SHAREHOLDER AGREEMENT
This SHAREHOLDER AGREEMENT (the "Agreement") is entered into
as of May 21, 1997 by and among Oxford Automotive, Inc., a
Michigan corporation ("Parent"), HI Acquisition, Inc., a Michigan
corporation and a wholly owned subsidiary of Parent ("Merger
Sub"), and NBD Bank, a Michigan banking corporation, and Xxxxxx
Xxxxxx, co-trustees of the Xxxxxxx X. Xxxxxxxxx Marital Trusts
established under the Xxxxxxx X. Xxxxxxxxx Trust Agreement dated
November 3, 1972 (the "Shareholder").
RECITALS
WHEREAS, concurrently herewith, Parent and Merger Sub are
entering into an Agreement and Plan of Merger (the "Merger
Agreement") with Howell Industries, Inc., a Michigan corporation
(the "Company"), pursuant to which Parent will acquire the
Company, on the terms and subject to the conditions set forth in
the Merger Agreement, by means of a merger (the "Merger") of
Merger Sub into the Company (capitalized terms used herein and
not otherwise defined are used as defined in the Merger
Agreement); and
WHEREAS, as of the date hereof the Shareholder beneficially
owns directly or indirectly 202,972 shares of Company Common
Stock (the "Shares"), which Shares constitute approximately 32.6%
of the issued and outstanding shares of Company Common Stock; and
WHEREAS, as an inducement to Parent to acquire the Company,
and as a condition to Parent's willingness to enter into the
Merger Agreement and consummate the transactions contemplated
thereby, Parent and Merger Sub have required that the Shareholder
agree, and the Shareholder has agreed (i) to grant Parent and
Merger Sub an irrevocable option to buy the Shares at $37.00 per
share, subject to adjustment as provided herein (the "Option");
and (ii) in the event such option is not theretofore exercised,
to vote the Shares in favor of the Merger; and
WHEREAS, the Board of Directors of the Company has approved
this Agreement, the Merger Agreement, the Merger and the
transactions contemplated thereby.
NOW THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and
such other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Option.
1.1 Grant of Option.
(a) In order to induce Parent and Merger Sub to enter
into the Merger Agreement, the Shareholder hereby irrevocably
grants to Parent and Merger Sub the Option exercisable in whole
but not in part from and after the date hereof, to purchase
Shares at a purchase price of $37.00 per Share (or, if increased
subsequent to the date hereof, the Merger Consideration set forth
in Section 1.6(a) of the Merger Agreement). The Option shall
terminate and shall no longer be exercisable, nor shall the
Shares subject to the Option be purchasable hereunder at a
Closing (as defined below) notwithstanding any notice of exercise
contemplated by Section 1.1(c) with respect thereto, from and
after the earlier of (i) termination of the Merger Agreement
pursuant to Section 7.1(a) thereof or (ii) December 31, 1997.
(b) The obligation of the Shareholder to sell the
Shares at Closing is subject to the following conditions:
(i) neither Parent nor Merger Sub shall be in
breach in any material respect of the Merger Agreement;
(ii) all waiting periods under the HSR Act and any
securities laws applicable to the exercise of the Option shall
have expired or been terminated;
(iii) there shall be no preliminary or
permanent injunction or other order, decree or ruling issued by
any governmental or regulatory authority or agency (a
"Governmental Entity"), nor any statute, rule, regulation or
order promulgated or enacted by any Governmental Entity
prohibiting, or otherwise restraining, such exercise of the
Option; and
(iv) the Shareholder shall have received an order
of the Probate Court for the County of Oakland, Michigan,
approving this Agreement.
(c) In the event Parent or Merger Sub wish to exercise
the Option, Parent shall deliver notice thereof to the
Shareholder, specifying the date, time and place for the closing
of such purchase. A closing of the purchase of the Shares
pursuant to the Option (a "Closing") shall take place on the
date, at the time and at the place specified in such notice;
provided, that if at such date any of the conditions specified in
Section 1.1(b) hereof shall not have been satisfied or waived,
Parent may postpone such Closing until a date within two business
days after such conditions are satisfied or waived. At the
Closing, the Shareholder will deliver to Parent or Merger Sub (in
accordance with Parent's instructions) the certificates
representing the Shares being purchased pursuant to Section
1.1(a), duly endorsed or accompanied by stock powers duly
executed in blank. At such Closing, Parent or Merger Sub shall
either (i) wire transfer to the account designated by the
Shareholder or (ii) deliver to the Shareholder a certified or
bank cashier's check payable to or upon the order of the
Shareholder, in each case in an amount equal to the number of
Shares being purchased from the Shareholder at such Closing
multiplied by $37.00 in immediately available funds.
