EXHIBIT 2.3
January 24, 1997
Xxxxxx Stockholders Trust
c/o Xxxxxxxxx X. Xxxx, Xx.,
as Manager
Xxxxxxx Partners, L.P.
000 X. Xx. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Re: Trust Unit Exchange Agreement
Dear Sirs:
This letter (this "Agreement") will evidence the agreement of the
undersigned (each an "Exchanging Shareholder" and, collectively, the "Exchanging
Shareholders") to transfer, sell, assign, and convey to the Xxxxxx Stockholders
Trust, a Delaware business trust (the "Xxxxxx Stockholders Trust"), the number
of shares of Class A Common Stock, par value $.01 per share, of Xxxxxx Holding
Corporation, a Delaware corporation ("LHC"), set forth below the name of such
Exchanging Shareholder on the signature page hereof (the "LHC Common Shares") in
exchange for the consideration hereinafter set forth, on the terms and subject
to the conditions contained herein.
1. Share Exchange. At the Closing (as hereinafter defined), each
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Exchanging Shareholder shall deliver to Wilmington Trust Company, as Trustee of
the Xxxxxx Stockholders Trust (the "Trustee"), one or more certificates
representing the LHC Common Shares, such certificate or certificates to be
endorsed in blank or accompanied by duly executed stock powers endorsed in
blank. In consideration therefor, and contemporaneously therewith, the Trustee
shall deliver to such Exchanging Shareholder that number of units of beneficial
interest in the Xxxxxx Stockholders Trust set forth below the name of the
Exchanging Shareholder on the signature page hereof (the "Units"). The trust
certificates representing the Units,
substantially in the form attached as Exhibit A hereto, shall be registered in
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the name of the Exchanging Shareholder.
2. Closing. The exchange transactions contemplated by this Agreement
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will take place at a closing (the "Closing") at the offices of Weil, Gotshal &
Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., local
time, on January 24, 1997, or on such other date as is specified by the Manager
(as hereinafter defined) to the Exchanging Shareholders in writing at least one
(1) business day prior thereto.
3. Conditions to Exchange.
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(a) General. The Closing shall occur simultaneously with, but shall
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be conditioned upon the occurrence of, the closing of the transactions
contemplated by the Contribution Agreement, dated November 28, 1996, by and
among LHC, Xxxxxx Armored Inc., a Texas corporation, Xxxx-Xxxxxx Security
Corporation, a Delaware corporation, Xxxxx Fargo Armored Service Corporation, a
Delaware corporation, Xxxxxx, Fargo & Co. (formerly known as Xxxxxx-Xxxxx
Corporation), a Delaware corporation, and the Loomis Stockholders Trust.
(b) Additional Exchanging Shareholder Conditions. The obligation of
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each Exchanging Shareholder to consummate the transactions contemplated
hereunder is subject, at the Closing, to the satisfaction or waiver in writing
by each Exchanging Shareholder of the following conditions:
(i) The Units shall have been delivered, duly executed, at the
Closing or to the Exchanging Shareholders;
(ii) All representations and warranties made by or on behalf of
the Xxxxxx Stockholders Trust in this Agreement shall be true and correct in all
material respects as of the Closing. The Xxxxxx Stockholders Trust shall have
performed and complied in all respects with the covenants contained in this
Agreement required to be performed and complied with by it prior to or at the
Closing; and
(iii) At the Closing, the transactions contemplated hereunder
shall not be prohibited or enjoined (temporarily or permanently) by any
applicable law, claim or governmental regulation.
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(c) Additional Xxxxxx Stockholders Trust Conditions. The obligation
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of the Xxxxxx Stockholders Trust to consummate the transactions contemplated
hereunder is subject, at the Closing, to the satisfaction or waiver by the
Xxxxxx Stockholders Trust of the following conditions:
(i) The LHC Common Shares shall have been delivered endorsed
in blank or accompanied by duly executed stock powers endorsed in blank;
(ii) All representations and warranties made by or on behalf of
the Exchanging Shareholders in this Agreement shall be true and correct in all
material respects as of the Closing. The Exchanging Shareholders shall have
performed and complied in all respects with the covenants contained in this
Agreement required to be performed and complied with by them prior to or at the
Closing; and
(iii) At the Closing, the transactions contemplated hereunder
shall not be prohibited or enjoined (temporarily or permanently) by any
applicable law, claim or governmental regulation.
