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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
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DURAKON INDUSTRIES, INC.
(Name of Subject Company)
DURAKON INDUSTRIES, INC.
(Name of Person Filing Statement)
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COMMON STOCK, WITHOUT PAR VALUE
(Title of Class of Securities)
266334 10 1
(CUSIP Number of Class of Securities)
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DAVID W. WRIGHT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DURAKON INDUSTRIES, INC.
2101 N. LAPEER ROAD
LAPEER, MICHIGAN 48446
(810) 664-0850
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Person(s) Filing Statement)
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COPY TO:
DONALD J. KUNZ
HONIGMAN MILLER SCHWARTZ AND COHN
2290 FIRST NATIONAL BUILDING
660 WOODWARD AVENUE
DETROIT, MICHIGAN 48226
(313) 465-7454
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Item 1. Security and Subject Company
The name of the subject company is Durakon Industries, Inc., a Michigan
corporation (the "Company"), and the address of the principal executive
offices of the Company is 2101 N. Lapeer Road, Lapeer, Michigan 48446. The
title of the class of equity securities to which this statement relates is the
common stock, without par value, of the Company (the "Shares").
Item 2. Tender Offer of the Bidder
This statement relates to the tender offer disclosed in a Tender Offer
Statement on Schedule 14D-1, dated June 25, 1999 (the "Schedule 14D-1") of
LPIV Acquisition Corp., a Michigan corporation (the "Purchaser") and a wholly-
owned subsidiary of Littlejohn Partners IV, L.P., a limited partnership
organized under the laws of Delaware (the "Parent"), to purchase all
outstanding Shares at a price of $16.00 per Share (such amount, the "Offer
Price"), net to the seller in cash, without interest thereon, upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated June
25, 1999 (the "Offer to Purchase") , and the related Letter of Transmittal
(which, as amended from time to time, together constitute the "Offer").
The Purchaser is making the Offer pursuant to the Agreement and Plan of
Merger among the Parent, the Purchaser and the Company, dated June 17, 1999
(the "Merger Agreement"). The Merger Agreement provides, among other things,
that, upon the terms and subject to the conditions contained therein and in
accordance with the Business Corporation Act of the State of Michigan
("MBCA"), as promptly as practicable, after the satisfaction or waiver of the
conditions contained therein and the purchase of Shares pursuant to the Offer,
the Purchaser will be merged with and into the Company (the "Merger").
According to the Schedule 14D-1, the address of the principal executive
office of the Purchaser and the Parent is 115 East Putnam Avenue, Greenwich,
CT 06830.
Item 3. Identity and Background
(a) The name and business address of the Company, which is the person
filing this statement, are set forth in Item 1 above.
(b) Except as described or incorporated by reference herein, to the
knowledge of the Company, as of the date hereof, there exists no material
contract, agreement, arrangement or understanding and no actual or potential
conflict of interest between the Company or its affiliates and (i) the
Company's executive officers, directors or affiliates or (ii) the Parent, the
Purchaser, their executive officers, directors or affiliates.
Certain contracts, agreements, arrangements and understandings between the
Company and certain of its directors and executive officers are described in
the Company's Proxy Statement dated April 23, 1999, relating to its 1999
annual meeting of shareholders (the "1999 Proxy Statement"). A copy of the
1999 Proxy Statement is attached hereto as Exhibit (c)(1) and the portions
thereof referred to above are incorporated herein by reference. The Company
has entered into an Indemnity Agreement with each of the members of the Board
of Directors of the Company, pursuant to which the Company has agreed to
indemnify each director against any and all expenses and liabilities of any
type incurred by such director by reason of the fact that such individual is
or was a director or officer of the Company. Copies of such Indemnity
Agreements referred to above are attached hereto as Exhibits (c)(2) through
(c)(6) and incorporated herein by reference.
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MERGER AGREEMENT
The following is a summary of certain provisions of the Merger Agreement.
This summary is qualified in its entirety by reference to the Merger Agreement
which is attached hereto as Exhibit (c)(7) and incorporated herein by
reference.
The Offer. The Merger Agreement provides that if none of the events set
forth below under the heading, "Certain Conditions of the Offer" shall have
occurred or is existing, the Purchaser will commence the Offer as promptly as
reasonably practicable after the date of the Merger Agreement, but in no event
later than five business days after the date thereof. The obligation of the
Purchaser to accept for payment and pay for Shares tendered pursuant to the
Offer is subject to the condition that there have been validly tendered and
not withdrawn prior to the expiration of the offer at least 90% of the
outstanding Shares (the "Minimum Tender Condition") and the other conditions
set forth below under the heading, "Certain Conditions of the Offer". Pursuant
to the Merger Agreement, the Purchaser expressly reserves the right to waive
any such condition, to increase the price per Share payable in the Offer, and
to make any other changes in the terms and conditions of the Offer; provided,
however, that, without the prior written consent of the Company, no change may
be made (i) which decreases the price per Share payable in the Offer, (ii)
which changes the form of consideration payable in the Offer, (iii) which,
except as set forth in the next succeeding sentence, extends the period that
the Offer is outstanding, (iv) which reduces the maximum number of Shares to
be purchased in the Offer or (v) which imposes conditions other than those set
forth below under the heading, "Certain Conditions of the Offer". The Merger
Agreement, however, provides that notwithstanding anything to the contrary
contained therein, without the consent of the Company, the Parent and the
Purchaser may extend the Offer for one or more periods not to exceed 30 days
in the aggregate.
Certain Conditions of the Offer. Notwithstanding any other term of the
Offer or the Merger Agreement, the Purchaser shall not be required to accept
for payment or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-1(c) under the Exchange Act (relating to the
Purchaser's obligation to pay for or return tendered Shares after the
termination or withdrawal of the Offer), to pay for any Shares tendered
pursuant to the Offer if (i) the Minimum Tender Condition shall not have been
satisfied, (ii) at any time on or after the date of the Merger Agreement and
prior to the acceptance of such Shares for payment, any of the following
conditions exist:
(a) there shall have been entered any order, preliminary or permanent
injunction, decree, judgment or ruling in any action or proceeding before
any court or governmental, administrative or regulatory authority or
agency, which makes illegal or otherwise directly or indirectly restrains
or prohibits or makes materially more costly the making of the Offer, the
acceptance for payment of, or payment for, any Shares by the Parent, the
Purchaser or any other affiliate of the Parent, or the consummation of any
other transaction contemplated by the Merger Agreement;
(b) there shall have occurred any Material Adverse Effect (as defined in
the Merger Agreement) with respect to the Company;
(c) (i) the Board of Directors of the Company or any committee thereof
(x) shall have withdrawn or modified in a manner adverse to the Parent or
the Purchaser the approval or recommendation of the Offer, the Merger, the
Shareholder Agreements (as defined below) or the Merger Agreement, (y)
shall have failed to reaffirm such approval or recommendation upon request
by the Parent given after the Company's receipt of a proposal involving a
Competing Transaction (as defined in the Merger Agreement) or (z) shall
have approved or recommended any takeover proposal or any other acquisition
of Shares other than the Offer and the Merger, or (ii) the Board of
Directors of the Company or any committee thereof shall have resolved to do
any of the foregoing;
(d) there shall have been any misstatement in or omission from any
representation of, or there shall have occurred any breach of warranty by,
the Company in the Merger Agreement as a result of which, individually or
in the aggregate, there may reasonably be expected to occur a Material
Adverse Effect with respect to the Company;
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(e) the Company shall have failed to perform in any material respect any
obligation or to comply in any material respect with any material agreement
or material covenant of the Company to be performed or complied with by it
under the Agreement;
(f) the Merger Agreement shall been terminated in accordance with its
terms;
(g) the Company shall not have taken or caused to be taken all such
action so that each outstanding option to purchase Shares issued by the
Company other than pursuant to the Company's 1996 Stock Option Plan shall
be automatically canceled as of the effective time of the Merger (the
"Effective Time") and the holders of each such option shall only be
entitled to receive from the Company, at the Effective Time or as soon as
practicable thereafter, an amount in cash equal to the product of (i) the
number of Shares previously subject to such option and (ii) the excess, if
any, of the Merger Consideration (as defined in the Merger Agreement) over
the exercise price per Share previously subject to such option, in exchange
for the cancellation of each such option;
(h) the Purchaser and the Company shall have agreed that the Purchaser
shall terminate the Offer or postpone the acceptance for payment of or
payment for Shares thereunder which, in the sole judgment of the Purchaser,
in any such case, and regardless of the circumstances (including any action
or inaction by the Parent or any of its affiliates) giving rise to any such
condition, makes it inadvisable to proceed with such acceptance for payment
or payment; or
(i) the Company's consolidated cash balance, as computed in accordance
with generally accepted accounting principles, as of the expiration of the
Offer, shall be less than $15 million, determined after subtracting an
amount equal to the then-outstanding accounts payable (excluding inter-
company accounts payable) incurred by the Company, any wholly-owned
subsidiary of the Company (a "Subsidiary") and/or Durakon Mexicana, S. A.
de C. V. ("Duramex"), relating to certain expenditures permitted to be made
pursuant to the Merger Agreement in connection with the GMT-805 project;
or (iii) immediately after the expiration of the Offer, the President of the
Company shall not have delivered a certificate in form and substance
reasonably satisfactory to Parent to the effect that the condition described
above does not exist.
The Merger Agreement provides that the foregoing conditions are for the
sole benefit of the Purchaser and the Parent and may be asserted by the
Purchaser or the Parent regardless of the circumstances giving rise to any
such condition or may be waived by the Purchaser or the Parent in whole or in
part at any time and from time to time in their sole discretion. The Merger
Agreement provides that the failure by the Parent or the Purchaser at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any
such right, the waiver of any such right with respect to particular facts and
other circumstances shall not be deemed a waiver with respect to any other
facts and circumstances, and each such right shall be deemed an ongoing right
that may be asserted at any time and from time to time.
Company Action. The Merger Agreement provides that, subject to the
conditions thereof, the Company has approved of and consented to the Offer.
The Board of Directors of the Company, at meetings duly called and held on
June 14, 1999 and June 17, 1999, has unanimously (i) determined that the
Merger Agreement and the Shareholder Agreements, and the transactions
contemplated by the Merger Agreement (the "Transactions"), including, without
limitation, the Offer, the Merger and the tender of the Shares pursuant to the
Shareholder Agreements, are fair to and in the best interests of the
shareholders of the Company, (ii) approved and adopted the Merger Agreement
and the Shareholders Agreement, and the Transactions, including, without
limitation, the Offer, the Merger and the tender of the Shares pursuant to the
Shareholder Agreements, (iii) taken all action to render the provisions of
Section 775 through 784 of the MBCA inapplicable to the Offer, the Merger and
the Shareholder Agreements, and (iv) recommended that the shareholders of the
Company accept the Offer and approve and adopt the Merger Agreement and the
Transactions, including, without limitation, the Merger.
The Merger. The Merger Agreement provides that, upon the terms and subject
to the conditions thereof, and in accordance with the MBCA, at the Effective
Time the Purchaser will be merged with and into the Company. As a result of
the Merger, the separate corporate existence of the Purchaser will cease and
the
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Company will continue as the Surviving Corporation (as defined in the Merger
Agreement), and shall continue to be governed by the laws of the State of
Michigan. The Merger Agreement provides that the Parent, the Purchaser and the
Company shall use their reasonable best efforts to consummate the Merger as
soon as practicable.
Pursuant to the Merger Agreement, at the Effective Time, each Share issued
and outstanding immediately prior to the Effective Time (other than any Shares
held by the Purchaser, the Parent or any direct or indirect wholly owned
subsidiary of the Parent or the Company, which will be canceled and retired
without any conversion thereof and no payment or distribution shall be made
with respect thereto) shall be canceled and shall be converted automatically
into the right to receive an amount equal to the Merger Consideration,
payable, without interest, to the holder of such Shares, upon surrender in
accordance with the Merger Agreement, of the certificate that formerly
evidenced such Shares. In addition, at the Effective Time, each share of
common stock, without par value, of the Purchaser issued and outstanding
immediately prior to the Effective Time will be converted into and exchanged
for one validly issued, fully paid and nonassessable share of Common Stock,
without par value, of the Surviving Corporation.
The Merger Agreement provides that, each outstanding option to purchase
Shares granted under the Company Stock Option Plans (as defined in the Merger
Agreement) or otherwise will be canceled at the Effective Time, and each
holder of a canceled option (whether issued pursuant to a Company Stock Option
Plan or otherwise) will be entitled to receive, at the Effective Time or as
soon as practicable thereafter, from the Company, in consideration for the
cancellation of such option, an amount in cash equal to the product of (i) the
number of Shares previously subject to such option and (ii) the excess, if
any, of the Merger Consideration over the exercise price per Share previously
subject to such option.
The Merger Agreement provides that the Articles of Incorporation of the
Purchaser, as in effect immediately prior to the Effective Time, will be the
Articles of Incorporation of the Surviving Corporation, and that the By-Laws
of the Purchaser, as in effect immediately prior to the Effective Time, will
be the By-Laws of the Surviving Corporation, in each case, until amended in
accordance with applicable law. The Merger Agreement also provides that the
directors of the Purchaser immediately prior to the Effective Time will be the
initial directors of the Surviving Corporation and that the officers of the
Purchaser immediately prior to the Effective Time will be the initial officers
of the Surviving Corporation, in each case until their respective successors
are duly elected or appointed and qualified.
Special Shareholders' Meeting. If immediately after the expiration of the
Offer at least a majority of the outstanding shares on a fully-diluted basis
have been tendered in the Offer and not withdrawn, but the Minimum Tender
Condition has not been satisfied, then the parties have agreed that the
Purchaser will not purchase any shares pursuant to the Offer and, instead, the
Company will promptly, in accordance with applicable law and its Articles of
Incorporation and Bylaws, (i) duly call, give notice of, convene and hold a
special meeting of its shareholders as soon as practicable following the
expiration of the Offer for the purpose of considering and taking action on
the Merger Agreement and the Transactions (the "Special Shareholders'
Meeting") and (ii) subject to certain provisions of the Merger Agreement, (a)
include in the proxy statement to be prepared in connection with such meeting
(the "Proxy Statement") the unanimous recommendation of the Board of Directors
of the Company that the shareholders of the Company approve and adopt the
Merger Agreement and the Transactions, including without limitation, the
Merger and (b) use its best efforts to obtain such approval and adoption.
Proxy Statement. The Merger Agreement provides that, as soon as practicable
following the date of the Merger Agreement, the Company will file the Proxy
Statement with the Commission under the Exchange Act, unless not required
under applicable "short-form" merger provisions of the MBCA, and, if Shares
have not been purchased in the Offer but the parties are obligated to proceed
with the Merger, the Company will use its best efforts to have the Proxy
Statement cleared by the Commission. The parties will cooperate with one
another in this endeavor.
Access to Information; Confidentiality. Pursuant to the Merger Agreement,
from the date of the Merger Agreement to the Effective Time, the Company will,
and will cause the Subsidiaries and the officers, directors,
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employees, auditors and other agents of the Company and the Subsidiaries to,
afford the officers, employees and agents of the Parent and the Purchaser
access at all reasonable times to the officers, employees, agents, properties,
offices, plants and other facilities, books and records of the Company and
each Subsidiary, will instruct its independent auditors to make available its
accountants' work papers to the officers, employees or agents of the Parent
and the Purchaser, and will furnish the Parent and the Purchaser with all
financial, operating and other data and information as the Parent or the
Purchaser, through its officers, employees or agents, may reasonably request.
All information obtained by the Parent or the Purchaser pursuant to the above
sentence will be kept confidential in accordance with the Confidentiality
Agreement between the Parent and the Company, a copy of which is filed and
attached hereto as Exhibit (c)(8) and incorporated herein by reference.
Representations and Warranties. Pursuant to the Merger Agreement, the
Company has made customary representations and warranties to the Parent and
the Purchaser with respect to, among other things, its organization and
qualification, the Subsidiaries, capitalization, authority, required filings
and consents, compliance with law, financial statements, the absence of
certain changes or events concerning the Company or any of the Subsidiaries
since December 31, 1998, the absence of litigation, employee benefit plans,
labor matters, information in the Schedule 14D-1, the Offer to Purchase and
such other documents, together with all supplements and amendments thereto
(collectively, the "Offer Documents"), this Schedule 14D-9 and the Proxy
Statement, real property matters, intellectual property matters, taxes,
environmental matters, material contracts, brokers and counsel, Year 2000
compliance and the capitalization and certain other matters concerning
Duramex. The Parent and the Purchaser have made customary representations and
warranties to the Company with respect to, among other things, its
organization, authority, no conflicts, required filings and consents,
financing for the Offer, information in the Offer Documents and the proxy
statement, and brokers.
Conduct of Business by the Company. Pursuant to the Merger Agreement, the
Company has agreed that, from the date of the Merger Agreement to the
Effective Time, unless the Parent shall otherwise agree in writing, the
business of the Company and the Subsidiaries will be conducted only in, and
the Company and the Subsidiaries will not take any action except in, the
ordinary course of business and in a manner consistent with past practice; and
the Company will use its best efforts to preserve substantially intact the
business organization of the Company and the Subsidiaries, to keep available
the services of the current officers, employees and consultants of the Company
and the Subsidiaries and to preserve the current relationships of the Company
and the Subsidiaries with customers, suppliers and other persons with which
the Company or any Subsidiary has significant business relationships.
Pursuant to the Merger Agreement, neither the Company nor any Subsidiary
will, from the date of the Merger Agreement to the Effective Time, directly or
indirectly do, or propose to do, any of the following without the prior
written consent of the Parent: (i) amend or otherwise its Articles of
Incorporation or Bylaws or equivalent organizational documents; (ii) issue,
sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale,
pledge, disposition, grant or encumbrance of (a) any shares of capital stock
of any class of the Company, any Subsidiary, Duramex or any options, warrants,
convertible securities or other rights of any kind to acquire any shares of
such capital stock, or any other ownership interest (including, without
limitation, any phantom interest), of the Company, any Subsidiary or Duramex
(except for the issuance of a maximum of 468,000 Shares issuable pursuant to
stock options outstanding on the date of the Merger Agreement) or (b) any
assets of the Company, any Subsidiary, except for sales in the ordinary course
of business and in a manner consistent with past practice; (iii)(a) declare,
set aside, make or pay any dividend or other distribution, payable in cash,
stock, property or otherwise, with respect to any of its capital stock, or (b)
make any capital contribution with respect to any Subsidiary or Duramex; (iv)
reclassify, combine, split, subdivide or redeem, purchase or otherwise
acquire, directly or indirectly, any of its capital stock; (v)(a) except as
expressly provided pursuant to the Merger Agreement, take any of the actions
described in (b)(2), (b)(3), (b)(4), (b)(6) and (b)(7) of this subsection (v)
as they relate to the GMT-805 project being undertaken by the Company and
Duramex or (b)(1) acquire (including, without limitation, by merger,
consolidation, or acquisition of stock or assets or any other business
combination) another entity or any assets, (2) incur indebtedness for borrowed
money or issue any debt securities or assume, guarantee or endorse, pledge in
respect of or otherwise as an accommodation become
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responsible for the obligations of any person, or make loans or advances,
except in the ordinary course of business consistent with past practice, but
in no event shall there be more than $1,300,000 of indebtedness outstanding at
any one time, (3) enter into any contract or agreement other than (A)
agreements specifically provided for in the Merger Agreement (which shall only
be entered into following consultation with the Parent) or (B) contracts or
agreements entered into in the ordinary course of business consistent with
past practice and which require payments by the Company or the Subsidiaries in
an aggregate amount of less than $100,000, (4) terminate, cancel or permit any
change in, or agree to any change in, any Material Contract (as defined in the
Merger Agreement), except in the ordinary course of business consistent with
past practice, (5) terminate, cancel or permit any change in, or agree to any
change in, any Affiliate Contract, Broker Agreement or Attorney Engagement
(each as defined in the Merger Agreement), (6) authorize any single capital
expenditure which is above specified dollar thresholds, or (7) enter into or
amend any contract, agreement, commitment or arrangement with respect to any
matter set forth in this subparagraph (v); (vi) increase the compensation of,
or grant any severance or termination pay to, directors, officers and
employees (except for normal compensation increases consistent with past
practice for employees who are not officers); (vii) change accounting policies
or practices; (viii) make any tax election or settle or compromise any
material federal, state, local or foreign income tax liability; (ix) pay,
discharge or satisfy any claim, liability or obligation; or (x) announce an
intention, enter into any formal or informal agreement, or otherwise make a
commitment to do any of the foregoing.
No Solicitation of Transactions. Pursuant to the Merger Agreement, neither
the Company nor any Subsidiary shall, directly or indirectly, through any
officer, director, agent or otherwise, solicit, initiate or encourage the
submission of any proposal or offer from any person relating to the
acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any Subsidiary or any merger,
consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary (each a "Competing
Transaction") or participate in any discussions or negotiations regarding, or
furnish to any other person any information with respect, or otherwise
cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any other person to do or seek any of the
foregoing. The Company and each of the Subsidiaries will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any other person conducted prior to the execution of the Merger
Agreement with respect to any Competing Transaction and will promptly notify
the Parent following receipt of any request by any person relating to any
possible Competing Transaction or information concerning the Company. Pursuant
to the Merger Agreement, the Company provided the Parent with the name of each
person to whom any confidential documents or information concerning the
Company or any of the Subsidiaries was disclosed by or on behalf of the
Company since January 1, 1998 for the purpose of discussing a possible change
in control transaction involving the Company (a "Potential Buyer"). The
Company will promptly request that each such Potential Buyer either return all
of such confidential documents and information, and all copies thereof, to the
Company or deliver a written certification of such destruction to the Company.
The Company shall use its best efforts to cause each such Potential Buyer to
comply with such request and shall notify the Parent promptly following
compliance by each Potential Buyer with such request. The Company agrees that
it will not disclose any of the terms of the Merger Agreement or the matters
referred to therein to any other prospective acquiror of the Company until the
Effective Time or earlier if the Merger Agreement is terminated in accordance
with its terms, except to the extent such disclosure is required by law or the
regulations of Nasdaq. Nothing contained in the Merger Agreement shall
prohibit the Board of Directors of the Company from furnishing information to,
or entering into discussions or negotiations with, any person in connection
with an unsolicited (from the date of the Merger Agreement) proposal involving
a fully-financed Competing Transaction which is made in writing by such person
and which, if consummated, would provide consideration per Share to the
shareholders of the Company in excess of the Offer Price (a "Superior
Proposal"), if, and only to the extent that, the Board of Directors of the
Company determines in good faith, based upon the written advice of its
counsel, that such action is required for the Board of Directors of the
Company to comply with its fiduciary duties to shareholders under the MBCA.
Employee Benefits Matters. The Merger Agreement provides that for a period
of one year from the Effective Time, the Parent shall, or shall cause the
Company or the Surviving Corporation to, maintain the Plans
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(as defined in the Merger Agreement) (other than the Company Stock Option
Plans) which the Company maintains for the benefit of, or which are open to, a
majority of the employees of the Company on the terms in effect on the date of
the Merger Agreement, or such other plans, arrangements or programs as will
provide employees with benefits that in the aggregate are substantially
equivalent to those provided under the Plans (other than the Company Stock
Option Plans) as in effect on the date of the Merger Agreement. In addition,
the Parent shall, or shall cause the Company or the Surviving Corporation to,
assume and agree to perform certain Change of Control Agreements in the same
manner and to the same extent that the Company is required to perform such
agreements.
Directors' and Officers' Indemnification and Insurance. The Merger
Agreement provides that the Articles of Incorporation and Bylaws of the
Surviving Corporation must contain provisions no less favorable with respect
to indemnification than are set forth in the Bylaws of the Company and these
provisions may not be amended, repealed or otherwise modified for a period of
six years from the Effective Time in any manner that would adversely affect
the rights thereunder of individuals who at the Effective Time, were
directors, officers, employees, fiduciaries or agents of the Company, unless
such modification shall be required by law.
The Merger Agreement provides that the Company agrees to indemnify and hold
harmless, and, after the Effective Time, the Surviving Corporation agrees to
indemnify and hold harmless, each present and former director, officer,
employee, fiduciary and agent of the Company and each Subsidiary
(collectively, the "Indemnified Parties") against any costs and expenses
(including reasonable attorneys' fees), judgments, fines, losses, claims,
damages, liabilities and settlement amounts paid in connection with any claim,
action, suit, proceeding or investigation (whether arising before or after the
Effective Time), whether civil, criminal, administrative or investigative,
arising out of or pertaining to any action or omission in their capacity as an
officer, director, employee, fiduciary or agent, whether occurring before or
after the Effective Time, for a period of six years after the date of the
Merger Agreement. In the event of such claim, action, suit, proceeding or
investigation, (a) the Company or the Surviving Corporation, as the case may
be, shall pay the reasonable fees and expenses of counsel selected by the
Indemnified Parties, which counsel shall be reasonably satisfactory to the
Company or the Surviving Corporation, promptly after statements therefor are
received and (b) the Company and the Surviving Corporation will cooperate in
the defense of any such matter; provided, however, that neither the Company
nor the Surviving Corporation shall be liable for any settlement effected
without its written consent (which consent will not be unreasonably withheld);
provided further that neither the Company nor the Surviving Corporation shall
be obligated to pay the fees and expenses of more than one counsel for all
Indemnified Parties in any single action except to the extent that two or more
of such Indemnified Parties shall have conflicting interests in the outcome of
the action; and provided further that, in the event that any claim for
indemnification is asserted or made within such six-year period, all rights to
indemnification in respect of such claim shall continue until the disposition
of such claim.
The Merger Agreement provides that the Surviving Corporation shall use its
best efforts to maintain in effect for six years from the Effective Time, if
available, the current directors' and officers' liability insurance policies
maintained by the Company (provided that the Surviving Corporation may
substitute therefor policies of at least the same coverage containing terms
and conditions which are not materially less favorable) with respect to
matters occurring on or prior to the Effective Time; provided, however, that
in no event shall the Surviving Corporation be required to expend more than an
amount per year equal to 250% of current annual premiums paid by the Company
for such insurance. The Merger Agreement requires that any successor
corporation or assignee of the Company or the Surviving Corporation assume
these insurance and indemnification obligations.
Waiver. The Merger Agreement provides that, at any time prior to the
Effective Time, any party thereto may (i) extend the time for the performance
of any of the obligation or other act of any other party thereto, (ii) waive
any inaccuracy in the representations and warranties contained therein or in
any document delivered pursuant thereto and (iii) waive compliance with any
agreement or condition contained therein. Any such extension or waiver shall
be valid if set forth in an instrument in writing signed by the party or
parties to be bound thereby.
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Conditions to the Merger If Offer Conditions Have Been Satisfied or
Waived. The Merger Agreement provides that if the conditions set forth above
under the heading, "Certain Conditions of the Offer" have been satisfied or,
where permitted, waived, the respective obligations of each party to effect
the Merger shall be subject to the satisfaction at or prior to the Effective
Time of the following conditions: (i) the Merger Agreement and the
Transactions, including, without limitation, the Merger, shall have been
approved and adopted by the affirmative vote of the shareholders of the
Company (unless the vote of shareholders is not required by the MBCA); (ii) no
governmental authority, agency or commission shall have enacted, issued
promulgated, enforced or entered any law, rule, regulation executive order,
decree, injunction or other order which is then in effect and has the effect
of making the acquisition of Shares by the Parent or the Purchaser or any
affiliate of either of them or the consummation of the Merger illegal or
otherwise restricting, preventing or prohibiting the consummation of the
Transactions; and (iii) the Purchaser shall have purchased all Shares validly
tendered and not withdrawn pursuant to the Offer; provided, however, that this
condition shall only be applicable to the obligations of the Parent and the
Purchaser if the Purchaser's failure to purchase such Shares is not in breach
of the Merger Agreement or the terms of the Offer.
Conditions to the Merger If Offer Conditions Have Not Been Satisfied or
Waived. The Merger Agreement provides that if the conditions set forth above
under the heading, "Certain Conditions of the Offer" have not been satisfied
or, where permitted, waived, the respective obligations of the Parent and the
Purchaser, on the one hand, and the Company, on the other hand, to effect the
Merger shall be subject to the satisfaction, or, where permitted, waived, at
or prior to the Effective Time of the conditions set forth in subsections (a)
and (b) below:
(a) Conditions Applicable to the Parent and the Purchaser: (1) the
Merger Agreement and the Transactions, including, without limitation, the
Merger, shall have been approved and adopted by the affirmative vote of the
shareholders of the Company (unless the vote of shareholders is not
required by the MBCA); (2) no governmental authority, agency or commission
shall have enacted, issued promulgated, enforced or entered any law, rule,
regulation executive order, decree, injunction or other order which is then
in effect and has the effect of making the acquisition of Shares by the
Parent or the Purchaser or any affiliate of either of them or the
consummation of the Merger illegal or otherwise restricting, preventing or
prohibiting the consummation of the Transactions; (3) there shall not have
occurred any Material Adverse Effect, which, although further defined in
the Merger agreement, is generally a change, other than a change to the
design specifications or scope of the Company's for the GMT-805 project
being undertaken by the Company and Duramex, that adversely affect, or may
be reasonably likely to adversely affect, the business (operational,
financial or otherwise) of the Company and its subsidiaries by an amount
equal to at least $5 million; (4) the Company shall have taken or caused to
be taken all such action so that each outstanding option to purchase Shares
issued by the Company other than pursuant to the Company's 1996 Stock
Option Plan shall be automatically canceled as of the Effective Time and
the holders of each such option shall only be entitled to receive from the
Company, at the Effective Time or as soon as practicable thereafter, an
amount in cash equal to the Spread (as defined in the Merger Agreement), if
any, in exchange for the cancellation of each such option; (5) no
misstatement in or omission from any representation of, or beach of
warranty by, the Company in the Merger Agreement, as a result of which
there may reasonably be expected to occur a material adverse effect with
respect to the Company, and the President of the Company shall have
delivered a certificate to such effect in form and substance reasonably
satisfactory to the Parent; (6) the Company shall have performed in all
material respects all of its obligations, and shall have complied in all
material respects with all of its material agreements and covenants, to be
performed or complied with by it under the Merger Agreement, and the
President of the Company shall have delivered a certificate to such effect
in form and substance reasonably satisfactory to the Parent; and (7) the
Company's consolidated cash balance, as computed in accordance with
generally accepted accounting principles, as of the expiration of the
Effective Time, shall be less than $15 million, determined after
subtracting an amount equal to the then-outstanding accounts payable
(excluding inter-company accounts payable) incurred by the Company, any
Subsidiary and/or Duramex relating to certain expenditures permitted to be
made pursuant to the Merger Agreement in connection with the GMT-805
project.
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(b) Conditions Applicable to the Company: (1) the Merger Agreement and
the Transactions, including, without limitation, the Merger, shall have
been approved and adopted by the affirmative vote of the shareholders of
the Company (unless the vote of shareholders is not required by the MBCA);
(2) no governmental authority, agency or commission shall have enacted,
issued promulgated, enforced or entered any law, rule, regulation executive
order, decree, injunction or other order which is then in effect and has
the effect of making the acquisition of Shares by the Parent or the
Purchaser or any affiliate of either of them or the consummation of the
Merger illegal or otherwise restricting, preventing or prohibiting the
consummation of the Transactions; (3) no misstatement in or omission from
any representation of, or breach of warranty by, the Parent or the
Purchaser in the Merger Agreement, as a result of which there may
reasonably be expected to occur a material adverse effect with respect to
the Parent or the Purchaser, and the President of the Parent shall have
delivered a certificate to such effect in form and substance reasonably
satisfactory to the Company; and (4) the Parent and the Purchaser shall
have performed in all material respects all of their obligations, and shall
have complied in all material respects with all of their material
agreements and covenants, to be performed or complied with by them under
the Merger Agreement, and the President of the Parent shall have delivered
a certificate to such effect in form and substance reasonably satisfactory
to the Company.
