<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ________)*
Lamcor, Incorporated
-------------------------------------------------------------------------
(Name of Issuer)
No Par Value Common Stock
--------------------------------------------------------------
(Title of Class of Securities)
NA
--------------------------------------------------
(CUSIP Number)
Allen D. Barnes
Packaging Acquisition Corporation
1633 Mt. Vernon Road
Dunwoody, Georgia 30338
(770) 604 - 9000
------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
September 30, 1996
------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 1 of 6 Pages
<PAGE> 2
SCHEDULE 13D
<TABLE>
<S> <C>
CUSIP NO. ____________________ PAGE 2 OF 6 PAGES
-----------------
- -------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
Packaging Acquisition Corporation
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- -------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
- -------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
O
- -------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E) [ ]
- -------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Georgia
- -------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 681,703
OWNED BY ---------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON ---------------------------------------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
- -------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON*
681,703
- -------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------------------------------------
</TABLE>
- ------------------------
* The aggregate number of shares indicated in Row 11 are subject to
Shareholder Voting Agreements dated September 30, 1996, between the
reporting person and each of Leo Lund, Toby Jensen, Christopher Elliott,
Sue Jones, David P. Stewart, Tim Stewart, Kathy Young and Mark A. Steele
as described in Item 4 of this report. The reporting person expressly
disclaims beneficial ownership of any of the shares of common stock of
the registrant as to which it may be deemed to share voting power
pursuant to such Shareholder Voting Agreements.
Page 2 of 6 Pages
<PAGE> 3
SCHEDULE 13D
<TABLE>
<S> <C> <C>
CUSIP NO. ____________________ PAGE 3 OF 6 PAGES
----------------------------
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)**
49.3%
- -------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- -------------------------------------------------------------------------------
</TABLE>
ITEM 1. SECURITY AND ISSUER
This statement relates to the no par value common stock ("Lamcor Common
Stock") of Lamcor, Incorporated ("Lamcor"). Lamcor is a Minnesota corporation
whose principal executive offices are located at Highway 169 North, LeSueur,
Minnesota 56058.
ITEM 2. IDENTITY AND BACKGROUND
This statement is being filed by Packaging Acquisition Corporation
("PAC"), a Georgia corporation whose principal executive offices are located at
1633 Mt. Vernon Drive, Dunwoody, Georgia 30338.
To the best of PAC's knowledge, during the last five years, neither PAC
nor any of its directors or executive officers has been convicted in any
criminal proceedings (excluding traffic violations or similar misdemeanors) nor
has PAC or any of its directors or executive officers been a party to any civil
proceeding of a judicial or administrative body of competent jurisdiction
resulting in a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Attached hereto is an appendix to Item 2 setting forth certain additional
information concerning the directors and executive officers of PAC.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
This item is not applicable because the nature of PAC's deemed beneficial
ownership of shares of Lamcor Common Stock arises under the Shareholder Voting
Agreements described in Item 4.
ITEM 4. PURPOSE OF TRANSACTION
Pursuant to an Agreement and Plan of Merger, dated as of September 30,
1996 (the "Merger Agreement"), among PAC, Lamcor and LI Acquisition
Corporation, a Georgia corporation and a wholly-owned subsidiary of PAC, and in
consideration thereof, PAC and each of Leo W. Lund, Toby Jensen, Christopher
Elliott, Sue Jones, David P. Stewart, Tim Stewart, Kathy Young and Mark A.
Steele (the "Shareholders") have entered into a Shareholder Voting Agreement
(each, a "Voting Agreement"). Each Voting Agreement provides that the
Shareholder will vote such Shareholder's shares of Lamcor Common Stock
(collectively constituting an aggregate of 681,703 shares or 49.3% of the
shares outstanding as of September 30, 1996) in favor of the merger of LI
Acquisition Corporation with and into Lamcor (the "Lamcor Merger"), the
execution and delivery by Lamcor of the Merger Agreement and the approval of
the terms thereof and each of the other transactions contemplated by the Merger
Agreement. Each Voting Agreement also provides that the Shareholder will vote
such Shareholder's shares of
- ------------------------------
** The percentage indicated represents the percentage of the total
outstanding shares of the registrant's common stock as of September 30, 1996.
Page 3 of 6 Pages
<PAGE> 4
Lamcor Common of Stock against any merger agreement or merger (other than the
Merger Agreement and the Lamcor Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by Lamcor or any amendment of Lamcor's Certificate of
Incorporation or Bylaws or other proposal or transaction that would in any
manner impede, frustrate, prevent or nullify the Lamcor Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement.
Each Shareholder has also agreed not to, and not to permit any, of its
representatives to, directly or indirectly, solicit, initiate or encourage the
submission of, any proposal for a merger, consolidation, share exchange or other
business combination involving Lamcor or any of its subsidiaries or any
proposal, tender or other offer to acquire in any manner, directly or
indirectly, an equity interest in any voting securities of, or a substantial
portion of the assets of Lamcor or any of its subsidiaries, other than the
Lamcor Merger and the transactions contemplated by the Merger Agreement, or
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any such proposal.
Each Voting Agreement will terminate upon the earlier of the effective
time of the Lamcor Merger or the date upon which the Merger Agreement is
terminated in accordance with its terms.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
The aggregate 681,703 shares of Lamcor Common Stock subject to the Voting
Agreements are equal to approximately 49.3% of Lamcor Common Stock, based on
the shares of Lamcor Common Stock issued and outstanding on September 30, 1996.
PAC expressly disclaims any beneficial ownership of the aggregate 681,703
shares of Lamcor Common Stock subject to the Voting Agreements.
Other than as set forth in this Item 5, to the best of PAC's knowledge (i)
neither PAC nor any subsidiary or affiliate of PAC or any of its or their
executive officers or directors, beneficially owns any shares of Lamcor Common
Stock, and (ii) there have been no transactions in the shares of Lamcor Common
Stock effected during the past 60 days by PAC, nor to the best of PAC's
knowledge, by any subsidiary or affiliate of PAC or any of its or their
executive officers or directors.
Other than the Merger Agreement, including the Voting Agreements, a copy
of each of which (excluding exhibits) is incorporated by reference
herein, to the best of PAC's knowledge there are at present no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 above and between such persons and any person with
respect to any securities of Lamcor. Other than the Shareholders, no other
person is known by PAC to have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, the aggregate
681,703 shares of Lamcor Common Stock subject to the Voting Agreements.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Other than the Merger Agreement, including the Voting Agreements, a copy
of each of which (excluding exhibits) is incorporated by reference
herein, to the best of PAC's knowledge there are at present no contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 above and between such persons and any person with
respect to any securities of Lamcor.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The Merger Agreement and the Voting Agreements (excluding exhibits) are
filed herewith as exhibits hereto.
Page 4 of 6 Pages
<PAGE> 5
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.
October 10, 1996 /s/ Allen D. Barnes
- ---------------------------------- ---------------------------------
Date Signature
Allen D. Barnes, President
---------------------------------
Name/Title
Page 5 of 6 Pages
<PAGE> 6
APPENDIX TO ITEM 2
<TABLE>
<CAPTION>
Principal
Employment and
Name and Residence Position with Principal Business
or Business Address Citizenship PAC of Employer
-------------------- ----------- --- -----------
<S> <C> <C> <C>
Allen D. Barnes U.S. President and Director President of
Polyflex Film and
Converting, Inc.
(manufacturer of
polyethylene film
for flexible
packaging uses)
William C. Beddingfield U.S. Executive Vice Executive Vice
President, Treasurer, President at
Secretary and Transamerica
Director Business Credit
Corporation
(commercial credit
corporation)
C. Dean Thompson U.S. Executive Vice President President of NSA
Technologies, Inc.