4. Representations and Warranties of the Exchanging Shareholders. Each
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Exchanging Shareholder (as to itself only) represents and warrants to the Xxxxxx
Stockholders Trust as follows:
(a) Title to LHC Common Shares. Such Exchanging Shareholder has good
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title to the LHC Common Shares, free and clear of any and all liens, pledges,
charges, reservations, restrictions, options, rights of first offer or refusal,
security interests, adverse claims or other encumbrances of any character
whatsoever, whether written or oral and whether or not relating to the extension
of credit or the borrowing of money ("Encumbrances"). Such Exchanging
Shareholder has the full right, power and authority to exchange the LHC Common
Shares for the Units. The delivery of the LHC Common Shares to the Trustee
pursuant to Section 1 will vest in the Xxxxxx Stockholders Trust legal and valid
title to the LHC Common Shares, free and clear of all Encumbrances. Except for
this Agreement, the Contribution Agreement, the Shareholders Agreement, dated as
of May 6, 1991, by and among LHC and the stockholders signatory thereto, as
amended by the First Amendment to the Shareholders Agreement, dated as of May
22, 1992 (the "Shareholders Agreement"), and the Registration Agreement, dated
as of May 6, 1991, by and among LHC and the parties signatory thereto, as
amended by the First Amendment to the Registration Agreement, dated as of May
22, 1992 (the "Registration
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Agreement"), there are no agreements or understandings between such Exchanging
Shareholder and any other person or entity with respect to any matter pertaining
to the LHC Common Shares.
(b) Authority. The Exchanging Shareholder has full legal power and
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capacity to execute, deliver, and perform this Agreement and to deliver the LHC
Common Shares, and now has and at the time the LHC Common Shares are delivered
to the Trustee, will have full legal power to transfer and deliver the LHC
Common Shares to the Xxxxxx Stockholders Trust in accordance with this
Agreement. This Agreement has been duly and validly executed and delivered by
the Exchanging Shareholder and constitutes the legal, valid and binding
obligation of the Exchanging Shareholder, enforceable against such Exchanging
Shareholder in accordance with its terms subject, as to enforceability, to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other laws of general applicability affecting the rights of creditors and to
general principles of equity.
(c) No Intent to Distribute. The Units to be acquired by the
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Exchanging Shareholder pursuant to this Agreement are being acquired for his or
her own account and without a view to the distribution or resale of such
securities or any interest therein in violation of the Securities Act of 1933,
as amended (the "Securities Act"), or any similar federal statute, and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder
or in violation of any state securities or blue sky laws, all as the same shall
be in effect at any time of determination.
(d) Accredited Investor. The Exchanging Shareholder is an
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"Accredited Investor" as such term is defined in Rule 501(a) of Regulation D
promulgated under the Securities Act.
(e) Experience. The Exchanging Shareholder has such experience in
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business and financial matters as to be fully capable of evaluating the risks
and merits of an investment in the Units, and the Exchanging Shareholder's
financial position is such that he or she is able to bear the risk of such
investment in the Units, including the risk of possible loss of his or her
entire investment.
5. Representations and Warranties of the Xxxxxx Stockholders Trust. The
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Xxxxxx Stockholders Trust hereby represents and warrants to each Exchanging
Shareholder as follows:
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(a) Existence. The Xxxxxx Stockholders Trust is duly organized and
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validly existing under the laws of the State of Delaware.
(b) Authorization. The Xxxxxx Stockholders Trust has all requisite
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power and authority to enter into this Agreement, issue the Units and perform
its obligations hereunder. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary action on the part of the
Xxxxxx Stockholders Trust, and this Agreement has been duly executed and
delivered by the Xxxxxx Stockholders Trust. This Agreement constitutes the
legal, valid and binding obligation of the Xxxxxx Stockholders Trust,
enforceable against the Xxxxxx Stockholders Trust in accordance with its terms
subject, as to enforceability, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws of general applicability affecting the
rights of creditors and to general principles of equity.