1.2 Assignment of Dividends and Other Distributions. The
Shareholder shall be entitled to receive any and all dividends
and other distributions that may be declared, set aside or paid
by the Company with respect to the Shares during the term of this
Agreement.
1.3 No Liens. The Shareholder agrees that, in connection
with the transfer of Shares to Parent or Merger Sub pursuant to
the Option, it shall transfer to and unconditionally vest in the
Parent or Merger Sub, as the case may be, good and valid title to
the Shares, free and clear of all claims, liens, restrictions,
security interests, pledges, limitations and encumbrances
whatsoever, except those arising hereunder.
1.4 No Purchase. Parent and Merger Sub may allow the
Option to terminate without purchasing all or any Shares pursuant
to the exercise thereof.
2. Voting.
The Shareholder hereby agrees that (for so long as the
Merger Agreement is in effect), at any meeting of the holders of
Company Common Stock, however called, or in connection with any
written consent of the holders of Company Common Stock, it shall
vote (or cause to be voted) the Shares (a) in favor of the
Merger, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance thereof and
hereof; (b) against any action or agreement that would result in
a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company
under the Merger Agreement or of the Shareholder under this
Agreement; and (c) except as otherwise agreed to in writing in
advance by Parent, against any of the following actions or
agreements (other than the Merger Agreement or the transactions
contemplated thereby): (i) any action or agreement that is
intended, or could reasonably be expected, to impede, interfere
with, delay, postpone or attempt to discourage or adversely
affect the Merger, and the transactions contemplated by this
Agreement and the Merger Agreement; (ii) any extraordinary
corporate transaction, such as a merger, consolidation or other
business combination involving the Company and its subsidiaries;
(iii) a sale, lease or transfer of a material amount of assets of
the Company or its subsidiaries or a reorganization,
recapitalization, dissolution or liquidation of the Company or
its subsidiaries; (iv) any change in the management or Board of
Directors of the Company, except as proposed by Parent; (v) any
change in the present capitalization or dividend policy of the
Company; (vi) any amendment of the Company's articles of
incorporation or bylaws; or (vii) any other material change in
the Company's corporate structure or business.
3. Representation and Warranties. The Shareholder
represents and warrants to Parent and Merger Sub as follows:
3.1 Ownership of Shares. On the date hereof, the
Shareholder is the record owner of the Shares and, on the date
hereof, the Shares constitute all of the shares of Company Common
Stock owned of record and beneficially by the Shareholder. The
Shareholder has sole voting power, sole power of disposition and
sole power to agree to all of the matters set forth in this
Agreement with respect to all of the Shares, with no limitations,
qualifications or restrictions on such rights, and the Shares are
the only shares of Company Common Stock over which the
Shareholder has such powers or otherwise are owned of record or
beneficially by the Shareholder as of the date hereof. The
Shareholder has received written evidence (a copy of which has
been provided to Parent and Merger Sub) that the Company's Board
of Directors has taken all action necessary to ensure that, upon
the execution and delivery of this Agreement or exercise of the
Option, the Parent or Merger Sub, as the case may be, (a) shall
have the unencumbered right to vote the Shares, (b) will not
become an "acquiring person" or acquire "control shares" as such
terms are used or defined in Section 790 through Section 799 of
the Michigan Business Corporation Act (the "MBCA"), and (c) will
not become an "interested shareholder" as such term is used or
defined in Section 775 through 784 of the MBCA.