Termination. The Merger Agreement provides that it may be terminated and
the Merger and the other Transactions may be abandoned at any time prior to
the Effective Time, notwithstanding any requisite approval and adoption of the
Merger Agreement and the transactions contemplated thereby by the shareholders
of the Company:
(i) By mutual written consent duly authorized by (a) the Boards of
Directors of the Purchaser and the Company and (b) the general partner of
the Parent; or
(ii) By the Parent, the Purchaser or the Company if (a) the Effective
Time shall not have occurred on or before November 30, 1999; provided,
however, that the right to terminate the Merger Agreement under this
section shall not be available to any party whose failure to fulfill any
obligation under the Merger Agreement has been the cause of, or resulted
in, the failure of the Effective Time to occur on or before such date or
(b) any court of competent jurisdiction in the United States or other
governmental authority shall have issued an order, decree, ruling or taken
any other action restraining, enjoining or otherwise prohibiting the Offer
or the Merger and such order, decree, ruling or other action shall have
become final and nonappealable; or
(iii) By the Parent, upon approval of its Board of Directors, if (a) due
to an occurrence or circumstance that would result in a failure to satisfy
any of the conditions set forth above under the heading, "Certain
Conditions of the Offer" other than the Minimum Tender Condition, the
Purchaser shall have (1) failed to commence the Offer within 60 days
following the date of the Merger Agreement, (2) terminated the Offer
without having accepted any Shares for payment thereunder or (3) failed to
pay for Shares pursuant to the Offer within 90 days following the
commencement of the Offer; provided, however, that the Minimum Tender
Condition shall have been satisfied and such action or inaction under (1),
(2) or (3) shall not have been caused by or resulted from the failure of
the Parent or the Purchaser to perform in any material respect any material
covenant or agreement of either of them contained in the Merger Agreement
or the material breach by the Parent or the Purchaser of any material
representation or warranty of either of them contained in this Agreement or
(b) prior to the purchase of Shares pursuant to the Offer, the Board of
Directors of the Company or any committee thereof shall have withdrawn or
modified in a manner adverse to the Purchaser or the Parent or, after
receipt of a proposal involving a Competing Transaction, upon the request
of the Parent, shall not have promptly publicly reaffirmed, its approval or
recommendation of the Offer, the Merger Agreement, the Merger, the
Shareholder Agreements or any other Transaction, or shall have recommended
another merger, consolidation, business combination, recapitalization,
reorganization or similar transaction involving, or acquisition of, the
Company or its assets, or another tender offer or exchange offer for
Shares, or shall have resolved to do any of the foregoing; or
(iv) By the Parent, upon approval of its Board of Directors, if the
Company shall have materially breached its obligations discussed under the
heading "No Solicitation of Transactions" above; or
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(v) By the Company, upon approval of the Board of Directors of the
Company, if due to an occurrence or circumstance that would result in a
failure to satisfy any condition set forth above in under the heading,
"Certain Conditions of the Offer" other than the Minimum Tender Condition,
the Purchaser shall have (a) failed to commence the Offer within 60 days
following the date of the Merger Agreement, (b) terminated the Offer
without having accepted any Shares for payment thereunder or (c) failed to
pay for Shares pursuant to the Offer within 90 days following the
commencement of the Offer; provided, however, that the Minimum Tender
Condition shall have been satisfied and such action or inaction under (a),
(b) and (c) shall not have been caused by or resulted from the failure of
the Company to perform in any material respect any material covenant or
agreement of it contained in the Merger Agreement or the material breach by
the Company of any material representation or warranty of it contained in
the Merger Agreement; or
(vi) By the Company or the Parent, prior to the purchase of Shares
pursuant to the Offer, if the Board of Directors of the Company, in full
compliance with the provisions discussed above under the heading "No
Solicitation of Transactions", shall have approved the execution by the
Company of a definitive agreement relating to a Superior Proposal;
provided, however, the Company shall not be entitled to terminate the
Merger Agreement pursuant to this section (vi) unless, at least three (3)
business days prior to such termination, the Company shall have first
provided to the Parent (a) notice of its intention to terminate the Merger
Agreement as of a particular effective date, (b) copies of the definitive
documents relating to the Superior Proposal that the Board of Directors of
the Company has resolved to approve and (c) the right to increase the price
to be paid for the Shares purchased pursuant to the Offer and the Merger to
an amount per Share equal to the amount per Share to be received by the
shareholders of the Company pursuant to the Superior Proposal (the "Higher
Price"); and provided, further, that if, prior to the effective date of
such termination as set forth in the notice from the Company referred to
above, the Parent notifies the Company of its agreement to pay the Higher
Price, the Merger Agreement shall not terminate; or
(vii) By either the Parent or the Company at any time after the
expiration of the Offer if, immediately after expiration of the Offer, less
than a majority of the outstanding Shares on a fully-diluted basis have
been tendered into the Offer, and not withdrawn.
Effect of Termination. In the event of the termination of the Merger
Agreement pursuant to the foregoing, the Merger Agreement will then become
void, and there will be no liability on the part of any party thereto, except
as set forth in Sections 8.03 (Fees and Expenses) and 9.01 (Non-Survival of
Representations and Warranties) of the Merger Agreement. This, however, will
not relieve any party from liability for any breach of the Merger Agreement.
Fees and Expenses. The Merger Agreement provides that in the event that (a)
any person shall have commenced a tender or exchange offer for 25% or more (or
which, assuming the maximum amount of securities which could be purchased,
would result in any person beneficially owning 25% or more) of the then
outstanding Shares or otherwise publicly announced a Competing Transaction for
the direct or indirect acquisition of the Company or all or substantially all
of its assets and (1) the Board of Directors of the Company does not recommend
against the Competing Transaction, (2) the Offer shall have remained open for
at least 20 business days, (3) the Minimum Tender Condition shall not have
been satisfied and (4) the Merger Agreement shall have been terminated; or (b)
the Merger Agreement is terminated pursuant to clauses (iii)(b), (iv) or (vi)
under "Termination" above; then, in any such event, the Company shall pay the
Parent promptly (but in no event later than one business day after the first
of such events shall have occurred) a fee of $3,545,389 (representing 3.5% of
the aggregate consideration paid in the Offer and the Merger) and shall
reimburse the Parent promptly for all out-of-pocket expenses incurred by it,
up to a maximum of $500,000, in connection with its due diligence
investigation, dealings with financing sources and in the negotiation,
execution and delivery of the Merger Agreement and any debt financing
arrangements relating to the Offer or the Merger, such expenses to include,
without limitation, attorneys', accountants' and other consultants' fees and
disbursements, bank fees, and travel costs. Such amounts shall be payable in
immediately available funds.
The Merger Agreement provides that all costs and expenses incurred in
connection with the Merger Agreement and the Transactions shall be paid by the
party incurring such expenses, whether or not any Transaction is consummated.
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Shareholder Agreements
Each of the following shareholders of the Company (the "Shareholders") has
entered into a Stock Tender and Voting Agreement (collectively, the
"Shareholder Agreements"), dated June 17, 1999, with the Parent and the
Purchaser: David Aronow, Phillip Wm. Fisher, Richard J. Jacob, Robert M.
Teeter, David W. Wright, Max M. Fisher Revocable Trust, u/a/d August 13, 1988,
Martinique Charitable Remainder Unitrust, Wolverine Investors, 1990 Bronx
Trust #1 and 1990 Des Moines Trust #1. The following is a summary of certain
provisions of the Shareholder Agreements. This summary is qualified in its
entirety by reference to the Shareholder Agreements which are attached hereto
as Exhibits (c)(9) through (c)(18) and incorporated herein by reference.
Agreement to Tender. Pursuant to the Shareholder Agreements, each
Shareholder will tender all Shares beneficially owned by it pursuant to the
Offer within 10 business days of commencement of the Offer.
Voting and Irrevocable Proxy. Pursuant to the Shareholder Agreements, each
Shareholder will (i) vote all Shares beneficially owned by it in favor of the
Merger, (ii) vote all Shares beneficially owned by it against any action or
agreement that would result in a breach of any covenant or any representation
or warranty or any other obligation or agreement of the Company under or
pursuant to the Merger Agreement, (iii) vote all Shares beneficially owned by
it against any action or agreement that would impede, interfere with, delay,
postpone or attempt to discourage the Merger or the Offer, and (iv) without
limiting the foregoing, consult with the Parent and vote all Shares
beneficially owned by it in such manner as is determined by the Parent to be
in compliance with this paragraph. Pursuant to the Shareholder Agreements,
each Shareholder has delivered to the Parent contemporaneously with the
execution of its Shareholder Agreement an Irrevocable Proxy pursuant to which
each Shareholder irrevocably appoints and constitutes Angus C. Littlejohn,
Jr., Michael I. Klein and the Parent as its proxies and attorneys-in-fact to
exercise the proxy to vote the Shares in the foregoing manner at any time
until the earlier to occur of the valid termination of the Merger Agreement or
the Effective Time.
Termination. The Shareholder Agreements provide that they will terminate on
the earliest to occur of (a) the date on which the Purchaser accepts for
payment the Shares tendered in the Offer, so long as the Shares are so
tendered and not withdrawn, (b) the Effective Time and (c) the date of the
termination of the Merger Agreement in accordance with its terms. The
Purchaser shall not purchase the Shares subject to the Shareholder Agreements
pursuant to the Offer unless the Purchaser purchases pursuant to the Offer
that number of Shares such that the Minimum Tender Condition is satisfied.
Certain Covenants of Shareholder. Pursuant to the Shareholder Agreements,
each Shareholder agrees not to: (a) sell, transfer, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of the Shares; (b) grant
any proxies, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (c) directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than the Parent or the Purchaser)
relating to any Competing Transaction, or participate in any discussions or
negotiations regarding, or furnish to any other person any information with
respect to, or otherwise cooperate in any way with, or assist or participate
in, facilitate or encourage, any effort or attempt by any person (other than
the Parent and the Purchaser) to do or seek any of the foregoing. Pursuant to
the Shareholder Agreements, each Shareholder has agreed to cease and cause to
be terminated any existing activities, discussions or negotiations by or on
its behalf with any person (other than the Parent and the Purchaser) conducted
prior to entering such agreement with respect to any Competing Transaction and
agreed to promptly notify the Parent following receipt of any request by any
person (other than the Parent or the Purchaser) relating to any possible
Competing Transaction or information concerning the Company. The Shareholder
Agreements provide that the Shareholder may, solely in his capacity as a
member of the Board of Directors of the Company, furnish information to, or
enter into discussions or negotiations with, any person in connection with an
unsolicited proposal involving a fully-financed Competing Transaction which is
made in writing by such person and which, if consummated, would provide
consideration per share of Common Stock to the shareholders of the Company in
excess of the Offer Price if, and only to the extent that, the Board of
Directors of the Company determines in good faith, based upon the written
advice of its counsel, that such action is required for the Board of Directors
of the Company to comply with its fiduciary duties to shareholders under the
MBCA.
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Item 4. The Solicitation or Recommendation
(a) Recommendation of the Board of Directors.
The Board of Directors has unanimously approved the Merger Agreement and
the transactions contemplated thereby and determined that each of the Offer
and the Merger is fair to, and in the best interest of the shareholders of the
Company. The Board of Directors unanimously recommends that all holders of the
Shares accept the Offer and tender their Shares pursuant to the Offer.
(b) Background; Reasons for the Recommendation.
In the fall of 1998, the Company sought assistance from Lazard Freres & Co.
LLC ("Lazard") regarding long-term strategic planning alternatives, including
the potential sale of the Company. Beginning in September 1998, Lazard
conducted detailed due diligence on the company and, together with the
Company's management, conducted an analysis of various strategic alternatives
available to the Company. On October 27, 1998, Lazard met with representatives
of the Company and presented a detailed review of strategic alternatives.
On January 4, 1999, the Company confirmed its retention of Lazard and J. I.
Harris & Associates ("Harris"; and collectively with Lazard, the "Investment
Bankers") to act as investment bankers to the Company in connection with the
possible sale of the Company, an interest therein or a subsidiary or division
thereof. Beginning in January 1999, at the instruction of the Board of
Directors and based upon consultation with the Investment Bankers, Lazard
contacted 89 strategic and financial parties regarding their possible interest
in a potential transaction with the Company. As a result of these contacts,
Lazard supplied 35 potential parties non-public information, all of which was
subject to various confidentiality and nondisclosure agreements. On February
4, 1999, Lazard contacted Littlejohn & Co. LLC ("Littlejohn") to discuss the
Company. On February 5, 1999, Littlejohn entered into a confidentiality
agreement, a copy of which has been filed as Exhibit (c)(8) hereto, with the
Company and began a due diligence review of the Company.
On February 25, 1999, based on a continued interest in acquiring the
Company and further due diligence, eleven interested parties, including
Littlejohn, submitted preliminary indications of interest and were invited to
conduct detailed due diligence reviews, including meetings with Company
management, review of additional non-public information and tours of the
Company's facilities. On February 25, 1999, a representative of Littlejohn
advised Lazard that the Parent might be interested, subject to further due
diligence, in acquiring the Company at an offer price between $15.50 and
$17.50 per share.
The remaining interested parties conducted additional due diligence reviews
during March and April 1999. On March 22 and 25, 1999, representatives of
Littlejohn visited the Company's facilities in Lapeer, Michigan, and
Greencastle, Pennsylvania. The interested parties were then asked to submit
written proposals setting forth the definitive terms and conditions of an
offer to acquire all of the outstanding Shares and to provide comments on a
proposed form of merger agreement. Two parties, including Littlejohn,
submitted formal qualifying non-binding proposals on April 23, 1999.
Littlejohn's proposal was to acquire 100% of the Shares at $16.50 per share.
Following the receipt of the written proposals, the Board of Directors of
the Company met by telephone conference on May 3, 1999, to consider the two
proposals and to discuss the process of solicitation of interested parties
with the Investment Bankers. At that meeting, based upon its judgment as to
the two formal qualifying proposals received, the Board of Directors of the
Company approved the execution by the Company of a letter agreement pursuant
to which Littlejohn would obtain a continued period to conduct its due
diligence investigation on an exclusive dealing basis through June 2, 1999.
From April 26, 1999, Littlejohn and its financing source continued their due
diligence review of the Company. The Company's Board of Directors discussed
the status of Littlejohn's due diligence review at a meeting held on May 25,
1999. On June 3, 1999, the Company extended its exclusive dealing arrangement
with Littlejohn through June 10, 1999.
On June 9, 1999, representatives of the Company met with representatives of
Littlejohn to discuss the results of Littlejohn's due diligence review which
had revealed issues which, in the judgment of Littlejohn, precluded
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Littlejohn from paying a $16.50 per Share purchase price as initially
indicated in its April 23, 1999 proposal. During the meeting, representatives
of Littlejohn indicated that they were prepared to move forward with the
transaction, but at a price of $15.40 per Share. After further discussion, a
representative of the Company agreed that he would recommend, subject to
finalizing the terms of the Merger Agreement and the Shareholder Agreements, a
$16.00 per Share purchase price. A representative of the Company also agreed
to extend the exclusivity period through the close of business on June 10,
1999. Following such meeting, the parties worked to finalize the Merger
Agreement and Littlejohn conducted confirmatory due diligence on several
matters.
The Board of Directors of the Company met on June 14, 1999 and considered
Littlejohn's proposal to acquire the Shares for $16.00 per Share in cash and
the proposed Merger Agreement and Stock Tender and Voting Agreements to be
executed by certain shareholders of the Company. At the meeting, the Board of
Directors reviewed the terms of the Merger Agreement and representatives of
Lazard reviewed the transaction process. In addition, Lazard provided a draft
form of opinion to the Board of Directors, to the effect that, based on and
subject to certain matters stated therein, the consideration to be received by
the Company's shareholders in the proposed transaction was fair to the
shareholders from a financial point of view, informed the Board of Directors
that Lazard would be prepared to deliver such opinion, assuming finalization
of the Merger Agreement and the outstanding issues on acceptable terms and
presented to the Board of Directors its valuation analysis of the Company. The
Board of Directors thereupon, among other things, (i) determined by unanimous
vote that the proposed acquisition of the Company by the Purchaser was fair to
and in the best interests of the Company and its shareholders, (ii) authorized
and approved the Merger Agreement and the Stock Tender and Voting Agreements
and (iii) recommended by unanimous vote that the shareholders of the Company
accept the Offer and tender their shares pursuant to the Offer, in each case
subject to the resolution of the issues relating to Littlejohn's financing and
Duramex.
From June 14, 1999 through June 17, 1999, representatives of the Company
and Littlejohn continued to negotiate the Merger Agreement and the Shareholder
Agreements and review the term sheet and commitment letter issued to the
Parent by BankBoston, N.A., regarding credit facilities to finance the
acquisition of the Company. On June 17, 1999, the Company extended its
exclusive dealing arrangement with Littlejohn through the end of that day. On
June 17, 1999, the Board of Directors met by telephone conference. At that
meeting, Lazard confirmed that it was prepared to deliver its written fairness
opinion upon the terms of the transactions as described at that meeting. The
Board of Directors discussed the results of such negotiations and review and
reaffirmed by unanimous vote the resolutions adopted by the Board of Directors
on June 14, 1999. On June 17, 1999, the Company, the Parent and the Purchaser
executed the Merger Agreement and the Shareholders entered into the
Shareholder Agreements with the Parent and the Purchaser.
In reaching its conclusions described in Item 4(a) above, the Board of
Directors of the Company considered a number of factors, including, without
limitation, the following:
(i) the presentation of Lazard as to various financial considerations
deemed relevant to the Board of Directors' evaluation of the Offer and the
Merger and the opinion of Lazard, dated June 17, 1999, that as of the date
of its opinion and based upon and subject to certain matters stated in such
opinion, the $16.00 per Share in cash to be received by the holders of the
Shares pursuant to the Offer and the Merger is fair to such holders from a
financial point of view. THE FULL TEXT OF THE WRITTEN FAIRNESS OPINION
RECEIVED BY THE COMPANY FROM LAZARD, WHICH SETS FORTH THE ASSUMPTIONS MADE,
THE MATTERS CONSIDERED AND THE LIMITATIONS ON THE REVIEW UNDERTAKEN BY
LAZARD, IS ATTACHED HERETO AS EXHIBIT (E). SHAREHOLDERS ARE URGED TO
CAREFULLY READ SUCH OPINION IN ITS ENTIRETY;
(ii) the results of the extensive transaction process undertaken by
the Investment Bankers to solicit proposals from third parties to acquire
the Company, and in light of the process, the Company's belief that the
Offer represented the best means available under the circumstances to
provide shareholders with the greatest value and immediate liquidity for
their Shares;
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(iii) information with respect to the financial condition, results of
operations and business of the Company, on both a historical and
prospective basis, and current industry, economic and market conditions;
(iv) the Board of Directors' view as to the merits of the Offer relative
to other strategic alternatives available to the Company; and
(v) the terms and conditions of the Offer and the Merger, including,
without limitation, the fact that, to the extent required by fiduciary
obligations of the Board of Directors to the shareholders under Michigan
law, but subject to the terms and conditions including the payment of a
break-up fee of approximately $3.5 million and the reimbursement of certain
expenses (with a maximum of $500,000), the Company may terminate the Merger
Agreement in order to approve a tender offer or exchange offer for the
Shares by a third party, or another type of business combination, on terms
more favorable to the Company's shareholders than the Offer and the Merger.
The Board of Directors did not assign weights to the individual factors and
viewed their position and recommendation as being based on the totality of the
information presented to and considered by them.
ITEM 5. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED
On January 4, 1999, the Company entered into an agreement with Lazard and
Harris, confirming their retention as the Company's investment bankers in
connection with the sale of the Company, including pursuant to the Offer and
the Merger. Pursuant to such agreement, the Company agreed to pay Lazard and
Harris a total transaction fee in cash equal to 1.5% (approximately $1.5
million) of the aggregate consideration paid in the Offer and the Merger upon
completion of such transaction. In addition, whether or not the Offer or the
Merger is completed, the Company has agreed to reimburse Lazard and Harris for
all of their expenses incurred in connection with their engagement, including
the fees and expenses of their counsel, and to indemnify them against certain
expenses and liabilities incurred in connection with their engagement.
In the ordinary course of business, Lazard and its respective affiliates
may actively trade or hold the securities of the Company for their own
accounts or for the accounts of their customers and, accordingly, may at any
time hold a long or short position in such securities.
The Company has retained D.F. King & Co., Inc., ("King") to provide
consulting services to the Company in connection with the Transactions. King
will receive reasonable and customary compensation for its services and will
be reimbursed for certain reasonable out-of-pocket expenses.
ITEM 6. RECENT TRANSACTIONS AND INTENT WITH RESPECT TO SECURITIES
(a) To the best of the Company's knowledge, during the past 60 days, no
transaction in the Shares has been effected by the Company or by any executive
officer, director, affiliate, or subsidiary of the Company.
(b) Not applicable.
ITEM 7. CERTAIN NEGOTIATIONS AND TRANSACTIONS BY THE SUBJECT COMPANY
(a) Except as described under Item 3, no negotiation is being undertaken or
is underway by the Company in response to the Offer which relates to or would
result in (i) an extraordinary transaction, such as a merger or
reorganization, involving the Company or any subsidiary of the Company; (ii) a
purchase, sale, or transfer of a material amount of assets by the Company or
any subsidiary of the Company; (iii) a tender offer for, or other acquisition
of, securities by, or of, the Company; or (iv) any material change in the
present capitalization or dividend policy of the Company.
(b) Except as described under Items 3 and 4, there are no transactions,
board resolutions, agreements in principle or signed contracts in response to
the Offer which relate to or would result in one or more of the events
referred to in paragraph (a) of this Item 7.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
None.
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Item 9. Material to Be Filed as Exhibits
The following Exhibits are filed herewith:
(c)(1) The Company's Proxy Statement dated April 23, 1999, incorporated by
reference to the Company's Proxy Statement on Schedule 14A, filed
with the Securities and Exchange Commission on April 23, 1999
(c)(2) Indemnity Agreement, dated June 11, 1991, between the Company and
Phillip Wm. Fisher, incorporated by reference to Exhibit 10.26 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1991
(c)(3) Indemnity Agreement dated August 8, 1991, between the Company and
Robert Teeter, incorporated by reference to Exhibit 10.28 to the
Company's Annual Report on Form 10-K for the year ended December
31, 1991
(c)(4) Indemnity Agreement, dated June 11, 1991, between the Company and
David W. Wright, incorporated by reference to Exhibit 10.30 to the
Company's Annual Report on Form 10-K for the year ended December
31, 1991
(c)(5) Indemnity Agreement, dated October 25, 1993, between the Company
and Richard J. Jacob, incorporated by reference to Exhibit 10.31 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1993
(c)(6) Indemnity agreement, dated July 18, 1995 between the Company and
David S. Aronow, incorporated by reference to Exhibit 10.33 to the
Company's Annual Report on Form 10-K for the year ended December
31, 1995
(c)(7) Agreement and Plan of Merger dated as of June 17, 1999 among the
Parent, the Purchaser and the Company
(c)(8) Confidentiality Agreement, dated February 5, 1999, between
Littlejohn & Co., LLC and the Company and countersigned by
Littlejohn & Co., LLC on February 8, 1999
(c)(9) Stock Tender and Voting Agreement with David Aronow
(c)(10) Stock Tender and Voting Agreement with Phillip Wm. Fisher
(c)(11) Stock Tender and Voting Agreement with Richard J. Jacob
(c)(12) Stock Tender and Voting Agreement with Robert M. Teeter
(c)(13) Stock Tender and Voting Agreement with David W. Wright
(c)(14) Stock Tender and Voting Agreement with Max M. Fisher Revocable
Trust, u/a/d August 13, 1988
(c)(15) Stock Tender and Voting Agreement with Martinique Charitable
Remainder Unitrust
(c)(16) Stock Tender and Voting Agreement with Wolverine Investors
(c)(17) Stock Tender and Voting Agreement with 1990 Bronx Trust #1
(c)(18) Stock Tender and Voting Agreement with 1990 Des Moines Trust #1
(d) Press Release dated June 18, 1999, with respect to the Merger
Agreement and the Offer
(e) Opinion of Lazard Freres & Co. LLC, dated June 17, 1999*
(f) Letter to Shareholders dated June 25, 1999*
- --------
* Included in copies mailed to shareholders
16
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete,
and correct.
DURAKON INDUSTRIES, INC.
By: /s/ David W. Wright
-----------------------------
David W. Wright
President and Chief Executive
Officer
17
<PAGE>
EXHIBIT INDEX
Ex. No. Description
The following Exhibits are filed herewith:
(c)(1) The Company's Proxy Statement dated April 23, 1999, incorporated by
reference to the Company's Proxy Statement on Schedule 14A, filed
with the Securities and Exchange Commission on April 23, 1999
(c)(2) Indemnity Agreement, dated June 11, 1991, between the Company and
Phillip Wm. Fisher, incorporated by reference to Exhibit 10.26 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1991
(c)(3) Indemnity Agreement dated August 8, 1991, between the Company and
Robert Teeter, incorporated by reference to Exhibit 10.28 to the
Company's Annual Report on Form 10-K for the year ended December
31, 1991
(c)(4) Indemnity Agreement, dated June 11, 1991, between the Company and
David W. Wright, incorporated by reference to Exhibit 10.30 to the
Company's Annual Report on Form 10-K for the year ended December
31, 1991
(c)(5) Indemnity Agreement, dated October 25, 1993, between the Company
and Richard J. Jacob, incorporated by reference to Exhibit 10.31 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1993
(c)(6) Indemnity agreement, dated July 18, 1995 between the Company and
David S. Aronow, incorporated by reference to Exhibit 10.33 to the
Company's Annual Report on Form 10-K for the year ended December
31, 1995
(c)(7) Agreement and Plan of Merger dated as of June 17, 1999 among the
Parent, the Purchaser and the Company
(c)(8) Confidentiality Agreement dated February 5, 1999, between Littlejohn
& Co. LLC on February 8, 1999 and countersigned by Littlejohn & Co.
LLC on February 8, 1999.
(c)(9) Stock Tender and Voting Agreement with David Aronow
(c)(10) Stock Tender and Voting Agreement with Phillip Wm. Fisher
(c)(11) Stock Tender and Voting Agreement with Richard J. Jacob
(c)(12) Stock Tender and Voting Agreement with Robert M. Teeter
(c)(13) Stock Tender and Voting Agreement with David W. Wright
(c)(14) Stock Tender and Voting Agreement with Max M. Fisher Revocable
Trust, u/a/d August 13, 1988
(c)(15) Stock Tender and Voting Agreement with Martinique Charitable
Remainder Unitrust
(c)(16) Stock Tender and Voting Agreement with Wolverine Investors
(c)(17) Stock Tender and Voting Agreement with 1990 Bronx Trust #1
(c)(18) Stock Tender and Voting Agreement with 1990 Des Moines Trust #1
(d) Press Release dated June 18, 1999, with respect to the Merger
Agreement and Offer
(e) Opinion of Lazard Freres & Co. LLC, dated June 17, 1999*
(f) Letter to Shareholders dated June 25, 1999*
- --------
* Included in copies mailed to shareholders
<PAGE>
Exhibit (c)(7)
Agreement and Plan of Merger dated as of June 17, 1999 among the
Parent, the Purchaser and the Company
<PAGE>
================================================================================
AGREEMENT AND PLAN OF MERGER
among
LITTLEJOHN PARTNERS IV, L.P.,
LPIV ACQUISITION CORP.
and
DURAKON INDUSTRIES, INC.
Dated as of June 17, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I.....................................................................2
SECTION 1.01. The Offer.............................................2
---------
SECTION 1.02. Company Action........................................3
--------------
ARTICLE II....................................................................4
SECTION 2.01. The Merger............................................4
----------
SECTION 2.02. Effective Time; Closing...............................4
-----------------------
SECTION 2.03. Effect of the Merger..................................4
--------------------
SECTION 2.04. Articles of Incorporation; Bylaws.....................5
---------------------------------
SECTION 2.05. Directors and Officers................................5
----------------------
SECTION 2.06. Conversion of Securities..............................5
------------------------
SECTION 2.07. Employee and Director Stock Options...................5
-----------------------------------
SECTION 2.08. Surrender of Shares; Stock Transfer Books.............6
-----------------------------------------
ARTICLE III...................................................................7
SECTION 3.01. Organization and Qualification; Subsidiaries..........7
--------------------------------------------
SECTION 3.02. Articles of Incorporation and Bylaws..................8
------------------------------------
SECTION 3.03. Capitalization........................................8
--------------
SECTION 3.04. Authority Relative to this Agreement..................9
------------------------------------
SECTION 3.05. No Conflict; Required Filings and Consents............9
------------------------------------------
SECTION 3.06. Compliance...........................................10
----------
SECTION 3.07. SEC Filings; Financial Statements....................10
---------------------------------
SECTION 3.08. Absence of Certain Changes or Events.................11
------------------------------------
SECTION 3.09. Absence of Litigation................................12
---------------------
SECTION 3.10. Employee Benefit Plans...............................12
----------------------
SECTION 3.11. Labor Matters........................................14
-------------
SECTION 3.12. Offer Documents; Schedule 14D-9; Proxy Statement.....14
------------------------------------------------
SECTION 3.13. Tangible Property; Real Property and Leases..........15
-------------------------------------------
SECTION 3.14. Trademarks, Patents and Copyrights...................16
----------------------------------
SECTION 3.15. Taxes................................................16
-----
SECTION 3.16. Environmental Matters................................17
---------------------
SECTION 3.17. Material Contracts...................................17
------------------
SECTION 3.18. Brokers and Counsel..................................18
-------------------
SECTION 3.19. Mexican Operations...................................18
------------------
SECTION 3.20. Year 2000 Compliance.................................18
--------------------
ARTICLE IV...................................................................19
SECTION 4.01. Corporate Organization...............................19
----------------------
SECTION 4.02. Authority Relative to This Agreement.................19
------------------------------------
SECTION 4.03. No Conflict; Required Filings and Consents...........19
------------------------------------------
SECTION 4.04. Financing............................................20
---------
SECTION 4.05. Offer Documents; Proxy Statement.....................20
--------------------------------
SECTION 4.06. Brokers..............................................20
-------
ARTICLE V....................................................................21
SECTION 5.01. Conduct of Business by the Company Pending the
----------------------------------------------
Merger.............................................21
------
<PAGE>
ARTICLE VI...................................................................23
SECTION 6.01. Special Shareholders' Meeting........................23
-----------------------------
SECTION 6.02. Proxy Statement......................................23
---------------
SECTION 6.03. Access to Information; Confidentiality...............24
--------------------------------------
SECTION 6.04. No Solicitation of Transactions......................24
-------------------------------
SECTION 6.05. Employee Benefits Matters; Employment Agreements.....25
------------------------------------------------
SECTION 6.06. Directors' and Officers' Indemnification and
--------------------------------------------
Insurance..........................................25
---------
SECTION 6.07. Notification of Certain Matters......................26
-------------------------------
SECTION 6.08. Further Action; Reasonable Best Efforts..............27
---------------------------------------
SECTION 6.09. Public Announcements.................................27
--------------------
SECTION 6.10. Confidentiality Agreement............................27
-------------------------
SECTION 6.11 Financial Statements.................................27
--------------------
SECTION 6.12 SEC Reports..........................................27
-----------
SECTION 6.13. Cancellation of Shares...............................27
----------------------
SECTION 6.14. Issuance of Shares Upon Exercise of Stock Options....27
-------------------------------------------------
ARTICLE VII..................................................................28
SECTION 7.01. Conditions to the Merger If Offer Conditions Have
-------------------------------------------------
Been Satisfied or Waived...........................28
------------------------
SECTION 7.02. Conditions to the Merger if the Conditions to the
-------------------------------------------------
Offer are not Satisfied or Waived..................28
---------------------------------
ARTICLE VIII.................................................................30
SECTION 8.01. Termination..........................................30
-----------
SECTION 8.02. Effect of Termination................................32
---------------------
SECTION 8.03. Fees and Expenses....................................32
-----------------
SECTION 8.04. Amendment............................................33
---------
SECTION 8.05. Waiver...............................................33
------
ARTICLE IX...................................................................33
SECTION 9.01. Non-Survival of Representations, Warranties and
-----------------------------------------------
Agreements.........................................33
----------
SECTION 9.02. Notices..............................................33
-------
SECTION 9.03. Certain Definitions..................................35
-------------------
SECTION 9.04. Severability.........................................35
------------
SECTION 9.05. Entire Agreement, Assignment.........................36
----------------------------
SECTION 9.06. Parties in Interest..................................36
-------------------
SECTION 9.07. Specific Performance.................................36
--------------------
SECTION 9.08. Governing Law........................................36
-------------
SECTION 9.09. Headings.............................................36
--------
SECTION 9.10. Counterparts; Facsimile..............................36
-----------------------
ANNEX A Conditions to the Offer
-----------------------
SCHEDULE I Listing of Shareholders
-----------------------
EXHIBIT A Form of Certificate of Merger
-----------------------------
ii
<PAGE>
Glossary of Defined Terms
Location of
Defined Term Definition
------------ ----------
affiliate.................................................... ss. 9.03(a)
Affiliate Contract........................................... ss. 3.17
Agreement.................................................... Preamble
Attorney Engagement.......................................... ss. 3.18
beneficial owner............................................. ss. 9.03(b)
Blue Sky Laws................................................ ss. 3.05(b)
Board ...................................................... Recitals
Broker Agreements............................................ ss. 3.18
business day................................................. ss. 9.03(c)
Certificate of Merger........................................ ss. 2.02
Certificates................................................. ss. 2.08(b)
Code ....................................................... ss. 3.10(a)
Company .................................................... Preamble
Competing Proposal........................................... ss. 8.03(a)(i)
Competing Transaction........................................ ss. 6.04
Confidentiality Agreement.................................... ss. 6.03(b)
control .................................................... ss. 9.03(d)
control by................................................... ss. 9.03(d)
Disclosure Schedule.......................................... ss. 3.01
Effective Time............................................... ss. 2.02
Environmental Law............................................ ss. 3.16(a)
ERISA .................................................... ss. 3.10(a)
Exchange Act................................................. ss. 1.02(b)
Fee ......................................................... ss. 8.03(a)
GAAP .................................................... ss. 3.07(b)
Hazardous Substances......................................... ss. 3.16(a)
Higher Price................................................. ss. 8.01(f)
Indemnified Parties.......................................... ss. 6.06(b)
IRS ........................................................ ss. 3.10(a)
Lazard, Freres............................................... ss. 1.02(a)
Material Adverse Effect...................................... ss. 3.01
Material Contract............................................ ss. 3.17
Merger .................................................... Recitals
Merger Consideration......................................... ss. 2.06(a)
Michigan Law................................................. Recitals
Minimum Tender Condition..................................... ss. 1.01(a)
1998 Balance Sheet........................................... ss. 3.07(c)
Offer ....................................................... Recitals
Offer Documents.............................................. ss. 1.01(b)
Offer to Purchase............................................ ss. 1.01(b)
Parent ...................................................... Preamble
Paying Agent................................................. ss. 2.08(a)
<PAGE>
Per Share Amount............................................. Recitals
person ..................................................... ss. 9.03(e)
Plans ....................................................... ss. 3.10(a)
Potential Buyer.............................................. ss. 6.04
Proprietary Rights........................................... ss. 3.14
Proxy Statement.............................................. ss. 3.12
Purchaser.................................................... Preamble
Schedule 14D-1............................................... ss. 1.01(b)
Schedule 14D-9............................................... ss. 1.02(b)
SEC ........................................................ ss. 1.01(b)
SEC Reports.................................................. ss. 3.07(a)
Securities Act............................................... ss. 3.07(a)
Shareholder Agreements....................................... Recitals
Shareholders................................................. Recitals
Shares .................................................... Recitals
Special Shareholders' Meeting................................ ss. 6.01
Spread .................................................... ss. 2.07
Stock Option Plans........................................... ss. 2.07
Subsidiary................................................... ss. 3.01
subsidiary................................................... ss. 9.03(f)
Superior Proposal............................................ ss. 6.04
Surviving Corporation........................................ ss. 2.01
Transactions................................................. ss. 3.04
under common control with.................................... ss. 9.03(d)
WARN .................................................... ss. 3.10(f)
Year 2000 Compliant.......................................... ss. 3.20
ii
<PAGE>
AGREEMENT AND PLAN OF MERGER, dated as of June 17, 1999 (this
"Agreement"), among LITTLEJOHN PARTNERS IV, L.P., a limited partnership
---------
organized under the laws of Delaware ("Parent"), LPIV ACQUISITION CORP., a
------
Michigan corporation and a wholly owned subsidiary of Parent ("Purchaser"), and
---------
DURAKON INDUSTRIES, INC., a Michigan corporation (the "Company").