(computer software
and systems management)
</TABLE>
Page 6 of 6 Pages
<PAGE> 7
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
LAMCOR, INCORPORATED,
LI ACQUISITION CORPORATION
AND
PACKAGING ACQUISITION CORPORATION
DATED AS OF SEPTEMBER 30, 1996
<PAGE> 8
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE 1 TRANSACTIONS AND TERMS OF MERGER . . . . . . . . . . . . . . . . . . . . . 1
1.1 Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Time and Place of Closing . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 TERMS OF MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 Effect of Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 MANNER OF CONVERTING SHARES . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Conversion of Shares . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 Anti-Dilution Provisions . . . . . . . . . . . . . . . . . . . . . . . 3
3.3 Shares Held by Lamcor or Buyer . . . . . . . . . . . . . . . . . . . . 3
3.4 Dissenting Shareholders . . . . . . . . . . . . . . . . . . . . . . . 3
3.5 Conversion of Options and Convertible Securities . . . . . . . . . . . 4
ARTICLE 4 EXCHANGE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Exchange Procedures . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2 Rights of Former Lamcor Shareholders . . . . . . . . . . . . . . . . . 5
4.3 Withholding Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.4 Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF LAMCOR . . . . . . . . . . . . . . . . . 6
5.1 Organization, Standing, and Power . . . . . . . . . . . . . . . . . . 6
5.2 Authority; No Breach By Agreement . . . . . . . . . . . . . . . . . . 6
5.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.4 Lamcor Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.5 SEC Filings; Financial Statements . . . . . . . . . . . . . . . . . . 8
5.6 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . 8
5.7 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . 9
5.8 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.9 Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.10 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . 11
5.11 Environmental Matters and Permits . . . . . . . . . . . . . . . . . . 11
5.12 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.13 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . 13
5.14 Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
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<PAGE> 9
<TABLE>
<S> <C> <C>
5.15 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.16 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.17 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . 15
5.18 Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.19 State Takeover Laws . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.20 Charter Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.21 Shareholder Voting Agreement . . . . . . . . . . . . . . . . . . . . . 16
5.22 Noncompetition Agreement . . . . . . . . . . . . . . . . . . . . . . . 16
5.23 Knowledge Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . 17
6.1 Organization, Standing, and Power . . . . . . . . . . . . . . . . . . 17
6.2 Authority; No Breach By Agreement . . . . . . . . . . . . . . . . . . 17
6.3 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.4 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.5 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . 18
6.6 Authority of Sub . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.7 Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.8 Arrangements With Lamcor Personnel . . . . . . . . . . . . . . . . . . 19
6.9 Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 7 CONDUCT OF BUSINESS PENDING CONSUMMATION . . . . . . . . . . . . . . . . . 20
7.1 Affirmative Covenants of Lamcor . . . . . . . . . . . . . . . . . . . 20
7.2 Negative Covenants of Lamcor . . . . . . . . . . . . . . . . . . . . . 20
7.3 Covenants of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.4 Adverse Changes in Condition . . . . . . . . . . . . . . . . . . . . . 22
7.5 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 8 ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.1 Proxy Statement; Shareholder Approval . . . . . . . . . . . . . . . . 23
8.2 Applications; Antitrust Notification . . . . . . . . . . . . . . . . . 23
8.3 Filings with State Offices . . . . . . . . . . . . . . . . . . . . . . 23
8.4 Agreement as to Efforts to Consummate . . . . . . . . . . . . . . . . 24
8.5 Investigation and Confidentiality . . . . . . . . . . . . . . . . . . 24
8.6 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.7 Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.8 State Takeover Laws . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.9 Charter Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.10 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.11 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.12 Certain Policies of Lamcor . . . . . . . . . . . . . . . . . . . . . . 27
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE 9 CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE . . . . . . . . . . . . 27
9.1 Conditions to Obligations of Each Party . . . . . . . . . . . . . . . 27
9.2 Conditions to Obligations of Buyer . . . . . . . . . . . . . . . . . . 28
9.3 Conditions to Obligations of Lamcor . . . . . . . . . . . . . . . . . 30
ARTICLE 10 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . 32
10.3 Guaranty by PFC . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.2 Expenses and Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.3 Brokers and Finders . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.5 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.6 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.7 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.11 Captions; Articles and Sections . . . . . . . . . . . . . . . . . . . 43
11.12 Interpretations . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.13 Enforcement of Agreement . . . . . . . . . . . . . . . . . . . . . . . 43
11.14 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.15 Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
11.16 Shareholders' Representative . . . . . . . . . . . . . . . . . . . . . 44
11.17 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
11.18 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
</TABLE>
- iii -
<PAGE> 11
LIST OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
1. FORM OF SHAREHOLDER VOTING AGREEMENT. (Section 5.21).
2. MATTERS AS TO WHICH GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A. WILL OPINE. (Section 9.2(D)).
3. FORM OF CLAIMS LETTER (Section 9.2(E)).
4. MATTERS AS TO WHICH ALSTON & BIRD WILL OPINE. (Section 9.3(D)).
5. FORM OF ESCROW AGREEMENT. (Section 9.1(E)).
6. FORM OF EMPLOYMENT AGREEMENT (JENSEN). (Section 9.2(F)).
7. FORM OF NONCOMPETITION AGREEMENT (LUND). (Section 5.22).
8. FORM OF OPTION CANCELLATION AGREEMENT. (Section 9.2(I)).
</TABLE>
- iv -
<PAGE> 12
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of September 30, 1996, by and among LAMCOR, INCORPORATED ("Lamcor"), a
Minnesota corporation having its principal office located in Le Sueur,
Minnesota; LI ACQUISITION CORPORATION ("Sub"), a Georgia corporation having its
principal office located in Atlanta, Georgia; and PACKAGING ACQUISITION
CORPORATION ("Buyer"), a Georgia corporation having its principal office located
in Atlanta, Georgia.
PREAMBLE
The Boards of Directors of Lamcor, Sub and Buyer are of the opinion that
the transactions described herein are in the best interests of the parties to
this Agreement and their respective shareholders. This Agreement provides for
the acquisition of Lamcor by Buyer pursuant to the merger of Sub with and into
Lamcor. At the effective time of such merger, the outstanding shares of the
capital stock of Lamcor shall be converted into the right to receive a cash
payment from Buyer (except as provided herein). As a result, Lamcor shall
continue to conduct its business and operations as a wholly-owned subsidiary of
Buyer. The transactions described in this Agreement are subject to the approval
of the shareholders of Lamcor and the satisfaction of certain other conditions
described in this Agreement.
Certain terms used in this Agreement are defined in Section 11.1 of
this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual warranties,
representations, covenants, and agreements set forth herein, the parties agree
as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 MERGER. Subject to the terms and conditions of this Agreement, at
the Effective Time, Sub shall be merged with and into Lamcor in accordance with
the provisions of Section 302A.651 of the MBCA with the effect provided in
Section 302A.641 of the MBCA and Section 14-2-1107 of the GBCC with the effect
provided in Section 14-2-1106 of the GBCC (the "Merger"). Lamcor shall be the
Surviving Corporation resulting from the Merger and shall become a wholly- owned
Subsidiary of Buyer and shall continue to be governed by the Laws of the State
of Minnesota. The Merger shall be consummated pursuant to the terms of this
Agreement, which has been approved and adopted by the respective Boards of
Directors of Lamcor, Sub and Buyer, and by Buyer, as the sole shareholder of
Sub.
1.2 TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated hereby (the "Closing") will take place at 9:00 A.M. on the date
that the Effective Time occurs (or the immediately preceding day if the
Effective Time is earlier than 9:00 A.M.), or at such other time as the Parties,
acting through their authorized officers, may mutually agree. The Closing shall
be held at such location as may be mutually agreed upon by the Parties.
<PAGE> 13
1.3 EFFECTIVE TIME. The Merger and other transactions contemplated by
this Agreement shall become effective on the date and at the time the Articles
of Merger reflecting the Merger shall become effective with the Secretary of
State of the State of Minnesota and the Certificate of Merger reflecting the
Merger becomes effective with the Secretary of State of the State of Georgia
(the "Effective Time"). Subject to the terms and conditions hereof, unless
otherwise mutually agreed upon in writing by the authorized officers of each
Party, the Parties shall use their reasonable efforts to cause the Effective
Time to occur on the first business day following or, if practicable, the same
business day as the last to occur of (i) the effective date (including
expiration of any applicable waiting period) of the last required Consent of any
Regulatory Authority having authority over and approving or exempting the
Merger, and (ii) the date on which the shareholders of Lamcor approve this
Agreement to the extent such approval is required by applicable Law.
ARTICLE 2
TERMS OF MERGER
2.1 CHARTER. The Articles of Incorporation of Lamcor in effect
immediately prior to the Effective Time shall be the Articles of Incorporation
of the Surviving Corporation until otherwise amended or repealed.
2.2 BYLAWS. The Bylaws of Lamcor in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation until otherwise
amended or repealed.
2.3 DIRECTORS AND OFFICERS. The directors of Sub in office
immediately prior to the Effective Time, together with such additional persons
as may thereafter be elected, shall serve as the directors of the Surviving
Corporation from and after the Effective Time in accordance with the Bylaws of
the Surviving Corporation. The officers of Lamcor in office immediately prior
to the Effective Time, together with such additional persons as may thereafter
be elected, shall serve as the officers of the Surviving Corporation from and
after the Effective Time in accordance with the Bylaws of the Surviving
Corporation.
