EXHIBIT 2
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
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,
including without limitation all filings and other actions
required by Section 1.1(f).
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(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
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
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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
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
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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
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
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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.
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.
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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-
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.
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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
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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