6. Limitations on Transfer.
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(a) Restrictions on Transfer. From and after the Closing, neither
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the Units nor any interest therein shall be transferable except upon the
conditions specified in Article 3 of the Trust Agreement. Any purported transfer
in violation of Article 3 of the Trust Agreement shall be void ab initio and of
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no force or effect.
(b) Restrictive Legends. Except as otherwise permitted by Article 3
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of the Trust Agreement, each certificate for the Units issued to an Exchanging
Shareholder or to a subsequent transferee shall include legends in substantially
the following forms:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR PURSUANT
TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. SUCH SECURITIES MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
ASSIGNED, EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT WITH RESPECT
TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT, (ii) RULE 144
UNDER SUCH ACT, OR (iii) ANY OTHER EXEMPTION FROM REGISTRATION UNDER
SUCH ACT.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER TERMS AND CONDITIONS SET FORTH IN
THE BUSINESS TRUST AGREEMENT DATED AS OF NOVEMBER 27, 1996, A COPY OF
WHICH MAY BE OBTAINED FROM THE MANAGER AT ITS PRINCIPAL EXECUTIVE
OFFICES.
7. Covenant of Exchanging Shareholders.
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By execution of this Agreement, the Exchanging Shareholders hereby
agree to be bound by the terms and conditions of the Business Trust Agreement
(the "Trust Agreement"), dated as of November 27, 1996, by and among Xxxxxxx
Partners, L.P., a Delaware limited partnership, and Xxxxxxx Affiliates, L.P., a
Delaware limited partnership, together as the initial grantors, the Trustee,
Xxxxxxxxx X. Xxxx, Xx., as Manager (the "Manager"), and the Unitholders listed
on the signature pages thereto. A copy of the Trust Agreement is attached to
this Agreement as Exhibit B.
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8. Miscellaneous.
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(a) Notices. Any notices or other communications required or
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permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows (or at such other
address as may be substituted by notice given as herein provided):
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If to the Manager:
Xxxxxxxxx X. Xxxx, Xx.
c/o Wingate Partners, L.P.
000 X. Xx. Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
If to the Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Custody
Telecopy: (000) 000-0000
If to any Exchanging Shareholder, at its address listed on the signature
pages hereof or such other address as any Exchanging Shareholder may
provide by notice to the Manager.
(b) No Waivers; Amendments.
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(i) No failure or delay on the part of the Manager or any of the
Exchanging Shareholders in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
of any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies
provided for herein are cumulative and are not exclusive of any remedies
that may be available to the Xxxxxx Stockholders Trust or any of the
Exchanging Shareholders at law or in equity or otherwise.
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(ii) Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by
the parties hereto.
(c) Documentary Taxes. The Xxxxxx Stockholders Trust agrees to pay
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any and all stamp, transfer and other similar taxes, other than any income
taxes, payable or determined to be payable in connection with the execution and
delivery of this Agreement or the issuance of the Units.
(d) Successors and Assigns. Whether or not an express assignment has
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been made pursuant to the provisions of this Agreement, provisions of this
Agreement that are for the Exchanging Shareholders' benefit as the holders of
any Units are also for the benefit of, and enforceable by, all subsequent
holders of such Units, except as otherwise expressly provided herein. This
Agreement shall be binding upon each of the parties hereto, and their respective
successors and assigns.
(f) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CHOICE-OF-LAW
RULES THEREOF.
(g) Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(h) Counterparts; Effectiveness. This Agreement may be executed in
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any number of counterparts, each of which shall be an original with the same
effect as if the signatures thereto and hereto were upon the same instrument.
(i) Entire Agreement. This Agreement supersedes all prior agreements
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and understandings, whether written or oral, of the parties hereto with respect
to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If the provisions set forth above accurately reflect our agreement,
kindly so indicate by executing the counterpart hereof and returning it to the
undersigned whereupon this letter will constitute the valid and binding
agreement of the parties hereto.