2.4 EFFECT OF MERGER. At the Effective Time, the effect of the Merger
shall be as provided in the applicable provisions of the MBCA and the GBCC.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time all the property, rights, privileges, powers and franchises of
Lamcor and Sub shall vest in the Surviving Corporation, and all debts,
liabilities, obligations, restrictions, disabilities and duties of each of
Lamcor and Sub shall become the debts, liabilities, obligations, restrictions,
disabilities and duties of the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. Subject to the provisions of this Article
3, at the Effective Time, by virtue of the Merger and without any action on the
part of Buyer, Lamcor, Sub
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or the shareholders of any of the foregoing, the shares of the constituent
corporations shall be converted as follows:
(a) Each share of Buyer Capital Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and
outstanding from and after the Effective Time.
(b) Each share of Sub Common Stock issued and outstanding
immediately prior to the Effective Time shall cease to be outstanding
and shall be converted into one share of Lamcor Common Stock.
(c) Each share of Lamcor Common Stock (excluding shares held
by Lamcor or any Buyer Company, in each case other than as a result of
debts previously contracted, and excluding shares held by shareholders
who perfect their statutory dissenters' rights as provided in Section
3.4) issued and outstanding immediately prior to the Effective Time
shall cease to be outstanding and shall be converted into and exchanged
for the right to receive from Buyer a cash payment in an amount equal to
$4.12 (the "Merger Consideration") less (i) $0.12 representing the pro
rata portion of the Escrowed Funds described in Section 11.15 and
allocable to each such share of Lamcor Common Stock, and (ii) any Taxes
required to be withheld pursuant to Section 4.3 (the "Cash Payment").
3.2 ANTI-DILUTION PROVISIONS. In the event Lamcor changes the number
of shares of Lamcor Common Stock issued and outstanding prior to the Effective
Time as a result of a stock split, stock dividend, or similar recapitalization
with respect to such stock and the record date therefor (in the case of a stock
dividend) or the effective date thereof (in the case of a stock split or similar
recapitalization for which a record date is not established) shall be prior to
the Effective Time, the amount of the Cash Payment shall be proportionately
adjusted.
3.3 SHARES HELD BY LAMCOR OR BUYER. Each of the shares of Lamcor
Common Stock held by Lamcor or by any Buyer Company shall be canceled and
retired at the Effective Time and no consideration shall be issued in exchange
therefor.
3.4 DISSENTING SHAREHOLDERS.
(a) Notwithstanding any provision of this Agreement to the
contrary, shares of Lamcor Common Stock ("Shares") that are outstanding
immediately prior to the Effective Time and which are held by Shareholders who
shall have not voted in favor of the Merger or consented thereto in writing and
who shall have demanded properly in writing the fair value for such Shares in
accordance with Section 302A.473 of the MBCA (collectively, the "Dissenting
Shares") shall not be converted into or represent the right to receive the
Merger Consideration. Such Shareholders shall be entitled to receive payment of
the fair value of such Dissenting Shares held by such Shareholders (with
interest if required by the MBCA) in accordance with the provisions of such
Section 302A.473, except that each Dissenting Share held by Shareholders who
shall have failed to perfect or who effectively shall have withdrawn or lost
their rights to appraisal of such Dissenting Shares under such Section 302A.473
shall thereupon be deemed to have been
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converted into and to have become exchangeable for, as of the Effective Time,
the right to receive the Cash Payment, without any interest thereon, upon
surrender, in the manner provided in Section 4.1, of the certificate or
certificates that formerly evidenced such Dissenting Shares.
(b) Lamcor shall give Buyer (i) prompt notice of any demands
for fair value of Dissenting Shares received by Lamcor and withdrawals of any
such demands and (ii) the opportunity to participate in all negotiations and
proceedings with respect to each such demand. Lamcor shall not, except with the
prior written consent of Buyer, make any payment (except to the extent that any
such payment is made pursuant to a final, non-appealable court order) with
respect to any demands for the fair value of Dissenting Shares or offer to
settle or settle any such demands.
(c) Payments to the holders of Dissenting Shares pursuant to
Section 302A.473, and any costs or expenses in connection therewith, which
exceed the amount of the Merger Consideration payable with respect to such
Shares, shall not be paid out of the Escrowed Funds.
3.5 CONVERSION OF OPTIONS AND CONVERTIBLE SECURITIES. At the
Effective Time, each option or warrant to purchase shares of Lamcor capital
stock outstanding at the Effective Time, whether or not exercisable ("Lamcor
Options") , and all other securities convertible into or exchangeable for shares
of Lamcor capital stock, whether or not convertible or exchangeable ("Lamcor
Convertible Securities"), shall be canceled. At the Closing, Buyer shall cause
Lamcor to make a cash payment for each Lamcor Option or Lamcor Convertible
Security ("Option Settlement Payment") equal to the product of (a) the
difference (if positive) between the Merger Consideration and the price at which
the holder of such Lamcor Option or Lamcor Convertible Security could purchase
each share of Lamcor Common Stock to which such Lamcor Option or Lamcor
Convertible Security relates, multiplied by (b) the number of shares of Lamcor
Common Stock subject to such Lamcor Option or Lamcor Convertible Security as if
such Lamcor Option was then fully exercisable or such Lamcor Convertible
Security was then fully convertible or exchangeable, less (y) the product of
$0.12, representing the pro rata portion of the Escrowed Funds described in
Section 11.15 allocable to each such share of Lamcor Common Stock, multiplied by
the number of shares referenced in clause (b) above, and further less (z) any
Taxes required to be withheld pursuant to Section 4.3. At the Effective Time,
each such Lamcor Option and each such Lamcor Convertible Security shall no
longer represent the right to purchase shares of Lamcor Common Stock, but in
lieu thereof shall represent only the nontransferable right to receive the
Option Settlement Payment referred to above. The parties hereto agree that the
Rights offered pursuant to the Rights Offering were terminated and cancelled
effective upon the termination of the Rights Offering by the Company, are no
longer outstanding and are therefore not included in the respective definitions
of "Lamcor Options" and "Lamcor Convertible Securities" set forth above.
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ARTICLE 4
EXCHANGE OF SHARES
4.1 EXCHANGE PROCEDURES.
(a) At the Effective Time, Buyer shall deposit in trust with a
bank or trust company (the "Exchange Agent") selected by mutual agreement of
Lamcor and Buyer before the Closing Date cash in an aggregate amount equal to
the product of (i) the number of Shares issued and outstanding at the Effective
Time (other than Shares owned beneficially or of record by Sub or Buyer and
other than the Dissenting Shares) and (ii) the Merger Consideration (such amount
is referred to as the "Exchange Fund"). The Exchange Agent shall, pursuant to
irrevocable instructions, make payments provided for in Sections 4.1(b) and
11.15 out of the Exchange Fund. The Exchange Fund shall not be used for any
other purpose, except as provided in this Agreement or the Escrow Agreement.
(b) Promptly after the Effective Time, Buyer and Lamcor shall
cause the Exchange Agent to mail to the former Shareholders of Lamcor
appropriate transmittal materials which shall specify that delivery shall be
effected, and risk of loss and title to the certificates theretofore
representing Shares of Lamcor Common Stock (the "Certificates") shall pass, only
upon proper delivery of such Certificates to the Exchange Agent. The Exchange
Agent may establish reasonable and customary rules and procedures in connection
with its duties. After the Effective Time, each holder of Shares of Lamcor
Common Stock (other than shares to be canceled pursuant to Section 3.3 or as to
which statutory dissenters' rights have been perfected as provided in Section
3.4) issued and outstanding at the Effective Time shall surrender the
Certificate or Certificates representing such shares to the Exchange Agent and
shall promptly upon surrender thereof receive in exchange therefor the Cash
Payment, together with all undelivered dividends or distributions in respect of
such shares (without interest thereon) pursuant to Section 4.2. Buyer shall not
be obligated to deliver the consideration to which any former holder of Lamcor
Common Stock is entitled as a result of the Merger until such holder surrenders
such holder's Certificate or Certificates for exchange as provided in this
Section 4.1. The Certificate or Certificates so surrendered shall be duly
endorsed as the Exchange Agent may require. Any other provision of this
Agreement notwithstanding, neither Buyer, the Surviving Corporation nor the
Exchange Agent shall be liable to a holder of Lamcor Common Stock for any
amounts paid or property delivered in good faith to a public official pursuant
to any applicable abandoned property Law. Adoption of this Agreement by the
Shareholders of Lamcor shall constitute ratification of the appointment of the
Exchange Agent.
