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EXHIBIT 3
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STOCK AGREEMENT
BY AND BETWEEN
XXXXXXX & XXXXXX PRODUCTS CO.
AND
XXXXXX X. XXXXXXX
___________________________________
DATED AS OF SEPTEMBER 26, 1995
___________________________________
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TABLE OF CONTENTS
Page
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1. Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Prohibited Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Representations and Warranties of Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Authorization, Validity and Effect of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 No Conflict; Required Filings and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Ownership of Owned Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4 No Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Representations and Warranties of Parent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Authorization, Validity and Effect of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 No Conflict; Required Filings and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Purchase Not for Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4 No Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Voting of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.2 Assignment; Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.7 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.9 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.10 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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STOCK AGREEMENT
Stock Agreement (this "Agreement"), dated as of September 26,
1995, by and between Xxxxxxx & Xxxxxx Products Co., a Delaware corporation
("Parent"), and Xxxxxx X. Xxxxxxx, individually and as trustee under the Trust
Agreement (the "Trust Agreement"), dated July 20, 1989 (in such capacities,
"Stockholder").
RECITALS
A. Parent, LRI Acquisition Corp., a Delaware corporation
and wholly owned subsidiary of Parent ("Merger Sub"), and Larizza Industries,
Inc., an Ohio corporation (the "Company"), have entered into an Agreement and
Plan of Merger, dated the date hereof (the "Merger Agreement"), pursuant to
which the parties thereto have agreed, on the terms and subject to the
conditions set forth therein, to merge Merger Sub with and into the Company
(the "Merger").
B. As of the date hereof, Stockholder is the record and
beneficial owner of, and has the sole right to vote and dispose of, 7,910,906
shares (the "Owned Shares") of Common Stock, no par value, of the Company
("Company Common Shares").
C. As of the date hereof, Stockholder is the Voting
Trustee pursuant to an Amended and Restated Voting Trust Agreement, dated as of
May 4, 1994, as amended, among Stockholder, the Company, as depositary, and the
shareholders set forth on the signature pages thereto (the "Voting Trust
Agreement"), which vests in the Stockholder the power to vote 3,272,177
additional Company Common Shares as Voting Trustee (the "Voting Trust Shares").
D. As a condition to its willingness to enter into the
Merger Agreement, Parent has required that, simultaneously with the execution
of the Merger Agreement, Stockholder agree to the matters set forth herein.
E. In consideration of Parent and Merger Sub entering
into the Merger Agreement, Stockholder is willing to enter into this Stock
Agreement.
1. OPTION
1.1 Option. (a) Stockholder hereby grants to Parent an
irrevocable option (the "Option") to purchase, on the terms and subject to the
conditions set forth herein, all of the Owned Shares, together with (i) any
additional shares of capital stock of the Company which Stockholder is or
becomes entitled to receive from the Company by reason of being a record holder
of the Owned Shares, (ii) any securities or other property into which any such
Owned Shares shall have been or shall be converted or changed, whether by
amendment to the Articles of Incorporation of the Company, merger,
consolidation, reorganization, capital change or otherwise, (iii) any
additional Company Common Shares
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acquired by Stockholder as the result of Stockholder exercising an option,
warrant or other right to acquire shares of capital stock from the Company (all
of the foregoing hereinafter collectively referred to as the "Additional Owned
Shares"), and (iv) any shares of capital stock referred to in clauses (i),
(ii), and (iii) above that are issued or issuable in respect of Additional
Owned Shares (the Owned Shares, the Additional Owned Shares and any securities
referred to in clause (iv) above hereinafter collectively referred to as the
"Option Shares").
(b) Subject to the conditions set forth in Section
1.1(f), the Option may be exercised in whole but not in part by notice given by
Parent to Stockholder at any time prior to the Drop Dead Date (as defined in
the Merger Agreement).
(c) In the event Parent wishes to exercise the Option,
Parent first will send a written notice to Stockholder specifying a place, date
(not less than two business days nor more than 60 calendar days from the date
such notice is given) and time for the closing of the purchase of the Option
Shares (the "Closing").
(d) The total price payable to Stockholder upon exercise
of the Option will be equal to the product of (i) the Merger Price (as defined
in the Merger Agreement) and (ii) the number of Option Shares.