-------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Boards of Directors of Purchaser and the Company,
and the general partner of Parent, have each unanimously determined that it is
in the best interests of their respective equity holders for Parent to acquire
the Company upon the terms and subject to the conditions set forth herein;
WHEREAS, in furtherance of such acquisition, it is proposed
that Purchaser shall make a cash tender offer (the "Offer") to acquire all the
-----
issued and outstanding shares of common stock, without par value, of the Company
(the "Shares") for U.S. $16.00 per Share (such amount, or any greater amount per
------
Share paid pursuant to the Offer, being hereinafter referred to as the "Per
---
Share Amount") net to the seller in cash, upon the terms and subject to the
- ------------
conditions of this Agreement and the Offer;
WHEREAS, the Board of Directors of the Company (the "Board"),
-----
including all the disinterested directors on the Board, has unanimously approved
the making of the Offer and resolved and agreed to recommend that holders of
Shares tender their Shares pursuant to the Offer;
WHEREAS, also in furtherance of such acquisition, the Boards
of Directors of Purchaser and the Company, and the general partner of Parent,
have each unanimously approved the merger (the "Merger") of Purchaser with and
------
into the Company in accordance with the Business Corporation Act of the State of
Michigan ("Michigan Law") following the consummation of the Offer and upon the
------------
terms and subject to the conditions set forth herein;
WHEREAS, to induce Parent and Purchaser to enter into this
Agreement, Parent has required that Purchaser and each of the shareholders of
the Company listed on Schedule I attached hereto (the "Shareholders") enter into
------------
a Stock Tender, Voting Agreement and Irrevocable Proxy, dated today's date (the
"Shareholder Agreements"), pursuant to which each Shareholder agrees, among
----------------------
other things, to validly tender its Shares into, and not to withdraw its Shares
from, the Offer, and to vote its Shares in favor of the Merger, in each case
subject to the terms and conditions set forth therein; and
WHEREAS, also in furtherance of such acquisition, the Boards
of Directors of Purchaser and Company, and the general partner of Parent, have
each unanimously approved the execution, delivery and performance of the
Shareholder Agreements in accordance with applicable Law.
<PAGE>
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, Parent, Purchaser and the Company hereby agree as follows:
ARTICLE I
THE OFFER
---------
SECTION 1.01. The Offer. (a) Provided that this Agreement
---------
shall not have been terminated in accordance with Section 8.01 and none of the
events set forth in Annex A hereto shall have occurred or be existing, Purchaser
shall commence the Offer as promptly as reasonably practicable after the date
hereof, but in no event later than five business days after the date hereof. The
obligation of Purchaser to accept for payment and pay for Shares tendered
pursuant to the Offer shall be subject to the condition (the "Minimum Tender
--------------
Condition") that at least the number of Shares that combined with the Shares
- ---------
already owned by Parent, Purchaser or any of their affiliates shall constitute
at least 90% of the then outstanding Shares on the date that Shares may be
accepted for payment by Purchaser shall have been validly tendered and not
withdrawn prior to the expiration of the Offer and also shall be subject to the
satisfaction of the other conditions set forth in Annex A hereto. Purchaser
expressly reserves the right to waive any such condition, to increase the price
per Share payable in the Offer, and to make any other changes in the terms and
conditions of the Offer; provided, however, that, without the prior written
-------- -------
consent of the Company, no change may be made (i) which decreases the price per
Share payable in the Offer, (ii) which changes the form of consideration to be
paid in the Offer, (iii) which, except as set forth in the next succeeding
sentence, extends the period that the Offer is outstanding, (iv) which reduces
the maximum number of Shares to be purchased in the Offer or (v) which imposes
conditions to the Offer in addition to those set forth in Annex A hereto.
Notwithstanding anything to the contrary contained herein, without the consent
of the Company, Parent and Purchaser may extend the expiration date for the
Offer for one or more periods not to exceed thirty (30) days in the aggregate.
The Per Share Amount shall, subject to applicable withholding of taxes, be paid
net to the seller in cash, upon the terms and subject to the conditions of the
Offer. Subject to the terms and conditions of the Offer (including, without
limitation, the Minimum Tender Condition), Purchaser shall pay, as promptly as
practicable after expiration of the Offer, for all Shares validly tendered into
and not withdrawn from, the Offer.
(b) As soon as reasonably practicable on the date of
commencement of the Offer, Purchaser shall file with the Securities and Exchange
Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 (together with
---
all amendments and supplements thereto, the "Schedule 14D-1") with respect to
--------------
the Offer and the other Transactions (as hereinafter defined), which shall have
been provided to the Company and to which the Company shall not have reasonably
objected. The Schedule 14D-1 shall contain or shall incorporate by reference an
offer to purchase (the "Offer to Purchase") and forms of the related letter of
-----------------
transmittal and any related summary advertisement (the Schedule 14D-1, the Offer
to Purchase and such other documents, together with all supplements and
amendments thereto, being referred to herein collectively as
2
<PAGE>
the "Offer Documents"). Each of Parent, Purchaser and the Company agree to
---------------
correct promptly any information provided by it for use in the Offer Documents
which shall have become false or misleading, and Parent and Purchaser further
agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to
be filed with the SEC and the other Offer Documents as so corrected to be
disseminated to holders of Shares, in each case as and to the extent required by
applicable federal securities laws.
SECTION 1.02. Company Action. (a) The Company hereby approves
--------------
of and consents to the Offer and represents and warrants that (i) the Board, at
meetings duly called and held on June 14, 1999, and June 17, 1999, has
unanimously (A) determined that this Agreement, the Shareholder Agreements and
the transactions contemplated hereby and thereby, including, without limitation,
each of the Offer, the Merger and the tender of Shares pursuant to the
Shareholder Agreements, are fair to and in the best interests of the
shareholders of the Company, (B) approved and adopted this Agreement and the
transactions, including, without limitation, the Offer, the Merger and the
tender of Shares pursuant to the Shareholder Agreements, contemplated hereby and
thereby, (C) taken all action to render the provisions of Section 775 through
Section 784 of the Michigan Law inapplicable to the Offer, the Merger and the
Shareholder Agreements, so that none of Parent, Purchaser or any of their
affiliates shall become an "interested shareholder" thereunder, and to opt out
of Section 790 through Section 799 of the Michigan Law in order to render the
provisions thereof restricting voting rights of "control shares" inapplicable to
Shares acquired by Parent or Purchaser pursuant to the Offer, the Merger and the
Shareholder Agreements, and (D) recommended that the shareholders of the Company
accept the Offer and approve and adopt this Agreement and the transactions,
including, without limitation, the Merger, contemplated hereby, and (ii) Lazard
Freres & Co. LLC ("Lazard Freres") has delivered to the Board an opinion to the
-------------
effect that the consideration to be received by the holders of Shares (other
than Purchaser and its affiliates) pursuant to each of the Offer and the Merger
is fair to such holders of Shares from a financial point of view. Subject only
to the provisions of Sections 6.04 and 8.01(d) below, the Company hereby
consents to the inclusion in the Offer Documents of the recommendation of the
Board described in the immediately preceding sentence.
(b) As soon as reasonably practicable on the date of
commencement of the Offer, the Company shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 (together with all
amendments and supplements thereto, the "Schedule 14D-9") containing, subject
--------------
only to the provisions of Sections 6.04 and 8.01(d) below, the recommendation of
the Board described in Section 1.02(a) and shall disseminate the Schedule 14D-9
to the extent required by Rule 14d-9 promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and any other applicable federal
-----------------
securities laws. Each of the Company, Parent and Purchaser agree to correct
promptly any information provided by it for use in the Schedule 14D-9 which
shall have become false or misleading, and the Company further agrees to take
all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with
the SEC and disseminated to holders of Shares, in each case as and to the extent
required by applicable federal securities laws. Prior to the Company's filing of
the Schedule 14D-9, such Schedule shall have been provided to Purchaser and
Parent and shall not have been reasonably objected to.
3
<PAGE>
(c) The Company shall promptly furnish Purchaser with mailing
labels containing the names and addresses of all record holders of Shares and
with security position listings of Shares held in stock depositories, each as of
a recent date, together with all other available listings and computer files
containing names, addresses and security position listings of record holders and
beneficial owners of Shares. The Company shall furnish Purchaser with such
additional information, including, without limitation, updated listings and
computer files of shareholders, mailing labels and security position listings,
and such other assistance as Parent, Purchaser or their agents may reasonably
request. Subject to the requirements of applicable law, and except for such
steps as are necessary to disseminate the Offer Documents and any other
documents necessary to consummate the Offer or the Merger, Parent and Purchaser
shall hold in confidence the information contained in such labels, listings and
files, shall use such information only in connection with the Offer and the
Merger and, if this Agreement shall be terminated in accordance with Section
8.01, shall deliver to the Company, or certify to the Company destruction of,
all copies of such information then in their possession.
ARTICLE II
THE MERGER
----------
SECTION 2.01. The Merger. Upon the terms and subject to the
----------
conditions set forth in Article VII, and in accordance with Michigan Law, at the
Effective Time (as hereinafter defined), Purchaser shall be merged with and into
the Company. As a result of the Merger, the separate corporate existence of
Purchaser shall cease and the Company shall continue as the surviving
corporation of the Merger (the "Surviving Corporation"), and shall continue to
---------------------
be governed by the laws of the State of Michigan.
SECTION 2.02. Effective Time; Closing. As promptly as
-----------------------
practicable after the satisfaction or, if permissible, waiver of the conditions
set forth in Article VII, the parties hereto shall cause the Merger to be
consummated by filing a certificate of merger in substantially the form of
Exhibit A hereto, or in such other form as the parties shall otherwise agree
(the "Certificate of Merger"), with the Michigan Department of Consumer and
---------------------
Industry Services, in such form as is required by, and executed in accordance
with the relevant provisions of, Michigan Law (the date and time of such filings
being, collectively, the "Effective Time"). Prior to such filing, a closing
--------------
shall be held at the offices of Honigman Miller Schwartz and Cohn, 2290 First
National Building, Detroit, Michigan 48226, or such other place as the parties
shall agree, for the purpose of confirming the satisfaction or waiver, as the
case may be, of the conditions set forth in Article VII. If Shares are accepted
for payment under the Offer, the Certificate of Merger shall be filed that same
day.
SECTION 2.03. Effect of the Merger. At the Effective Time, the
--------------------
effect of the Merger shall be as provided in the applicable provisions of
Michigan Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the property, rights, privileges, powers and
franchises of the Company and Purchaser shall vest in the Surviving
4
<PAGE>
Corporation, and all debts, liabilities, obligations, restrictions, disabilities
and duties of the Company and Purchaser shall become the debts, liabilities,
obligations, restrictions, disabilities and duties of the Surviving Corporation.
SECTION 2.04. Articles of Incorporation; Bylaws. (a) The
---------------------------------
Articles of Incorporation of Purchaser, as in effect immediately prior to the
Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation until thereafter amended as provided by applicable law and such
Articles of Incorporation; provided, however, that, at the Effective Time,
-------- -------
Article I of the Articles of Incorporation of the Surviving Corporation shall be
amended to read as follows: "The name of the corporation is Durakon Industries,
Inc. "
(b) The Bylaws of Purchaser, as in effect immediately prior to
the Effective Time, shall be the Bylaws of the Surviving Corporation until
thereafter amended as provided by law, the Articles of Incorporation of the
Surviving Corporation and such Bylaws.
SECTION 2.05. Directors and Officers. The directors of
----------------------
Purchaser immediately prior to the Effective Time shall be the initial directors
of the Surviving Corporation, each to hold office in accordance with the
Articles of Incorporation and Bylaws of the Surviving Corporation, and the
officers of the Company immediately prior to the Effective Time shall be the
initial officers of the Surviving Corporation, in each case until their
respective successors are duly elected or appointed and qualified.
SECTION 2.06. Conversion of Securities. At the Effective Time,
------------------------
by virtue of the Merger and without any action on the part of Purchaser, the
Company or the holders of any of the Shares:
(a) Each Share issued and outstanding immediately prior to the
Effective Time (other than any Shares to be cancelled pursuant to
Section 2.06(b)) shall be cancelled and shall be converted
automatically into the right to receive an amount equal to the Per
Share Amount in cash (the "Merger Consideration"), payable, without
--------------------
interest, to the holder of such Share, upon surrender, in the manner
provided in Section 2.08, of the certificate that formerly evidenced
such Share;
(b) Each Share owned by Purchaser, Parent or any direct or
indirect wholly owned subsidiary of Parent or of the Company
immediately prior to the Effective Time shall be cancelled and retired
without any conversion thereof and no payment or distribution shall be
made with respect thereto; and
(c) Each share of common stock, without par value, of
Purchaser issued and outstanding immediately prior to the Effective
Time shall be converted into and exchanged for one validly issued,
fully paid and nonassessable share of Common Stock, without par value,
of the Surviving Corporation.
SECTION 2.07. Employee and Director Stock Options. In
-----------------------------------
accordance with the terms of the Company's Stock Option Plans listed on Section
3.03 of the Disclosure Schedule (as
5
<PAGE>
defined below) (the "Stock Option Plans"), each outstanding option to purchase
------------------
Shares granted under the Stock Option Plans shall, immediately prior to the
Effective Time, become exercisable regardless of the vesting schedule contained
in any stock option agreement or in any of the Stock Option Plans. Each
outstanding option to purchase Shares granted under the Stock Option Plans or
otherwise shall be cancelled at the Effective Time, and each holder of a
cancelled option (whether issued pursuant to a Stock Option Plan or otherwise)
shall be entitled to receive, at the Effective Time or as soon as practicable
thereafter, from the Company, in consideration for the cancellation of such
option, an amount in cash equal to the product of (i) the number of Shares
previously subject to such option and (ii) the excess, if any, of the Merger
Consideration over the exercise price per Share previously subject to such
option (the "Spread"). With respect to each such option issued by the Company
------
other than pursuant to its 1996 Stock Option Plan, the Company shall take, or
cause to be taken, prior to the expiration date of the Offer, all such action so
that each such option shall be automatically cancelled as of the Effective Time
and the holders of each such option shall only be entitled to receive from the
Company, at the Effective Time or as soon as practicable thereafter, an amount
in cash equal to the Spread, if any, in exchange for the cancellation of each
such option.
SECTION 2.08. Surrender of Shares; Stock Transfer Books. (a)
-----------------------------------------
Prior to the Effective Time, Purchaser shall designate a bank or trust company
to act as agent (the "Paying Agent") for the holders of Shares in connection
with the Merger to receive the funds to which holders of Shares shall become
entitled pursuant to Section 2.06(a), and at the Effective Time Purchaser shall
deposit with such Paying Agent an amount sufficient to pay the aggregate Merger
Consideration. Such funds shall be invested by the Paying Agent as directed by
the Surviving Corporation, provided that such investments shall be in
obligations of or guaranteed by the United States of America or of any agency
thereof and backed by the full faith and credit of the United States of America
or in commercial paper obligations rated A-1 or P-1 or better by Moody's
Investors Service, Inc. or Standard & Poor's Corporation, respectively.
(b) Promptly after the Effective Time, the Surviving
Corporation shall cause to be mailed to each person who was, at the Effective
Time, a holder of record of Shares entitled to receive the Merger Consideration
pursuant to Section 2.06(a) a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the certificates
evidencing such Shares (the "Certificates") shall pass, only upon proper
------------
delivery of the Certificates to the Paying Agent) and instructions for use in
effecting the surrender of the Certificates pursuant to such letter of
transmittal. Upon surrender to the Paying Agent of a Certificate, together with
such letter of transmittal, duly completed and validly executed in accordance
with the instructions thereto, and such other documents as may be required
pursuant to such instructions, the holder of such Certificate shall be entitled
to receive in exchange therefor the Merger Consideration for each Share formerly
evidenced by such Certificate, and such Certificate shall then be cancelled. No
interest shall accrue or be paid on the Merger Consideration payable upon the
surrender of any Certificate for the benefit of the holder of such Certificate.
If payment of the Merger Consideration is to be made to a person other than the
person in whose name the surrendered Certificate is registered on the stock
transfer books of the Company, it shall be a condition of payment that the
Certificate so surrendered shall be endorsed properly or otherwise be in proper
form for transfer and that the person requesting such payment
6
<PAGE>
shall have paid all transfer and other taxes required by reason of the payment
of the Merger Consideration to a person other than the registered holder of the
Certificate surrendered or shall have established to the satisfaction of the
Surviving Corporation that such taxes either have been paid or are not
applicable. In the event any certificate representing Shares shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such certificate to be lost, stolen or destroyed, the Paying
Agent will issue in exchange for such lost, stolen or destroyed certificate the
Merger Consideration deliverable in respect thereof as determined in accordance
with this Article II; provided, however, the person to whom the Merger
-------- -------
Consideration is paid shall, as a condition precedent to the payment thereof,
give the Surviving Corporation a bond in such sum as it may direct or otherwise
indemnify the Surviving Corporation in a manner satisfactory to it against any
claim that may be made against the Surviving Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
(c) At any time following the sixth month after the
Effective Time, the Surviving Corporation shall be entitled to require the
Paying Agent to deliver to it any funds which had been made available to the
Paying Agent and not disbursed to holders of Shares (including, without
limitation, all interest and other income received by the Paying Agent in
respect of all funds made available to it) and, thereafter, such holders shall
be entitled to look only to the Surviving Corporation (subject to abandoned
property, escheat and other similar laws) only as general creditors thereof with
respect to any Merger Consideration that may be payable upon due surrender of
the Certificates held by them. Notwithstanding the foregoing, neither the
Surviving Corporation nor the Paying Agent shall be liable to any holder of a
Share for any Merger Consideration delivered in respect of such Share to a
public official pursuant to any abandoned property, escheat or other similar
law.
(d) At the close of business on the day of the Effective
Time, the stock transfer books of the Company shall be closed and, thereafter,
there shall be no further registration of transfers of Shares on the records of
the Company. From and after the Effective Time, the holders of Shares
outstanding immediately prior to the Effective Time shall cease to have any
rights with respect to such Shares except as otherwise provided herein or by
applicable law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to Parent and Purchaser
that:
SECTION 3.01. Organization and Qualification; Subsidiaries.
--------------------------------------------
Each of the Company and each subsidiary of the Company other than Durakon
Mexicana, S.A. de C.V. (a "Subsidiary"), is a corporation duly organized,
----------
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite power and authority and all necessary
governmental approvals to own, lease and operate its properties and to carry on
its
7
<PAGE>
business as it is now being conducted, except where the failure to be so
organized, existing or in good standing or to have such power, authority and
governmental approvals would not, individually or in the aggregate, have a
Material Adverse Effect (as defined below). The Company and each Subsidiary is
duly qualified or licensed as a foreign corporation to do business, and is in
good standing, in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its business makes such qualification
or licensing necessary, except for such failures to be so qualified or licensed
and in good standing that would not, individually or in the aggregate, have a
Material Adverse Effect. When used in connection with the Company or any
Subsidiary, the term "Material Adverse Effect" means any change(s), event(s),
-----------------------
condition(s), development(s) or effect(s), other than a change affecting the
design, specifications or scope of the Company's GMT805 project, that adversely
affects, or may be reasonably likely to adversely affect, individually or in the
aggregate, the business, operations, results of operations, properties,
condition, financial condition, cash flows, assets or liabilities (including,
without limitation, contingent liabilities) of the Company and the Subsidiaries
taken as a whole or the value of the Shares, in any case, by an amount equal to
at least $5,000,000. A true and complete list of all the Subsidiaries (which for
purposes of this sentence only shall include Durakon Mexicana, S.A. de C.V.),
together with the jurisdiction of incorporation of each Subsidiary and the
percentage of the outstanding capital stock (calculated on a fully-diluted
basis) of each Subsidiary owned by the Company and each other Subsidiary, is set
forth in Section 3.01 of the Disclosure Schedule, which has been delivered prior
to the date of this Agreement by the Company to Parent (the "Disclosure
----------
Schedule"). Except as disclosed in such Section 3.01, the Company does not
- --------
directly or indirectly own any equity or similar interest in, or any interest
convertible into or exchangeable or exercisable for any equity or similar
interest in, any corporation, partnership, joint venture or other business
association or entity.
SECTION 3.02. Articles of Incorporation and Bylaws. The
------------------------------------
Company has heretofore furnished to Parent a complete and correct copy of the
Articles of Incorporation and the Bylaws or equivalent organizational documents,
each as amended to date, of the Company and each Subsidiary. Such Articles of
Incorporation, Bylaws and equivalent organization documents are in full force
and effect. Neither the Company nor any Subsidiary is in violation of any
provision of its Articles of Incorporation, Bylaws or equivalent organizational
documents.
SECTION 3.03. Capitalization. The authorized capital stock of
--------------
the Company consists of 100,000 shares of preferred stock (none of which is
issued and outstanding) and 15,000,000 Shares. As of the date hereof, (i)
6,125,200 Shares are issued and outstanding, all of which are validly issued,
fully paid and nonassessable, (ii) no Shares are held by the Subsidiaries or in
the Company's treasury, and (iii) 468,000 Shares are reserved for issuance
pursuant to stock options granted pursuant to the Company's Stock Option Plans
or otherwise. Except as set forth in this Section 3.03 or Section 3.03 of the
Disclosure Schedule, there are no options, warrants or other rights, agreements,
arrangements or commitments of any character relating to the issued or unissued
capital stock of the Company, any Subsidiary or Durakon Mexicana, S.A. de C.V.,
or obligating the Company, any Subsidiary or Durakon Mexicana, S.A. de C.V., to
issue or sell any shares of capital stock of, or other equity interests in, the
Company, any
8
<PAGE>
Subsidiary or Durakon Mexicana, S.A. de C.V., Section 3.03 of the Disclosure
Schedule accurately and completely sets forth, with respect to each option
granted by the Company, any Subsidiary or Durakon Mexicana, S.A., de C.V.,
whether pursuant a Stock Option Plan or otherwise, the name of the optionee, the
number and type of securities subject to such option, and the exercise price of
such option. All Shares subject to issuance as aforesaid, upon issuance on the
terms and conditions specified in the instruments pursuant to which they are
issuable, will be duly authorized, validly issued, fully paid and nonassessable.
Except as set forth in Section 3.03 of the Disclosure Schedule, there are no
outstanding obligations of the Company, any Subsidiary or Durakon Mexicana, S.A.
de C.V., to repurchase, redeem or otherwise acquire any Shares or any capital
stock of the Company, any Subsidiary or Durakon Mexicana, S.A. de C.V., or to
provide funds to, or make any investment (in the form of a loan, capital
contribution or otherwise) in, any Subsidiary or any other person, including
Durakon Mexicana, S.A. de C.V. Each outstanding share of capital stock of each
Subsidiary and Durakon Mexicana, S.A. de C.V. is duly authorized, validly
issued, fully paid and nonassessable and, except as set forth in Section 3.03 of
the Disclosure Schedule is owned free and clear of all liens and encumbrances.
SECTION 3.04. Authority Relative to this Agreement. The
------------------------------------
Company has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions, including, without limitation, the Merger, contemplated hereby
(the "Transactions"). The execution and delivery of this Agreement by the
------------
Company and the consummation by the Company of the Transactions have been duly
and validly authorized by all necessary corporate action and no other corporate
proceedings on the part of the Company are necessary to authorize this Agreement
or to consummate the Transactions (other than, with respect to the Merger, the
approval and adoption of this Agreement by the affirmative vote of the holders
of a majority of the outstanding Shares as required by Michigan Law and the
Company's Articles of Incorporation, and the filing and recordation of the
Certificate of Merger as required by Michigan Law). This Agreement has been duly
and validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by Parent and Purchaser, constitutes a
legal, valid and binding obligation of the Company.
SECTION 3.05. No Conflict; Required Filings and Consents.
------------------------------------------
Except as set forth in Section 3.05 of the Disclosure Schedule, (a) the
execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement by the Company will not, (i) conflict with or
violate the Articles of Incorporation or Bylaws or equivalent organizational
documents of the Company or any Subsidiary, (ii) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to the Company or
any Subsidiary or by which any property or asset of the Company or any
Subsidiary is bound or subject 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, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance of any nature on any property or asset of the Company or any
Subsidiary pursuant to, any material note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary or any property or asset of the Company or any Subsidiary is bound or
subject.
9
<PAGE>
(b) The execution and delivery of this Agreement by the
Company do not, and the performance of this Agreement by the Company will not,
require any consent, approval, authorization or permit of, or filing with, or
notification to, any governmental or regulatory authority, domestic or foreign,
except (i) for applicable requirements, if any, of the Exchange Act, state
securities or "blue sky" laws ("Blue Sky Laws") and state takeover laws, and the
-------------
filing and recordation of the Certificate of Merger as required by Michigan Law,
and (ii) where failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
consummation of the Offer or the Merger, or otherwise prevent the Company from
performing its obligations under this Agreement, or would not, individually or
in the aggregate, have a Material Adverse Effect.
SECTION 3.06. Compliance. Except as set forth in Section 3.06
----------
of the Disclosure Schedule, neither the Company nor any Subsidiary is, in any
material respect, in conflict with, or in default or violation of, (i) any law,
rule, regulation, order, judgment or decree applicable to the Company or any
Subsidiary or by which any property or asset of the Company or any Subsidiary is
bound or subject or (ii) any material note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary or any property or asset of the Company or any Subsidiary is bound or
subject.
SECTION 3.07. SEC Filings; Financial Statements. (a) The
---------------------------------
Company has filed all forms, reports and documents required to be filed by it
with the SEC in the past three years, and has heretofore delivered to Parent, in
the form filed with the SEC, (i) its Annual Reports on Form 10-K for the fiscal
years ended December 31, 1996, 1997 and 1998, respectively, (ii) its Quarterly
Reports on Form 10-Q for the periods ended (x) March 31, June 30 and September
30 in 1997 and in 1998, and (y) March 31, 1999, (iii) all proxy statements
relating to the Company's meetings of shareholders (whether annual or special)
held in the past three years and (iv) all other forms, reports and other
registration statements (other than Quarterly Reports on Form 10-Q not referred
to in clause (ii) above) filed by the Company with the SEC in the past three
years (the forms, reports and other documents referred to in clauses (i), (ii),
(iii) and (iv) above being referred to herein, collectively, as the "SEC
---
Reports"). The most recent SEC Report filed by the Company is its Quarterly
- -------
Report on Form 10-Q for the period ended March 31, 1999. The SEC Reports (i)
were prepared in accordance with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the Exchange Act, as the case may be, and
--------------
the rules and regulations promulgated thereunder and (ii) did not, at the time
they were filed, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements made therein, in the light of the circumstances under which
they were made, not misleading. No Subsidiary is required to file any form,
report or other document with the SEC.
(b) Each of the consolidated financial statements
(including, in each case, any notes thereto) contained in the SEC Reports was
prepared from the books and records of the Company in accordance with generally
accepted accounting principles applied on a consistent basis ("GAAP") throughout
----
the periods indicated (except as may be indicated in the notes
10
<PAGE>
thereto) and each fairly presents the consolidated financial position, results
of operations and changes in shareholders' equity and cash flows of the Company
and the consolidated Subsidiaries as at the respective dates thereof and for the
respective periods indicated therein (subject, in the case of unaudited
financial statements, to normal and recurring year-end audit adjustments which
are consistent with prior year adjustments and were not and are not expected,
individually or in the aggregate, to be significant).
(c) Except as and to the extent set forth on the
consolidated balance sheet of the Company and the consolidated Subsidiaries as
at December 31, 1998 including the notes thereto (the "1998 Balance Sheet"), or
------------------
in Section 3.07 of the Disclosure Schedule, neither the Company nor any
Subsidiary has any liability or obligation of any nature (whether accrued,
absolute, contingent or otherwise) which would be required to be reflected on a
balance sheet, or in the notes thereto, prepared in accordance with GAAP, except
for liabilities and obligations incurred in the ordinary course of business
consistent with past practice since December 31, 1998.