4.2 RIGHTS OF FORMER LAMCOR SHAREHOLDERS. At the Effective Time, the
stock transfer books of Lamcor shall be closed as to holders of Lamcor Common
Stock immediately prior to the Effective Time, and no transfer of Lamcor Common
Stock by any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 4.1, each
Certificate (other than Certificates representing shares to be canceled pursuant
to Section 3.3 or as to which statutory dissenters' rights have been perfected
as provided in Section 3.4) shall from and after the Effective Time represent
for all purposes only the right to receive the consideration provided in Section
3.1 in exchange therefor. However, upon
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surrender of such Certificate, any undelivered cash payments payable hereunder
(without interest) shall be delivered and paid with respect to each share
represented by such Certificate.
4.3 WITHHOLDING RIGHTS. Each of Surviving Corporation and Buyer shall
be entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of Lamcor Common Stock, Lamcor Options,
or Lamcor Convertible Securities such Taxes as it is required to deduct and
withhold with respect to the making of such payment under the Code, or any
provision of state, local or foreign tax law. To the extent that amounts are so
withheld by Surviving Corporation or Buyer, as the case may be, such withheld
amounts shall be treated for all purposes of this Agreement as having been paid
to the holder of the Lamcor Common Stock in respect of which such deduction and
withholding was made by Surviving Corporation or Buyer, as the case may be.
4.4 LOST CERTIFICATES. If any Certificate 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 and, if required by
the Surviving Corporation, the posting by such person of a bond in such
reasonable amount as the Surviving Corporation may direct as indemnity against
any claim that may be made against it with respect to such Certificate, the
Exchange Agent will make payment pursuant to this Article 4 with respect to such
Certificate.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF LAMCOR
Lamcor hereby represents and warrants to Buyer as follows:
5.1 ORGANIZATION, STANDING, AND POWER. Lamcor is a corporation duly
organized, validly existing, and in good standing under the Laws of the State of
Minnesota, and has the corporate power and authority to carry on its business as
now conducted and to own, lease and operate its Assets. Lamcor is duly
qualified or licensed to transact business as a foreign corporation in good
standing in the States of the United States where the character of its Assets or
the nature or conduct of its business requires it to be so qualified or
licensed, except for such jurisdictions in which the failure to be so qualified
or licensed is not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Lamcor.
5.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Lamcor has the corporate power and authority necessary to
execute, deliver, and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of Lamcor,
subject to the adoption of this Agreement by the holders of a majority of the
outstanding shares of Lamcor Common Stock (excluding all Shares beneficially
owned or owned of record by Buyer or Buyer's Affiliates), which is the only
shareholder vote required for approval of this Agreement and consummation of the
Merger by Lamcor. Subject to such requisite Shareholder approval, and
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<PAGE> 18
assuming the due authorization, execution and delivery of this Agreement by
Buyer and Sub, this Agreement represents a legal, valid, and binding obligation
of Lamcor, enforceable against Lamcor in accordance with its terms (except in
all cases as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, conservatorship, moratorium, or
similar Laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by
Lamcor, nor the consummation by Lamcor of the transactions contemplated hereby,
nor compliance by Lamcor with any of the provisions hereof, will (i) conflict
with or result in a breach of any provision of Lamcor's Articles of
Incorporation or Bylaws, or (ii) except as disclosed in Section 5.2 of the
Lamcor Disclosure Memorandum, constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien on any
Asset of Lamcor under, any Contract or Permit of Lamcor or (iii) subject to
receipt of the requisite Consents referred to in Section 9.1(b), violate any Law
or Order applicable to Lamcor or any of its Material Assets; except with respect
to subparagraphs (ii) and (iii) above where any such breaches, defaults,
violations or other occurrences would not, individually or in the aggregate,
have a Material Adverse Effect on Lamcor's business or Assets.
(c) No notice to, filing with, or Consent of, any public body
or authority is necessary for the consummation by Lamcor of the Merger and the
other transactions contemplated in this Agreement, except (i) in connection or
compliance with the provisions of the Securities Laws, applicable state
corporate and securities Laws, and rules of the NASD, (ii) for Consents required
from Regulatory Authorities and other than notices to or filings with the
Internal Revenue Service or the Pension Benefit Guaranty Corporation with
respect to any employee benefit plans, or under the HSR Act, and (iii) 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 Merger, or otherwise prevent Lamcor from performing its obligations under
this Agreement, and would not, individually or in the aggregate, have a Material
Adverse Effect on Lamcor's business or Assets.
5.3 CAPITAL STOCK.
(a) The authorized capital stock of Lamcor consists of
10,000,000 Shares of Lamcor Common Stock, of which 1,382,317 shares are issued
and outstanding as of the date of this Agreement and up to 550,000 shares are
reserved for issuance and issuable upon exercise of the Lamcor Options or upon
the conversion or exchange of Lamcor Convertible Securities. All of the issued
and outstanding Shares of Lamcor Common Stock are duly authorized, validly
issued and outstanding and are fully paid and nonassessable. No dividends have
been made or declared by Lamcor in respect of any shares of Lamcor Common Stock
which remain unpaid at the date hereof. No present or former Shareholder of
Lamcor has any preemptive rights with respect to shares of Lamcor Common Stock
under the MBCA or under the Articles of Incorporation of Lamcor as in effect on
the date of this Agreement and none of the outstanding shares of capital stock
of Lamcor has been issued in violation of any preemptive rights under the MBCA.
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<PAGE> 19
(b) Except as set forth in Section 5.3(a), or as disclosed in
Section 5.3 of the Lamcor Disclosure Memorandum, no Rights or options
exercisable for and no debt or equity securities convertible into or
exchangeable for shares of capital stock or other equity securities of Lamcor
are outstanding, and Lamcor is under no obligation to issue any shares of its
capital stock or other debt or equity securities or any Rights, options or other
debt or equity securities exercisable for or convertible or exchangeable for
shares of the capital stock of Lamcor.
5.4 LAMCOR SUBSIDIARIES. Lamcor has no, and has never had any,
subsidiaries.
5.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Lamcor has timely filed all SEC Documents required to be
filed by Lamcor since December 31, 1992. Section 5.5 of the Lamcor Disclosure
Memorandum lists SEC Documents filed by Lamcor since such date (the "Lamcor SEC
Reports"). The Lamcor SEC Reports (i) at the time filed, complied in all
Material respects with the applicable requirements of the Securities Laws and
(ii) did not, at the time they were filed (or, if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such subsequent
filing) 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.
(b) Each of the Lamcor Financial Statements (including, in
each case, any related notes) contained in the Lamcor SEC Reports, including any
Lamcor SEC Reports filed after the date of this Agreement until the Effective
Time, complied as to form in all Material respects with the applicable published
rules and regulations of the SEC with respect thereto, was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements
or, in the case of unaudited interim statements, as permitted by Form 10-Q or
10-QSB of the SEC), and fairly presented in all Material respects the financial
position of Lamcor as at the respective dates and the consolidated results of
operations and cash flows for the periods indicated, except that the unaudited
interim financial statements were or are subject to normal and recurring
year-end adjustments which were not or are not expected to be Material in amount
or effect.
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. Lamcor has no Knowledge of
Liabilities that are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Lamcor, except Liabilities which are
accrued or reserved against in the balance sheets of Lamcor as of September 30,
1995 and June 30, 1996, included in the Lamcor Financial Statements delivered
prior to the date of this Agreement or reflected in the notes thereto or the
Lamcor Disclosure Memorandum. Lamcor has not incurred or paid any Liability
since June 30, 1996, except for such Liabilities incurred or paid (i) in the
ordinary course of business consistent with past business practice and as to
incurred liabilities, are not, individually or in the aggregate, Material, (ii)
in connection with the transactions contemplated by this Agreement or (iii) as
shown in the Lamcor Disclosure Memorandum. Except as disclosed in Section 5.6
of the Lamcor Disclosure Memorandum, Lamcor is not directly or indirectly
liable, by guarantee, indemnity, or
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otherwise, upon or with respect to, or obligated, by discount or repurchase
agreement or in any other way, to provide funds in respect to, or obligated to
guarantee or assume any Liability of any Person for any amount. Lamcor has
terminated the offering of Rights to subscribe for up to 350,000 shares of
Lamcor Common Stock initiated by Lamcor on March 1, 1996 (the "Rights
Offering"), and returned any and all funds tendered pursuant to such Rights
Offering. Section 5.6 of the Lamcor Disclosure Memorandum lists all Lamcor
Shareholders of record who tendered funds pursuant to such Rights Offering and
had such tendered funds returned by Lamcor.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 1995,
except as disclosed in the Lamcor Financial Statements delivered prior to the
date of this Agreement or as disclosed in the Lamcor Disclosure Memorandum and
except for such changes as are the result of general economic conditions or
general conditions in the industry in which Lamcor operates, (i) there have been
no events, changes, or occurrences which have had, or are reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Lamcor, and
(ii) Lamcor has not taken any action, or failed to take any action, prior to the
date of this Agreement, which action or failure, if taken after the date of this
Agreement, would represent or result in a Material breach or violation of any of
the covenants and agreements of Lamcor provided in Article 7.