(e) At the Closing, Stockholder will deliver to Parent a
certificate or certificates representing the Option Shares, duly endorsed for
transfer or accompanied by appropriate stock powers, duly executed in blank,
and Parent will deliver to Stockholder the consideration to which Stockholder
is entitled pursuant to Section 1.1(d). Transfer taxes and similar charges
(but not income taxes), if any, imposed as a result of the exercise of the
Option will be paid by Parent.
(f) The obligations of Parent and Stockholder to
consummate the purchase and sale of the Option Shares pursuant to this Section
1.1 will be subject to the fulfillment of the following conditions:
(i) The expiration or termination of the waiting
period, if any, applicable to the consummation of such transactions
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder (the "HSR Act"); and
(ii) Neither of the parties hereto shall be
subject to any order or injunction of a court of competent
jurisdiction which prohibits the consummation of such transactions.
Each of the parties will promptly make all such filings and take all such
actions as may be reasonably required in order to permit the lawful exercise of
the Option, as promptly as possible,
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including without limitation all filings and other actions required by Section
1.1(f).
(g) Notwithstanding any other provision hereof, Parent
may not exercise the Option unless, prior to or simultaneously therewith,
Parent waives all conditions to its obligations to complete the Merger in
Section 4.1 of the Merger Agreement, except for the conditions set forth in
Sections 4.1.4, 4.1.5 and 4.1.6.
1.2 Prohibited Transfers. Stockholder will not during
the term of the Option, except pursuant to this Agreement or the Merger
Agreement, (a) sell, pledge or otherwise dispose of any Option Shares or any
interest therein, (b) deposit any Option Shares into a voting trust or enter
into a voting agreement or arrangement with respect to any Option Shares or
grant any proxy with respect thereto (other than to Parent or its affiliates or
to vote in favor of adoption of the Merger Agreement or the approval of the
Merger), or (c) enter into any contract, option or other arrangement or
undertaking with respect to the foregoing or the direct or indirect acquisition
or sale, assignment, transfer or other disposition of any Company Common Shares
or any interest therein.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as
follows:
2.1 Authorization, Validity and Effect of Agreement.
Stockholder has the requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Stockholder and constitutes
the valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms, subject to bankruptcy, insolvency,
so-called fraudulent transfer and other terms affecting creditors' rights
generally and to general equitable principles (such exception, the "Bankruptcy
Exception").
2.2 No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by Stockholder do not, and the
consummation by Stockholder of the transactions contemplated hereby and thereby
will not, (i) subject to making the filings and obtaining the approvals
identified in Section 2.2(b), conflict with or violate any order, judgment or
decree applicable to Stockholder or by which Stockholder or any Option Shares
is bound or affected, or (ii) result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, result in the loss of a material benefit under, or give to others any
right of purchase or sale, or any right of termination, amendment,
acceleration, increased payments or cancellation of, or result in the creation
of a lien or other encumbrance on any Option Shares (other than
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liens, changes or related agreements which will be fully discharged prior to
the Closing) pursuant to, any contract, agreement or other instrument or
obligation to which Stockholder is a party or by which Stockholder or any
property or asset of Stockholder is bound or affected.
(b) The execution and delivery of this Agreement by
Stockholder do not, and the performance of this Agreement and the consummation
by Stockholder of the transactions contemplated hereby will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign (each a
"Governmental Entity"), except for (i) applicable requirements, if any, of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (ii) the
notification requirements under the HSR Act.
2.3 Ownership of Owned Shares. Stockholder is the sole
record and beneficial owner of the Owned Shares, and at the Closing the Owned
Shares will be so owned free and clear of any security interests, liens,
charges, encumbrances, equities, claims, options (other than the Option),
proxies, stockholder agreements or limitations of whatever nature and free of
any other limitation or restriction (including any restriction on the right to
vote, sell or otherwise dispose of the Owned Shares or any interest therein but
excluding any restriction arising under securities laws) except pursuant to
this Agreement. The Owned Shares and the Voting Trust Shares constitute all of
the Company Common Shares owned of record or beneficially (within the meaning
of Rule 13d-3 under the Exchange Act) by Stockholder.
2.4 No Brokers. Stockholder has not entered into any
contract, arrangement or understanding with any person or firm which may result
in the obligation of Parent to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby.
3. REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to Stockholder as
follows:
3.1 Authorization, Validity and Effect of Agreement.
Parent has the requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Parent and constitutes the
valid and binding obligation of Parent, enforceable against Parent in
accordance with its terms, subject to the Bankruptcy Exception.