SECTION 3.08. Absence of Certain Changes or Events. Since
------------------------------------
December 31, 1998, except as set forth in Section 3.08 of the Disclosure
Schedule or as contemplated by this Agreement or disclosed in any SEC Report
filed since December 31, 1998 and prior to the date of this Agreement, the
Company and the Subsidiaries have conducted their businesses only in the
ordinary course and in a manner consistent with past practice and, since
December 31, 1998, there has not been (i) any Material Adverse Effect with
respect to the Company, (ii) any damage, destruction or loss (whether or not
covered by insurance) with respect to any property or asset of the Company or
any Subsidiary and having, individually or in the aggregate, a Material Adverse
Effect with respect to the Company, (iii) any material change by the Company in
its accounting methods, principles or practices, (iv) any revaluation by the
Company of any asset (including, without limitation, any writing down of the
value of inventory or writing off of notes or accounts receivable), other than
in the ordinary course of business consistent with past practice, (v) any
failure by the Company to revalue any asset in accordance with GAAP consistent
with past practice, (vi) any entry by the Company or any Subsidiary into any
commitment or transaction material to the Company and the Subsidiaries taken as
a whole, (vii) any declaration, setting aside or payment of any dividend or
distribution in respect of any capital stock of the Company or any redemption,
purchase or other acquisition of any of its securities or any securities of any
Subsidiary or of Durakon Mexican S.A. de C.V., (viii) other than as set forth in
any contract (as in effect on the date hereof) referred to in Section 3.10, any
increase in or establishment of any bonus, insurance, severance, deferred
compensation, pension, retirement, profit sharing, stock option (including,
without limitation, the granting of stock options, stock appreciation rights,
performance awards or restricted stock awards), stock purchase or other employee
benefit plan, or any other increase in the compensation payable or to become
payable to any officers or key employees of the Company or any Subsidiary,
except customary increases in compensation to employees generally incurred in
the ordinary course of business consistent with past practice, (ix) any entering
into, renewal, modification or extension of, any contract, arrangement or
agreement with any affiliate of the Company, or (x) any entering into, renewal,
modification or extension of, any contract, arrangement or agreement with any
other party having, individually or in the aggregate, a Material Adverse Effect
with respect to the Company.
11
<PAGE>
SECTION 3.09. Absence of Litigation. Except as set forth in
---------------------
Section 3.09 of the Disclosure Schedule or as disclosed in the SEC Reports filed
prior to the date of this Agreement, there is no claim, action, proceeding or
investigation pending or, to the knowledge of the Company, threatened against
the Company or any Subsidiary, or any property or asset of the Company or any
Subsidiary, before any court, arbitrator or administrative, governmental or
regulatory authority or body, domestic or foreign, which (i) the amount in
controversy is or could reasonably be expected to be at least $50,000, (ii)
seeks to, or is reasonably likely to, delay or prevent the consummation of any
Transaction or (iii) which, if adversely determined against the Company would
limit, in any material respect, the Company's ability to conduct its business as
currently conducted. As of the date hereof, except as set forth in Section 3.09
of the Disclosure Schedule, neither the Company nor any Subsidiary nor any
property or asset of the Company or any Subsidiary is subject to any order,
writ, judgment, injunction, decree, determination or award. Except as set forth
in Section 3.09 of the Disclosure Schedule, the Company and each Subsidiary has
notified its insurance companies, in accordance with the terms and conditions of
its insurance policies, of any pending or threatened litigation, and no
insurance company has denied coverage, reserved its rights to deny coverage or
otherwise advised the Company or any of its Subsidiaries of any defenses
available to such insurance company to deny coverage for any such pending or
threatened litigation.
SECTION 3.10. Employee Benefit Plans. (a) Section 3.10 of the
----------------------
Disclosure Schedule contains a true and complete list of (i) all employee
benefit plans (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) and all bonus, stock option,
-----
stock purchase, restricted stock, incentive, deferred compensation, retiree
medical or life insurance, supplemental retirement, severance or other benefit
plans, programs or arrangements, and all employment, termination, severance or
other contracts or agreements to which the Company or any Subsidiary is a party,
with respect to which the Company or any Subsidiary has any obligation or which
are maintained, contributed to or sponsored by the Company or any Subsidiary for
the benefit of any current or former employee, officer or director of the
Company or any Subsidiary and (ii) each employee benefit plan for which the
Company or any Subsidiary could incur any liability under Title IV of ERISA, or
in respect of which the Company or any Subsidiary remains secondarily liable
under Section 4204 of ERISA (collectively, the "Plans"). No Plan is a "defined
-----
benefit plan" within the meaning of Section 3(35) of ERISA and no Plan is
subject to Title IV of ERISA. Each Plan is in writing and the Company has
previously furnished Parent with a true and complete copy of each Plan and a
true and complete copy of each material document prepared in connection with
each such Plan, including, without limitation, (i) a copy of each trust or other
funding arrangement, (ii) each summary plan description and summary of material
modifications, (iii) the most recently filed Internal Revenue Service ("IRS")
---
Form 5500, (iv) the most recently received IRS determination letter for each
such Plan, and (v) the most recently prepared financial statement in connection
with each such Plan. Except as set forth in Section 3.10 of the Disclosure
Schedule, neither the Company nor any Subsidiary has any express or implied
commitment (i) to create, incur liability with respect to or cause to exist any
other employee benefit plan, program or arrangement, (ii) to enter into any
contract or agreement to provide compensation or benefits to any individual or
(iii) to modify, change or terminate any Plan, other than with respect to a
12
<PAGE>
modification, change or termination required by ERISA or the Internal Revenue
Code of 1986, as amended (the "Code").
----
(b) Except as disclosed in Section 3.10 of the Disclosure
Schedule, none of the Plans (i) provides for the payment of separation,
severance, termination or similar-type benefits to any person, (ii) obligates
the Company or any Subsidiary to pay separation, severance, termination or other
benefits as a result of any Transaction or (iii) obligates the Company or any
Subsidiary to make any payment or provide any benefit that could be subject to a
tax under Section 4999 of the Code. None of the Plans provides for or promises
retiree medical, disability or life insurance benefits to any current or former
employee, officer or director of the Company or any Subsidiary.
(c) Except as set forth in Section 3.10 of the Disclosure
Schedule, each Plan which is intended to be qualified under Section 401(a) or
401(k) of the Code has received a favorable determination letter from the IRS
that such Plan is so qualified, and each trust established in connection with
any Plan which is intended to be exempt from federal income taxation under
Section 501(a) of the Code has received a determination letter from the IRS that
such trust is so exempt. To the knowledge of the Company, no fact or event has
occurred since the date of any such determination letter from the IRS that could
adversely affect the qualified status of any such Plan or the exempt status of
any such trust. Each trust maintained or contributed to by the Company or any
Subsidiary which is intended to be qualified as a voluntary employees'
beneficiary association exempt from federal income taxation under Sections
501(a) and 501(c)(9) of the Code has received a favorable determination letter
from the IRS that it is so qualified and so exempt, and, to the knowledge of the
Company, no fact or event has occurred since the date of such determination by
the IRS that could adversely affect such qualified or exempt status.
(d) There has been no prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any
Plan. Neither the Company nor any Subsidiary is currently liable or has
previously incurred any liability for any tax or penalty arising under Section
4971, 4972, 4979, 4980 or 4980B of the Code or Section 502(c) of ERISA, and no
fact or event exists which could give rise to any such liability. Neither the
Company nor any Subsidiary has incurred any liability under, arising out of or
by operation of Title IV of ERISA, including, without limitation, any liability
in connection with (i) the termination or reorganization of any employee pension
benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any
Multiemployer Plan or Multiple Employer Plan, and no fact or event exists which
could give rise to any such liability.
(e) To the knowledge of the Company, each Plan is now and
has been operated in all respects in accordance with the requirements of all
applicable laws, including, without limitation, ERISA and the Code, and the
Company and each Subsidiary have performed all obligations required to be
performed by them under, are not in any respect in default under or in violation
of, and have no knowledge of any default or violation by any party to, any Plan.
All contributions, premiums or payments required to be made with respect to any
Plan have been timely made ,are fully deductible for income tax purposes and no
such deduction previously
13
<PAGE>
claimed has been challenged by any government entity. The 1998 Balance Sheet
reflects an accrual of all amounts of employer contributions and premiums
accrued but unpaid with respect to the Plans.
(f) The Company and the Subsidiaries have not incurred
any liability under, and have complied in all respects with, the Worker
Adjustment Retraining Notification Act and the regulations promulgated
thereunder ("WARN") and do not reasonably expect to incur any such liability as
----
a result of actions taken or not taken prior to the Effective Time. Section
3.10(f) of the Disclosure Schedule lists (i) all the employees terminated or
laid off by the Company or any Subsidiary during the 90 days prior to the date
hereof and (ii) all the employees of the Company or any Subsidiary who have
experienced a reduction in hours of work of more than 50% during any month
during the 90 days prior to the date hereof and describes all notices given by
the Company and the Subsidiaries in connection with WARN. The Company will, by
written notice to Parent and Purchaser, update Section 3.10(f) of the Disclosure
Schedule to include any such terminations, layoffs and reductions in hours from
the date hereof through the Effective Time and will provide Parent and Purchaser
with any related information which they may reasonably request.
SECTION 3.11. Labor Matters. Except as set forth in Section
-------------
3.11 of the Disclosure Schedule, (i) there are no controversies pending or, to
the knowledge of the Company, threatened between the Company or any Subsidiary,
on the one hand, and any of their respective employees (including former
employees), on the other hand; (ii) neither the Company nor any Subsidiary is a
party to any collective bargaining agreement or other labor union contract
applicable to persons employed by the Company or any Subsidiary, nor, to the
knowledge of the Company, are there any activities or proceedings of any labor
union to organize any such employees; (iii) neither the Company nor any
Subsidiary has breached or otherwise failed to comply with any provision of any
such agreement or contract and there are no grievances outstanding against the
Company or any Subsidiary under any such agreement or contract; (iv) there are
no unfair labor practice complaints pending or, to the knowledge of the Company,
threatened against the Company or any Subsidiary before the National Labor
Relations Board or any current union representation questions involving
employees of the Company or any Subsidiary; and (v) there is no strike,
slowdown, work stoppage or lockout, or, to the knowledge of the Company, threat
thereof, by or with respect to any employees of the Company or any Subsidiary.
Section 3.11 of the Disclosure Letter sets forth an accurate and complete list
of all agreements or arrangements with employees, consultants (excluding
attorneys and investment banking firms) and agents of the Company or any
Subsidiary, including (without limitation, employment, consulting, severance,
stay-bonus, termination or other agreements or arrangements) where the total
compensation to any such employee, consultant or agent under any such agreement
or arrangement (or series of related agreements or arrangements) exceeds
$100,000 in any year.
SECTION 3.12. Offer Documents; Schedule 14D-9; Proxy
--------------------------------------
Statement. Neither the Schedule 14D-9 nor any information supplied by the
- ---------
Company for inclusion in the Offer Documents shall, at the respective times the
Schedule 14D-9, the Offer Documents, or any amendments or supplements thereto
are filed with the SEC or are first published, sent or given to
14
<PAGE>
shareholders of the Company, as the case may be, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in the light of the
circumstances under which they are made, not misleading. The proxy statement to
be sent to the shareholders of the Company in connection with the Special
Shareholders' Meeting (as defined in Section 6.01 hereof (such proxy statement,
as amended or supplemented, being referred to herein as the "Proxy Statement")
---------------
shall not, at the date the Proxy Statement (or any amendment or supplement
thereto) is first mailed to shareholders of the Company, at the time of the
Special Shareholders' Meeting, and at the Effective Time, be false or misleading
with respect to any material fact, or omit to state any material fact required
to be stated therein or necessary in order to make the statements made therein,
in the light of the circumstances under which they are made, not misleading or
necessary to correct any statement in any earlier communication with respect to
the solicitation of proxies for the Special Shareholders' Meeting which shall
have become false or misleading. The Schedule 14D-9 and the Proxy Statement
shall comply in all material respects as to form with the requirements of the
Exchange Act and the rules and regulations thereunder.
SECTION 3.13. Tangible Property; Real Property and Leases. (a)
-------------------------------------------
The Company and the Subsidiaries have good and marketable title to all their
tangible properties and assets, free and clear of all liens and encumbrances,
with only such exceptions as are set forth in Section 3.13 of the Disclosure
Schedule, and subject to (i) liens for taxes, assessments or governmental
charges, (ii) liens incident to construction, common carriers, and public
warehouse storage, which are either not delinquent or are being contested in
good faith by the Company by appropriate proceedings and as to which adequate
reserves have been established on the 1998 Balance Sheet, (iii) liens or
deposits in connection with workers' compensation, unemployment, or other
insurance, social security laws, or to secure customs' duties, public or
statutory obligations in lieu of surety, stay or appeal bonds, or to secure
performance of contracts or bids (other than contracts for the payment of money
borrowed), or deposits required by law or governmental regulations or by any
court order, decree, judgment or rule as condition to the transaction of
business or the exercise of any right, privilege or license or (iv) other liens
or deposits of a like nature made in the ordinary course of business.
(b) No parcel of real property owned or leased by the
Company is subject to any governmental decree or order to be sold nor is being
condemned, expropriated or otherwise taken by any public authority with or
without payment of compensation therefor, nor, to the knowledge of the Company,
has any such condemnation, expropriation or taking been proposed or threatened.
(c) All leases of real property leased for the use or
benefit of the Company or any Subsidiary to which the Company or any Subsidiary
is a party requiring rental payments in excess of U.S. $100,000 during the
period of the lease and all amendments and modifications thereto are in full
force and effect and have not been modified or amended, and there exists no
default under any such lease by the Company or any Subsidiary, nor any event
which with notice or lapse of time or both would constitute a default thereunder
by the Company or any Subsidiary, nor, to the knowledge of the Company, does
there exist any default, or any event which with notice or lapse of time or both
would constitute a default thereunder, by any other party to any
15
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such lease. Section 3.13 of the Disclosure Schedule sets forth an accurate and
complete list of each of the leases and other documents described in the
immediately preceding sentence, and accurate and complete copies of each such
lease and other documents have been provided to the Parent.
SECTION 3.14. Trademarks, Patents and Copyrights. Except as
----------------------------------
set forth in Section 3.14 of the Disclosure Schedule, the Company and the
Subsidiaries own or possess adequate licenses or other valid rights to use all
patents, patent rights, trademarks, trademark rights, trade names, trade dress,
trade name rights, copyrights, servicemarks, trade secrets, applications for
trademarks and for servicemarks, mask works, know-how and other proprietary
rights and information (collectively, "Proprietary Rights") used or held for use
------------------
in connection with the business of the Company and the Subsidiaries as conducted
since December 31, 1994, as currently conducted or as contemplated to be
conducted, and the Company is unaware of any assertion or claim challenging the
validity of any of such Proprietary Rights. Except as set forth in Section 3.14
of the Disclosure Schedule, the conduct of the business of the Company and the
Subsidiaries did not, does not and will not conflict in any way with any
Proprietary Rights of any third party that, individually or in the aggregate,
could have a Material Adverse Effect with respect to the Company. Except as set
forth in Section 3.14 of the Disclosure Schedule, there are no infringements of
any Propriety Rights owned by or licensed by or to the Company or any
Subsidiary. Except as set forth in Section 3.14 of the Disclosure Schedule,
neither the Company nor any Subsidiary has licensed or otherwise permitted the
use by any third party of any Proprietary Rights.
SECTION 3.15. Taxes. The Company and the Subsidiaries have
-----
filed all federal, state, local and foreign tax returns and reports (as defined
below) required to be filed by them and have paid and discharged all taxes (as
defined below), other than such payments as are being contested in good faith by
appropriate proceedings and as to which adequate reserves are set forth on the
1998 Balance Sheet. Neither the IRS nor any other taxing authority or agency,
domestic or foreign, is now asserting or, to the knowledge of the Company,
threatening to assert against the Company or any Subsidiary any deficiency or
claim for additional taxes or interest thereon or penalties in connection
therewith. To the knowledge of the Company's management, no tax return or
taxable period of the Company is under examination by any taxing authority, and
Company has not received written notice of any pending audit by any taxing
authority. The Company is not a party to any agreement or contract which would
result in payment of any "excess parachute payment" within the meaning of
Section 280G of the Code. The Company has not been and is not a United States
real property holding company (as defined in Section 897(c)(2) of the Code)
during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code).
Neither the Company nor any Subsidiary has granted any waiver of any statute of
limitations with respect to, or any extension of a period for the assessment of,
any federal, state, county, municipal or foreign income tax which is currently
in effect. The accruals and reserves for taxes reflected in the 1998 Balance
Sheet are adequate to cover all taxes accruable through such date (including
interest and penalties, if any, thereon) in accordance with GAAP. Neither the
Company nor any Subsidiary has made an election under Section 341(f) of the Code
or agreed to have Section 341(f)(2) of the Code apply to any disposition of a
subsection (f) asset owned by the Company or any of the Subsidiaries. For
purposes of this Agreement, "taxes" shall
16
<PAGE>
mean all taxes or other like assessments including, without limitation, income,
withholding, gross receipts, excise, real or personal property, asset, sales,
use, license, payroll, transaction, capital, net worth and franchise taxes
imposed by or payable to any federal, state, county, local or foreign
government, taxing authority, subdivision or agency thereof, including interest,
penalties, additions to tax or additional amounts thereto. For purposes of this
Agreement, "tax return" shall mean any report, return, declaration or other
information required to be supplied to a taxing authority in connection with
taxes.
SECTION 3.16. Environmental Matters. (a) For purposes of this
---------------------
Agreement, the following terms shall have the following meanings: (i) "Hazardous
---------
Substances" means (A) any asbestos or asbestos-containing material, petroleum
- ----------
and petroleum products, including crude oil and any fractions thereof, natural
gas, natural gas liquids, synthetic gas, polychlorinated biphenyls or radon; (B)
any pollutant or contaminant; or (C) any substance with respect to which a
federal, state or local agency requires environmental investigation, monitoring,
reporting or remediation; and (ii) "Environmental Law" means any federal, state
-----------------
or local law relating to (A) releases or threatened releases of Hazardous
Substances or materials containing Hazardous Substances; (B) the manufacture,
handling, transport, use, treatment, storage or disposal of Hazardous Substances
or materials containing Hazardous Substances; or (C) otherwise relating to
pollution of the environment or the protection of human health.
(b) Except as described in Section 3.16 of the Disclosure
Schedule: (i) neither the Company, nor its operations, have violated any
applicable Environmental Law; (ii) the Company has all material permits and
licenses required under any applicable Environmental Law; (iii) the soils,
surface and ground waters at the properties owned or leased by the Company are
not contaminated with any Hazardous Substance; (iv) the Company has not received
any written notice of violation of liability under any Environmental Law which
liability remains unresolved; (v) true, correct and complete copies of all
environmental surveys, reports, assessments and similar materials which were
prepared by or on behalf of the Company, any of its Subsidiaries or any
affiliate of either the Company or any Subsidiary, have been made available to
Parent; and (vi) neither the Company nor any Subsidiary has contractually
assumed any liability of any other person involving Hazardous Substances or
Environmental Laws.
(c) Notwithstanding anything in this Agreement to the
contrary, this Section 3.16 is exclusive as to all matters related to or arising
from Environmental Laws, Hazardous Substances, pollution, contamination,
exposure to or the presence of any Hazardous Substances and any conditions
attributed to any of the foregoing.
SECTION 3.17. Material Contracts. Each contract or agreement
------------------
to which the Company or any of the Subsidiaries is a party that is material to
the Company or any Subsidiary (a "Material Contract"), or that is between the
-----------------
Company or any Subsidiary, on the one hand, and any director, officer or
affiliate of the Company, on the other hand (an "Affiliate Contract") is in full
------------------
force and effect and is enforceable against the parties thereto (including the
Company and the Subsidiaries) in accordance with its terms and no condition or
state of facts exists that, with notice or the passage of time, or both, would
constitute a material default by the Company or any Subsidiary or, to the
knowledge of the Company, any third party under such Material Contracts.
17
<PAGE>
The Company or the applicable Subsidiary and, to the knowledge of the Company,
any third party thereto, has duly complied in all material respects with the
provision of each Material Contract to which it is a party. An accurate and
complete list of each Material Contracts and each Affiliate Contract is set
forth in Section 3.17 of the Disclosure Schedule, and accurate and complete
copies of each Material Contract and each Affiliate Contract have been provided
to the Parent. The term Material Contract shall include the Principal Agreement,
dated January 14, 1993, by and between the Company and Consorcio Larmo, S.A. de
C.V., and any agreement, lease, contract, note, mortgage, indenture, arrangement
or other obligation (or any series of related agreements, lease, contracts,
notes, mortgages, indentures, arrangements or other obligations) entered into by
the Company or any of its Subsidiaries (i) of a nature which would be required
to be included as an Exhibit in a registration statement filed with the
Commission under the Securities Act of 1933, as amended, pursuant to Item
601(b)(10) of Regulation S-K (other than this Agreement), (ii) which involves
the leasing or rental of any significant portion of the real property currently
utilized by the Company or any of the Subsidiaries, (iii) under which the
Company or any Subsidiary has incurred or may incur indebtedness for borrowed
money, (iv) under which the Company or any Subsidiary is leasing any equipment
or other tangible personal property, and (v) which requires the Company or any
of its Subsidiaries to expend funds in excess of $100,000 in any one-year period
and which is not terminable at will by the Company or its Subsidiary.
SECTION 3.18. Brokers and Counsel. No broker, finder or
-------------------
investment banker (other than Lazard Freres and J. I. Harris & Associates) is
entitled to any brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of the
Company. The Company has heretofore furnished to Parent a complete and correct
copy of all agreements among the Company or any of its Subsidiaries, on the one
hand, and Lazard Freres, J. I. Harris and Associates (the "Broker Agreements")
-----------------
or Honigman Miller Schwartz and Cohn on the other hand (the "Attorney
--------
Engagement") pursuant to which such firms would be entitled to any payment
- ----------
relating to the Transactions.
SECTION 3.19. Mexican Operations. Neither the Company nor any
------------------
of its directors or officers has any reason to believe that General Motors
Corporation intends to terminate, or modify in any respect which is materially
adverse to the Company or its subsidiary, Durakon Mexicana, S.A. de C.V., the
project known as GMT805.
SECTION 3.20. Year 2000 Compliance. All computer software and
--------------------
computerized systems owned or used by the Company, or licensed by the Company,
as licensor or as licensee, other than any shrinkwrap software available to
retail customers, is "Year 2000 Compliant" (as hereinafter defined), except as
-------------------
disclosed in Section 3.20 of the Disclosure Schedule. For purposes of this
Agreement, "Year 2000 Compliant" shall mean (i) all such software and systems
shall operate in 4-digit year format and, in all material respects, without
errors in the recognition, calculation and processing of date data relating to
century recognition, leap years, single and multi-century formulae, date values
and interfaces of date-related functionalities; (ii) all date processing shall
be conducted in a four-digit year format and all date sorting that includes a
"year field" or "year category" shall be based upon a four-digit year format;
and (iii) any date arithmetic programs or calculators in the software shall
operate in all
18
<PAGE>
material respects in accordance with the related user documentation in the Year
2000, and the years following, without degrading functionality or performance.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
------------------------------------------------------
Parent and Purchaser hereby, jointly and severally, represent
and warrant to the Company that:
SECTION 4.01. Organization. Purchaser is a corporation, and
------------
Parent is a limited partnership, duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has the
requisite power and authority and all necessary governmental approvals to own,
lease and operate its properties and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing or in good
standing or to have such power, authority and governmental approvals would not,
individually or in the aggregate, have a material adverse effect on the business
or operations of Parent and Purchaser and their respective subsidiaries, taken
as a whole.
SECTION 4.02. Authority Relative to This Agreement. Each of
------------------------------------
Parent and Purchaser has all necessary power and authority (corporate or
partnership as applicable) to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the Transactions. The execution and
delivery of this Agreement by Parent and Purchaser and the consummation by
Parent and Purchaser of the Transactions have been duly and validly authorized
by all necessary action (corporate or partnership as applicable) and no other
proceedings on the part of Parent or Purchaser are necessary to authorize this
Agreement or to consummate the Transactions (other than with respect to the
Merger, the filing and recordation of the Certificate of Merger as required by
Michigan Law). This Agreement has been duly and validly executed and delivered
by Parent and Purchaser and, assuming the due authorization, execution and
delivery by the Company, constitutes a legal, valid and binding obligation of
each of Parent and Purchaser enforceable against each of Parent and Purchaser in
accordance with its terms.
SECTION 4.03. No Conflict; Required Filings and Consents. (a)
-------------------------------------------
The execution and delivery of this Agreement by Parent and Purchaser do not, and
the performance of this Agreement by Parent and Purchaser will not, (i) conflict
with or violate the Articles of Incorporation or Bylaws of Purchaser or the
Certificate of Limited Partnership of Parent, (ii) conflict with or violate any
law, rule, regulation, order, judgement or decree applicable to Parent or
Purchaser or by which any property or asset of either of them 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, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or other encumbrance on any
property or asset of Parent or Purchaser pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which
19
<PAGE>
Parent or Purchaser is a party or by which Parent or Purchaser or any property
or asset of either of them is bound or subject.
(b) The execution and delivery of this Agreement by
Parent and Purchaser do not, and the performance of this Agreement by Parent and
Purchaser will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any governmental or regulatory authority,
domestic or foreign, except (i) for applicable requirements, if any, of the
Exchange Act, Blue Sky Laws and state takeover laws and filing and recordation
of the Certificate of Merger as required by Michigan Law and (ii) where failure
to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or delay consummation of the Offer
or the Merger, or otherwise prevent Parent or Purchaser from performing their
respective obligations under this Agreement.
(c) Parent and Purchaser have less than $10 million of
assets for purposes of determining whether any pre-merger filing under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, is required,
and no individual or entity owns 50% or more of the equity of Parent.
SECTION 4.04. Financing. Parent has, or has commitments to
---------
obtain, sufficient funds to permit Purchaser to acquire all the outstanding
Shares in the Offer and the Merger, evidence of which has been provided to the
Company.
SECTION 4.05. Offer Documents; Proxy Statement. The Offer
--------------------------------
Documents will not, at the time the Offer Documents are filed with the SEC or
are first published, sent or given to shareholders of the Company, as the case
may be, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they are
made, not misleading. The information supplied by Parent for inclusion in the
Proxy Statement will not, on the date the Proxy Statement (or any amendment or
supplement thereto) is first mailed to shareholders of the Company, at the time
of the Special Shareholders' Meeting, if applicable, and at the Effective Time,
contain any statement which, at such time and in light of the circumstances
under which it is made, is false or misleading with respect to any material
fact, or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein not false or misleading or
necessary to correct any statement in any earlier communication with respect to
the solicitation of proxies for the Special Shareholders' Meeting which shall
have become false or misleading. Notwithstanding the foregoing, Parent and
Purchaser make no representation or warranty with respect to any information
supplied by the Company or any of its representatives which is contained in any
of the foregoing documents or the Offer Documents. The Offer Documents shall
comply in all material respects as to form with the requirements of the Exchange
Act and the rules and regulations thereunder.
SECTION 4.06. Brokers. No broker, finder or investment banker
-------
is entitled to any brokerage, finder's or other fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of Parent or
Purchaser.
20
<PAGE>
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
--------------------------------------
SECTION 5.01. Conduct of Business by the Company Pending the
----------------------------------------------
Merger. The Company covenants and agrees that, between the date of this
- ------
Agreement and the Effective Time, unless Parent shall otherwise agree in
writing, the businesses of the Company and the Subsidiaries shall be conducted
only in, and the Company and the Subsidiaries shall not take any action except
in, the ordinary course of business and in a manner consistent with past
practice; and the Company shall use its best efforts to preserve substantially
intact the business organization of the Company and the Subsidiaries, to keep
available the services of the current officers, employees and consultants of the
Company and the Subsidiaries and to preserve the current relationships of the
Company and the Subsidiaries with customers, suppliers and other persons with
which the Company or any Subsidiary has significant business relations. By way
of amplification and not limitation, except as contemplated by this Agreement or
by Section 5.01 of the Disclosure Schedule, neither the Company nor any
Subsidiary shall, between the date of this Agreement and the Effective Time,
directly or indirectly do, or propose to do, any of the following without the
prior written consent of Parent:
(a) amend or otherwise change its Articles of Incorporation or
Bylaws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or
authorize the issuance, sale, pledge, disposition, grant or encumbrance
of (i) any shares of capital stock of any class of the Company or any
Subsidiary (which for purposes of this Section 5.01(b)(i) only shall
include Durakon Mexicana, S.A. de C.V.), or any options, warrants,
convertible securities or other rights of any kind to acquire any
shares of such capital stock, or any other ownership interest
(including, without limitation, any phantom interest), of the Company
or any Subsidiary (except for the issuance of a maximum of 468,000
Shares issuable pursuant to stock options outstanding on the date
hereof) or (ii) any assets of the Company or any Subsidiary, except for
sales in the ordinary course of business and in a manner consistent
with past practice;
(c) (i) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its capital stock, or (ii) make any capital
contribution with respect to any Subsidiary (which for purposes of this
Section 5.01(c)(ii) only shall include Durakon Mexicana, S.A. de C.V.);
(d) reclassify, combine, split, subdivide or redeem, purchase
or otherwise acquire, directly or indirectly, any of its capital stock;
(e) (i) except as set forth in Section 5.01(e) of the
Disclosure Schedule, take any of the actions described in (ii)(B),
(ii)(C), (ii)(D), (ii)(F) and (ii)(G) of this subsection (e) as they
relate to the GMT805 project, or (ii) (A) acquire (including, without
21
<PAGE>
limitation, by merger, consolidation, or acquisition of stock or assets
or any other business combination) any corporation, partnership, other
business organization or any division thereof or any assets; (B) incur
any indebtedness for borrowed money or issue any debt securities or
assume, guarantee or endorse, pledge in respect of or otherwise as an
accommodation become responsible for the obligations of any person, or
make any loans or advances, except in the ordinary course of business
and consistent with past practice, but in no event shall there be more
than $1,300,000 of indebtedness outstanding at any one time; (C) enter
into any contract or agreement other than (1) a license agreement with
Dynamic Manufacturing, Inc. (which shall only be entered into following
consultation with Parent) or (2) contracts or agreements entered into
in the ordinary course of business, consistent with past practice and
which require payments by the Company or the Subsidiaries in an
aggregate amount of less than U.S. $100,000; (D) terminate, cancel or
permit any change in, or agree to any change in, any Material Contract,
except in the ordinary course of business consistent with past
practice; (E) terminate, cancel or permit any change in, or agree to
any change in, any Affiliate Contract, Broker Agreement or Attorney
Engagement; (F) authorize any single capital expenditure which is in
excess of U.S. $250,000 or capital expenditures which are, in the
aggregate, in excess of U.S. $1,000,000 for the Company and the
Subsidiaries taken as a whole; or (G) enter into or amend any contract,
agreement, commitment or arrangement with respect to any matter set
forth in this Section 5.01(e);
(f) increase the compensation payable or to become payable to
its officers or employees, except for normal increases consistent with
past practices in salaries or wages of employees of the Company or any
Subsidiary who are not officers of the Company, or grant any severance
or termination pay to, or enter into any employment, severance,
termination, stay-bonus or similar agreement with, any director,
officer or other employee of the Company or any Subsidiary, or
establish, adopt, enter into or amend any collective bargaining, bonus,
profit sharing, thrift, compensation, stock option, restricted stock,
pension, retirement, deferred compensation, employment, termination,
severance or other plan, agreement, trust, fund, policy or arrangement
for the benefit of any director, officer or employee;
(g) take any action, other than reasonable and usual actions
in the ordinary course of business and consistent with past practice,
with respect to accounting policies or procedures (including, without
limitation, procedures with respect to the payment of accounts payable
and collection of accounts receivable);
(h) make any tax election or settle or compromise any material
federal, state, local or foreign income tax liability;
(i) pay, discharge or satisfy any claim, liability or
obligation (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction, in the
ordinary course of business and consistent with past practice, of
liabilities reflected or reserved against in the 1998 Balance Sheet or
22
<PAGE>
subsequently incurred in the ordinary course of business and consistent
with past practice or incurred in connection with the Transactions; or
(j) announce an intention, enter into any formal or informal
agreement, or otherwise make a commitment, to do any of the foregoing.