5.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf of
Lamcor have been timely filed or requests for extensions have been timely filed,
granted, and have not expired for periods ended on or before September 30, 1995,
and on or before the date of the most recent fiscal year end immediately
preceding the Effective Time, and all Tax Returns filed are complete and
accurate. All Taxes shown on filed Tax Returns have been paid. There is no
audit examination, deficiency, or refund Litigation with respect to any Taxes,
except as reserved against in the Lamcor Financial Statements delivered prior to
the date of this Agreement or as disclosed in Section 5.8 of the Lamcor
Disclosure Memorandum. Lamcor's federal income Tax Returns have not been
audited by the IRS. All Taxes and other Liabilities due with respect to
completed and settled examinations or concluded Litigation have been paid. There
are no Liens with respect to Taxes upon any of the Assets of Lamcor.
(b) Lamcor has not executed an extension or waiver of any
statute of limitations on the assessment or collection of any Tax due
(excluding such statutes that relate to years currently under examination by
the Internal Revenue Service or other applicable taxing authorities) that is
currently in effect.
(c) The provision for any Taxes due or to become due for
Lamcor for the period or periods through and including the date of the
respective Lamcor Financial Statements that has been made and is reflected on
such Lamcor Financial Statements is sufficient to cover all such Taxes.
(d) Deferred Taxes of Lamcor have been provided for in
accordance with GAAP.
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(e) Lamcor (i) is not a party to any Tax allocation or sharing
agreement, (ii) has not been a member of an affiliated group filing a
consolidated federal income Tax Return and (iii) has no Liability for Taxes of
any Person under Treasury Regulation Section 1.1502-6 (or any similar provision
of state, local or foreign Law) as a transferee or successor or by Contract or
otherwise.
(f) Lamcor is in compliance with, and its records contain all
information and documents (including properly completed IRS Forms W-9) necessary
to comply with, all applicable information reporting and Tax withholding
requirements under federal, state, and local Tax Laws, and such records identify
with specificity all accounts subject to backup withholding under Section 3406
of the Internal Revenue Code.
(g) Except as disclosed in Section 5.8 of the Lamcor
Disclosure Memorandum, Lamcor has not made any payments, is not obligated to
make any payments, or is not a party to any Contract that could obligate it to
make any payments that would be disallowed as a deduction under Section 280G or
162(m) of the Internal Revenue Code.
(h) Through the Effective Time, there has not been nor shall
there be an ownership change, as defined in Internal Revenue Code Section
382(g), of Lamcor that occurred during or after any Taxable Period in which
Lamcor incurred a net operating loss that carries over to any Taxable Period
ending after September 30, 1995, excluding the ownership change contemplated by
the Merger.
5.9 ASSETS. Except as disclosed in Section 5.9 of the Lamcor
Disclosure Memorandum or as disclosed or reserved against in the Lamcor
Financial Statements delivered prior to the date of this Agreement, Lamcor has
good and marketable title, free and clear of all Liens, to all of its Assets. To
the Knowledge of Lamcor, (i) the machinery and equipment used in Lamcor's
business are in good working order and are usable in a manner consistent with
past use, reasonable wear and tear excepted, (ii) have been regularly and
properly maintained in accordance with reasonable and customary industry
standards and applicable regulations, and (iii) there are no defects or
malfunctions in such machinery and equipment, which alone or in the aggregate,
are reasonably likely to result in any disruption or interruption in Lamcor's
business which would have a Material Adverse Effect on Lamcor. All items of
inventory of Lamcor reflected on the most recent balance sheet included in the
Lamcor Financial Statements delivered prior to the date of this Agreement and
prior to the Effective Time consisted and will consist, as applicable, of items
of a quality and quantity usable and saleable in the ordinary course of
business, are valued at the lower of cost or net realizable market value and
conform to generally accepted standards in the industry in which Lamcor is a
part. All Assets which are Material to Lamcor's business held under leases or
subleases by Lamcor, are held under valid Contracts enforceable in accordance
with their respective terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceedings
may be brought), and neither Lamcor nor to Lamcor's Knowledge any other party
thereto is in Default in any Material respect under any such Contract. Lamcor
has not received notice from any insurance carrier that
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(i) any policy of insurance will be canceled or that coverage thereunder will
be reduced or eliminated, or (ii) premium costs with respect to such policies
of insurance will be substantially increased. There are presently no claims
pending under such policies of insurance and Lamcor has no Knowledge of any
event that would cause Lamcor to be required to give notice thereof in order to
assert a claim under such policies. There are no assets used in connection
with the business of Lamcor other than (i) the Assets reflected on the Lamcor
Financial Statements, (ii) Assets owned by Lamcor but not required by GAAP to
be reflected on the Lamcor Financial Statements, and (iii) Assets acquired by
Lamcor since the date of the latest Lamcor Financial Statements, less any
Assets sold by Lamcor in the ordinary course of business since the latest
Lamcor Financial Statements.
5.10 INTELLECTUAL PROPERTY. Lamcor owns or has a license to use (or
will by the Effective Time own or have a license to use) all of the Intellectual
Property which is Material to and used in the course of its business. Lamcor is
the owner of or has a license to any Intellectual Property sold or licensed to a
third party in connection with its business operations, and has the right to
convey by sale or license any Intellectual Property so conveyed. Lamcor is not
in Default under any of its Intellectual Property licenses. No proceedings have
been instituted or are pending, or to the Knowledge of Lamcor threatened, which
challenge the rights of Lamcor with respect to Intellectual Property used, sold
or licensed by Lamcor in the course of its business, nor to the Knowledge of
Lamcor has any person claimed or alleged any rights to such Intellectual
Property. Lamcor is not obligated to pay any recurring royalties to any Person
with respect to any such Intellectual Property. No officer, director, or
employee of Lamcor is a party to a Contract which requires such officer,
director or employee to assign any interest in any Intellectual Property to
Lamcor and to keep confidential any trade secrets, proprietary data, customer
information, or other business information of Lamcor, and to the Knowledge of
Lamcor no such officer, director or employee is party to any Contract with any
Person other than Lamcor which requires such officer, director or employee to
assign any interest in any Intellectual Property to any Person other than Lamcor
or to keep confidential any trade secrets, proprietary data, customer
information, or other business information of any Person other than Lamcor.
Except as disclosed in Section 5.10 of the Lamcor Disclosure Memorandum, no
officer or director or, to the Knowledge of Lamcor, other employee of Lamcor is
party to any Contract which restricts or prohibits such officer, director or
employee from engaging in activities competitive with any Person, including
Lamcor.
5.11 ENVIRONMENTAL MATTERS AND PERMITS. Except as disclosed in Section
5.11 of the Lamcor Disclosure Memorandum:
(a) Lamcor is, and has been, in Material compliance with all
Environmental Laws.
(b) There is no Litigation pending or, to the Knowledge of
Lamcor, threatened before any court, governmental agency, or authority or other
forum in which Lamcor has been or, with respect to threatened Litigation, may be
named as a defendant (i) for alleged noncompliance (including by any
predecessor) with any Environmental Law or (ii) relating to the release,
discharge, spillage, or disposal into the environment of any Hazardous Material,
whether or not
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occurring at, on, under, adjacent to, or affecting (or potentially affecting) a
site owned, leased, or operated by Lamcor.
(c) To the Knowledge of Lamcor, during the period
Lamcor's ownership or operation of any of its current properties, there have
been no releases, discharges, spillages, or disposals of Hazardous Material in,
on, under, adjacent to, or affecting (or potentially affecting) such
properties. Prior to the period of Lamcor's ownership or operation of any of
its respective current properties, to the Knowledge of Lamcor, there were no
releases, discharges, spillages, or disposals of Hazardous Material in, on,
under, or affecting any such property.
