EXHIBIT 99.1
AMENDMENT NUMBER ONE
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NUMBER ONE TO AGREEMENT AND PLAN OF MERGER, dated as of February
3, 2001, by and among EIMO OYJ, a company organized under the laws of the
Republic of Finland ("Parent"), SPARTAN ACQUISITION CORP., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Sub") and TRIPLE
S PLASTICS, INC., a Michigan corporation (the "Company").
WHEREAS, the parties hereto entered into that certain "Agreement and Plan
of Merger" dated as of July 13, 2000 (the "Original Agreement"); and
WHEREAS, the parties desire to make certain amendments to the Original
Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and agreed, the parties intending
to be legally bound hereby, agree as follows:
1. Amendments to Original Agreement. The Original Agreement is hereby
amended as follows:
(a) All reference in the Original Agreement to the "Lock-Up Agreement"
shall mean the Lock-Up Agreement in the form of Exhibit 1.6(e) to the
Original Agreement, as amended by Amendment Number One thereto, the form of
which is attached as Appendix A to this Amendment.
(b) Section 2.1(d) of Article II of the Original Agreement is hereby
amended by striking such section in its entirety and inserting in lieu
thereof the following:
"(d) Exchange Ratio. The Exchange Ratio shall be 6.45."
(c) The Original Agreement is hereby further modified as necessary to
reflect that the Exchange Ratio is fixed.
(d) Section 5.6(c) is hereby amended by inserting at the beginning of
such subsection to be part of the first sentence thereof the words "If
required under the HSR Act,".
(e) Section 5.7, Employee Stock Options, is hereby amended by striking
Section 5.7(a) in its entirety and inserting in lieu thereof the following:
"(a) As of the Effective Time (i) each outstanding Company Employee
Stock Option, and any other Company Option (together, the "Adjusted
Options") shall be exchanged for an option to purchase the number of
Parent ADSs derived by multiplying the number of Shares subject to
such Company Employee Stock Option or other Company Option
immediately prior to the Effective Time by the Exchange Ratio and
dividing the result by two (rounded to the nearest whole number of
Parent ADSs), at an exercise price per Parent ADS equal to (X) the
exercise price for each such Share subject to such option (Y) divided
by the Exchange Ratio (Z) with the result multiplied by two (rounded
down to the nearest whole cent), and all references in each such
option to the Company shall be deemed to refer to Parent, where
appropriate, and (ii) Parent shall assume the obligations of the
Company under the Company Stock Plans. The other terms of each
Adjusted Option, and the plans under which they were issued, shall
continue to apply in accordance with their terms, subject to Section
5.7(d)."
(f) Section 5.14, Governance Matters, shall be amended by striking such
section in its entirety and inserting in lieu thereof the following
"5.14 Governance Matters. Prior to the Effective Time, the Board of
Directors of Parent shall take all necessary action to (i) cause the
resignations of (or will cause the removal of, if resignations are
not tendered) of Xxxxx Xxxxxxxx plus one other current Director of
Parent as directors of Parent, and (ii) appoint A. Xxxxxxxxx Xxxxxxx,
Xxxxxx X. Xxxxxxx and Xxxx X. Xxxxxx, to serve as members of such
Board of Directors of Parent, effective as of the Effective Time,
until the first annual meeting of Parent Shareholders following the
Effective Time. Further, in connection with the 2001 annual meeting
of Parent shareholders, the Board of Directors of Parent shall take
all necessary action to nominate seven persons to serve on the Board
of Directors of Parent for the period ending with the 2002 annual
meeting of Parent shareholders, which nominees shall include A.
Xxxxxxxxx Xxxxxxx, Xxxxxx X. Xxxxxxx and Xxxx X. Xxxxxx. There is no
commitment or obligation of Parent or its shareholders whatsoever
regarding the members of the Board of Directors of Parent from and
after the 2002 annual meeting of Parent Shareholders."
(g) Section 7.1(d)(i) shall be amended striking the reference therein to
"February 28, 2001" and inserting in lieu thereof the date "June 30, 2001."
As a result of such change, the "Termination Date" as defined and used in
the Original Agreement shall mean and refer to June 30, 2001.
(h) Section 7.3, Payment of Certain Fees and Expenses, shall be amended
by striking Section 7.3(b) in its entirety and inserting in lieu thereof
the following:
"(b) If this Agreement is terminated by Parent in accordance with
Section 7.1(b)(i) as a result of a willful breach by the Company, or
is terminated by Parent in accordance with Section 7.1(b)(ii), or
Section 7.1(b)(iii), then the Company shall pay to Parent the
Termination Fee and its Expenses. If this Agreement is terminated by
Parent in accordance with Section 7.1(b)(iv), then Parent shall pay
to the Company the Termination Fee and its Expenses. If this
Agreement is terminated by Parent in accordance with Section
7.1(b)(i) hereof as a result of a non-willful breach by Company, then
the Company shall pay to Parent its Expenses."
(i) Section 8.1, Definitions, is hereby amended by adding the following
definition:
"Parent Average Price" shall mean the average, for a period
consisting of the fifteen (15) consecutive Trading Days ending on
(and including) the last Trading Day prior to the Company
Shareholders Meeting (as herein defined), of the volume-weighted
daily average price, as reported in the Financial Times, U.S.
Edition, or if not reported therein, another authoritative source,
expressed in Euros for a single Parent Ordinary Share on the HSE,
converted into U.S. Dollars at the Exchange Rate for such date."
2. Confirmation of ADS Ratio. The parties confirm that they have agreed
that each Parent ADS shall represent two Parent Ordinary Shares.
3. Confirmation of Agreement. Except as otherwise set forth herein, the
Original Agreement shall continue in full force and effect. All capitalized
terms not defined herein which are defined in the Original Agreement shall
have the meaning ascribed to them in the Original Agreement.
4. Counterparts, Telecopier. This Amendment Number One to the Original
Agreement and Amendment Number One to the Lock-Up Agreement referred to herein
may be executed in one or more counterparts, all of which together shall be
considered one and the same agreement. Transmission by telecopier of an
executed counterpart of a signature page to this Amendment Number One and
Amendment Number One to the Lock-Up Agreement shall be deemed to constitute
due and sufficient delivery of such counterparts.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized
as of the date first written above.
EIMO OYJ
By___________________________________
Name: Xxxxx Xxxxxxxx
Title: Executive Vice Chairman
SPARTAN ACQUISITION CORP.
By___________________________________
Name: Xxxxx Xxxxxxxx
Title: President and Secretary
TRIPLE S PLASTICS, INC.
By___________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chairman
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