3.2 No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by Parent do not, and the
consummation by Parent and of the transactions
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contemplated hereby will not, (i) conflict with or violate the certificate of
incorporation or by-laws of Parent, (ii) subject to making the filings and
obtaining the approvals identified in Section 3.2(b), conflict with or violate
any regulation, order, judgment or decree applicable to Parent or by which any
property or asset of Parent is bound or affected, or (iii) result in any breach
of or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, result in the loss of a material benefit
under, or give to others any right of termination, amendment, acceleration,
increased payments or cancellation of, or result in the creation of a lien or
other encumbrance on any property or asset of Parent pursuant to, any contract,
agreement or other instrument or obligation to which Parent is a party or by
which Parent or any property or asset of Parent is bound or affected.
(b) The execution and delivery of this Agreement by
Parent do not, and the performance of this Agreement and the consummation by
Parent of the transactions contemplated hereby will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Entity, except for (i) applicable requirements, if any, of the
Exchange Act and (ii) the notification requirements under the HSR Act.
3.3 Purchase Not for Distribution. The Option and the
securities to be acquired upon exercise of the Option (the "Acquired Shares")
are and will be acquired by Parent without a view to the public distribution
thereof and neither this Option nor any Acquired Shares will be transferred or
otherwise disposed of except in a transaction registered or exempt from
registration under the Securities Act and in compliance with applicable state
securities laws.
3.4 No Brokers. Parent has not entered into any
contract, arrangement or understanding with any person or firm which may result
in the obligation of Stockholder to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby.
4. CERTAIN COVENANTS
4.1 Voting of Shares. (a) Stockholder will, with
respect to (i) all Owned Shares, (ii) any other Option Shares that he owns of
record or beneficially on the record date for voting at the meeting of
stockholders called to consider and vote upon the Merger (the "Stockholder
Meeting"), and (iii) all Voting Trust Shares, vote or cause to be voted such
Option Shares and Voting Trust Shares (or execute or cause to be executed
written consents with respect to such Option Shares and Voting Trust Shares)
(A) in favor of the adoption of the Merger Agreement and approval of the Merger
and the other transactions contemplated by the Merger Agreement, (B) against
any Alternative Proposal (as
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defined in the Merger Agreement), and (C) in favor of any other matter
necessary for the consummation of the transactions contemplated by the Merger
Agreement and considered and voted upon at the Stockholder Meeting.
Stockholder acknowledges receipt and review of a copy of the Merger Agreement,
provided, however, that nothing in this Section 4.1(a) will be deemed to
restrict or prohibit any action or failure to take action to the extent taken
or omitted to be taken by Stockholder in his capacity as a director or the
Company which is done or not done, as the case may be, in conformity with the
standards set forth in the Merger Agreement.
(b) Following the acquisition of the Option Shares by
Parent upon the exercise of the Option, Parent will, with respect to the Option
Shares that it owns of record or beneficially on the record date for the
Stockholder Meeting, vote or cause to be voted such Option Shares (or execute
or cause to be executed written consents with respect to such Option Shares)
(i) in favor of the adoption of the Merger Agreement and approval of the Merger
and the other transactions contemplated by the Merger Agreement, (ii) against
any Alternative Proposal, and (iii) in favor of any other matter necessary for
the consummation of the transactions contemplated by the Merger Agreement and
considered and voted upon at the Stockholder Meeting.
4.2 No Solicitation. Prior to the Effective Time of the
Merger (as defined in the Merger Agreement), (a) Stockholder will not, and will
cause his agents or representatives (including, without limitation, any
investment banker, attorney or accountant retained by him to represent him
personally) not to, initiate, solicit or encourage, directly or indirectly, any
inquiries or the making or implementation of any Alternative Proposal or engage
in any negotiations concerning, or provide any confidential information or data
to, or have any discussions with, any person relating to an Alternative
Proposal, or otherwise facilitate any effort or attempt to make or implement an
Alternative Proposal, and (b) Stockholder 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, him, provided, however, that nothing in this Section 4.2 will
be deemed to restrict or prohibit any action or failure to take action to the
extent taken or omitted to be taken by Stockholder in his capacity as a
director of the Company which is done or not done, as the case may be, in
conformity with the standards set forth in the Merger Agreement.