EXCHANGING SHAREHOLDER:
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DIOGENES INTERNATIONAL LTD.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
President
LHC Common Shares: 127,000
Units: 127,000
Address of Exchanging Shareholder:
000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxx
Xxxxxx JOB 2B0
If the provisions set forth above accurately reflect our agreement,
kindly so indicate by executing the counterpart hereof and returning it to the
undersigned whereupon this letter will constitute the valid and binding
agreement of the parties hereto.
EXCHANGING SHAREHOLDER:
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XXXX MANAGEMENT SERVICES INC. PROFIT SHARING PLAN
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Trustee
LHC Common Shares: 23,000
Units: 23,000
Address of Exchanging Shareholder:
000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxx
Xxxxxx JOB 2B0
If the provisions set forth above accurately reflect our agreement,
kindly so indicate by executing the counterpart hereof and returning it to the
undersigned whereupon this letter will constitute the valid and binding
agreement of the parties hereto.
EXCHANGING SHAREHOLDER:
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/s/ XXX X. XXXXXXXXX
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XXX X. XXXXXXXXX
LHC Common Shares: 5,567
Units: 5,567
Address of Exchanging Shareholder:
c/o Wingate Partners, L.P.
000 X. Xx. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
If the provisions set forth above accurately reflect our agreement,
kindly so indicate by executing the counterpart hereof and returning it to the
undersigned whereupon this letter will constitute the valid and binding
agreement of the parties hereto.
EXCHANGING SHAREHOLDER:
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KEY CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
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Title: Vice President
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LHC Common Shares: 268,794
Units: 268,794
Address of Exchanging Shareholder:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxx 00000-0000
If the provisions set forth above accurately reflect our agreement,
kindly so indicate by executing the counterpart hereof and returning it to the
undersigned whereupon this letter will constitute the valid and binding
agreement of the parties hereto.
EXCHANGING SHAREHOLDER:
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XXXXXXX PARTNERS, L.P.
By: Xxxxxxx Management Company, L.P.,
its general partner
By: /s/ Xxxxxxxxx X. Xxxx, Xx.
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Xxxxxxxxx X. Xxxx, Xx.
General Partner
LHC Common Shares: 786,385
Units: 786,385
Address of Exchanging Shareholder:
000 X. Xx. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
If the provisions set forth above accurately reflect our agreement,
kindly so indicate by executing the counterpart hereof and returning it to the
undersigned whereupon this letter will constitute the valid and binding
agreement of the parties hereto.
EXCHANGING SHAREHOLDER:
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XXXXXXX AFFILIATES, L.P.
By: /s/ Xxxxxxxxx X. Xxxx, Xx.
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Xxxxxxxxx X. Xxxx, Xx.
General Partner
LHC Common Shares: 12,260
Units: 12,260
Address of Exchanging Shareholder:
000 X. Xx. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
If the provisions set forth above accurately reflect our agreement,
kindly so indicate by executing the counterpart hereof and returning it to the
undersigned whereupon this letter will constitute the valid and binding
agreement of the parties hereto.
EXCHANGING SHAREHOLDER:
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THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: XXXXXXX X. XXXXXX
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Title: AVP
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LHC Common Shares: 39,301
Units: 39,301
Address of Exchanging Shareholder:
Two Lincoln Centre, Suite 200
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
If the provisions set forth above accurately reflect our agreement,
kindly so indicate by executing the counterpart hereof and returning it to the
undersigned whereupon this letter will constitute the valid and binding
agreement of the parties hereto.
EXCHANGING SHAREHOLDER:
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By: /s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
LHC Common Shares: 45,965
Units: 45,965
Address of Exchanging Shareholder:
00000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Accepted and agreed to as of
the date first above written.
LOOMIS STOCKHOLDERS TRUST
By: /s/ Xxxxxxxxx X. Xxxx, Xx.,
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Xxxxxxxxx X. Xxxx, Xx.,
as Manager and not individually