Lamcor has in effect all Permits necessary for it to own, lease, or
operate its Material Assets and to carry on its business as now conducted,
except for those Permits the absence of which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Lamcor, and there
has occurred no Default under any such Permit. Except as disclosed in Section
5.11 of the Lamcor Disclosure Memorandum, Lamcor:
(i) is not in Default under any of the provisions of its
Articles of Incorporation or Bylaws (or other governing instruments);
(ii) is not in Material Default under any Laws, Orders, or
Permits applicable to its business or employees conducting its
business; or
(iii) since January 1, 1993, has not received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (1)
asserting that Lamcor is not in Material compliance with any of the
Laws or Orders which such governmental authority or Regulatory
Authority enforces, (2) threatening to revoke any Permits, or (3)
requiring Lamcor to enter into or consent to the issuance of a cease
and desist order, formal agreement, directive, commitment, or
memorandum of understanding, or to adopt any Board resolution or
similar undertaking.
Copies of all Material reports, correspondence, notices and other documents
relating to any inspection, audit, monitoring or other form of review or
enforcement action by a Regulatory Authority have been made available to Buyer.
5.12 LABOR RELATIONS. Lamcor is not now and has not been in the
preceding five (5) years the subject of any Litigation asserting that it has
committed an unfair labor practice (within the meaning of the National Labor
Relations Act or comparable state law) or seeking to compel it to bargain with
any labor organization as to wages or conditions of employment, nor is it party
to any collective bargaining agreement, nor is there any strike or other labor
dispute, pending or to the Knowledge of Lamcor threatened, or to the Knowledge
of Lamcor, is there any current activity involving any of its employees seeking
to certify a collective bargaining unit or engaging in any other organization
activity.
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5.13 EMPLOYEE BENEFIT PLANS.
(a) Lamcor has disclosed in Section 5.13 of the Lamcor
Disclosure Memorandum, and has delivered or made available to Buyer prior to
the execution of this Agreement copies in each case of, all pension,
retirement, profit-sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus, or other incentive plan, all other
written or unwritten employee programs, arrangements, or agreements, all
medical, vision, dental, or other health plans, all life insurance plans, and
all other employee benefit plans or fringe benefit plans, including "employee
benefit plans" as that term is defined in Section 3(3) of ERISA, which grant
benefits to any Person in excess of $500.00 on an annualized basis, currently
adopted, maintained by, sponsored in whole or in part by, or contributed to by
Lamcor or any ERISA Affiliate thereof for the benefit of employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries
and under which employees, retirees, dependents, spouses, directors,
independent contractors, or other beneficiaries are eligible to participate
(collectively, the "Lamcor Benefit Plans").
(b) Except for the Lamcor 401(k) Profit Sharing Plan and Trust
dated effective October 1, 1993, Lamcor does not have and has never maintained
an "employee pension benefit plan," as that term is defined in Section 3(2) of
ERISA. Lamcor does not have and has never contributed to a multiemployer plan
within the meaning of Section 3(37) of ERISA.
(c) All Lamcor Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any other applicable
Laws the breach or violation of which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Lamcor. Each
Lamcor ERISA Plan which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service, and Lamcor is not aware of any circumstances likely
to result in revocation of any such favorable determination letter. Lamcor has
not engaged in a transaction with respect to any Lamcor Benefit Plan that,
assuming the taxable period of such transaction expired as of the date hereof,
would subject Lamcor to a Tax imposed by either Section 4975 of the Internal
Revenue Code or Section 502(i) of ERISA.
(d) Within the six-year period preceding the Effective Time,
no Liability under Subtitle C or D of Title IV of ERISA has been or is expected
to be incurred by Lamcor with respect to any ongoing, frozen, or terminated
single-employer plan or the single-employer plan of any ERISA Affiliate. Lamcor
has not incurred any withdrawal Liability with respect to a multiemployer plan
under Subtitle B of Title IV of ERISA (regardless of whether based on
contributions of an ERISA Affiliate).
(e) Except as disclosed in Section 5.13 of the Lamcor
Disclosure Memorandum, Lamcor does not have any Liability for retiree health
and life benefits under any of the Lamcor Benefit Plans and there are no
restrictions on the rights of Lamcor to amend or terminate any such retiree
health or benefit Plan without incurring any Liability thereunder.
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(f) Except as disclosed in Section 5.13 of the Lamcor
Disclosure Memorandum, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i) result in any
payment (including severance, unemployment compensation, golden parachute, or
otherwise) becoming due to any director or any employee of Lamcor from Lamcor
under any Lamcor Benefit Plan or otherwise, (ii) increase any benefits
otherwise payable under any Lamcor Benefit Plan, or (iii) result in any
acceleration of the time of payment or vesting of any such benefit.
(g) The actuarial present values of all accrued deferred
compensation entitlements (including entitlements under any executive
compensation, supplemental retirement, or employment agreement) of employees
and former employees of Lamcor and its beneficiaries, other than entitlements
accrued pursuant to funded retirement plans subject to the provisions of
Section 412 of the Internal Revenue Code or Section 302 of ERISA, have been
fully reflected on the Lamcor Financial Statements to the extent required by
and in accordance with GAAP.
(h) Each Lamcor Benefit Plan designed to satisfy the
requirements of Section 125, Section 401, Section 401(k), Section 409, Section
501(c)(9), Section 4975(e)(7), and/or Section 4980B of the Code, satisfies such
section.
(i) All amounts required to be paid by Lamcor with respect to
each Lamcor Benefit Plan on or before the Effective Time have been paid.
(j) Neither the execution and delivery of this Agreement nor
the consummation of any of the transactions contemplated hereby will result in a
Material increase in the premium costs of any Lamcor Benefit Plan for which
benefits are insured or a Material increase in benefit costs of any Lamcor
Benefit Plan which provides self- insured benefits.
(k) No "leased employee," as that term is defined in Section
414(n) of the Code, performs services for a Company.
(l) Lamcor has furnished to Buyer correct and complete copies
of all plan documents, trust agreements, summary plan descriptions, employee
informational materials, IRS Forms 5500 and participant listings for each Lamcor
Benefit Plan.
5.14 MATERIAL CONTRACTS. Except as disclosed in Section 5.14 of the
Lamcor Disclosure Memorandum or otherwise reflected in the Lamcor Financial
Statements delivered prior to the date of this Agreement, neither Lamcor nor any
of its assets, businesses, or operations is a party to, or is bound or affected
by, or receives benefits under, (i) any employment, severance, termination,
consulting, or retirement Contract providing for aggregate payments to any
Person in any calendar year in excess of $50,000, (ii) any Contract relating to
the borrowing of money by Lamcor or the guarantee by Lamcor of any such
obligation (other than Contracts evidencing trade payables and Contracts
relating to borrowings or guarantees made in the ordinary course of business),
(iii) any Contract which prohibits or restricts Lamcor from engaging in any
business activities in any geographic area, line of business or otherwise in
competition with any other Person, (iv) any Contract involving Intellectual
Property (other than Contracts entered into in the
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ordinary course with customers and "shrink-wrap" software licenses), (v) any
Contract relating to the provision of data processing, network communication,
or other technical services to or by Lamcor, (vi) any Contract relating to the
purchase or sale of any goods or services (other than Contracts entered into in
the ordinary course of business and involving payments under any individual
Contract not in excess of $100,000), and (vii) any other Contract or amendment
thereto that would be required to be filed as an exhibit to a Form 10-K filed
by Lamcor with the SEC as of the date of this Agreement (together with all
Contracts referred to in Sections 5.9 and 5.14(a), the "Lamcor Contracts").
With respect to each Lamcor Contract: (i) the Contract is in full force and
effect; (ii) Lamcor is not in Default thereunder; (iii) Lamcor has not
repudiated or waived any Material provision of any such Contract; and (iv) no
other party to any such Contract is, to the Knowledge of Lamcor, in Default in
any respect or has repudiated or waived any Material provision thereunder. All
of the indebtedness of Lamcor for money borrowed is prepayable at any time by
Lamcor without penalty or premium.
5.15 LEGAL PROCEEDINGS. Except as described in Section 5.15 of the
Lamcor Disclosure Memorandum, there is no Litigation instituted or pending, or
to the Knowledge of Lamcor threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable probability of
an unfavorable outcome), against Lamcor, or against any officer or director, or
employee benefit plan of Lamcor, or against any Asset, interest, or right of any
of them, nor are there any Orders of any Regulatory Authorities, other
governmental authorities, or arbitrators outstanding against Lamcor. Section
5.15 of the Lamcor Disclosure Memorandum contains a summary of all pending
Litigation as of the date of this Agreement to which Lamcor is a party and which
names Lamcor as a defendant or cross- defendant.