ARTICLE VI
ADDITIONAL AGREEMENTS
---------------------
SECTION 6.01. Special Shareholders' Meeting. The Company,
-----------------------------
acting through the Board, shall, in accordance with applicable law and the
Company's Articles of Incorporation and Bylaws, unless not required under
applicable "short-form" merger provisions of Michigan Law, (i) duly call, give
notice of, convene and hold a special meeting of its shareholders as soon as
practicable following the expiration of the Offer for the purpose of considering
and taking action on this Agreement and the transactions contemplated hereby
(the "Special Shareholders' Meeting") and (ii) subject to the provisions of
-----------------------------
Sections 6.04 and 8.01 below, (A) include in the Proxy Statement the unanimous
recommendation of the Board that the shareholders of the Company approve and
adopt this Agreement and the Transactions, including, without limitation, the
Merger and (B) use its best efforts to obtain such approval and adoption;
provided, however, if, immediately after the expiration of the Offer, less than
- -------- -------
a majority of the outstanding Shares on a fully-diluted basis have been tendered
into the Offer, and not withdrawn, then the Special Shareholders' Meeting shall
not be held and the Company shall not be required to (i) call, give notice of or
convene the Special Shareholders' Meeting, (ii) recommend in the Proxy Statement
that the shareholders of the Company approve and adopt this Agreement and the
Transactions, or (iii) use its best efforts to obtain such approval and
adoption. At the Special Shareholders' Meeting (or by consent if a shareholders
meeting is not required), Parent and Purchaser shall cause all Shares then owned
by them and their subsidiaries to be voted in favor of the approval and adoption
of this Agreement and the Transactions, including, without limitation, the
Merger.
SECTION 6.02. Proxy Statement. As soon as practicable
---------------
following the date of this Agreement, the Company shall file the Proxy Statement
with the SEC under the Exchange Act, unless not required under applicable
"short-form" merger provisions of Michigan Law, and shall use its best efforts
to have the Proxy Statement cleared by the SEC. Parent, Purchaser and the
Company shall cooperate with each other in the preparation of the Proxy
Statement, and the Company shall notify Parent promptly of the receipt of any
comments of the SEC with respect to the Proxy Statement and of any requests by
the SEC for any amendment or supplement thereto or for additional information
and shall provide to Parent promptly copies of all correspondence between the
Company or any representative of the Company and the SEC. The Company shall give
Parent and its counsel the opportunity to review the Proxy Statement prior to
its being filed with the SEC and shall give Parent and its counsel the
opportunity to review all amendments and supplements to the Proxy Statement and
all responses to requests for additional information and replies to comments
prior to their being filed with, or sent to, the SEC. Each of the Company,
Parent and Purchaser agrees to use its best efforts, after consultation with the
other parties hereto,
23
<PAGE>
to respond promptly to all such comments of and requests by the SEC and to cause
the Proxy Statement and all required amendments and supplements thereto to be
mailed to the holders of Shares entitled to vote at the Special Shareholders'
Meeting at the earliest practicable time.
SECTION 6.03. Access to Information; Confidentiality. (a) From
--------------------------------------
the date hereof to the Effective Time, the Company shall, and shall cause the
Subsidiaries and the officers, directors, employees, auditors and agents of the
Company and the Subsidiaries to, afford the officers, employees and agents of
Parent and Purchaser access at all reasonable times to the officers, employees,
agents, properties, offices, plants and other facilities, books and records of
the Company and each Subsidiary, shall instruct its independent auditors to make
available its accountants' work papers to the officers, employees and agents of
Parent and Purchaser, and shall furnish Parent and Purchaser with all financial,
operating and other data and information as Parent or Purchaser, through its
officers, employees or agents, may reasonably request.
(b) All information obtained by Parent or Purchaser
pursuant to this Section 6.04 shall be kept confidential, by Purchaser, by
Parent and by any other party which is to be afforded access pursuant to Section
6.03(a), in accordance with the confidentiality agreement, dated February 5,
1999 (the "Confidentiality Agreement"), between Littlejohn Co., LLC and the
-------------------------
Company and countersigned by Littlejohn & Co., LLC on February 8, 1999.
SECTION 6.04. No Solicitation of Transactions. Neither the
-------------------------------
Company nor any Subsidiary shall, directly or indirectly, through any officer,
director, agent or otherwise, solicit, initiate or encourage the submission of
any proposal or offer from any person relating to any acquisition or purchase of
all or any material portion of the assets of, or any equity interest in, the
Company or any Subsidiary or any merger, consolidation, business combination,
reorganization, recapitalization or similar transaction involving the Company or
any Subsidiary (each a "Competing Transaction") or participate in any
---------------------
discussions or negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way with, or assist
or participate in, facilitate or encourage, any effort or attempt by any other
person to do or seek any of the foregoing. The Company and each of its
Subsidiaries will cease and cause to be terminated any existing activities,
discussions or negotiations by or on its behalf with any other person conducted
heretofore with respect to any Competing Transaction and will promptly notify
Parent following receipt of any request by any person relating to any possible
Competing Transaction or information concerning the Company. Section 6.04 of the
Disclosure Schedule accurately and completely sets forth the name of each person
to whom any confidential documents or information concerning the Company or any
of its Subsidiaries was disclosed by or on behalf of the Company since January
1, 1998 for the purpose of discussing a possible change in control transaction
involving the Company (a "Potential Buyer"). The Company will promptly request
---------------
that each such Potential Buyer either return all of such confidential documents
and information, and all copies thereof, to the Company or deliver a written
certification of such destruction to the Company. The Company shall use its best
efforts to cause each such Potential Buyer to comply with such request and shall
notify Parent promptly following compliance by each Potential Buyer with such
request. The Company agrees that it will not disclose any of the terms of this
Agreement or the matters referred to herein to any other prospective acquiror of
the Company until the Closing Date or earlier if this Agreement is terminated in
accordance with its
24
<PAGE>
terms, except to the extent such disclosure is required by law or the
regulations of the Nasdaq Stock Market. Nothing contained in this Section 6.04
shall prohibit the Board from furnishing information to, or entering into
discussions or negotiations with, any person in connection with an unsolicited
(from the date of this Agreement) proposal involving a fully-financed Competing
Transaction which is made in writing by such person and which, if consummated,
would provide consideration per Share to the shareholders of the Company in
excess of the Per Share Amount (a "Superior Proposal"), if, and only to the
-----------------
extent that, the Board determines in good faith, based upon the written advice
of Honigman Miller Schwartz and Cohn, that such action is required for the Board
to comply with its fiduciary duties to shareholders under Michigan Law.
SECTION 6.05. Employee Benefits Matters; Employment
-------------------------------------
Agreements. For a period of one year from the Effective Time, Parent shall, or
- ----------
shall cause the Company or the Surviving Corporation to, maintain the Plans
(other than the Stock Option Plans) which the Company maintains for the benefit
of, or which are open to, a majority of the employees of the Company on the
terms in effect on the date hereof, or such other plans, arrangements or
programs as will provide employees with benefits that in the aggregate are
substantially equivalent to those provided under the Plans (other than the Stock
Option Plans) as in effect on the date hereof. In addition, Parent shall, or
shall cause the Surviving Corporation to, assume and agree to perform those
Change of Control Agreements listed in Schedule 6.05 of the Disclosure Schedule
in the same manner and to the same extent that the Company is required to
perform such agreements.
SECTION 6.06. Directors' and Officers' Indemnification and
--------------------------------------------
Insurance.
- ---------
(a) The Articles of Incorporation and Bylaws of the
Surviving Corporation shall contain provisions no less favorable with respect to
indemnification than are set forth in Article VII of the Bylaws of the Company,
which provisions shall not be amended, repealed or otherwise modified for a
period of six years from the Effective Time in any manner that would affect
adversely the rights thereunder of individuals who at the Effective Time were
directors, officers, employees, fiduciaries or agents of the Company, unless
such modification shall be required by law. Any determinations made pursuant to
Section 564(a) of Michigan Law with respect to the appropriateness of
indemnification shall be made in good faith.
(b) The Company shall indemnify and hold harmless, and,
after the Effective Time, the Surviving Corporation shall indemnify and hold
harmless, each present and former director, officer, employee, fiduciary and
agent of the Company and each Subsidiary (collectively, the "Indemnified
-----------
Parties") against all costs and expenses (including reasonable attorneys' fees),
- -------
judgments, fines, losses, claims, damages, liabilities and settlement amounts
paid in connection with any claim, action, suit, proceeding or investigation
(whether arising before or after the Effective Time), whether civil, criminal,
administrative or investigative, arising out of or pertaining to any action or
omission in their capacity as an officer, director, employee, fiduciary or
agent, whether occurring before or after the Effective Time, for a period of six
years after the date hereof. In the event of any such claim, action, suit,
proceeding or investigation, (i) the Company or the Surviving Corporation, as
the case may be, shall pay the reasonable fees and expenses of counsel selected
by the Indemnified Parties, which counsel shall
25
<PAGE>
be reasonably satisfactory to the Company or the Surviving Corporation, promptly
after statements therefor are received and (ii) the Company and the Surviving
Corporation shall cooperate in the defense of any such matter; provided,
--------
however, that neither the Company nor the Surviving Corporation shall be liable
- -------
for any settlement effected without its written consent (which consent shall not
be unreasonably withheld); provided further that neither the Company nor the
-------- -------
Surviving Corporation shall be obligated pursuant to this Section 6.06(b) to pay
the fees and expenses of more than one counsel for all Indemnified Parties in
any single action except to the extent that two or more of such Indemnified
Parties shall have conflicting interests in the outcome of such action; and
provided further that, in the event that any claim for indemnification is
- --------
asserted or made within such six-year period, all rights to indemnification in
respect of such claim shall continue until the disposition of such claim.
(c) Prior to the Effective Time the Company shall, and
after the Effective Time the Surviving Corporation shall, make reasonable
advances to the Indemnified Parties to cover expenses for which such Indemnified
Parties would otherwise be entitled to indemnification pursuant to this Section
6.06, subject to receipt of an undertaking by the Indemnified Parties to
reimburse the Company for all such amounts advanced if it is subsequently
determined that the Company is not required to indemnify such Indemnified Party.
(d) The Surviving Corporation shall use its best efforts
to maintain in effect for six years from the Effective Time, if available, the
current directors' and officers' liability insurance policies maintained by the
Company (provided that the Surviving Corporation may substitute therefor
policies of at least the same coverage containing terms and conditions which are
not materially less favorable) with respect to matters occurring on or prior to
the Effective Time; provided, however, that in no event shall the Surviving
--------
Corporation be required to expend pursuant to this Section 6.06(d) more than an
amount per year equal to 250% of current annual premiums paid by the Company for
such insurance.
(e) In the event the Company or the Surviving Corporation
or any of their respective successors or assigns (i) consolidates with or merges
into any other person and shall not be the continuing or surviving corporation
or entity of such consolidation or merger or (ii) transfers all or substantially
all of its properties and assets to any person, then, and in each such case,
proper provision shall be made so that the successors and assigns of the Company
or the Surviving Corporation, as the case may be, or at Parent's option, Parent,
shall assume the obligations set forth in this Section 6.06.
SECTION 6.07. Notification of Certain Matters. The Company
-------------------------------
shall give prompt notice to Parent, and Parent shall give prompt notice to the
Company, of (i) the occurrence, or non-occurrence, of any event the occurrence,
or non-occurrence, of which causes any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material respect and (ii) any
failure of the Company, Parent or Purchaser, as the case may be, to comply with
or satisfy any covenant, condition or agreement to be complied with or satisfied
by it hereunder.
26
<PAGE>
SECTION 6.08. Further Action; Reasonable Best Efforts. Upon
---------------------------------------
the terms and subject to the conditions hereof (including, without limitation,
Section 6.04), each of the parties hereto shall use its reasonable best efforts
to take, or cause to be taken, all appropriate action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the Transactions, including,
without limitation, using its reasonable best efforts to obtain all licenses,
permits (including, without limitation, environmental permits), consents,
approvals, authorizations, qualifications and orders of governmental authorities
and parties to contracts with the Company and the Subsidiaries as are necessary
for the consummation of the Transactions and to fulfill the conditions to the
Offer and the Merger. In case at any time after the Effective Time any further
action is necessary or desirable to carry out the purposes of this Agreement,
the proper officers and directors of each party to this Agreement shall use
their reasonable best efforts to take all such action.
SECTION 6.09. Public Announcements. Parent and the Company
--------------------
shall consult with each other before issuing any press release or otherwise
making any public statements with respect to this Agreement or any Transaction
and shall not issue any such press release or make any such public statement
prior to such consultation, except as may be required by law or any listing
agreement with a national securities exchange or The Nasdaq Stock Market to
which Parent or the Company is a party.
SECTION 6.10. Confidentiality Agreement. Upon the acceptance
-------------------------
for payment of Shares pursuant to the Offer, the Confidentiality Agreement shall
be deemed to have terminated without further action by the parties thereto.
SECTION 6.11. Financial Statements. As soon as they are made
--------------------
available to senior management of the Company, the Company shall make available
to Parent copies of all internally generated monthly, quarterly and annual
financial statements, consisting of consolidated balance sheets, and statements
of income and of cash flows.
SECTION 6.12. SEC Reports. The Company shall timely file all
-----------
quarterly, annual and other reports and information required to be filed by it
with the SEC under the Exchange Act for all periods through and including the
Closing Date and, promptly after making such filing, shall provide Parent with
an accurate and complete copy thereof. The delivery to Parent of copies of any
such reports and information shall constitute a representation and warranty by
the Company to Parent that such report or information was prepared in accordance
with the requirements of the Exchange Act and did not, at the time it was filed,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances in which they were made, not misleading.
SECTION 6.13. Cancellation of Shares. The Company shall cause
----------------------
to be cancelled all Shares held by the Company.
SECTION 6.14. Issuance of Shares Upon Exercise of Stock
-----------------------------------------
Options. From and after the date upon which Purchaser accepts for payment Shares
- -------
tendered pursuant to the Offer,
27
<PAGE>
the Company shall not issue any Shares upon exercise of any outstanding options
to purchase Shares.
ARTICLE VII
CONDITIONS TO THE MERGER
------------------------
SECTION 7.01. Conditions to the Merger If Offer Conditions
--------------------------------------------
Have Been Satisfied or Waived. If the conditions to the Offer set forth on Annex
- -----------------------------
A have been satisfied or, where permitted, waived, the respective obligations of
each party to effect the Merger shall be subject to the satisfaction at or prior
to the Effective Time of the following conditions:
(a) Shareholder Approval. This Agreement and the Transactions,
--------------------
including, without limitation, the Merger, shall have been approved and
adopted by the affirmative vote of the shareholders of the Company
(unless the vote of the shareholders is not required by Michigan Law);
(b) No Order. No foreign, United States or state governmental
--------
authority or other agency or commission or foreign, United States or
state court of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any law, rule, regulation, executive
order, decree, injunction or other order (whether temporary,
preliminary or permanent) which is then in effect and has the effect of
making the acquisition of Shares by Parent or Purchaser or any
affiliate of either of them or the consummation of the Merger illegal
or otherwise restricting, preventing or prohibiting consummation of the
Transactions; and
(c) Offer. Purchaser or its permitted assignee shall have
-----
purchased all Shares validly tendered and not withdrawn pursuant to the
Offer; provided, however, that this condition shall only be applicable
-------- -------
to the obligations of Parent or Purchaser if Purchaser's failure to
purchase such Shares is not in breach of this Agreement or the terms of
the Offer.
SECTION 7.02. Conditions to the Merger if the Conditions to
---------------------------------------------
the Offer are not Satisfied or Waived. If the conditions to the Offer set forth
- -------------------------------------
on Annex A have not been satisfied or, where permitted, waived, the respective
obligations of Parent and Purchaser, on the one hand, and the Company, on the
other hand, shall be subject to the satisfaction, or, where permitted, waived,
at or prior to the Effective Time of the conditions set forth in subsections (a)
and (b), respectively, of this Section 7.02.
(a) Conditions Applicable to Parent and Purchaser. The
---------------------------------------------
respective obligations of Parent and Purchaser shall be subject to the
satisfaction, or, where permitted, waiver, at or prior to the Effective
Time of the following conditions:
28
<PAGE>
(i) Shareholder Approval. This Agreement and the
--------------------
Transactions, including, without limitation, the Merger, shall
have been approved and adopted by the affirmative vote of the
shareholders of the Company (unless the vote of the
shareholders is not required by Michigan Law);
(ii) No Order. No foreign, United States or state
--------
governmental authority or other agency or commission or
foreign, United States or state court of competent
jurisdiction shall have enacted, issued, promulgated, enforced
or entered any law, rule, regulation, executive order, decree,
injunction or other order (whether temporary, preliminary or
permanent) which is then in effect and has the effect of
making the acquisition of Shares by Parent or Purchaser or any
affiliate of either of them or the consummation of the Merger
illegal or otherwise restricting, preventing or prohibiting
consummation of the Transactions;
(iii) there shall not have occurred any Material
Adverse Effect with respect to the Company;
(iv) the Company shall have taken or caused to be
taken all such action so that each outstanding option to
purchase Shares issued by the Company other than pursuant to
the Company's 1996 Stock Option Plan shall be automatically
cancelled as of the Effective Time and the holders of each
such option shall only be entitled to receive from the
Company, at the Effective Time or as soon as practicable
thereafter, an amount in cash equal to the Spread, if any, in
exchange for the cancellation of each such option;
(v) there shall not have been any misstatement in or
omission from any representation of, or there shall not have
occurred any breach of warranty by, the Company in the
Agreement, as a result of which, individually or in the
aggregate, there is, or may reasonably be expected to occur, a
Material Adverse Effect with respect to the Company, and the
President of the Company shall have delivered a certificate to
such effect in form and substance reasonably satisfactory to
Parent;
(vi) the Company shall have performed in all material
respects all of its obligations, and shall have complied in
all material respects with all of its material agreements and
material covenants, to be performed or complied with by it
under this Agreement, and the President of the Company shall
have delivered a certificate to such effect in form and
substance reasonably satisfactory to Parent; and
(vii) the Company's consolidated cash balance, as
computed in accordance with GAAP, immediately prior to the
Effective Time, shall be no less than $15 million, determined
after subtracting an amount equal to the then-outstanding
accounts payable (excluding inter-company accounts payable)
incurred by the Company, any Subsidiary and/or Durakon
Mexicana, S.A. de
29
<PAGE>
C.V. relating to the GMT-805 expenditures listed in Section
5.01(e) of the Disclosure Schedule, and the President of the
Company shall have delivered a certificate to such effect in
form and substance reasonably satisfactory to Parent.
(b) Conditions Applicable to the Company. The obligations of
------------------------------------
the Company shall be subject to the satisfaction, or, where permitted,
waiver, at or prior to the Effective Time of the following conditions:
(i) Shareholder Approval. This Agreement and the
--------------------
Transactions, including, without limitation, the Merger, shall
have been approved and adopted by the affirmative vote of the
shareholders of the Company (unless the vote of the
shareholders is not required by Michigan Law);
(ii) No Order. No foreign, United States or state
--------
governmental authority or other agency or commission or
foreign, United States or state court of competent
jurisdiction shall have enacted, issued, promulgated, enforced
or entered any law, rule, regulation, executive order, decree,
injunction or other order (whether temporary, preliminary or
permanent) which is then in effect and has the effect of
making the acquisition of Shares by Parent or Purchaser or any
affiliate of either of them or the consummation of the Merger
illegal or otherwise restricting, preventing or prohibiting
consummation of the Transactions;
(iii) there shall not have been any misstatement in
or omission from any representation of, or there shall not
have occurred any breach of warranty by, Parent or Purchaser
in the Agreement, as a result of which, individually or in the
aggregate, there is, or may reasonably be expected to occur, a
Material Adverse Effect with respect to Parent and Purchaser
taken as a whole, and the President of Parent shall have
delivered a certificate to such effect in form and substance
reasonably satisfactory to the Company; and
(iv) Parent and Purchaser shall have performed in all
material respects all of their obligations, and shall have
complied in all material respects with all of their material
agreements and material covenants, to be performed or complied
with by them under this Agreement, and the President of Parent
shall have delivered a certificate to such effect in form and
substance reasonably satisfactory to the Company.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
SECTION 8.01. Termination. This Agreement may be terminated
-----------
and the Merger and the other Transactions may be abandoned at any time prior to
the Effective Time, notwithstanding any requisite approval and adoption of this
Agreement and the transactions contemplated hereby by the shareholders of the
Company:
30
<PAGE>
(a) By mutual written consent duly authorized by (x) the
Boards of Directors of Purchaser and the Company and (y) the general
partner of Parent; or
(b) By Parent, Purchaser or the Company if (i) the Effective
Time shall not have occurred on or before November 30, 1999; provided,
--------
however, that the right to terminate this Agreement under this Section
-------
8.01(b) shall 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 to occur on or before such date
or (ii) any court of competent jurisdiction in the United States or
other governmental authority shall have issued an order, decree, ruling
or taken any other action restraining, enjoining or otherwise
prohibiting the Offer or the Merger and such order, decree, ruling or
other action shall have become final and nonappealable; or
(c) By Parent, upon approval of its Board of Directors, if (i)
due to an occurrence or circumstance that would result in a failure to
satisfy any condition set forth in Annex A hereto other than the
Minimum Tender Condition, Purchaser shall have (A) failed to commence
the Offer within 60 days following the date of this Agreement, (B)
terminated the Offer without having accepted any Shares for payment
thereunder or (C) failed to pay for Shares pursuant to the Offer within
90 days following the commencement of the Offer; provided, however,
that the Minimum Tender Condition shall have been satisfied and such
action or inaction under (A), (B) or (C) shall not have been caused by
or resulted from the failure of Parent or Purchaser to perform in any
material respect any material covenant or agreement of either of them
contained in this Agreement or the material breach by Parent or
Purchaser of any material representation or warranty of either of them
contained in this Agreement; or (ii) prior to the purchase of Shares
pursuant to the Offer, the Board or any committee thereof shall have
withdrawn or modified in a manner adverse to Purchaser or Parent or,
after receipt of a proposal involving a Competing Transaction, upon the
request of Parent, shall not have promptly publicly reaffirmed, its
approval or recommendation of the Offer, this Agreement, the Merger,
the Shareholder Agreements or any other Transaction, or shall have
recommended another merger, consolidation, business combination,
recapitalization, reorganization or similar transaction involving, or
acquisition of, the Company or its assets, or another tender offer or
exchange offer for Shares, or shall have resolved to do any of the
foregoing; or
(d) By the Parent, upon approval of its Board of Directors, if
the Company shall have materially breached its obligations under
Section 6.04 above; or
(e) By the Company, upon approval of the Board, if due to an
occurrence or circumstance that would result in a failure to satisfy
any condition set forth in Annex A hereto other than the Minimum Tender
Condition, Purchaser shall have (A) failed to commence the Offer within
60 days following the date of this Agreement, (B) terminated the Offer
without having accepted any Shares for payment thereunder or (C) failed
to pay for Shares pursuant to the Offer within 90 days following the
commencement of the
31
<PAGE>
Offer; provided, however, that the Minimum Tender Condition shall have
-------- -------
been satisfied and such action or inaction under (A), (B), and (C)
shall not have been caused by or resulted from the failure of the
Company to perform in any material respect any material covenant or
agreement of it contained in this Agreement or the material breach by
the Company of any material representation or warranty of it contained
in this Agreement; or
(f) by the Company or Parent, prior to the purchase of Shares
pursuant to the Offer, if the Board, in full compliance with the
provisions of Section 6.04 above, shall have approved the execution by
the Company of a definitive agreement relating to a Superior Proposal;
provided, however, the Company shall not be entitled to terminate this
Agreement pursuant to this Section 8.01(f) unless, at least three (3)
business days prior to such termination, the Company shall have first
provided to Parent (i) notice of its intention to terminate the
Agreement as of a particular effective date, (ii) copies of the
definitive documents relating to the Superior Proposal that the Board
has resolved to approve, (iii) the right to increase the price to be
paid for the Shares purchased pursuant to the Offer the Merger to an
amount per Share equal to the amount per Share to be received by the
shareholders of the Company pursuant to the Superior Proposal (the
"Higher Price"), and (iv) the amount of the Higher Price; and provided,
------------- --------
further, that if, prior to the effective date of such termination as
-------
set forth in the notice from the Company referred to above, Parent
notifies the Company of its agreement to pay the Higher Price, the
Agreement shall not terminate; or
(g) by either Parent or the Company, at any time after the
expiration of the Offer if, immediately after expiration of the Offer,
less than a majority of the outstanding Shares on a fully-diluted basis
have been tendered into the Offer, and not withdrawn.
SECTION 8.02. Effect of Termination. In the event of the
---------------------
termination of this Agreement pursuant to Section 8.01, this Agreement shall
forthwith become void, and there shall be no liability on the part of any party
hereto, except as set forth in Sections 8.03 and 9.01, and nothing herein shall
relieve any party from liability for any breach hereof.
SECTION 8.03. Fees and Expenses. (a) In the event that
-----------------
(i) any person shall have commenced a tender or exchange offer
for 25% or more (or which, assuming the maximum amount of securities
which could be purchased, would result in any person beneficially
owning 25% or more) of the then outstanding Shares or otherwise
publicly announced a Competing Transaction for the direct or indirect
acquisition of the Company or all or substantially all of its assets
and (w) the Board does not recommend against the Competing Transaction,
(x) the Offer shall have remained open for at least 20 business days,
(y) the Minimum Tender Condition shall not have been satisfied and (z)
this Agreement shall have been terminated pursuant to Section 8.01; or
(ii) this Agreement is terminated (x) pursuant to Section
8.01(c)(ii) or (y) pursuant to Section 8.01(d) or (z) pursuant to
Section 8.01(f);
32
<PAGE>
then, in any such event, the Company shall pay Parent promptly (but in no event
later than one business day after the first of such events shall have occurred)
a fee of U.S.$3,545,389 (the "Fee"), and shall reimburse Parent promptly for all
---
out-of-pocket expenses incurred by it, up to a maximum of $500,000, in
connection with its due diligence investigation, dealings with financing sources
and in the negotiation, execution and delivery of this Agreement and any debt
financing arrangements relating to the Offer or the Merger, such expenses to
include, without limitation, attorneys', accountants' and other consultants'
fees and disbursements, bank fees, and travel costs. Such amounts shall be
payable in immediately available funds.
(b) All costs and expenses incurred in connection with this Agreement
and the Transactions shall be paid by the party incurring such expenses, whether
or not any Transaction is consummated.
SECTION 8.04. Amendment. Subject to Section 6.03, this
---------
Agreement may be amended by the parties hereto by action taken by or on behalf
of their respective Boards of Directors at any time prior to the Effective Time;
provided, however, that, after the approval and adoption of this Agreement and
- -------- -------
the transactions contemplated hereby by the shareholders of the Company, no
amendment may be made which would reduce the amount or change the type of
consideration into which each Share shall be converted upon consummation of the
Merger. This Agreement may not be amended except by an instrument in writing
signed by the parties hereto.
SECTION 8.05. Waiver. At any time prior to the Effective Time,
------
any party hereto may (i) extend the time for the performance of any obligation
or other act of any other party hereto, (ii) waive any inaccuracy in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any agreement or condition
contained herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby.
ARTICLE IX
GENERAL PROVISIONS
------------------
SECTION 9.01. Non-Survival of Representations, Warranties and
-----------------------------------------------
Agreements. The representations, warranties and agreements in this Agreement
- ----------
shall terminate at the Effective Time or upon the termination of this Agreement
pursuant to Section 8.01, as the case may be, except that the agreements set
forth in Articles II and IX and in Section 6.06 shall survive the Effective Time
indefinitely and those set forth in Section 8.03 and Article IX shall survive
termination indefinitely.
SECTION 9.02. Notices. All notices, requests, claims, demands
-------
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
facsimile, by United States express mail (postage prepaid, return receipt
requested) or by overnight courier guaranteeing next business
33
<PAGE>
day delivery to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 9.02):
if to Parent or Purchaser:
Littlejohn Partners IV, L.P.,
c/o Littlejohn & Co., LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Facsimile: (203) 861-4009
Telephone: (203) 861-4005
with a copy to:
Pepper Hamilton LLP
3000 Two Logan Square
Philadelphia, PA 19103-2799
Attention: James D. Epstein
Facsimile: (215) 981-4750
Telephone: (215) 981-4368
if to the Company:
Durakon Industries, Inc.
2101 N. Lapeer Road
Lapeer, Michigan 48846
Attention: President
Facsimile: (810) 664-3957
Telephone: (810) 664-0850
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226
Attn: Donald J. Kunz
Fax: (313) 465-7455
Telephone: (313) 465-7454
34
<PAGE>
SECTION 9.03. Certain Definitions. For purposes of this
-------------------
Agreement, the term:
(a) "affiliate" of a specified person means a person who
---------
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with, such specified person;
(b) "beneficial owner" with respect to any Shares means a
----------------
person who shall be deemed to be the beneficial owner of such Shares
(i) which such person or any of its affiliates or associates (as such
term is defined in Rule 12b-2 promulgated under the Exchange Act)
beneficially owns, directly or indirectly, (ii) which such person or
any of its affiliates or associates has, directly or indirectly, (A)
the right to acquire (whether such right is exercisable immediately or
subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of consideration
rights, exchange rights, warrants or options, or otherwise, or (B) the
right to vote pursuant to any agreement, arrangement or understanding
or (iii) which are beneficially owned, directly or indirectly, by any
other persons with whom such person or any of its affiliates or
associates or person with whom such person or any of its affiliates or
associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any Shares;
(c) "business day" means any day on which the principal
------------
offices of the SEC in Washington, D.C. are open to accept filings, or,
in the case of determining a date when any payment is due, any day on
which banks are not required or authorized to close in the City of New
York;
(d) "control" (including the terms "controlled by" and "under
------- ------------- -----
common control with") means the possession, directly or indirectly or
-------------------
as trustee or executor, of the power to direct or cause the direction
of the management and policies of a person, whether through the
ownership of voting securities, as trustee or executor, by contract or
credit arrangement or otherwise;
(e) "person" means an individual, corporation, partnership,
------
limited partnership, syndicate, person (including, without limitation,
a "person" as defined in Section 13(d)(3) of the Exchange Act), trust,
association or entity or government, political subdivision, agency or
instrumentality of a government; and
(f) "subsidiary" or "subsidiaries" of the Company, the
---------- ------------
Surviving Corporation, Parent or any other person means an affiliate
controlled by such person, directly or indirectly, through one or more
intermediaries.
SECTION 9.04. 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
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the Transactions is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is
35
<PAGE>
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the Transactions be consummated as originally contemplated to the
fullest extent possible.
SECTION 9.05. Entire Agreement, Assignment. This Agreement
----------------------------
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes, except as set forth in Sections 6.03(b) and 6.10,
all prior agreements and undertakings, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof; provided, however,
the third full paragraph of page 3 of the Confidentiality Agreement shall not be
deemed to reduce or modify the Company's obligations with respect to any
representation or warranty made pursuant to this Agreement. This Agreement shall
not be assigned by operation of law or otherwise, except that Parent and
Purchaser may assign all or any of their rights and obligations hereunder to any
affiliate of Parent provided that no such assignment shall relieve the assigning
party of its obligations hereunder if such assignee does not perform such
obligations.
SECTION 9.06. Parties in Interest. This Agreement shall 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 shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement, other than Section 6.06 (which is intended to be for
the benefit of the persons covered thereby and may be enforced by such persons).
SECTION 9.07. Specific Performance. The parties hereto agree
--------------------
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
SECTION 9.08. Governing Law. The Merger and the rights of the
-------------
shareholders of the Company, this Agreement shall be governed by, and construed
in accordance with, the laws of the State of Michigan regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws.
SECTION 9.09. Headings. The descriptive headings contained in
--------
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 9.10. Counterparts; Facsimile. This Agreement may be
-----------------------
executed in one or more counterparts (including by facsimile signature), each of
which shall be an original and all of which, when taken together, shall be one
and the same agreement.
36
<PAGE>
IN WITNESS WHEREOF, Parent, Purchaser and the Company have
caused this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.,
Attest: its General Partner
/s/ Michael Klein By: /s/ A. Littlejohn
- --------------------------- ---------------------------
Name: Michael Klein Name: A. Littlejohn
Title: Member
LPIV ACQUISITION CORP.
Attest:
/s/ A. Littlejohn By: /s/ Michael Klein
- --------------------------- ---------------------------
Name: A. Littlejohn Name: Michael Klein
Title: President
DURAKON INDUSTRIES, INC.