3.2 Power, Binding Agreement. The Shareholder has the
legal capacity, power and authority to enter into and perform all
of its obligations under this Agreement. The execution, delivery
and performance of this Agreement by the Shareholder will not
violate any other agreement to which the Shareholder is a party,
including without limitation any voting agreement, shareholders
agreement or voting trust. This Agreement has been duly and
validly executed and delivered by the Shareholder and constitutes
a valid and binding agreement of the Shareholder, enforceable
against the Shareholder in accordance with its terms, except that
such enforceability may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights.
3.3 No Conflicts. Except for filings under the HSR Act and
the Exchange Act, (a) no filing with, and no permit,
authorization, consent or approval of, any Federal, state or
foreign public body or authority is necessary for the execution
of this Agreement by the Shareholder and the consummation by the
Shareholder of the transactions contemplated hereby and (b)
neither the execution and delivery of this Agreement by the
Shareholder nor the consummation by the Shareholder of the
transactions contemplated hereby nor compliance by the
Shareholder with any of the provisions hereof shall (i)conflict
with or result in any breach of any applicable organizational
documents applicable to the Shareholder, (ii) result in a
violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other
instrument or obligation to which the Shareholder is a party or
by which the Shareholder or any of its properties or assets may
be bound or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Shareholder or any
of its properties or assets.
3.4 Encumbrances. The Shares and the certificates
representing the Shares are now, and at all times during the term
hereof will be, held by the Shareholder, or by a nominee or
custodian for the benefit of the Shareholder, free and clear of
all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder.
3.5 Finder's Fees. No investment banker, broker, financial
advisor, finder or other person is entitled to a commission or
fee from Parent, Merger Sub or the Company in respect of this
Agreement or the transactions contemplated hereby based upon any
arrangement or agreement made by or on behalf of the Shareholder,
except as otherwise specifically provided in the Merger Agreement
or arrangements or agreements made by or on behalf of Parent or
Merger Sub by its authorized representatives.
3.6 Reliance by Parent. The Shareholder understands and
acknowledges that Parent is entering into, and causing Merger Sub
to enter into, the Merger Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement and the
representations, warranties and covenants of the Shareholder set
forth herein.
3.7 Ownership of Shares. All Shares owned beneficially or
of record by the Shareholder were acquired at such a time and in
such a manner as set forth on the certificate attached hereto as
Exhibit 3.7.
4. Other Covenants of the Shareholder. The Shareholder
hereby covenants and agrees as follows:
4.1 No Solicitation. The Shareholder shall not (in the
capacity of a shareholder of the Company or otherwise), directly
or indirectly solicit (including by way of furnishing
information) or respond to any inquiries or the making of any
proposal by any person or entity (other than Parent or any
affiliate of Parent) concerning any Acquisition Proposal, except
as permitted by Section 4.2 of the Merger Agreement. If the
Shareholder receives any such inquiry or proposal with respect to
the sale of the Shares, then the Shareholder shall promptly
inform Parent in the same manner as set forth in Section 4.2 of
the Merger Agreement. The Shareholder shall immediately cease
and cause to be terminated any existing activities, discussions
or negotiations with any parties conducted heretofore with
respect to any of the foregoing.
4.2 Restriction on Transfer, Proxies and Non-Interference;
Stop Transfer Order.
(a) The Shareholder hereby agrees, while this
Agreement is in effect, and except as specifically contemplated
hereby, not to (i) offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into
any contract, option or other arrangement or understanding with
respect to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any of the
Shares or any interest therein, (ii) grant any proxies or powers
of attorney, deposit any of the Shares into a voting trust or
enter into a voting agreement with respect to any of the Shares
or (iii) take any action that would make any representation or
warranty of the Shareholder contained herein untrue or incorrect
or have the effect of preventing or disabling the Shareholder
from performing its obligations under this Agreement.
(b) In furtherance of the provisions of Section 4.2(a)
hereof, concurrently herewith the Shareholder shall and hereby
does authorize the Company's counsel to notify the Company's
transfer agent that there is a stop transfer order with respect
to all of the Shares and that this Agreement places limits on the
voting and transfer of the Shares.
4.3 Notice of Additional Shares. The Shareholder hereby
agrees to promptly notify Parent in writing of the number of
After-Acquired Shares (as defined below) that may be acquired by
the Shareholder, if any, after the date hereof. Any
After-Acquired Shares shall become Shares subject to the terms of
this Agreement.