5.16 REPORTS. Since January 1, 1993 Lamcor has timely filed all
Material reports and statements, together with any amendments required to be
made with respect thereto, that it was required to file with Regulatory
Authorities (except as described in Section 5.16 of the Lamcor Disclosure
Memorandum or for failures to file or properly file which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Lamcor). As of their respective dates, each of such reports and documents,
including the financial statements, exhibits and schedules thereto, complied in
all Material respects with all applicable Laws, and did not contain any untrue
statement of a Material fact or omit to state a Material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
5.17 STATEMENTS TRUE AND CORRECT. No statement, certificate,
instrument, or other writing furnished or to be furnished by Lamcor to Buyer
pursuant to this Agreement or any other document, agreement, or instrument
referred to herein contains or will contain any untrue statement of Material
fact or will omit to state a Material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. None of the information supplied or to be supplied by Lamcor for
inclusion in the Proxy Statement to be mailed to Lamcor's shareholders in
connection with the Shareholders' Meeting, and any other documents to be filed
by Lamcor with the SEC or any other Regulatory Authority in connection with the
transactions contemplated hereby, will, at the respective time such documents
are filed,
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and with respect to the Proxy Statement, when first mailed to the shareholders
of Lamcor, be false or misleading with respect to any Material fact, or omit to
state any Material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or, in the case
of the Proxy Statement or any amendment thereof or supplement thereto, at the
time of the Shareholders' Meeting, be false or misleading with respect to any
Material fact, or omit to state any Material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of any
proxy for the Shareholders' Meeting. All documents that Lamcor is responsible
for filing with any Regulatory Authority in connection with the transactions
contemplated hereby will comply as to form in all Material respects with the
provisions of applicable Law.
5.18 REGULATORY MATTERS. Lamcor has not taken or agreed to take any
action or has any Knowledge of any fact or circumstance that is reasonably
likely to materially impede or delay receipt of any Consents of Regulatory
Authorities referred to in Section 9.1(b) or result in the imposition of a
condition or restriction of the type referred to in the last sentence of such
Section.
5.19 STATE TAKEOVER LAWS. As of the Effective Time, Lamcor will have
taken, or cause to be taken, all necessary action required under Minnesota law
so that the provisions of the MBCA do not prevent the consummation of the Merger
or have a Material Adverse Effect on Sub or Buyer.
5.20 CHARTER PROVISIONS. Lamcor has not taken any action so that the
entering into of this Agreement and the consummation of the Merger and the other
transactions contemplated by this Agreement do and will result in the grant of
any rights to any Person under the Articles of Incorporation, Bylaws or other
governing instruments of Lamcor or restrict or impair the ability of Buyer or
any of its Subsidiaries to vote, or otherwise to exercise the rights of a
shareholder with respect to, Shares of Lamcor that may be directly or indirectly
acquired or controlled by them.
5.21 SHAREHOLDER VOTING AGREEMENT. Each of the officers and directors
of Lamcor and Affiliates of such officers and directors who are Shareholders,
and each of the holders of 5% or more of the outstanding shares of Lamcor Common
Stock has executed and delivered to Buyer an agreement in substantially the form
of Exhibit 1.
5.22 NONCOMPETITION AGREEMENT. Leo Lund has executed and delivered the
Noncompetition Agreement attached as Exhibit 7.
5.23 KNOWLEDGE INQUIRY. As to any representation and warranty
contained in this Article 5 that is qualified as being to the "Knowledge" of
Lamcor or words of similar import, one or more of the persons named in the
definition of "Knowledge" in Section 11.1 as having actual knowledge on behalf
of Lamcor of the facts to which such representation and warranty relates either
(a) has such actual knowledge of the accuracy of such representation and
warranty or (b) has reviewed the text of such representation and warranty and
all Schedules to this Agreement relating thereto with the senior most management
employee or employees of Lamcor having management or supervisory responsibility
for the operations and affairs of Lamcor to which such
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representation and warranty relates and has inquired of such employee or
employees as to the accuracy of such representation and warranty and has not
received any response to such review and inquiry which would indicate that
there are facts and circumstances not heretofore disclosed to Buyer that would
cause such representation and warranty to be inaccurate in any Material
respect.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Lamcor as follows:
6.1 ORGANIZATION, STANDING, AND POWER. Buyer is a corporation duly
organized, validly existing, and in good standing under the Laws of the State of
Georgia, and has the corporate power and authority to carry on its business as
now conducted and to own, lease and operate its Material Assets. Buyer is duly
qualified or licensed to transact business as a foreign corporation in good
standing in the foreign jurisdictions where the character of its Assets or the
nature or conduct of its business requires it to be so qualified or licensed,
except for such jurisdictions in which the failure to be so qualified or
licensed is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Buyer.
6.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Buyer has the corporate power and authority necessary to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
Buyer. This Agreement represents a legal, valid, and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms (except in all
cases as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, conservatorship, moratorium, or
similar Laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by
Buyer, nor the consummation by Buyer of the transactions contemplated hereby,
nor compliance by Buyer with any of the provisions hereof, will (i) conflict
with or result in a breach of any provision of Buyer's Articles of Incorporation
or Bylaws, or (ii) constitute or result in a Default under, or require any
Consent pursuant to, or result in the creation of any Lien on any Asset of any
Buyer Company under, any Contract or Permit of any Buyer Company or, (iii)
subject to receipt of the requisite Consents referred to in Section 9.1(b),
violate any Law or Order applicable to any Buyer Company or any of their
respective Material Assets.
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and securities
Laws, and rules of the NASD, and other
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than Consents required from Regulatory Authorities, and other than notices to
or filings with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, or under the HSR Act,
and other than Consents, filings, or notifications which, if not obtained or
made, are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Buyer, no notice to, filing with, or Consent of, any
public body or authority is necessary for the consummation by Buyer of the
Merger and the other transactions contemplated in this Agreement.
6.3 COMPLIANCE WITH LAWS. Each Buyer Company has in effect all
Permits necessary for it to own, lease or operate its Material Assets and to
carry on its business as now conducted, and there has occurred no Default under
any such Permit. None of the Buyer Companies:
(a) is in Default under its Articles of Incorporation or Bylaws
(or other governing instruments); or
(b) is in Default under any Laws, Orders or Permits applicable
to its business or employees conducting its business; or
(c) since January 1, 1993, has received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i) asserting that
any Buyer Company is not in compliance with any of the Laws or Orders which
such governmental authority or Regulatory Authority enforces, (ii) threatening
to revoke any Permits, or (iii) requiring any Buyer Company to enter into or
consent to the issuance of a cease and desist order, formal agreement,
directive, commitment or memorandum of understanding, or to adopt any Board
resolution or similar undertaking, which restricts materially the conduct of
its business.
6.4 LEGAL PROCEEDINGS. There is no Litigation instituted or pending,
or, to the Knowledge of Buyer, threatened (or unasserted but considered probable
of assertion and which if asserted would have at least a reasonable probability
of an unfavorable outcome) against any Buyer Company, or against any officer or
director, or employee benefit plan of any Buyer Company, or against any Asset,
interest, or right of any of them, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators outstanding against
any Buyer Company.
6.5 STATEMENTS TRUE AND CORRECT. No statement, certificate,
instrument or other writing furnished or to be furnished by any Buyer Company or
any Affiliate thereof to Lamcor pursuant to this Agreement or any other
document, agreement or instrument referred to herein contains or will contain
any untrue statement of Material fact or will omit to state a Material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. None of the information supplied or to be
supplied by any Buyer Company or any Affiliate thereof for inclusion in the
Proxy Statement to be mailed to Lamcor's shareholders in connection
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with the Shareholders' Meeting, and any other documents to be filed by any
Buyer Company or any Affiliate thereof with the SEC or any other Regulatory
Authority in connection with the transactions contemplated hereby, will, at the
respective time such documents are filed, and with respect to the Proxy
Statement, when first mailed to the shareholders of Lamcor, be false or
misleading with respect to any Material fact, or omit to state any Material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or, in the case of the Proxy
Statement or any amendment thereof or supplement thereto, at the time of the
Shareholders' Meeting, be false or misleading with respect to any Material
fact, or omit to state any Material fact necessary to correct any statement in
any earlier communication with respect to the solicitation of any proxy for the
Shareholders' Meeting. All documents that any Buyer Company or any Affiliate
thereof is responsible for filing with any Regulatory Authority in connection
with the transactions contemplated hereby will comply as to form in all
Material respects with the provisions of applicable Law.