Attest:
/s/ James C. Smith By: /s/ David W. Wright
- --------------------------- ---------------------------
Name: James C. Smith Name: David W. Wright
Title: President/CEO
37
<PAGE>
ANNEX A
-------
Conditions to the Offer
-----------------------
Notwithstanding any other provision of the Offer, Purchaser
shall not be required to accept for payment or pay for any Shares tendered
pursuant to the Offer, and may terminate or amend the Offer and may postpone the
acceptance for payment of and payment for Shares tendered, if (i) the Minimum
Tender Condition shall not have been satisfied, (ii) at any time on or after the
date of this Agreement, and prior to the acceptance for payment of Shares, any
of the following conditions shall exist:
(a) there shall have been entered any order, preliminary or
permanent injunction, decree, judgment or ruling in any action or
proceeding before any court or governmental, administrative or
regulatory authority or agency, which makes illegal or otherwise
directly or indirectly restrains or prohibits or makes materially more
costly the making of the Offer, the acceptance for payment of, or
payment for, any Shares by Parent, Purchaser or any other affiliate of
Parent, or the consummation of any other Transaction;
(b) there shall have occurred any Material Adverse Effect with
respect to the Company;
(c) (i) the Board or any committee thereof (x) shall have
withdrawn or modified in a manner adverse to Parent or Purchaser the
approval or recommendation of the Offer, the Merger, the Shareholder
Agreements or the Agreement, (y) shall have failed to reaffirm such
approval or recommendation upon request by Parent given after the
Company's receipt of a proposal involving a Competing Transaction or
(z) shall have approved or recommended any takeover proposal or any
other acquisition of Shares other than the Offer and the Merger, or
(ii) the Board or any committee thereof shall have resolved to do any
of the foregoing;
(d) there shall have been any misstatement in or omission from
any representation of, or there shall have occurred any breach of
warranty by, the Company in the Agreement as a result of which,
individually or in the aggregate, there is, or may reasonably be
expected to occur, a Material Adverse Effect with respect to the
Company;
(e) the Company shall have failed to perform in any material
respect any obligation or to comply in any material respect with any
material agreement or material covenant of the Company to be performed
or complied with by it under the Agreement;
(f) the Agreement shall have been terminated in accordance
with its terms;
38
<PAGE>
(g) the Company shall not have taken or caused to be taken all
such action so that each outstanding option to purchase Shares issued
by the Company other than pursuant to the Company's 1996 Stock Option
Plan shall be automatically cancelled as of the Effective Time and the
holders of each such option shall only be entitled to receive from the
Company, at the Effective Time or as soon as practicable thereafter, an
amount in cash equal to the Spread, if any, in exchange for the
cancellation of each such option;
(h) Purchaser and the Company shall have agreed that Purchaser
shall terminate the Offer or postpone the acceptance for payment of or
payment for Shares thereunder which, in the sole judgment of Purchaser,
in any such case, and regardless of the circumstances (including any
action or inaction by Parent or any of its affiliates) giving rise to
any such condition, makes it inadvisable to proceed with such
acceptance for payment or payment; or
(i) the Company's consolidated cash balance, as computed in
accordance with GAAP, as of the expiration of the Offer, shall be less
than $15 million, determined after subtracting an amount equal to the
then-outstanding accounts payable (excluding inter-company accounts
payable) incurred by the Company, any Subsidiary, and/or Durakon
Mexican, S.A. de C.V. relating to the GMT-805 expenditures listed in
Section 5.01(e) of the Disclosure Schedule;
or (iii) immediately after the expiration of the Offer, the President of the
Company shall not have delivered a certificate in form and substance reasonably
satisfactory to Parent to the effect that the condition described in subsection
(ii)(i) above does not exist.
The foregoing conditions are for the sole benefit of Purchaser
and Parent and may be asserted by Purchaser or Parent regardless of the
circumstances giving rise to any such condition or may be waived by Purchaser or
Parent in whole or in part at any time and from time to time in their sole
discretion. The failure by Parent or Purchaser at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right; the waiver
of any such right with respect to particular facts and other circumstances shall
not be deemed a waiver with respect to any other facts and circumstances; and
each such right shall be deemed an ongoing right that may be asserted at any
time and from time to time.
39
<PAGE>
Schedule I
List of Shareholders
--------------------
David Aronow
Phillip Wm. Fisher
Richard J. Jacob
Robert M. Teeter
David W. Wright
Max M. Fisher Revocable Trust, u/a/d August 13, 1988, by Max M. Fisher, Trustee
Martinque Charitable Remainder Unitrust, by Marjorie S. Fisher, Trustee
Wolverine Investors, by Newton Minow, Trustee
1990 Bronx Trust #1, by Daniel R. Tisch, Trustee
1990 Des Moines Trust #1, by Daniel R. Tisch, Trustee
<PAGE>
Exhibit (c)(8)
Confidentiality Agreement, dated February 5, 1999, between Littlejohn & Co.,
LLC and the Company and Countersigned by Littlejohn & Co., LLC on February 8,
1999
<PAGE>
[LAZARD FRERES & CO. LLC LETTERHEAD]
February 5, 1999
PERSONAL AND CONFIDENTIAL
- -------------------------
Littlejohn & Co.
115 E. Putnam Ave.
Greenwich, CT 06830
Attention: Angus C. Littlejohn
Dear Sir:
You have requested certain non-public information regarding Durakon
Industries, Inc. (the "Company") in connection with the possible sale of the
Company, which transaction may take the form of a merger or the sale of assets
or equity securities or other interests (the "Transaction"). As a condition to
furnishing such information to you, we, on behalf of the Company, are requiring
that you agree, as set forth below, to treat confidentially such information and
any other information that we or the Company furnish to you, whether furnished
before or after the date of this letter (collectively, the "Evaluation
Material").
You agree not to use any of the Evaluation Material in any way for any
purpose other than in connection with the purposes for which such material has
been provided to you. You agree that the Evaluation Material will not be used
for competitive purposes or to obtain any commercial advantage with respect to
the Company, and that such information will be kept confidential by you;
provided, however, that any of such information may be disclosed to such of your
directors, officers, employees, representatives, affiliates (as defined in Rule
405 under the Securities Act of 1933, "Affiliates") and other agents
(collectively, the "Agents") who need to know such information (it being
understood that such Agents shall be informed by you of the confidential nature
of such information, shall be directed by you to treat such information
confidentially and shall be informed that by receiving such information they are
agreeing
<PAGE>
to be bound by this agreement). You agree to be responsible for any breach of
this agreement by you or your Agents.
In the event that you or your Agents should be requested or required (by
oral questions, interrogatories, requests for information or documents subpoena,
Civil Investigative Demand or similar process) to disclose any information
supplied to you in the course of your dealing with the Company, it is agreed
that you will provide Lazard Freres and the Company with prompt notice of any
such request, so that the Company may seek an appropriate protective order
and/or waive your compliance with the provisions of this agreement. It is
further agreed that if, in the absence of a protective order or the receipt of a
waiver hereunder, you are nonetheless, in the opinion of counsel, compelled to
disclose information concerning the Company to any tribunal, or else to be
liable for contempt or suffer other censure or penalty, you or your Agents may
disclose such information to such tribunal without liability hereunder,
provided, however, that you give the Company advance written notice of the
information to be disclosed as far in advance of its disclosure as is practical
and, at the Company's request, seek to obtain assurances that it will be
accorded confidential treatment.
Upon our request, you will promptly deliver to us the Evaluation Material
and will promptly destroy all memoranda, notes, and other writings prepared by
you or your Agents based thereon.
The term "Evaluation Material" does not include information which (i)
becomes generally available to the public other than as a result of a disclosure
by you or your Agents, (ii) was available to you on a non-confidential basis
prior to its disclosure to you by the Company, or (iii) becomes available to you
on a non-confidential basis from a source other than the Company, provided that
such source is not known to you to be bound by a confidentially agreement with
the Company.
Without the Company's prior written consent you will not, and you will
direct your Agents not to, disclose to any person either the fact that
discussions or negotiations are taking place concerning a possible transaction
relating to the Company, or any of the terms, conditions or other facts with
respect to any such possible transaction, including the timing or status
thereof. The term "person" as used in this letter shall be broadly interpreted
to include, without limitation, any corporation, company, partnership or
individual.
You acknowledge that you are (i) aware that the United States securities
laws prohibit any person who has material nonpublic information about a company
from purchasing or selling securities of such company, or from communicating
such information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell such
securities and (ii) familiar with the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder and agree that you will neither
use, nor cause any third party to use, any Evaluation Material in
-2-
<PAGE>
contravention of such Act or any such rules and regulations, including Rules
10b-5 and 14e-3.
It is understood that Lazard Freres will arrange for appropriate contacts
for due diligence and all other proposals, and any communications regarding a
possible transaction or requests for information will be submitted exclusively
to Lazard Freres.
You agree that unless and until a final agreement regarding a Transaction
has been executed by you and us, we are not under any legal obligation and shall
have no liability to you or any of your Agents of any nature whatsoever with
respect to any Transaction by virtue of this Agreement or otherwise (other than
with respect to the confidentiality and other matters set forth herein). You
also acknowledge and agree that (i) we may conduct the process that may or may
not result in a Transaction in such manner as we, in our sole discretion, may
determine (including, without limitation, negotiating and entering into a final
acquisition agreement with any party without notice to you) and (ii) we reserve
the right to change (in our sole discretion, at any time and without notice to
you) the procedures relating to our and your consideration of any Transaction
(including, without limitation, terminating all further discussions with you and
requesting that you return or destroy the Evaluation Material as described
above).
Although you understand that we have endeavored to include in the
Evaluation Material information known to us which we believe to be relevant for
the purpose of your investigation, you understand that neither Lazard Freres nor
the Company makes any representation or warranty as to the accuracy or
completeness of the Evaluation Material or any other information which we or the
Company shall furnish to you orally or in writing. You agree that neither Lazard
Freres nor the Company shall have any liability to you or your Agents resulting
from the use of the Evaluation Material by you or such Agents.
Without the prior written consent of the Company, you shall not, nor shall
you permit your Affiliates to: (a) acquire, offer to acquire, or agree to
acquire, directly or indirectly, by purchase or otherwise, any voting securities
or direct or indirect rights or options to acquire any voting securities of the
Company; (b) except at the specific written request of the Company, propose to
enter into any merger or business combination involving the Company or to
purchase a material portion of the assets of the Company; (c) make, or in any
way participate, directly or indirectly, in any "solicitation" of "proxies" to
vote (as such terms are used in the proxy rules of the Securities Exchange Act
of 1934), or seek to advise or influence any person or entity with respect to
the voting of, any voting securities of the Company; (d) form, join or in any
way participate in a "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934) with respect to any voting securities of the
Company; (e) otherwise act, alone or in concert with others, to seek to control
or influence the management, board of directors or policies of the Company; or
(f) take any action for the purpose of requiring the Company to make a public
announcement regarding the possibility of a business combination or merger with
you.
-3-
<PAGE>
It is further understood and agreed that no failure or delay by the Company
in exercising any right, power or privilege hereunder shall operate as a waiver
hereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder. You agree that money damages would not be a sufficient remedy for any
breach of this agreement by you or your Agents, and that in addition to all
other remedies the Company shall be entitled to specific performance and
injunctive or other equitable relief as a remedy for any such breach, and you
further agree to waive, and to use your best efforts to cause your Agents to
waive, any requirement for the securing or posting of any bond in connection
with such remedy.
You acknowledge and agree that this letter agreement is being entered into
for the benefit of the Company and may be enforced by the Company as if it were
a party hereto.
This letter agreement shall be governed and construed in accordance with
the laws of the State of New York without giving effect to the conflicts of laws
principles thereof.
If you are in agreement with the foregoing, please sign and return one copy
of this letter which will constitute our agreement with respect to the subject
matter of this letter.
Very truly yours,
LAZARD FRERES & CO. LLC,
On behalf of Durakon Industries, Inc.
By: /s/ Jeffrey A. Golman
---------------------------------
Jeffrey A. Golman
Managing Director
CONFIRMED AND AGREED TO:
By: /s/ Angus C. Littlejohn, III
------------------------------
Angus C. Littlejohn, III
Chairman
Date: 2/8/99
----------------------------
-4-
<PAGE>
Exhibit (c)(9)
Stock Tender and Voting Agreement with David Aronow
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among David Aronow ("Shareholder"), Littlejohn Partners IV,
-----------
L.P., a Delaware limited partnership ("Parent"), and LPIV Acquisition Corp., a
------
Michigan corporation and a wholly-owned subsidiary of Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act")), as of the date hereof, 10,000 shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time
------
this Agreement is in effect, at any meeting of the shareholders of Company,
however called, and in any action by consent of the stockholders of Company,
Shareholder shall: (a) vote all Shares
<PAGE>
beneficially owned by it in favor of the Merger; (b) vote all Shares
beneficially owned by it against any action or agreement that would result in a
breach of any covenant or any representation or warranty or any other obligation
or agreement of the Company under or pursuant to the Merger Agreement; (c) vote
all Shares beneficially owned by it against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer including, but not limited to, (i) any corporate transaction not
entered into in the ordinary course of business (other than the Merger),
including, but not limited to, a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company, (ii) a sale or transfer of a material amount of assets of
Company or any of its subsidiaries, (iii) any change in the board of directors
of Company, (iv) any material change in the capitalization of the Company, (v)
any change in the charter, by-laws or other organizational or constitutive
documents of the Company, or (v) any other material change in the corporate
structure or business of the Company; and (d) without limiting the foregoing,
consult with Parent and vote all Shares beneficially owned by it in such manner
as is determined by Parent to be in compliance with the provisions of this
Section 1.2. Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of
-----------------
this Agreement: (i) Shareholder shall deliver to Parent a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (the "Proxy"), with respect to all Shares owned of record by
-----
Shareholder; and (ii) Shareholder shall cause to be delivered to Parent
additional Proxies executed on behalf of each record owner of any Shares owned
beneficially (but not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
represents and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing Shares
-------------------
are all of the Shares currently beneficially owned by Shareholder. On the
Closing Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire any
additional shares of Common Stock other than pursuant to options issued under
the Stock Option Plans (as defined in the Merger Agreement). Shareholder
currently has with respect to the Existing Shares, and at Closing will have with
respect to the Shares, good, valid and marketable title, free and clear of all
liens, encumbrances, restrictions, options, warrants, rights to purchase, voting
agreements or voting trusts, and claims of every kind (other than the
encumbrances created by this Agreement and other than restrictions on transfer
under applicable Federal and State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate any agreement, contract or
arrangement to which Shareholder is a party or is bound, including, without
limitation, any voting agreement, shareholders agreement or voting trust. This
-2-
<PAGE>
Agreement has been duly executed and delivered by Shareholder and constitutes a
legal, valid and binding agreement of Shareholder, enforceable in accordance
with its terms. Neither the execution or delivery of this Agreement nor the
consummation by Shareholder of the transactions contemplated hereby will (a)
other than filings required under the federal or state securities laws, require
any consent or approval of or filing with any governmental or other regulatory
body, or (b) constitute a violation of, conflict with or constitute a default
under (i) any law, rule or regulation applicable to Shareholder, or (ii) any
order, judgment or decree to which Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal
---------
right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution and delivery of this Agreement by Parent and
Purchaser will not violate the charter, by-laws or other organizational or
constitutive documents of Parent or Purchaser, or any other agreement, contract
or arrangement to which Parent or Purchaser is a party or is bound. This
Agreement has been duly executed and delivered by each of Parent and Purchaser
and constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of
-----------
Sections 5, 6 and 19 which shall survive any termination of this Agreement),
shall terminate on the earliest to occur of (a) the date on which Purchaser
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn, (b) the Effective Time (as defined in the Merger
Agreement), and (c) the date of termination of the Merger Agreement in
accordance with its terms. Purchaser shall not purchase the Shares pursuant to
the Offer unless Purchaser
-3-
<PAGE>
purchases pursuant to the Offer that number of shares of Common Stock such that
the Minimum Tender Condition (as defined in the Merger Agreement) is satisfied.
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
---------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person (other than Parent and Purchaser) conducted heretofore
with respect to any Competing
-4-
<PAGE>
Transaction and will promptly notify Parent following receipt of any request by
any person (other than Parent or Purchaser) relating to any possible Competing
Transaction or information concerning the Company. Nothing contained herein
shall prohibit Shareholder, solely in his capacity as a member of the board of
directors of the Company (the "Board"), from furnishing information to, or
-----
entering into discussions or negotiations with, any person (other than Parent
and Purchaser) in connection with an unsolicited proposal involving a fully-
financed Competing Transaction which is made in writing by such person (other
than Parent and Purchaser) and which, if consummated, would provide
consideration per share of Common Stock to the shareholders of the Company in
excess of the Offer Price if, and only to the extent that, the Board determines
in good faith, based upon the written advice of Honigman Miller Schwartz and
Cohn, that such action is required for the Board to comply with its fiduciary
duties to shareholders under Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to
notify Parent promptly of the number of any shares of Common Stock beneficial
ownership of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE STOCK TENDER AND VOTING AGREEMENT, AND IS SUBJECT TO
THE IRREVOCABLE PROXY REFERRED TO THEREIN, EACH DATED AS OF JUNE 17, 1999,
AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AND COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly
------------------------------------------
set forth herein, one of the representations, warranties, covenants and
agreements made by Shareholder, Parent or Purchaser in this Agreement shall
survive the Closing hereunder.
10. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, shall be given by hand delivery, U.S.
Express Mail (return receipt
-5-
<PAGE>
requested), overnight courier guaranteeing next business day delivery, or
facsimile, and shall be deemed duly given when received, addressed as follows:
If to Parent or Purchaser:
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
1891 Trombly
Detroit, MI 48211
Telephone: (313) 871-2680
Facsimile: (313) 871-9145
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and understandings among the parties with respect
to such subject matter. This Agreement may not
-6-
<PAGE>
be modified, amended, altered or supplemented except by an agreement in writing
executed by the party against whom such modification, amendment, alteration or
supplement is sought to be enforced.
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so
-7-
<PAGE>
broad as to be unenforceable, such provision shall be interpreted to be only so
broad as is enforceable.
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Parent and Purchaser have caused this Agreement to
be executed by their duly authorized officers, and Shareholder has duly
executed this Agreement, as of the date and year first above written.
/s/ David Aronow
_____________________________
David Aronow
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
/s/ Angus C. Littlejohn, Jr.
By: _________________________
Title: Manager
LPIV ACQUISITION CORP.
/s/ Michael I. Klein
By: _____________________________
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
Dated: _____________ __, 1999
___________________________
David Aronow
Number of shares of Common Stock owned of record as of the date of this proxy:
____________
-11-
<PAGE>
Exhibit (c)(10)
Stock Tender and Voting Agreement with Phillip Wm. Fisher
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among Phillip Wm. Fisher ("Shareholder"), Littlejohn Partners
-----------
IV, L.P., a Delaware limited partnership ("Parent"), and LPIV Acquisition Corp.,
------
a Michigan corporation and a wholly-owned subsidiary of Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act")), as of the date hereof, zero (0) shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time
------
this Agreement is in effect, at any meeting of the shareholders of Company,
however called, and in any action by consent of the stockholders of Company,
Shareholder shall: (a) vote all Shares
<PAGE>
beneficially owned by it in favor of the Merger; (b) vote all Shares
beneficially owned by it against any action or agreement that would result in a
breach of any covenant or any representation or warranty or any other obligation
or agreement of the Company under or pursuant to the Merger Agreement; (c) vote
all Shares beneficially owned by it against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer including, but not limited to, (i) any corporate transaction not
entered into in the ordinary course of business (other than the Merger),
including, but not limited to, a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company, (ii) a sale or transfer of a material amount of assets of
Company or any of its subsidiaries, (iii) any change in the board of directors
of Company, (iv) any material change in the capitalization of the Company, (v)
any change in the charter, by-laws or other organizational or constitutive
documents of the Company, or (v) any other material change in the corporate
structure or business of the Company; and (d) without limiting the foregoing,
consult with Parent and vote all Shares beneficially owned by it in such manner
as is determined by Parent to be in compliance with the provisions of this
Section 1.2. Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of
-----------------
this Agreement: (i) Shareholder shall deliver to Parent a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (the "Proxy"), with respect to all Shares owned of record by
-----
Shareholder; and (ii) Shareholder shall cause to be delivered to Parent
additional Proxies executed on behalf of each record owner of any Shares owned
beneficially (but not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
represents and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing Shares
-------------------
are all of the Shares currently beneficially owned by Shareholder. On the
Closing Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire any
additional shares of Common Stock. Shareholder currently has with respect to the
Existing Shares, and at Closing will have with respect to the Shares, good,
valid and marketable title, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase, voting agreements or voting
trusts, and claims of every kind (other than the encumbrances created by this
Agreement and other than restrictions on transfer under applicable Federal and
State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate any agreement, contract or
arrangement to which Shareholder is a party or is bound, including, without
limitation, any voting agreement, shareholders agreement or voting trust. This
Agreement has been duly executed and delivered by Shareholder and constitutes a
legal, valid
-2-
<PAGE>
and binding agreement of Shareholder, enforceable in accordance with its terms.
Neither the execution or delivery of this Agreement nor the consummation by
Shareholder of the transactions contemplated hereby will (a) other than filings
required under the federal or state securities laws, require any consent or
approval of or filing with any governmental or other regulatory body, or (b)
constitute a violation of, conflict with or constitute a default under (i) any
law, rule or regulation applicable to Shareholder, or (ii) any order, judgment
or decree to which Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal
---------
right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution and delivery of this Agreement by Parent and
Purchaser will not violate the charter, by-laws or other organizational or
constitutive documents of Parent or Purchaser, or any other agreement, contract
or arrangement to which Parent or Purchaser is a party or is bound. This
Agreement has been duly executed and delivered by each of Parent and Purchaser
and constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of
-----------
Sections 5, 6 and 19 which shall survive any termination of this Agreement),
shall terminate on the earliest to occur of (a) the date on which Purchaser
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn, (b) the Effective Time (as defined in the Merger
Agreement), and (c) the date of termination of the Merger Agreement in
accordance with its terms. Purchaser shall not purchase the Shares pursuant to
the Offer unless Purchaser purchases pursuant to the Offer that number of shares
of Common Stock such that the Minimum Tender Condition (as defined in the Merger
Agreement) is satisfied.
-3-
<PAGE>
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
----------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person (other than Parent and Purchaser) conducted heretofore
with respect to any Competing Transaction and will promptly notify Parent
following receipt of any request by any person (other than Parent or Purchaser)
relating to any possible Competing Transaction or information concerning the
Company. Nothing contained herein shall prohibit Shareholder, solely in his
-4-
<PAGE>
capacity as a member of the board of directors of the Company (the "Board"),
-----
from furnishing information to, or entering into discussions or negotiations
with, any person (other than Parent and Purchaser) in connection with an
unsolicited proposal involving a fully-financed Competing Transaction which is
made in writing by such person (other than Parent and Purchaser) and which, if
consummated, would provide consideration per share of Common Stock to the
shareholders of the Company in excess of the Offer Price if, and only to the
extent that, the Board determines in good faith, based upon the written advice
of Honigman Miller Schwartz and Cohn, that such action is required for the Board
to comply with its fiduciary duties to shareholders under Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to
notify Parent promptly of the number of any shares of Common Stock beneficial
ownership of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE STOCK TENDER AND VOTING AGREEMENT, AND IS SUBJECT TO
THE IRREVOCABLE PROXY REFERRED TO THEREIN, EACH DATED AS OF JUNE 17, 1999,
AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AND COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly
------------------------------------------
set forth herein, one of the representations, warranties, covenants and
agreements made by Shareholder, Parent or Purchaser in this Agreement shall
survive the Closing hereunder.
10. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, shall be given by hand delivery, U.S.
Express Mail (return receipt requested), overnight courier guaranteeing next
business day delivery, or facsimile, and shall be deemed duly given when
received, addressed as follows:
-5-
<PAGE>
If to Parent or Purchaser:
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
c/o The Fisher Group
2700 Fisher Building
Detroit, MI 48202
Telephone: (313) 871-8000
Facsimile: (313) 871-0350
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and understandings among the parties with respect
to such subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by
-6-
<PAGE>
the party against whom such modification, amendment, alteration or supplement is
sought to be enforced.
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
-7-
<PAGE>
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Parent and Purchaser have caused this Agreement to
be executed by their duly authorized officers, and Shareholder has duly
executed this Agreement, as of the date and year first above written.
/s/ Phillip Wm. Fisher
_____________________________
Phillip Wm. Fisher
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
/s/ Angus C. Littlejohn, Jr.
By: ____________________________
Title: Manager
LPIV ACQUISITION CORP.
/s/ Michael I. Klein
By: _____________________________
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
Dated: _____________ __, 1999
___________________________
Phillip Wm. Fisher
Number of shares of Common Stock owned of record as of the date of this proxy:
____________
-11-
<PAGE>
Exhibit (c)(11)
Stock Tender and Voting Agreement with Richard J. Jacob
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among Richard J. Jacob ("Shareholder"), Littlejohn Partners IV,
-----------
L.P., a Delaware limited partnership ("Parent"), and LPIV Acquisition Corp., a
------
Michigan corporation and a wholly-owned subsidiary of Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act")), as of the date hereof, 34,500 shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time
------
this Agreement is in effect, at any meeting of the shareholders of Company,
however called, and in any action by consent of the stockholders of Company,
Shareholder shall: (a) vote all Shares
<PAGE>
beneficially owned by it in favor of the Merger; (b) vote all Shares
beneficially owned by it against any action or agreement that would result in a
breach of any covenant or any representation or warranty or any other obligation
or agreement of the Company under or pursuant to the Merger Agreement; (c) vote
all Shares beneficially owned by it against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer including, but not limited to, (i) any corporate transaction not
entered into in the ordinary course of business (other than the Merger),
including, but not limited to, a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company, (ii) a sale or transfer of a material amount of assets of
Company or any of its subsidiaries, (iii) any change in the board of directors
of Company, (iv) any material change in the capitalization of the Company, (v)
any change in the charter, by-laws or other organizational or constitutive
documents of the Company, or (v) any other material change in the corporate
structure or business of the Company; and (d) without limiting the foregoing,
consult with Parent and vote all Shares beneficially owned by it in such manner
as is determined by Parent to be in compliance with the provisions of this
Section 1.2. Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of this
-----------------
Agreement: (i) Shareholder shall deliver to Parent a proxy in the form attached
hereto as Exhibit A, which shall be irrevocable to the fullest extent permitted
by law (the "Proxy"), with respect to all Shares owned of record by Shareholder;
-----
and (ii) Shareholder shall cause to be delivered to Parent additional Proxies
executed on behalf of each record owner of any Shares owned beneficially (but
not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder represents
---------------------------------------------
and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing Shares are
-------------------
all of the Shares currently beneficially owned by Shareholder. On the Closing
Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire
any additional shares of Common Stock. Shareholder currently has with respect
to the Existing Shares, and at Closing will have with respect to the Shares,
good, valid and marketable title, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase, voting agreements or voting
trusts, and claims of every kind (other than the encumbrances created by this
Agreement and other than restrictions on transfer under applicable Federal and
State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate any agreement, contract or
arrangement to which Shareholder is a party or is bound, including, without
limitation, any voting agreement, shareholders agreement or voting trust. This
Agreement has been duly executed and delivered by Shareholder and constitutes a
legal, valid
-2-
<PAGE>
and binding agreement of Shareholder, enforceable in accordance with its terms.
Neither the execution or delivery of this Agreement nor the consummation by
Shareholder of the transactions contemplated hereby will (a) other than filings
required under the federal or state securities laws, require any consent or
approval of or filing with any governmental or other regulatory body, or (b)
constitute a violation of, conflict with or constitute a default under (i) any
law, rule or regulation applicable to Shareholder, or (ii) any order, judgment
or decree to which Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent and
------------------------------------------------------
Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal right,
---------
power and authority to enter into and perform all of its obligations under this
Agreement. The execution and delivery of this Agreement by Parent and Purchaser
will not violate the charter, by-laws or other organizational or constitutive
documents of Parent or Purchaser, or any other agreement, contract or
arrangement to which Parent or Purchaser is a party or is bound. This Agreement
has been duly executed and delivered by each of Parent and Purchaser and
constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of Sections 5,
-----------
6 and 19 which shall survive any termination of this Agreement), shall terminate
on the earliest to occur of (a) the date on which Purchaser accepts for payment
the Shares tendered in the Offer, so long as the Shares are so tendered and not
withdrawn, (b) the Effective Time (as defined in the Merger Agreement), and (c)
the date of termination of the Merger Agreement in accordance with its terms.
Purchaser shall not purchase the Shares pursuant to the Offer unless Purchaser
purchases pursuant to the Offer that number of shares of Common Stock such that
the Minimum Tender Condition (as defined in the Merger Agreement) is satisfied.
-3-
<PAGE>
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
----------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person (other than Parent and Purchaser) conducted heretofore
with respect to any Competing Transaction and will promptly notify Parent
following receipt of any request by any person (other than Parent or Purchaser)
relating to any possible Competing Transaction or information concerning the
Company. Nothing contained herein shall prohibit Shareholder, solely in his
-4-
<PAGE>
capacity as a member of the board of directors of the Company (the "Board"),
-----
from furnishing information to, or entering into discussions or negotiations
with, any person (other than Parent and Purchaser) in connection with an
unsolicited proposal involving a fully-financed Competing Transaction which is
made in writing by such person (other than Parent and Purchaser) and which, if
consummated, would provide consideration per share of Common Stock to the
shareholders of the Company in excess of the Offer Price if, and only to the
extent that, the Board determines in good faith, based upon the written advice
of Honigman Miller Schwartz and Cohn, that such action is required for the Board
to comply with its fiduciary duties to shareholders under Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to notify
Parent promptly of the number of any shares of Common Stock beneficial ownership
of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE STOCK TENDER AND VOTING AGREEMENT, AND IS SUBJECT TO
THE IRREVOCABLE PROXY REFERRED TO THEREIN, EACH DATED AS OF JUNE 17, 1999,
AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AND COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly set
------------------------------------------
forth herein, one of the representations, warranties, covenants and agreements
made by Shareholder, Parent or Purchaser in this Agreement shall survive the
Closing hereunder.
10. Notices. All notices or other communications required or permitted
-------
hereunder shall be in writing, shall be given by hand delivery, U.S. Express
Mail (return receipt requested), overnight courier guaranteeing next business
day delivery, or facsimile, and shall be deemed duly given when received,
addressed as follows:
If to Parent or Purchaser:
-5-
<PAGE>
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
c/o Richard Jacobs & Associates
333 W. First Street, Suite 424
Dayton, OH 45402
Telephone: (937) 223-0500
Facsimile: (937) 223-3136
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and understandings among the parties with respect
to such subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by the party against
whom such modification, amendment, alteration or supplement is sought to be
enforced.
-6-
<PAGE>
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
-7-
<PAGE>
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Parent and Purchaser have caused this Agreement to
be executed by their duly authorized officers, and Shareholder has duly
executed this Agreement, as of the date and year first above written.
/s/ Richard J. Jacob
_____________________________
Richard J. Jacob
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
/s/ Angus C. Littlejohn, Jr.
By: ____________________________
Title: Manager
LPIV ACQUISITION CORP.