4.4 No Inconsistent Agreements. The Shareholder shall not
enter into any agreement or understanding with any person or
entity the effect of which would be inconsistent or violative of
the provisions of this Agreement.
4.5 Further Assurances. From time to time, at the other
party's request and without further consideration, each party
hereto shall execute and deliver such additional documents and
take all such further action as may be necessary or desirable to
consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
Without limiting the generality of the foregoing, the Shareholder
shall use its best efforts to satisfy the condition set forth in
Section 1.1(b)(iv) within 30 days of the date hereof.
5. Miscellaneous.
5.1 Fees and Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of the
transactions contemplated hereby shall be paid by the party
incurring such expenses.
5.2 Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall
survive the delivery of and payment for the Shares.
5.3 Amendment and Modification. This Agreement may be
amended, modified and supplemented in any and all respects by
written agreement of the parties hereto.
5.4 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by
any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other
parties, except that Merger Sub may assign, in its sole
discretion, any or all of its rights, interests and obligations
hereunder to Parent. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be
enforceable by, the parties and their respective successors and
assigns.
5.5 Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants
or agreements contained in this Agreement will cause the other
party to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the
aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity. Without limiting the
generality of the foregoing, Section 2 hereof constitutes a
voting agreement under Section 461 of the MBCA.
5.6 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon
personal delivery, facsimile transmission (which is confirmed),
telex or delivery by an overnight express courier service
(delivery, postage or freight charges prepaid), or on the fourth
day following deposit in the United States mail (if sent by
registered or certified mail, return receipt requested, delivery,
postage or freight charges prepaid), addressed to the parties at
the following addresses (or at such other address for a party as
shall be specified by like notice):
If to the Shareholder:
NBD Bank
0000 X. Xxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxxx, Esq.
Miller, Canfield, Paddock & Stone P.L.C.
Xxxxx 000
0000 X. Xxxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
If to Parent or Merger Sub, to:
Oxford Automotive, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Oxford Automotive, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxxxxxx, Xx., Esq., Secretary
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
5.7 Definitions; Interpretation.
(a) As used in this Agreement, (i) the term
"After-Acquired Shares" shall mean any shares of Company Common
Stock acquired directly or indirectly, or otherwise beneficially
owned, by the Shareholder in any capacity after the date hereof
and prior to the termination hereof, whether upon the exercise of
options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of a
purchase, dividend, distribution, gift, bequest, inheritance or
as a successor in interest in any capacity (including a fiduciary
capacity) or otherwise; (ii) the term "affiliate(s)" shall have
the meaning set forth in Rule 12b-2 of the Exchange Act and (ii)
the phrases "beneficially own" or "beneficial ownership" with
respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to Rule
13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in
writing (without duplicative counting of the same securities by
the same holder, securities beneficially owned by a person shall
include securities beneficially owned by all other persons with
whom such Person would constitute a "group" within the meaning of
Rule 13d-5 of the Exchange Act).
(b) When a reference is made in this Agreement to a
Section, such reference shall be to a Section in this Agreement
unless otherwise indicated. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be
followed by the words "without limitation." The descriptive
headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
5.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be considered one and the
same agreement and shall become effective when two or more
counterparts have been signed by each of the parties and
delivered to the other party, it being understood that all
parties need not sign the same counterpart.
5.9 Entire Agreement, No Third Party Beneficiaries, Rights
of Ownership. This Agreement (a) constitutes the entire
agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the
subject matter hereof, and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies
hereunder.
5.10 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void,
unenforceable or against its regulatory policy, the remainder of
the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
[This space intentionally left blank.]
5.11 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Michigan
without giving effect to the principles of conflicts of law
thereof.
IN WITNESS WHEREOF, Parent, Merger Sub and the Shareholder
have caused this Agreement to be duly executed as of the day and
year first above written.
OXFORD AUTOMOTIVE, INC.
By:
Name:
Title:
HI ACQUISITION, INC.
By:
Name:
Title:
NBD BANK, Co-Trustee
By:
Name: Xxxx X. Xxxxxxxx
Title: First Vice President
Xxxxxx Xxxxxx, Co-Trustee
