18 Larizza Changes Since June 30, 1995
2.1.20 Xxxxxxx Xxxxx Letter
2.1.23 Larizza Intellectual Property
2.1.24 Larizza Contracts
2.1.25 Larizza Labor Matters
2.1.26 Larizza Related Party Transactions
2.2.3 Acquisition and Parent Consents and Approvals
4.1.11 Larizza Related Party Receivables to be paid
40