/s/ Michael I. Klein
By: _____________________________
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
Dated: _____________ __, 1999
___________________________
Richard J. Jacob
Number of shares of Common Stock owned of record as of the date of this proxy:
____________
-11-
<PAGE>
Exhibit (c)(12)
Stock Tender and Voting Agreement with Robert M. Teeter
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among Robert M. Teeter ("Shareholder"), Littlejohn Partners IV,
-----------
L.P., a Delaware limited partnership ("Parent"), and LPIV Acquisition Corp., a
------
Michigan corporation and a wholly-owned subsidiary of Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act")), as of the date hereof, 104,000 shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time this
------
Agreement is in effect, at any meeting of the shareholders of Company, however
called, and in any action by consent of the stockholders of Company, Shareholder
shall: (a) vote all Shares
<PAGE>
beneficially owned by it in favor of the Merger; (b) vote all Shares
beneficially owned by it against any action or agreement that would result in a
breach of any covenant or any representation or warranty or any other obligation
or agreement of the Company under or pursuant to the Merger Agreement; (c) vote
all Shares beneficially owned by it against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer including, but not limited to, (i) any corporate transaction not
entered into in the ordinary course of business (other than the Merger),
including, but not limited to, a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company, (ii) a sale or transfer of a material amount of assets of
Company or any of its subsidiaries, (iii) any change in the board of directors
of Company, (iv) any material change in the capitalization of the Company, (v)
any change in the charter, by-laws or other organizational or constitutive
documents of the Company, or (v) any other material change in the corporate
structure or business of the Company; and (d) without limiting the foregoing,
consult with Parent and vote all Shares beneficially owned by it in such manner
as is determined by Parent to be in compliance with the provisions of this
Section 1.2. Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of this
-----------------
Agreement: (i) Shareholder shall deliver to Parent a proxy in the form attached
hereto as Exhibit A, which shall be irrevocable to the fullest extent permitted
by law (the "Proxy"), with respect to all Shares owned of record by Shareholder;
-----
and (ii) Shareholder shall cause to be delivered to Parent additional Proxies
executed on behalf of each record owner of any Shares owned beneficially (but
not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
represents and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing Shares are
-------------------
all of the Shares currently beneficially owned by Shareholder. On the Closing
Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire
any additional shares of Common Stock other than pursuant to options issued
under the Stock Option Plans (as defined in the Merger Agreement). Shareholder
currently has with respect to the Existing Shares, and at Closing will have with
respect to the Shares, good, valid and marketable title, free and clear of all
liens, encumbrances, restrictions, options, warrants, rights to purchase, voting
agreements or voting trusts, and claims of every kind (other than the
encumbrances created by this Agreement and other than restrictions on transfer
under applicable Federal and State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate any agreement, contract or
arrangement to which Shareholder is a party or is bound, including, without
limitation, any voting agreement, shareholders agreement or voting trust. This
-2-
<PAGE>
Agreement has been duly executed and delivered by Shareholder and constitutes a
legal, valid and binding agreement of Shareholder, enforceable in accordance
with its terms. Neither the execution or delivery of this Agreement nor the
consummation by Shareholder of the transactions contemplated hereby will (a)
other than filings required under the federal or state securities laws, require
any consent or approval of or filing with any governmental or other regulatory
body, or (b) constitute a violation of, conflict with or constitute a default
under (i) any law, rule or regulation applicable to Shareholder, or (ii) any
order, judgment or decree to which Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal right,
---------
power and authority to enter into and perform all of its obligations under this
Agreement. The execution and delivery of this Agreement by Parent and Purchaser
will not violate the charter, by-laws or other organizational or constitutive
documents of Parent or Purchaser, or any other agreement, contract or
arrangement to which Parent or Purchaser is a party or is bound. This Agreement
has been duly executed and delivered by each of Parent and Purchaser and
constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of
-----------
Sections 5, 6 and 19 which shall survive any termination of this Agreement),
shall terminate on the earliest to occur of (a) the date on which Purchaser
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn, (b) the Effective Time (as defined in the Merger
Agreement), and (c) the date of termination of the Merger Agreement in
accordance with its terms. Purchaser shall not purchase the Shares pursuant to
the Offer unless Purchaser
-3-
<PAGE>
purchases pursuant to the Offer that number of shares of Common Stock such that
the Minimum Tender Condition (as defined in the Merger Agreement) is satisfied.
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
----------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person (other than Parent and Purchaser) conducted heretofore
with respect to any Competing
-4-
<PAGE>
Transaction and will promptly notify Parent following receipt of any request by
any person (other than Parent or Purchaser) relating to any possible Competing
Transaction or information concerning the Company. Nothing contained herein
shall prohibit Shareholder, solely in his capacity as a member of the board of
directors of the Company (the "Board"), from furnishing information to, or
-----
entering into discussions or negotiations with, any person (other than Parent
and Purchaser) in connection with an unsolicited proposal involving a fully-
financed Competing Transaction which is made in writing by such person (other
than Parent and Purchaser) and which, if consummated, would provide
consideration per share of Common Stock to the shareholders of the Company in
excess of the Offer Price if, and only to the extent that, the Board determines
in good faith, based upon the written advice of Honigman Miller Schwartz and
Cohn, that such action is required for the Board to comply with its fiduciary
duties to shareholders under Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to
notify Parent promptly of the number of any shares of Common Stock beneficial
ownership of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE STOCK TENDER AND VOTING AGREEMENT, AND IS SUBJECT TO
THE IRREVOCABLE PROXY REFERRED TO THEREIN, EACH DATED AS OF JUNE 17, 1999,
AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AND COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly
------------------------------------------
set forth herein, one of the representations, warranties, covenants and
agreements made by Shareholder, Parent or Purchaser in this Agreement shall
survive the Closing hereunder.
10. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, shall be given by hand delivery, U.S.
Express Mail (return receipt
-5-
<PAGE>
requested), overnight courier guaranteeing next business day delivery, or
facsimile, and shall be deemed duly given when received, addressed as follows:
If to Parent or Purchaser:
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
c/o Coldwater Corporation
2001 Commonwealth Blvd.
Ann Arbor, MI 48105
Telephone: (734) 668-2621
Facsimile: (734) 668-6249
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and
-6-
<PAGE>
understandings among the parties with respect to such subject matter. This
Agreement may not be modified, amended, altered or supplemented except by an
agreement in writing executed by the party against whom such modification,
amendment, alteration or supplement is sought to be enforced.
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so
-7-
<PAGE>
broad as to be unenforceable, such provision shall be interpreted to be only so
broad as is enforceable.
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Parent and Purchaser have caused this Agreement to
be executed by their duly authorized officers, and Shareholder has duly
executed this Agreement, as of the date and year first above written.
/s/ Robert M. Teeter
-------------------------------
Robert M. Teeter
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
By: /s/ Angus C. Littlejohn, Jr.
-------------------------
Title: Manager
LPIV ACQUISITION CORP.
By: /s/ Michael I. Klein
----------------------------
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
Dated: _____________ __, 1999
- ------------------------------
Robert M. Teeter
Number of shares of Common Stock owned of record as of the date of this proxy:
____________
-11-
<PAGE>
Exhibit (c)(13)
Stock Tender and Voting Ageement with David W. Wright
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among David W. Wright ("Shareholder"), Littlejohn Partners IV,
-----------
L.P., a Delaware limited partnership ("Parent"), and LPIV Acquisition Corp., a
------
Michigan corporation and a wholly-owned subsidiary of Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act"), as of the date hereof, 223,500 shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time
------
this Agreement is in effect, at any meeting of the shareholders of Company,
however called, and in any action by consent of the stockholders of Company,
Shareholder shall: (a) vote all Shares
<PAGE>
beneficially owned by it in favor of the Merger; (b) vote all Shares
beneficially owned by it against any action or agreement that would result in a
breach of any covenant or any representation or warranty or any other obligation
or agreement of the Company under or pursuant to the Merger Agreement; (c) vote
all Shares beneficially owned by it against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer including, but not limited to, (i) any corporate transaction not
entered into in the ordinary course of business (other than the Merger),
including, but not limited to, a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company, (ii) a sale or transfer of a material amount of assets of
Company or any of its subsidiaries, (iii) any change in the board of directors
of Company, (iv) any material change in the capitalization of the Company, (v)
any change in the charter, by-laws or other organizational or constitutive
documents of the Company, or (v) any other material change in the corporate
structure or business of the Company; and (d) without limiting the foregoing,
consult with Parent and vote all Shares beneficially owned by it in such manner
as is determined by Parent to be in compliance with the provisions of this
Section 1.2. Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of
-----------------
this Agreement: (i) Shareholder shall deliver to Parent a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (the "Proxy"), with respect to all Shares owned of record by
-----
Shareholder; and (ii) Shareholder shall cause to be delivered to Parent
additional Proxies executed on behalf of each record owner of any Shares owned
beneficially (but not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
represents and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing
Shares are all of the Shares currently beneficially owned by Shareholder. On the
Closing Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire any
additional shares of Common Stock other than pursuant to options issued under
the Stock Option Plans (as defined in the Merger Agreement). Shareholder
currently has with respect to the Existing Shares, and at Closing will have with
respect to the Shares, good, valid and marketable title, free and clear of all
liens, encumbrances, restrictions, options, warrants, rights to purchase, voting
agreements or voting trusts, and claims of every kind (other than the
encumbrances created by this Agreement and other than restrictions on transfer
under applicable Federal and State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate any agreement, contract or
arrangement to which Shareholder is a party or is bound, including, without
limitation, any voting agreement, shareholders agreement or voting trust. This
-2-
<PAGE>
Agreement has been duly executed and delivered by Shareholder and constitutes a
legal, valid and binding agreement of Shareholder, enforceable in accordance
with its terms. Neither the execution or delivery of this Agreement nor the
consummation by Shareholder of the transactions contemplated hereby will (a)
other than filings required under the federal or state securities laws, require
any consent or approval of or filing with any governmental or other regulatory
body, or (b) constitute a violation of, conflict with or constitute a default
under (i) any law, rule or regulation applicable to Shareholder, or (ii) any
order, judgment or decree to which Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal
---------
right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution and delivery of this Agreement by Parent and
Purchaser will not violate the charter, by-laws or other organizational or
constitutive documents of Parent or Purchaser, or any other agreement, contract
or arrangement to which Parent or Purchaser is a party or is bound. This
Agreement has been duly executed and delivered by each of Parent and Purchaser
and constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of
-----------
Sections 5, 6 and 19 which shall survive any termination of this Agreement),
shall terminate on the earliest to occur of (a) the date on which Purchaser
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn, (b) the Effective Time (as defined in the Merger
Agreement), and (c) the date of termination of the Merger Agreement in
accordance with its terms. Purchaser shall not purchase the Shares pursuant to
the Offer unless Purchaser
-3-
<PAGE>
purchases pursuant to the Offer that number of shares of Common Stock such that
the Minimum Tender Condition (as defined in the Merger Agreement) is satisfied.
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
----------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person (other than Parent and Purchaser) conducted heretofore
with respect to any Competing
-4-
<PAGE>
Transaction and will promptly notify Parent following receipt of any request by
any person (other than Parent or Purchaser) relating to any possible Competing
Transaction or information concerning the Company. Nothing contained herein
shall prohibit Shareholder, solely in his capacity as a member of the board of
directors of the Company (the "Board"),furnishing information to, or entering
-----
into discussions or negotiations with, any person (other than Parent and
Purchaser) in connection with an unsolicited proposal involving a fully-financed
Competing Transaction which is made in writing by such person (other than Parent
and Purchaser) and which, if consummated, would provide consideration per share
of Common Stock to the shareholders of the Company in excess of the Offer Price
if, and only to the extent that, the Board determines in good faith, based upon
the written advice of Honigman Miller Schwartz and Cohn, that such action is
required for the Board to comply with its fiduciary duties to shareholders under
Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to
notify Parent promptly of the number of any shares of Common Stock beneficial
ownership of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE STOCK TENDER AND VOTING AGREEMENT, AND IS SUBJECT TO
THE IRREVOCABLE PROXY REFERRED TO THEREIN, EACH DATED AS OF JUNE 17, 1999,
AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AND COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly
------------------------------------------
set forth herein, one of the representations, warranties, covenants and
agreements made by Shareholder, Parent or Purchaser in this Agreement shall
survive the Closing hereunder.
10. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, shall be given by hand delivery, U.S.
Express Mail (return receipt
-5-
<PAGE>
requested), overnight courier guaranteeing next business day delivery, or
facsimile, and shall be deemed duly given when received, addressed as follows:
If to Parent or Purchaser:
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
c/o Durakon Industries, Inc.
2101 N. Lapeer Road
Lapeer, MI 48446
Telephone: (810) 664-0850
Facsimile: (810) 664-3957
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and
-6-
<PAGE>
understandings among the parties with respect to such subject matter. This
Agreement may not be modified, amended, altered or supplemented except by an
agreement in writing executed by the party against whom such modification,
amendment, alteration or supplement is sought to be enforced.
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so
-7-
<PAGE>
broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Parent and Purchaser have caused this Agreement to
be executed by their duly authorized officers, and Shareholder has duly
executed this Agreement, as of the date and year first above written.
/s/ David W. Wright
_____________________________
David W. Wright
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
/s/ Angus C. Littlejohn, Jr.
By: ____________________________
Title: Manager
LPIV ACQUISITION CORP.
/s/ Michael I. Klein
By: _____________________________
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
-----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
Dated: ----------------, 1999
- ---------------------------
David W. Wright
Number of shares of Common Stock owned of record as of the date of this proxy:
- ------------
-11-
<PAGE>
Exhibit (c)(14)
Stock Tender and Voting Agreement with
Max M. Fisher Revocable Trust, u/a/d August 13, 1988
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among Max M. Fisher Revocable Trust u/a/d August 13, 1998
("Shareholder"), Littlejohn Partners IV, L.P., a Delaware limited partnership
- -------------
("Parent"), and LPIV Acquisition Corp., a Michigan corporation and a wholly-
- --------
owned subsidiary of Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act")), as of the date hereof, 279,286 shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time
------
this Agreement is in effect, at any meeting of the shareholders of Company,
however called, and in
<PAGE>
any action by consent of the stockholders of Company, Shareholder
shall: (a) vote all Shares beneficially owned by it in favor of the Merger; (b)
vote all Shares beneficially owned by it against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; (c) vote all Shares beneficially owned by it against any action or
agreement that would impede, interfere with, delay, postpone or attempt to
discourage the Merger or the Offer including, but not limited to, (i) any
corporate transaction not entered into in the ordinary course of business (other
than the Merger), including, but not limited to, a merger, other business
combination, reorganization, consolidation, recapitalization, dissolution or
liquidation involving Company, (ii) a sale or transfer of a material amount of
assets of Company or any of its subsidiaries, (iii) any change in the board of
directors of Company, (iv) any material change in the capitalization of the
Company, (v) any change in the charter, by-laws or other organizational or
constitutive documents of the Company, or (v) any other material change in the
corporate structure or business of the Company; and (d) without limiting the
foregoing, consult with Parent and vote all Shares beneficially owned by it in
such manner as is determined by Parent to be in compliance with the provisions
of this Section 1.2. Shareholder acknowledges receipt and review of a copy of
the Merger Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of
-----------------
this Agreement: (i) Shareholder shall deliver to Parent a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (the "Proxy"), with respect to all Shares owned of record by
-----
Shareholder; and (ii) Shareholder shall cause to be delivered to Parent
additional Proxies executed on behalf of each record owner of any Shares owned
beneficially (but not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
represents and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing Shares
-------------------
are all of the Shares currently beneficially owned by Shareholder. On the
Closing Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire any
additional shares of Common Stock. Shareholder currently has with respect to the
Existing Shares, and at Closing will have with respect to the Shares, good,
valid and marketable title, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase, voting agreements or voting
trusts, and claims of every kind (other than the encumbrances created by this
Agreement and other than restrictions on transfer under applicable Federal and
State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate the trust or other organizational
or constitutive documents of Shareholder or any other agreement, contract or
arrangement to which Shareholder is a party or is bound, including, without
-2-
<PAGE>
limitation, any voting agreement, shareholders agreement or voting trust. This
Agreement has been duly executed and delivered by Shareholder and constitutes a
legal, valid and binding agreement of Shareholder, enforceable in accordance
with its terms. Neither the execution or delivery of this Agreement nor the
consummation by Shareholder of the transactions contemplated hereby will (a)
other than filings required under the federal or state securities laws, require
any consent or approval of or filing with any governmental or other regulatory
body, or (b) constitute a violation of, conflict with or constitute a default
under (i) any law, rule or regulation applicable to Shareholder, or (ii) any
order, judgment or decree to which Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal
---------
right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution and delivery of this Agreement by Parent and
Purchaser will not violate the charter, by-laws or other organizational or
constitutive documents of Parent or Purchaser, or any other agreement, contract
or arrangement to which Parent or Purchaser is a party or is bound. This
Agreement has been duly executed and delivered by each of Parent and Purchaser
and constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of
-----------
Sections 5, 6 and 19 which shall survive any termination of this Agreement),
shall terminate on the earliest to occur of (a) the date on which Purchaser
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn, (b) the Effective Time (as defined in the Merger
Agreement), and (c) the date of termination of the Merger Agreement in
accordance with
-3-
<PAGE>
its terms. Purchaser shall not purchase the Shares pursuant to the Offer unless
Purchaser purchases pursuant to the Offer that number of shares of Common Stock
such that the Minimum Tender Condition (as defined in the Merger Agreement) is
satisfied.
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
---------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person
-4-
<PAGE>
(other than Parent and Purchaser) conducted heretofore with respect to any
Competing Transaction and will promptly notify Parent following receipt of any
request by any person (other than Parent or Purchaser) relating to any possible
Competing Transaction or information concerning the Company. Nothing contained
herein shall prohibit Shareholder, solely in his capacity as a member of the
board of directors of the Company (the "Board"), from furnishing information to,
-----
or entering into discussions or negotiations with, any person (other than Parent
and Purchaser) in connection with an unsolicited proposal involving a fully-
financed Competing Transaction which is made in writing by such person (other
than Parent and Purchaser) and which, if consummated, would provide
consideration per share of Common Stock to the shareholders of the Company in
excess of the Offer Price if, and only to the extent that, the Board determines
in good faith, based upon the written advice of Honigman Miller Schwartz and
Cohn, that such action is required for the Board to comply with its fiduciary
duties to shareholders under Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to
notify Parent promptly of the number of any shares of Common Stock beneficial
ownership of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE STOCK TENDER AND VOTING AGREEMENT, AND IS SUBJECT TO
THE IRREVOCABLE PROXY REFERRED TO THEREIN, EACH DATED AS OF JUNE 17, 1999,
AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AND COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly
------------------------------------------
set forth herein, one of the representations, warranties, covenants and
agreements made by Shareholder, Parent or Purchaser in this Agreement shall
survive the Closing hereunder.
10. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, shall be given by hand delivery, U.S.
Express Mail (return receipt
-5-
<PAGE>
requested), overnight courier guaranteeing next business day delivery, or
facsimile, and shall be deemed duly given when received, addressed as follows:
If to Parent or Purchaser:
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
c/o The Fisher Group
2700 Fisher Building
Detroit, MI 48202
Telephone: (313) 871-8000
Facsimile: (313) 871-0350
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and
-6-
<PAGE>
understandings among the parties with respect to such subject matter. This
Agreement may not be modified, amended, altered or supplemented except by an
agreement in writing executed by the party against whom such modification,
amendment, alteration or supplement is sought to be enforced.
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so
-7-
<PAGE>
broad as to be unenforceable, such provision shall be interpreted to be only so
broad as is enforceable.
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Shareholder, Parent and Purchaser have caused this
Agreement to be executed by their duly authorized officers as of the date and
year first above written.
Max M. Fisher Revocable Trust
u/a/d August 13, 1998
/s/ Max M. Fisher
By:___________________________
Max M. Fisher, Trustee
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
/s/ Angus C. Littlejohn, Jr.
By: ____________________________
Title: Manager
LPIV ACQUISITION CORP.
/s/ Michael I. Klein
By: _____________________________
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
Dated: _____________ __, 1999
Max M. Fisher Revocable Trust
u/a/d August 13, 1998
By:___________________________
Max M. Fisher, Trustee
Number of shares of Common Stock owned of record as of the date of this proxy:
____________
-11-
<PAGE>
Exhibit (c)(15)
Stock Tender and Voting Agreement with Martinique Charitable Remainder Unitrust
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among Martinique Charitible Remainder Unitrust ("Shareholder"),
-----------
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
------
LPIV Acquisition Corp., a Michigan corporation and a wholly-owned subsidiary of
Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act")), as of the date hereof, 1,488,000 shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time
------
this Agreement is in effect, at any meeting of the shareholders of Company,
however called, and in any action by consent of the stockholders of Company,
Shareholder shall: (a) vote all Shares
<PAGE>
beneficially owned by it in favor of the Merger; (b) vote all Shares
beneficially owned by it against any action or agreement that would result in a
breach of any covenant or any representation or warranty or any other obligation
or agreement of the Company under or pursuant to the Merger Agreement; (c) vote
all Shares beneficially owned by it against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer including, but not limited to, (i) any corporate transaction not
entered into in the ordinary course of business (other than the Merger),
including, but not limited to, a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company, (ii) a sale or transfer of a material amount of assets of
Company or any of its subsidiaries, (iii) any change in the board of directors
of Company, (iv) any material change in the capitalization of the Company, (v)
any change in the charter, by-laws or other organizational or constitutive
documents of the Company, or (v) any other material change in the corporate
structure or business of the Company; and (d) without limiting the foregoing,
consult with Parent and vote all Shares beneficially owned by it in such manner
as is determined by Parent to be in compliance with the provisions of this
Section 1.2. Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of
-----------------
this Agreement: (i) Shareholder shall deliver to Parent a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (the "Proxy"), with respect to all Shares owned of record by
-----
Shareholder; and (ii) Shareholder shall cause to be delivered to Parent
additional Proxies executed on behalf of each record owner of any Shares owned
beneficially (but not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
represents and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing
-------------------
Shares are all of the Shares currently beneficially owned by Shareholder. On the
Closing Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire any
additional shares of Common Stock. Shareholder currently has with respect to the
Existing Shares, and at Closing will have with respect to the Shares, good,
valid and marketable title, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase, voting agreements or voting
trusts, and claims of every kind (other than the encumbrances created by this
Agreement and other than restrictions on transfer under applicable Federal and
State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate any agreement, contract or
arrangement to which Shareholder is a party or is bound, including, without
limitation, any voting agreement, shareholders agreement or voting trust. This
Agreement has been duly executed and delivered by Shareholder and constitutes a
legal, valid
-2-
<PAGE>
and binding agreement of Shareholder, enforceable in accordance with its terms.
Neither the execution or delivery of this Agreement nor the consummation by
Shareholder of the transactions contemplated hereby will (a) other than filings
required under the federal or state securities laws, require any consent or
approval of or filing with any governmental or other regulatory body, or (b)
constitute a violation of, conflict with or constitute a default under (i) any
law, rule or regulation applicable to Shareholder, or (ii) any order, judgment
or decree to which Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal
---------
right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution and delivery of this Agreement by Parent and
Purchaser will not violate the charter, by-laws or other organizational or
constitutive documents of Parent or Purchaser, or any other agreement, contract
or arrangement to which Parent or Purchaser is a party or is bound. This
Agreement has been duly executed and delivered by each of Parent and Purchaser
and constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of
-----------
Sections 5, 6 and 19 which shall survive any termination of this Agreement),
shall terminate on the earliest to occur of (a) the date on which Purchaser
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn, (b) the Effective Time (as defined in the Merger
Agreement), and (c) the date of termination of the Merger Agreement in
accordance with its terms. Purchaser shall not purchase the Shares pursuant to
the Offer unless Purchaser purchases pursuant to the Offer that number of shares
of Common Stock such that the Minimum Tender Condition (as defined in the Merger
Agreement) is satisfied.
-3-
<PAGE>
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
----------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person (other than Parent and Purchaser) conducted heretofore
with respect to any Competing Transaction and will promptly notify Parent
following receipt of any request by any person (other than Parent or Purchaser)
relating to any possible Competing Transaction or information concerning the
Company. Nothing contained herein shall prohibit Shareholder, solely in his
-4-
<PAGE>
capacity as a member of the board of directors of the Company (the "Board"),
-----
from furnishing information to, or entering into discussions or negotiations
with, any person (other than Parent and Purchaser) in connection with an
unsolicited proposal involving a fully-financed Competing Transaction which is
made in writing by such person (other than Parent and Purchaser) and which, if
consummated, would provide consideration per share of Common Stock to the
shareholders of the Company in excess of the Offer Price if, and only to the
extent that, the Board determines in good faith, based upon the written advice
of Honigman Miller Schwartz and Cohn, that such action is required for the Board
to comply with its fiduciary duties to shareholders under Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to
notify Parent promptly of the number of any shares of Common Stock beneficial
ownership of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE STOCK TENDER
AND VOTING AGREEMENT, AND IS SUBJECT TO THE IRREVOCABLE PROXY
REFERRED TO THEREIN, EACH DATED AS OF JUNE 17, 1999, AS SUCH
AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AND COPIES OF
WHICH ARE ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly
------------------------------------------
set forth herein, one of the representations, warranties, covenants and
agreements made by Shareholder, Parent or Purchaser in this Agreement shall
survive the Closing hereunder.
10. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, shall be given by hand delivery, U.S.
Express Mail (return receipt requested), overnight courier guaranteeing next
business day delivery, or facsimile, and shall be deemed duly given when
received, addressed as follows:
-5-
<PAGE>
If to Parent or Purchaser:
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
c/o The Fisher Group
2700 Fisher Building
Detroit, MI 48202
Telephone: (313) 871-8000
Facsimile: (313) 871-0350
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and understandings among the parties with respect
to such subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by
-6-
<PAGE>
the party against whom such modification, amendment, alteration or supplement is
sought to be enforced.
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
-7-
<PAGE>
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Shareholder, Parent and Purchaser have caused this
Agreement to be executed by their duly authorized officers as of the date and
year first above written.
Martinique Charitible Remainder Unitrust
/s/ Marjorie S. Fisher
By: _____________________________
Marjorie S. Fisher, Trustee
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
/s/ Angus C. Littlejohn, Jr.
By: ____________________________
Title: Manager
LPIV ACQUISITION CORP.
/s/ Michael I. Klein
By: _____________________________
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
Dated: _____________ __, 1999
Martinique Charitible Remainder Unitrust
By:_______________________________
Marjorie S. Fisher, Trustee
Number of shares of Common Stock owned of record as of the date of this proxy:
____________
-11-
<PAGE>
Exhibit (c)(16)
Stock Tender and Voting Agreement with Wolverine Investors
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among Wolverine Investors ("Shareholder"), Littlejohn Partners
-----------
IV, L.P., a Delaware limited partnership ("Parent"), and LPIV Acquisition Corp.,
------
a Michigan corporation and a wholly-owned subsidiary of Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act")), as of the date hereof, 100,000 shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time
------
this Agreement is in effect, at any meeting of the shareholders of Company,
however called, and in any action by consent of the stockholders of Company,
Shareholder shall: (a) vote all Shares
<PAGE>
beneficially owned by it in favor of the Merger; (b) vote all Shares
beneficially owned by it against any action or agreement that would result in a
breach of any covenant or any representation or warranty or any other obligation
or agreement of the Company under or pursuant to the Merger Agreement; (c) vote
all Shares beneficially owned by it against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer including, but not limited to, (i) any corporate transaction not
entered into in the ordinary course of business (other than the Merger),
including, but not limited to, a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company, (ii) a sale or transfer of a material amount of assets of
Company or any of its subsidiaries, (iii) any change in the board of directors
of Company, (iv) any material change in the capitalization of the Company, (v)
any change in the charter, by-laws or other organizational or constitutive
documents of the Company, or (v) any other material change in the corporate
structure or business of the Company; and (d) without limiting the foregoing,
consult with Parent and vote all Shares beneficially owned by it in such manner
as is determined by Parent to be in compliance with the provisions of this
Section 1.2. Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of
-----------------
this Agreement: (i) Shareholder shall deliver to Parent a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (the "Proxy"), with respect to all Shares owned of record by
-----
Shareholder; and (ii) Shareholder shall cause to be delivered to Parent
additional Proxies executed on behalf of each record owner of any Shares owned
beneficially (but not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
represents and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing
-------------------
Shares are all of the Shares currently beneficially owned by Shareholder. On the
Closing Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire any
additional shares of Common Stock. Shareholder currently has with respect to the
Existing Shares, and at Closing will have with respect to the Shares, good,
valid and marketable title, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase, voting agreements or voting
trusts, and claims of every kind (other than the encumbrances created by this
Agreement and other than restrictions on transfer under applicable Federal and
State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate any of its organizational or
constitutive documents or any other agreement, contract or arrangement to which
Shareholder is a party or is bound, including, without limitation, any voting
agreement, shareholders agreement or voting trust. This Agreement has been duly
executed and delivered by
-2-
<PAGE>
Shareholder and constitutes a legal, valid and binding agreement of Shareholder,
enforceable in accordance with its terms. Neither the execution or delivery of
this Agreement nor the consummation by Shareholder of the transactions
contemplated hereby will (a) other than filings required under the federal or
state securities laws, require any consent or approval of or filing with any
governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Shareholder, or (ii) any order, judgment or decree to which
Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal
---------
right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution and delivery of this Agreement by Parent and
Purchaser will not violate the charter, by-laws or other organizational or
constitutive documents of Parent or Purchaser, or any other agreement, contract
or arrangement to which Parent or Purchaser is a party or is bound. This
Agreement has been duly executed and delivered by each of Parent and Purchaser
and constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of
-----------
Sections 5, 6 and 19 which shall survive any termination of this Agreement),
shall terminate on the earliest to occur of (a) the date on which Purchaser
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn, (b) the Effective Time (as defined in the Merger
Agreement), and (c) the date of termination of the Merger Agreement in
accordance with its terms. Purchaser shall not purchase the Shares pursuant to
the Offer unless Purchaser purchases pursuant to the Offer that number of shares
of Common Stock such that the Minimum Tender Condition (as defined in the Merger
Agreement) is satisfied.
-3-
<PAGE>
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
----------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person (other than Parent and Purchaser) conducted heretofore
with respect to any Competing Transaction and will promptly notify Parent
following receipt of any request by any person (other than Parent or Purchaser)
relating to any possible Competing Transaction or information concerning the
Company. Nothing contained herein shall prohibit Shareholder, solely in his
-4-
<PAGE>
capacity as a member of the board of directors of the Company (the "Board"),
-----
from furnishing information to, or entering into discussions or negotiations
with, any person (other than Parent and Purchaser) in connection with an
unsolicited proposal involving a fully-financed Competing Transaction which is
made in writing by such person (other than Parent and Purchaser) and which, if
consummated, would provide consideration per share of Common Stock to the
shareholders of the Company in excess of the Offer Price if, and only to the
extent that, the Board determines in good faith, based upon the written advice
of Honigman Miller Schwartz and Cohn, that such action is required for the Board
to comply with its fiduciary duties to shareholders under Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to
notify Parent promptly of the number of any shares of Common Stock beneficial
ownership of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE STOCK TENDER
AND VOTING AGREEMENT, AND IS SUBJECT TO THE IRREVOCABLE PROXY
REFERRED TO THEREIN, EACH DATED AS OF JUNE 17, 1999, AS SUCH
AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AND COPIES OF
WHICH ARE ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly
------------------------------------------
set forth herein, one of the representations, warranties, covenants and
agreements made by Shareholder, Parent or Purchaser in this Agreement shall
survive the Closing hereunder.
10. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, shall be given by hand delivery, U.S.
Express Mail (return receipt requested), overnight courier guaranteeing next
business day delivery, or facsimile, and shall be deemed duly given when
received, addressed as follows:
-5-
<PAGE>
If to Parent or Purchaser:
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
c/o Newton Minow
One First National Plaza
Chicago, IL 60603
Telephone: (312) 853-7555
Facsimile: (312) 853-7036
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and understandings among the parties with respect
to such subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by
-6-
<PAGE>
the party against whom such modification, amendment, alteration or supplement is
sought to be enforced.
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
-7-
<PAGE>
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Shareholder, Parent and Purchaser have caused this
Agreement to be executed by their duly authorized officers as of the date and
year first above written.
Wolverine Investors
/s/ Newton Minow
By: _____________________________
Newton Minow, Trustee
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
/s/ Angus C. Littlejohn, Jr.
By: ____________________________
Title: Manager
LPIV ACQUISITION CORP.
