1
EXHIBIT 2
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
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TABLE OF CONTENTS
Section Number Description Page Number
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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
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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, Et . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
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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 Price
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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
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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
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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
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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
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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
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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 Delaware, neither the execution and
delivery by Larizza of this Agreement (including all agreements
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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 cash flows for the fiscal
year then ended, in each case, including the Notes to such financial
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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 reserved against in the
Larizza Financial Statements or the Larizza Interim Statements, (ii) have
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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 property, stamp, workers'
compensation, severance, environmental, transfer, payroll,
withholding, employment, unemployment and social security taxes, or
other taxes of the same or
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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.
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
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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. Sections 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 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.
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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.
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,
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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 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.
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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;
(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;
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(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.
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
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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.
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
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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").
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
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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 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
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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;
(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
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(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);
(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;
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(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;
(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.
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(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 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.
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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,
(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
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(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 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.
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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
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.
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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 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.
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(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 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
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(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 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
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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:
(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
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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
(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
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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 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.
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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.
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,
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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 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:
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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.
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
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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
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
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Word or Phrase Section
-------------- -------
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)
Merrill 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
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 X. 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
-----------------------
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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
39