4.3 Certain Indebtedness. Prior to the Effective Time of
the Merger, Stockholder will pay or prepay all indebtedness of Stockholder or
any trust or other entity that is an affiliate (as the term "affiliate" is
defined in Rule 405 under the Securities Act of 1933, as amended) of
Stockholder controlled by Stockholder to the Company or any subsidiary of the
Company.
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4.4 Limitation on Competition. For a period of two years
from the Closing Date (as defined in the Merger Agreement), Stockholder will
not, and will cause each of his Affiliates not to, directly or indirectly, own,
manage, operate, finance, join, control or participate in the ownership,
management, operation, financing or control of, or be associated as a director,
partner or representative in connection with, any profit or not-for-profit
business or enterprise that is engaged in the manufacture or sale of plastic
components or interior trim to the automotive original equipment manufacturing
industry (as currently conducted by the Companies) in the United States, Canada
or elsewhere. Stockholder acknowledges that a breach of this Section 4.3 will
cause irreparable damage to the Surviving Corporation the exact amount of which
will be difficult or impossible to ascertain, and that the Surviving
Corporation's remedies at law for any such breach will be inadequate.
Accordingly, Stockholder agrees that upon a breach of this Section 4.3, the
Surviving Corporation will be entitled to injunctive or other equitable relief.
5. GENERAL PROVISIONS
5.1 Notices. Any notice required to be given hereunder
will be sufficient if in writing, and sent by facsimile transmission and by
courier service (with proof of service), hand delivery or certified or
registered mail (return receipt requested and first class postage prepaid),
addressed as follows:
If to Parent, to: If to Stockholder, to:
Xxxxxxx & Xxxxxx Products Co. Xxxxxx X. Xxxxxxx
000 XxXxxxxxxx Xxxxx c/o Larizza Industries, Inc.
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 000 Xxxx Xxx Xxxxxx Xxxx
Attention: Chief Executive Officer Suite 1040
Fax No.: (000) 000-0000 Xxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
With copies to: With copies to:
Xxxxxxx & Xxxxxx Products Co. Xxxxxxx X. Lebowski
000 Xxxxxxx Xxxxxx, 0xx Xxxxx 0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Suite 302
Attention: Xxxxxxxxx Xxxxxxx, Esq. Xxxx Xxxxxxxxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
-and-
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Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax No.: (000) 000-0000
or to such other address as any party shall specify by written notice so given,
and such notice will be deemed to have been delivered as of the date so
telecommunicated, personally delivered or three days after having been mailed.
5.2 Assignment; Binding Effect. Neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned or
delegated by either of the parties hereto (whether by operation of law or
otherwise). This Agreement will be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or will confer upon any person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
5.3 Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings between the parties with
respect thereto.
5.4 Governing Law. This Agreement will be governed by
and construed in accordance with the laws of the State of Delaware without
regard to its rules of conflict of laws.
5.5 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered will be an original, but all such counterparts will together
constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof each signed by less than both, but together signed by
both of the parties hereto.
5.6 Headings. Headings of the Articles and Sections of
this Agreement are for the convenience of the parties only, and will be given
no substantive or interpretive effect whatsoever.
5.7 Interpretation. In this Agreement, unless the
context otherwise requires, words describing the singular number will include
the plural and vice versa, and words denoting any gender will include all
genders, and words denoting natural persons will include corporations and
partnerships and vice versa.
5.8 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement will
nevertheless remain in full force and effect so long as the economic or legal
substance of
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the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
5.9 Termination. If Parent has not theretofore purchased
the Option Shares pursuant to the Option or not then given notice of its desire
to exercise the Option pursuant to Section 1.1(c), this Agreement will
terminate automatically immediately upon the occurrence of the Drop Dead Date
(as defined in the Merger Agreement).
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5.10 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties
will be entitled to specific performance of the terms hereof and other
appropriate equitable relief only (but excluding monetary damages). With
respect to any intentional breach, the parties will be entitled to any remedy
at law or in equity.
[Remainder of this page left intentionally blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXX & XXXXXX PRODUCTS CO.
By: /s/ XXXXXX X. XXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
/s/ XXXXXX X. XXXXXXX
--------------------------
Xxxxxx X. Xxxxxxx,
Individually and as
Trustee of the Trust
Created by the Trust
Agreement
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