/s/ Michael I. Klein
By: ________________________________
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
Wolverine Investors
By: _____________________________
Newton Minow, Trustee
Dated: _____________ __, 1999
Number of shares of Common Stock owned of record as of the date of this proxy:
____________
-11-
<PAGE>
Exhibit (c)(17)
Stock Tender and Voting Agreement with 1990 Bronx Trust #1
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among 1990 Bronx Trust #1 ("Shareholder"), Littlejohn Partners
-----------
IV, L.P., a Delaware limited partnership ("Parent"), and LPIV Acquisition Corp.,
------
a Michigan corporation and a wholly-owned subsidiary of Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act")), as of the date hereof, 21,000 shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time
this Agreement is in effect, at any meeting of the shareholders of Company,
however called, and in any action by consent of the stockholders of Company,
Shareholder shall: (a) vote all Shares
<PAGE>
beneficially owned by it in favor of the Merger; (b) vote all Shares
beneficially owned by it against any action or agreement that would result in a
breach of any covenant or any representation or warranty or any other obligation
or agreement of the Company under or pursuant to the Merger Agreement; (c) vote
all Shares beneficially owned by it against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer including, but not limited to, (i) any corporate transaction not
entered into in the ordinary course of business (other than the Merger),
including, but not limited to, a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company, (ii) a sale or transfer of a material amount of assets of
Company or any of its subsidiaries, (iii) any change in the board of directors
of Company, (iv) any material change in the capitalization of the Company, (v)
any change in the charter, by-laws or other organizational or constitutive
documents of the Company, or (v) any other material change in the corporate
structure or business of the Company; and (d) without limiting the foregoing,
consult with Parent and vote all Shares beneficially owned by it in such manner
as is determined by Parent to be in compliance with the provisions of this
Section 1.2. Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of
-----------------
this Agreement: (i) Shareholder shall deliver to Parent a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (the "Proxy"), with respect to all Shares owned of record by
Shareholder; and (ii) Shareholder shall cause to be delivered to Parent
additional Proxies executed on behalf of each record owner of any Shares owned
beneficially (but not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
represents and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing Shares
-------------------
are all of the Shares currently beneficially owned by Shareholder. On the
Closing Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire any
additional shares of Common Stock. Shareholder currently has with respect to the
Existing Shares, and at Closing will have with respect to the Shares, good,
valid and marketable title, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase, voting agreements or voting
trusts, and claims of every kind (other than the encumbrances created by this
Agreement and other than restrictions on transfer under applicable Federal and
State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate any of its organizational or
constitutive documents or any other agreement, contract or arrangement to which
Shareholder is a party or is bound, including, without limitation, any voting
agreement, shareholders agreement or voting trust. This Agreement has been duly
executed and delivered by
-2-
<PAGE>
Shareholder and constitutes a legal, valid and binding agreement of Shareholder,
enforceable in accordance with its terms. Neither the execution or delivery of
this Agreement nor the consummation by Shareholder of the transactions
contemplated hereby will (a) other than filings required under the federal or
state securities laws, require any consent or approval of or filing with any
governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Shareholder, or (ii) any order, judgment or decree to which
Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal
---------
right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution and delivery of this Agreement by Parent and
Purchaser will not violate the charter, by-laws or other organizational or
constitutive documents of Parent or Purchaser, or any other agreement, contract
or arrangement to which Parent or Purchaser is a party or is bound. This
Agreement has been duly executed and delivered by each of Parent and Purchaser
and constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of
-----------
Sections 5, 6 and 19 which shall survive any termination of this Agreement),
shall terminate on the earliest to occur of (a) the date on which Purchaser
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn, (b) the Effective Time (as defined in the Merger
Agreement), and (c) the date of termination of the Merger Agreement in
accordance with its terms. Purchaser shall not purchase the Shares pursuant to
the Offer unless Purchaser purchases pursuant to the Offer that number of shares
of Common Stock such that the Minimum Tender Condition (as defined in the Merger
Agreement) is satisfied.
-3-
<PAGE>
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
---------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person (other than Parent and Purchaser) conducted heretofore
with respect to any Competing Transaction and will promptly notify Parent
following receipt of any request by any person (other than Parent or Purchaser)
relating to any possible Competing Transaction or information concerning the
Company. Nothing contained herein shall prohibit Shareholder, solely in his
-4-
<PAGE>
capacity as a member of the board of directors of the Company (the "Board"),
-----
from furnishing information to, or entering into discussions or negotiations
with, any person (other than Parent and Purchaser) in connection with an
unsolicited proposal involving a fully-financed Competing Transaction which is
made in writing by such person (other than Parent and Purchaser) and which, if
consummated, would provide consideration per share of Common Stock to the
shareholders of the Company in excess of the Offer Price if, and only to the
extent that, the Board determines in good faith, based upon the written advice
of Honigman Miller Schwartz and Cohn, that such action is required for the Board
to comply with its fiduciary duties to shareholders under Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to
notify Parent promptly of the number of any shares of Common Stock beneficial
ownership of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE STOCK TENDER AND VOTING AGREEMENT, AND IS SUBJECT TO
THE IRREVOCABLE PROXY REFERRED TO THEREIN, EACH DATED AS OF JUNE 17, 1999,
AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AND COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly
------------------------------------------
set forth herein, one of the representations, warranties, covenants and
agreements made by Shareholder, Parent or Purchaser in this Agreement shall
survive the Closing hereunder.
10. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, shall be given by hand delivery, U.S.
Express Mail (return receipt requested), overnight courier guaranteeing next
business day delivery, or facsimile, and shall be deemed duly given when
received, addressed as follows:
-5-
<PAGE>
If to Parent or Purchaser:
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
c/o Daniel R. Tisch
Mentor Partners, L.P.
500 Park Avenue
New York, NY 10022
Telephone: (212) 935-6655
Facsimile: (212) 826-8928
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and understandings among the parties with respect
to such subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by
-6-
<PAGE>
the party against whom such modification, amendment, alteration or supplement is
sought to be enforced.
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
-7-
<PAGE>
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Shareholder, Parent and Purchaser have caused this
Agreement to be executed by their duly authorized officers as of the date and
year first above written.
1990 Bronx Trust #1
/s/ Daniel R. Tisch
By: _____________________________
Daniel R. Tisch, Trustee
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
/s/ Angus C. Littlejohn, Jr.
By: ____________________________
Title: Manager
LPIV ACQUISITION CORP.
/s/ Michael I. Klein
By: ________________________________
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
1990 Bronx Trust #1
By: _____________________________
Daniel R. Tisch, Trustee
Dated: _____________ __, 1999
Number of shares of Common Stock owned of record as of the date of this proxy:
____________
-11-
<PAGE>
Exhibit (c)(18)
Stock Tender and Voting Agreement with 1990 Des Moines Trust #1
<PAGE>
STOCK TENDER AND VOTING AGREEMENT
---------------------------------
STOCK TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of June
---------
17, 1999 by and among 1990 Des Moines Trust #1 ("Shareholder"), Littlejohn
-----------
Partners IV, L.P., a Delaware limited partnership ("Parent"), and LPIV
------
Acquisition Corp., a Michigan corporation and a wholly-owned subsidiary of
Parent ("Purchaser").
---------
W I T N E S S E T H:
-------------------
WHEREAS, concurrently herewith, Parent, Purchaser and Durakon
Industries, Inc., a Michigan corporation ("Company"), are entering into an
-------
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
----------------
pursuant to which Purchaser agrees to make a tender offer (the "Offer") for all
-----
outstanding shares of common stock, without par value (the "Common Stock"), of
------------
the Company, at $16.00 per share (the "Offer Price"), in cash, and/or by a
-----------
merger (the "Merger") of Purchaser with the Company;
------
WHEREAS, Shareholder beneficially owns (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act")), as of the date hereof, 21,000 shares of Common Stock (the "Existing
- --- --------
Shares", together with any shares of Common Stock beneficial ownership of which
- ------
is acquired by Shareholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares");
------
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement; and
WHEREAS, Parent and Purchaser have entered into the Merger Agreement
in reliance on Shareholder's representations, warranties, covenants and
agreements hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other, good and valuable consideration, and
intending to be legally bound hereby, it is agreed as follows:
1. Agreement to Tender and Vote; Irrevocable Proxy.
-----------------------------------------------
1.1 Tender. Shareholder agrees to validly tender all Shares
------
beneficially owned by it pursuant to the Offer within ten business days of
commencement of the Offer, and not withdraw any such Shares, except to the
extent that the tender of shares (excluding Shares acquired after the date
hereof) pursuant to the Offer would subject Shareholder to liability under
Section 16(b) of the Exchange Act.
1.2 Voting. Shareholder hereby agrees that, during the time
------
this Agreement is in effect, at any meeting of the shareholders of Company,
however called, and in any action by consent of the stockholders of Company,
Shareholder shall: (a) vote all Shares
<PAGE>
beneficially owned by it in favor of the Merger; (b) vote all Shares
beneficially owned by it against any action or agreement that would result in a
breach of any covenant or any representation or warranty or any other obligation
or agreement of the Company under or pursuant to the Merger Agreement; (c) vote
all Shares beneficially owned by it against any action or agreement that would
impede, interfere with, delay, postpone or attempt to discourage the Merger or
the Offer including, but not limited to, (i) any corporate transaction not
entered into in the ordinary course of business (other than the Merger),
including, but not limited to, a merger, other business combination,
reorganization, consolidation, recapitalization, dissolution or liquidation
involving Company, (ii) a sale or transfer of a material amount of assets of
Company or any of its subsidiaries, (iii) any change in the board of directors
of Company, (iv) any material change in the capitalization of the Company, (v)
any change in the charter, by-laws or other organizational or constitutive
documents of the Company, or (v) any other material change in the corporate
structure or business of the Company; and (d) without limiting the foregoing,
consult with Parent and vote all Shares beneficially owned by it in such manner
as is determined by Parent to be in compliance with the provisions of this
Section 1.2. Shareholder acknowledges receipt and review of a copy of the Merger
Agreement.
1.3 Irrevocable Proxy. Contemporaneously with the execution of
-----------------
this Agreement: (i) Shareholder shall deliver to Parent a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law (the "Proxy"), with respect to all Shares owned of record by
-----
Shareholder; and (ii) Shareholder shall cause to be delivered to Parent
additional Proxies executed on behalf of each record owner of any Shares owned
beneficially (but not owned of record) by Shareholder.
2. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
represents and warrants to Parent and Purchaser as follows:
2.1 Ownership of Shares. On the date hereof the Existing
-------------------
Shares are all of the Shares currently beneficially owned by Shareholder. On the
Closing Date, the Shares will constitute all of the shares of Common Stock owned
beneficially by Shareholder. Shareholder does not have any rights to acquire any
additional shares of Common Stock. Shareholder currently has with respect to the
Existing Shares, and at Closing will have with respect to the Shares, good,
valid and marketable title, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase, voting agreements or voting
trusts, and claims of every kind (other than the encumbrances created by this
Agreement and other than restrictions on transfer under applicable Federal and
State securities laws).
2.2 Power; Binding Agreement. Shareholder has the full legal
------------------------
capacity, right, power and authority to enter into and perform all of
Shareholder's obligations under this Agreement. The execution and delivery of
this Agreement by Shareholder will not violate any of its organizational or
constitutive documents or any other agreement, contract or arrangement to which
Shareholder is a party or is bound, including, without limitation, any voting
agreement, shareholders agreement or voting trust. This Agreement has been duly
executed and delivered by
-2-
<PAGE>
Shareholder and constitutes a legal, valid and binding agreement of Shareholder,
enforceable in accordance with its terms. Neither the execution or delivery of
this Agreement nor the consummation by Shareholder of the transactions
contemplated hereby will (a) other than filings required under the federal or
state securities laws, require any consent or approval of or filing with any
governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Shareholder, or (ii) any order, judgment or decree to which
Shareholder is bound.
2.3 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fees from Shareholder in connection with this Agreement
or the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Merger Agreement.
3. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser, jointly and severally, represent and warrant to Shareholder as
follows:
3.1 Authority. Each of Parent and Purchaser has full legal
---------
right, power and authority to enter into and perform all of its obligations
under this Agreement. The execution and delivery of this Agreement by Parent and
Purchaser will not violate the charter, by-laws or other organizational or
constitutive documents of Parent or Purchaser, or any other agreement, contract
or arrangement to which Parent or Purchaser is a party or is bound. This
Agreement has been duly executed and delivered by each of Parent and Purchaser
and constitutes a legal, valid and binding agreement of Parent and Purchaser,
enforceable in accordance with its terms. Neither the execution of this
Agreement nor the consummation by Parent or Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body, or (b) constitute a violation of,
conflict with or constitute a default under (i) any law, rule or regulation
applicable to Parent or Purchaser, or (ii) any order, judgment or decree to
which Parent or Purchaser is bound.
3.2 Finder's Fees. No person is, or will be, entitled to any
-------------
commission or finder's fee from Parent or Purchaser in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Merger Agreement.
4. Termination. This Agreement (other than the provisions of
-----------
Sections 5, 6 and 19 which shall survive any termination of this Agreement),
shall terminate on the earliest to occur of (a) the date on which Purchaser
accepts for payment the Shares tendered in the Offer, so long as the Shares are
so tendered and not withdrawn, (b) the Effective Time (as defined in the Merger
Agreement), and (c) the date of termination of the Merger Agreement in
accordance with its terms. Purchaser shall not purchase the Shares pursuant to
the Offer unless Purchaser purchases pursuant to the Offer that number of shares
of Common Stock such that the Minimum Tender Condition (as defined in the Merger
Agreement) is satisfied.
-3-
<PAGE>
5. Expenses. Except as provided in Section 19, each party hereto
--------
will pay all of its expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and other advisers. The provisions of this Section 5 shall survive the
Closing hereunder.
6. Confidentiality. Shareholder recognizes that successful
---------------
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to these matters. In this connection, pending
public disclosure, Shareholder agrees that it will not disclose or discuss these
matters with anyone (other than officers, directors, legal counsel and advisors
of Shareholder or the Company, if any) not a party to this Agreement, without
prior written consent of Parent, except for filings required pursuant to the
Exchange Act, and the rules and regulations thereunder or disclosures
Shareholder's legal counsel advises in writing are necessary in order to fulfill
Shareholder's obligations imposed by law, in which event Shareholder shall give
prompt prior notice of such disclosure to Parent and cooperate with Parent in
obtaining a protective order or in limiting such disclosure.
7. Certain Covenants of Shareholder.
--------------------------------
7.1 Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any Shares; or
(c) Shareholder shall not, directly or indirectly through
any agent or otherwise, solicit, initiate or encourage the submission of any
proposal or offer from any person (other than Parent or Purchaser) relating to
any acquisition or purchase of all or any material portion of the assets of, or
any equity interest in, the Company or any subsidiary of the Company, or any
merger, consolidation, business combination, reorganization, recapitalization or
similar transaction involving the Company or any subsidiary of the Company (each
a "Competing Transaction"), or participate in any discussions or negotiations
----------------------
regarding, or furnish to any other person any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any person (other than Parent and Purchaser)
to do or seek any of the foregoing. Shareholder will cease and cause to be
terminated any existing activities, discussions or negotiations by or on its
behalf with any person (other than Parent and Purchaser) conducted heretofore
with respect to any Competing Transaction and will promptly notify Parent
following receipt of any request by any person (other than Parent or Purchaser)
relating to any possible Competing Transaction or information concerning the
Company. Nothing contained herein shall prohibit Shareholder, solely in his
-4-
<PAGE>
capacity as a member of the board of directors of the Company (the "Board"),
-----
from furnishing information to, or entering into discussions or negotiations
with, any person (other than Parent and Purchaser) in connection with an
unsolicited proposal involving a fully-financed Competing Transaction which is
made in writing by such person (other than Parent and Purchaser) and which, if
consummated, would provide consideration per share of Common Stock to the
shareholders of the Company in excess of the Offer Price if, and only to the
extent that, the Board determines in good faith, based upon the written advice
of Honigman Miller Schwartz and Cohn, that such action is required for the Board
to comply with its fiduciary duties to shareholders under Michigan law.
7.2 Shareholder agrees, while this Agreement is in effect, to
notify Parent promptly of the number of any shares of Common Stock beneficial
ownership of which is acquired by Shareholder after the date hereof.
8. Legend and Stop Transfer Instructions. Immediately after the
-------------------------------------
execution of this Agreement (and from time to time prior to the termination of
this Agreement), Shareholder shall cause the Company to provide for each
certificate representing Shares beneficially owned by Shareholder to bear a
legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT
IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE STOCK
TENDER AND VOTING AGREEMENT, AND IS SUBJECT TO THE
IRREVOCABLE PROXY REFERRED TO THEREIN, EACH DATED AS OF
JUNE 17, 1999, AS SUCH AGREEMENT MAY BE AMENDED FROM TIME
TO TIME, AND COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE ISSUER.
Immediately after the execution of this Agreement (and from time to time prior
to the termination of this Agreement), Shareholder shall cause the Company to
require that the transfer agent for its Common Stock shall make a notation in
its records prohibiting the transfer of any of the Shares, except in accordance
with the terms and conditions of this Agreement.
9. Survival of Representations and Warranties. Except as expressly
------------------------------------------
set forth herein, one of the representations, warranties, covenants and
agreements made by Shareholder, Parent or Purchaser in this Agreement shall
survive the Closing hereunder.
10. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing, shall be given by hand delivery, U.S.
Express Mail (return receipt requested), overnight courier guaranteeing next
business day delivery, or facsimile, and shall be deemed duly given when
received, addressed as follows:
-5-
<PAGE>
If to Parent or Purchaser:
Littlejohn Partners IV, L.P.
c/o Littlejohn & Co. LLC
115 East Putnam Avenue
Greenwich, CT 06830
Attention: Mr. Angus Littlejohn or Mr. Michael Klein
Telephone: (203) 861-4005
Facsimile: (203) 861-4009
With copies to:
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Attention: James D. Epstein, Esq.
Telephone: (215) 981-4368
Facsimile: (215) 981-4750
If to Shareholder:
c/o Daniel R. Tisch
Mentor Partners, L.P.
500 Park Avenue
New York, NY 10022
Telephone: (212) 935-6655
Facsimile: (212) 826-8928
With copies to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, MI 48226
Attention: Donald J. Kunz, Esq.
Telephone: (313) 465-7454
Facsimile: (313) 465-7455
11. Entire Agreement; Amendment. This Agreement, together with the
---------------------------
documents expressly referred to herein, constitute the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersede all prior agreements and understandings among the parties with respect
to such subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by
-6-
<PAGE>
the party against whom such modification, amendment, alteration or supplement is
sought to be enforced.
12. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors, assigns and
personal representatives, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that
Purchaser may assign, any or all of its rights and obligations hereunder to
Parent or any direct or indirect wholly-owned subsidiary of Parent without the
consent of Shareholder or Company, but no such transfer shall relieve Purchaser
of its obligations under this Agreement if such subsidiary does not perform the
obligations of Purchaser hereunder.
13. Governing Law; Jurisdiction; and Consent to Service. Except as
---------------------------------------------------
expressly set forth below, this Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
In addition, each of Shareholder, Purchaser and Parent hereby agree that any
dispute arising out of this Agreement, the Offer or the Merger shall be heard in
the United States District Court for the Eastern District of Michigan and, in
connection therewith, each party to this Agreement hereby consents to the
jurisdiction of such courts and agrees that any service of process in connection
with any dispute arising out of this Agreement, the Offer or the Merger may be
given to any other party hereto by certified mail, return receipt requested, at
the respective addresses set forth in Section 12 above.
14. Injunctive Relief. The parties agree that in the event of a
-----------------
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party shall be entitled
to obtain in any court of competent jurisdiction a decree of specific
performance or to enjoin the continuing breach of such provision, in each case
without the requirement that a bond be posted, as well as to obtain damages for
breach of this Agreement. By seeking or obtaining such relief, the aggrieved
party will not be precluded from seeking or obtaining any other relief to which
it may be entitled.
15. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts (including by facsimile signature), each
of which shall be deemed to be an original and all of which together shall
constitute one and the same documents.
16. Severability. Any term or provision of this Agreement which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
-7-
<PAGE>
17. Further Assurances. Each party hereto shall execute and deliver
------------------
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
18. Third Party Beneficiaries. Nothing in this Agreement, expressed
-------------------------
or implied, shall be construed to give any person other than the parties hereto
any legal or equitable right, remedy or claim under or by reason of this
Agreement or any provision contained herein.
19. Legal Expenses. In the event any legal proceeding is commenced
--------------
by any party to this Agreement to enforce or recover damages for any breach of
the provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorneys fees. The provisions of this
Section 19 shall survive the Closing hereunder.
-8-
<PAGE>
20. Amendment and Modification. This Agreement may be amended,
--------------------------
modified and supplemented only by a written document executed by Parent,
Purchaser and Shareholder.
IN WITNESS WHEREOF, Shareholder, Parent and Purchaser have caused this
Agreement to be executed by their duly authorized officers as of the date and
year first above written.
1990 Des Moines Trust #1
/s/ Daniel R. Tisch
By: _____________________________
Daniel R. Tisch, Trustee
LITTLEJOHN PARTNERS IV, L.P.
By: Littlejohn Associates, L.L.C.
its General Partner
/s/ Angus C. Littlejohn, Jr.
By: ____________________________
Title: Manager
LPIV ACQUISITION CORP.
/s/ Michael I. Klein
By: ________________________________
Title: President
-9-
<PAGE>
EXHIBIT A
Form of Irrevocable Proxy
-------------------------
The undersigned shareholder of Durakon Industries, Inc., a Michigan
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Angus C. Littlejohn, Jr., Michael I. Klein, and
Littlejohn Partners IV, L.P., a Delaware limited partnership ("Parent"), and
each of them, the attorneys and proxies of the undersigned with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to (i) the issued and outstanding shares of capital stock of the
Company owned of record by the undersigned as of the date of this proxy, which
shares are specified on the final page of this proxy and (ii) any and all other
shares of capital stock of the Company which the undersigned may acquire after
the date hereof (the shares of the capital stock of the Company referred to in
(clauses (i) and (ii) of the immediately preceding sentence are collectively
referred to as the "Shares") Upon the execution hereof, all prior proxies given
------
by the undersigned with respect to any of the Shares are hereby revoked, and no
subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Stock Tender and Voting Agreement, dated as of the date
hereof, between Parent and the undersigned (the "Stock Tender Agreement"), and
----------------------
is granted in consideration of Parent entering into the Agreement and Plan of
Merger, dated as of the date hereof, among Parent, LPIV Acquisition Corp. and
the Company (the "Merger Agreement"). Capitalized terms used but not otherwise
----------------
defined in this proxy have the meanings ascribed to such terms in the Merger
Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement pursuant to Section 8.01
thereof or the Effective Time at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant or any representation or warranty or
any other obligation or agreement of the Company under or pursuant to the Merger
Agreement; or (c) against any action or agreement that would impede, interfere
with, delay, postpone or attempt to discourage the Merger or the Offer
including, but not limited to, (i) any corporate transaction not entered into in
the ordinary course of business (other than the Merger), including, but not
limited to, a merger, other business combination, reorganization, consolidation,
recapitalization, dissolution or liquidation involving Company, (ii) a sale or
transfer of a material amount of assets of Company or any of its subsidiaries,
(iii) any change in the board of directors of Company, (iv) any material change
in the capitalization of the Company, (v) any change in the charter, by-laws or
other organizational or constitutive documents of the Company, or (v) any other
material change in the corporate structure or business of the Company.
-10-
<PAGE>
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
This proxy shall terminate immediately upon the earlier of the valid
termination of the Merger Agreement pursuant to Section 8.01 thereof or the
Effective Time.
1990 Des Moines Trust #1
By: _____________________________
Daniel R. Tisch, Trustee
Dated: _____________ __, 1999
Number of shares of Common Stock owned of record as of the date of this proxy:
____________
-11-
<PAGE>
EXHIBIT (d)
Press Release Dated June 18, 1999,
with respect to the Merger Agreement and the Offer
<PAGE>
FOR IMMEDIATE RELEASE
FRIDAY, JUNE 18, 1999
DURAKON INDUSTRIES SIGNS AGREEMENT TO BE
ACQUIRED BY LITTLEJOHN
Lapeer, Mich., June 18, 1999 -- Durakon Industries, Inc. (Nasdaq: DRKN)
announced today that it has entered into a definitive agreement pursuant to
which all of the outstanding shares of common stock of Durakon will be acquired
by a partnership formed by Littlejohn & Co. LLC. Under the agreement, which has
been approved unanimously by Durakon's board of directors, Littlejohn will
commence a tender offer for all outstanding shares of common stock of Durakon
for $16 per share in cash. The tender offer will be followed by a merger in
which any shares not acquired by Littlejohn in the tender offer will be acquired
for the same amount of cash. Certain shareholders of the Company owning
approximately 32% of Durakon's shares have agreed to tender their shares and to
vote in favor of the merger.
The tender offer will commence no later than Friday, June 25, 1999, and will be
conditioned on 90 percent of the outstanding shares of Durakon being tendered as
well as other customary conditions. If at least a majority, but less than 90
percent, of the outstanding shares are tendered, Littlejohn will not purchase
shares in the tender offer. Instead, the parties have agreed to proceed with a
cash merger.
Lazard Freres & Co., LLC, and J.I. Harris & Associates have acted as investment
bankers and financial advisors, respectively, to Durakon in connection with the
transaction.
Littlejohn & Co. LLC is a private investment fund located in Greenwich,
Connecticut. Durakon Industries Inc. is the world's leading producer and
marketer of pickup truck bedliners, and is a leader in the production and
marketing of rollback car carriers and wheel-lift towing vehicles. Durakon's
world headquarters and a major manufacturing facility are in Lapeer, Michigan.
Other manufacturing plants are in Greencastle, Pennsylvania; Clinton, Tennessee;
and Lerma, Mexico. Durakon's common stock is traded on the Nasdaq Stock Market
under the ticker symbol DRKN.
For more information on Durakon Industries via facsimile at no additional cost,
simply dial 1-800-PRO-INFO and enter company code 221 or the ticker symbol DRKN.
<PAGE>
Exhibit (e)
[Letterhead of Lazard Freres & Co. LLC]
June 17, 1999
The Board of Directors
Durakon Industries, Inc.
2101 N. Lapeer Road
Lapeer, MI 48446
Dear Members of the Board:
We understand that Durakon Industries, Inc. (the "Company") and Littlejohn
Partners IV, L.P. (the "Purchaser") have entered into an Agreement dated as of
June 17, 1999 (the "Agreement"), pursuant to which a wholly-owned subsidiary
of the Purchaser ("Merger Sub") will offer to acquire all of the outstanding
common stock of the Company, without par value ("Common Stock"), in a tender
offer at a price equal to $16.00 per share in cash (the "Offer"); the
Agreement further provides that, following the consummation of the Offer, or
in the event the conditions of the Offer (which conditions include, without
limitation, the requirement that the number of shares tendered in the Offer,
combined with shares, if any, already owned by Purchaser or any of its
affiliates, exceeds 90% of the then outstanding shares of Common Stock) are
not met (or waived) and the Offer is not consummated, Merger Sub will be
merged (the "Merger") with and into the Company, with all shares of Common
Stock (other than any shares held by the Purchaser or its affiliates) being
converted into the right to receive $16.00 per share in cash (the Offer and
the Merger collectively, or in the event the transaction is effected by the
Merger without consummation of the Offer, the Merger, being referred to herein
as the "Acquisition").
You have requested our opinion as to the fairness, from a financial point
of view, to the shareholders of the Company (other than the Purchaser or its
affiliates) ("Shareholders") of the consideration to be paid to such
Shareholders in connection with the Acquisition. In connection with this
opinion, we have:
(i) Reviewed the financial terms and conditions of the Agreement;
(ii) Analyzed certain historical business and financial information
relating to the Company;
(iii) Reviewed various financial forecasts and other data provided to us
by the Company relating to its business, as extrapolated, and, at
your direction, alternative forecasts consistent with the
expectations of the research analyst that covers the Company, as
extrapolated, and discussed with the Board of Directors its views as
to the likelihood of achieving each of the foregoing forecasts;
(iv) Held discussions with members of the senior management of the Company
with respect to the business and prospects of the Company and its
strategic objectives;
(v) Reviewed public information with respect to certain other companies in
lines of businesses we believe to be generally comparable, in whole or
in part, to the businesses of the Company;
(vi) Reviewed the financial terms of certain business combinations
involving companies in lines of businesses we believe to be generally
comparable, in whole or in part, to those of the Company;
(vii) Reviewed the historical stock prices and trading volumes of the
Company's common stock; and
(viii) Conducted such other financial studies, analyses and investigations
as we deemed appropriate.
<PAGE>
We have relied upon the accuracy and completeness of the foregoing
information, and have not assumed any responsibility for any independent
verification of such information or any independent valuation or appraisal of
any of the assets or liabilities of the Company, or concerning the solvency or
fair value of the Company. With respect to financial forecasts, at your
direction, we have relied upon the two forecasts referred to above, although
at your direction, we have relied principally on the projections consistent
with the expectations of the research analyst that covers the Company, as
extrapolated. With your consent, we have assumed that both of such projections
have been reasonably prepared on bases reflecting the best currently available
estimates and judgments of the responsible party as to the future financial
performance of the Company; and, we have assumed with your consent that the
extrapolation in each case was reasonable. You have informed us that it is the
Board of Directors' view that such forecasts consistent with the expectations
of the research analyst that covers the Company, as extrapolated, reflect the
best currently available estimates and judgments of the Board of Directors as
to the future financial performance of the Company. We assume no
responsibility for and express no view as to forecasts or the assumptions on
which they are based.
Further, our opinion is necessarily based on economic, monetary, market and
other conditions as in effect on, and the information made available to us as
of, the date hereof.
In rendering our opinion, we have assumed that the Acquisition will be
consummated on the terms described in the Agreement, without any waiver of any
material terms or conditions by the Company and that obtaining the necessary
regulatory approvals for the Acquisition will not have an adverse effect on
the Company.
Lazard Freres & Co. LLC is acting as investment banker to the Company in
connection with the Acquisition and will receive a fee for our services, all
of which is contingent upon the consummation of the sale of the Company to the
Purchaser.
Our engagement and the opinion expressed herein are for the benefit of the
Company's Board of Directors and this opinion does not constitute a
recommendation to any Shareholder as to whether or not such Shareholder should
tender its shares of Common Stock pursuant to the Offer or as to how such
Shareholder should vote in connection with the Merger. It is understood that,
except for inclusion in its entirety in a Schedule 14D-9 relating to the Offer
and in a proxy or information statement of the Company relating to the Merger,
this letter may not be disclosed or otherwise referred to without our prior
consent, except as may otherwise be required by law or by a court of competent
jurisdiction.
Based on and subject to the foregoing, we are of the opinion that the
consideration to be received by the Shareholders (other than the Purchaser or
its affiliates) in the Acquisition is fair to such Shareholders from a
financial point of view.
Very truly yours,
LAZARD FRERES & CO. LLC
By /s/Jeffrey A. Golman
---------------------
Jeffrey A. Golman
Managing Director
<PAGE>
EXHIBIT (f)
[DURAKON INDUSTRIES LETTERHEAD]
June 25, 1999
To Our Shareholders:
I am pleased to inform you that on June 17, 1999, Durakon Industries, Inc.
("Durakon") entered into an Agreement and Plan of Merger (the "Merger
Agreement") with Littlejohn Partners IV, L.P. ("Littlejohn"), and LPIV
Acquisition Corp. ("LPIV"), a wholly owned subsidiary of Littlejohn, pursuant
to which LPIV has commenced today a tender offer (the "Offer") for all
outstanding shares of Durakon Common Stock for $16.00 per share in cash. The
Offer is conditioned upon there having been validly tendered and not withdrawn
prior to the expiration of the Offer at least 90% of the then outstanding
shares of Durakon Common Stock.
Following the completion of the Offer, upon the terms and subject to the
conditions of the Merger Agreement, LPIV will be merged into Durakon (the
"Merger"), and each share of Durakon Common Stock other than shares of Common
Stock owned by Durakon, Littlejohn, LPIV or any direct or indirect wholly
owned subsidiary of Durakon or Littlejohn immediately prior to the effective
time of the Merger, will be cancelled and converted into the right to receive
$16.00 in cash, the same price per share paid pursuant to the Offer. If
immediately prior to the expiration of the Offer, more than a majority but
less than 90% of the then outstanding shares have been tendered in the Offer
and not withdrawn, LPIV will not purchase any shares of Durakon Common Stock
pursuant to the Offer and, instead, Durakon will promptly convene a special
meeting of the shareholders of Durakon to consider and take action on the
Merger Agreement and the transactions contemplated thereby.
Your Board of Directors has unanimously approved the Offer and the Merger,
has determined that the Offer and the Merger are in the best interests of and
fair to the shareholders of Durakon from a financial point of view, and
recommends that shareholders accept the Offer and tender all their shares
pursuant to the Offer. In arriving at its decision, your Board of Directors
gave careful consideration to a number of factors described in the enclosed
Schedule 14D-9 that is being filed today with the Securities and Exchange
Commission. The enclosed Schedule 14D-9 describes the Board's decision and
contains other important information relating to that decision. We urge you to
read it carefully.
Accompanying this letter, in addition to the Schedule 14D-9, is the Offer to
Purchase, together with related materials including a Letter of Transmittal
for use in tendering shares. These documents set forth the terms and
conditions of the Offer and provide instructions as to how you can tender your
shares. We urge you to read the enclosed materials carefully and consider all
the factors set forth therein before making your decision with respect to the
Offer.
Sincerely,
/s/ David W. Wright
David W. Wright
President and Chief Executive
Officer