6.6 AUTHORITY OF SUB. Sub is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Georgia as a wholly
owned Subsidiary of Buyer. The authorized capital stock of Sub shall consist of
1,000 shares of Sub Common Stock, all of which is validly issued and
outstanding, fully paid and nonassessable and is owned by Buyer free and clear
of any Lien. Sub has the corporate power and authority necessary to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated herein,
including the Merger, have been duly and validly authorized by all necessary
corporate action in respect thereof on the part of Sub. This Agreement
represents a legal, valid, and binding obligation of Sub, enforceable against
Sub in accordance with its terms (except in all cases as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar Laws affecting the enforcement of creditors' rights generally and except
that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought). Buyer, as the sole shareholder of Sub, has voted
prior to the Effective Time the shares of Sub Common Stock in favor of approval
of this Agreement, as and to the extent required by applicable Law.
6.7 REGULATORY MATTERS. No Buyer Company or any Affiliate thereof has
taken or agreed to take any action or has any Knowledge of any fact or
circumstance that is reasonably likely to Materially impede or delay receipt of
any Consents of Regulatory Authorities referred to in Section 9.1(b) or result
in the imposition of a condition or restriction of the type referred to in the
last sentence of such Section.
6.8 ARRANGEMENTS WITH LAMCOR PERSONNEL. Prior to the date of this
Agreement, Buyer has disclosed to the Special Committee of the Board of
Directors of Lamcor all Material arrangements or agreements proposed by any
Buyer Companies or any Affiliate thereof to any officer, director or employee of
Lamcor and pertaining to (i) the services or compensation of such Person after
the Effective Time or (ii) participation by any such officer, director or
employee of Lamcor in the equity ownership of any Buyer Company or any Affiliate
thereof at the Effective Time.
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6.9 FINANCING. Prior to the date of this Agreement, Buyer has
delivered to Lamcor a letter from CGW Southeast Partners III, L.P. ("CGW")
addressed to Buyer to the effect that as of the date of this Agreement, CGW is
highly confident that Buyer will have sufficient assets and financing to fund
the Merger Consideration payable under this Agreement. On or before the last to
occur of twenty one (21) days after the date of this Agreement or the mailing of
the Proxy Statement to the Shareholders of Lamcor, Buyer will deliver to Lamcor
evidence that Buyer has entered into (a) a written agreement with CGW providing
for the investment by CGW in the equity securities of Buyer in the amount of not
less than Eight Million Dollars ($8,000,000) on the terms and subject to the
conditions set forth in that agreement and (b) an agreement and plan of merger
with Polyflex Film and Converting, Inc., a Georgia corporation ("PFC") pursuant
to which PFC shall, contemporaneously with the consummation of the Merger, merge
with and into a wholly owned subsidiary of Buyer on the terms and subject to the
conditions set forth in that agreement and plan of merger. Buyer agrees to use
commercially reasonable best efforts to cause the transactions to be provided
for in such agreement with CGW and such agreement and plan of merger with PFC to
be consummated.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 AFFIRMATIVE COVENANTS OF LAMCOR. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
unless the prior written consent of Buyer shall have been obtained, and except
as otherwise expressly contemplated herein, Lamcor shall (a) operate its
business only in the usual, regular, and ordinary course, (b) preserve intact
its business organization and Assets and maintain its rights and franchises, and
(c) take no action which would (i) adversely affect the ability of any Party to
obtain any Consents required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to in the last
sentences of Section 9.1(b) or 9.1(c), or (ii) adversely affect the ability of
any Party to perform its covenants and agreements under this Agreement.
7.2 NEGATIVE COVENANTS OF LAMCOR. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
Lamcor covenants and agrees that it will not do or agree or commit to do, any of
the following without the prior written consent of the President or Treasurer of
Buyer, which consent shall not be unreasonably withheld:
(a) amend the Articles of Incorporation, Bylaws or other
governing instruments of Lamcor; or
(b) except for that certain construction loan and related
security interests (the "Construction Loan") in a principal amount not
to exceed $480,000.00, which Construction Loan bears interest at a
rate not to exceed the highest rate currently charged to Lamcor by
Valley National Bank of Le Sueur for Lamcor's other outstanding
indebtedness and contains no prepayment penalty or premium, incur any
additional debt obligation or other obligation for borrowed money
except in the ordinary course of the business, consistent with past
practices, or impose, or suffer the imposition, on any Asset of any
Lien or permit any such
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Lien to exist (other than in connection with Liens in effect as of the date
hereof that are disclosed in the Lamcor Disclosure Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange (other
than exchanges in the ordinary course under employee benefit plans),
directly or indirectly, any shares, or any securities convertible into any
shares, of the capital stock of Lamcor, or declare or pay any dividend or
make any other distribution in respect of Lamcor's capital stock; or
(d) except for this Agreement, or pursuant to the exercise of
stock options outstanding as of the date hereof and pursuant to the
terms thereof in existence on the date hereof, issue, sell, pledge,
encumber, authorize the issuance of, enter into any Contract to issue,
sell, pledge, encumber, or authorize the issuance of, or otherwise permit
to become outstanding, any additional shares of Lamcor Common Stock or any
other capital stock of Lamcor, or any stock appreciation rights, or any
option, warrant, or other Right; or
(e) adjust, split, combine or reclassify any capital stock of
Lamcor or issue or authorize the issuance of any other securities in
respect of or in substitution for shares of Lamcor Common Stock, or sell,
lease, mortgage or otherwise dispose of or otherwise encumber (x) any
shares of capital stock of any Lamcor Subsidiary (unless any such shares of
stock are sold or otherwise transferred to another Lamcor Company) or (y)
any Material Asset other than in the ordinary course of business for
reasonable and adequate consideration and other than in connection with the
Construction Loan; or
(f) except for purchases of U.S. Treasury securities or U.S.
Government agency securities, which in either case have maturities of
three years or less, purchase any securities or make any Material
investment, either by purchase of stock of securities, contributions to
capital, Asset transfers, or purchase of any Assets, in any Person, or
otherwise acquire direct or indirect control over any Person, other than in
connection with (i) foreclosures in the ordinary course of business, or
(iii) the creation of new wholly owned Subsidiaries organized to conduct or
continue activities otherwise permitted by this Agreement; or
(g) grant any increase in compensation or benefits to the
employees or officers of Lamcor, except in accordance with past
practice disclosed in Section 7.2(g) of the Lamcor Disclosure Memorandum or
as required by Law; pay any severance or termination pay or any bonus other
than pursuant to written policies or written Contracts in effect on the
date of this Agreement and disclosed in Section 7.2(g) of the Lamcor
Disclosure Memorandum; and enter into or amend any severance agreements
with officers of Lamcor; grant any Material increase in fees or other
increases in compensation or other benefits to directors of Lamcor except
in accordance with past practice disclosed in Section 7.2(g) of the Lamcor
Disclosure Memorandum; or
(h) enter into or amend any employment Contract between Lamcor
and any Person; or
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(i) adopt any new employee benefit plan of Lamcor or terminate
or withdraw from, or make any Material change in or to, any existing
employee benefit plans of Lamcor other than any such change that
is required by Law or that, in the opinion of counsel, is necessary or
advisable to maintain the tax qualified status of any such plan, or
make any distributions from such employee benefit plans, except as
required by Law, the terms of such plans or consistent with past
practice; or
(j) make any significant change in any Tax or accounting methods
or systems of internal accounting controls, except as may be
appropriate to conform to changes in Tax Laws or regulatory accounting
requirements or GAAP; or
(k) commence any Litigation other than in accordance with past
practice, settle any Litigation involving any Liability of Lamcor for
Material money damages or restrictions upon the operations of Lamcor; or
(l) enter into, modify, amend or terminate any Material Contract
or waive, release, compromise or assign any Material rights or claims;
or
(m) incur fees and expenses in connection with the negotiation
and preparation of this Agreement, in settlement of claims relating to,
based upon or arising out of the Rights Offering or in consideration
for the Releases or in attorneys fees and expenses and other costs in
obtaining such settlement or Releases, and in connection with the
consummation of the transactions provided for herein in excess of
$275,000.
7.3 COVENANTS OF BUYER. From the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, Buyer
covenants and agrees that it shall take no action which would (i) materially
adversely affect the ability of any Party to obtain any Consents required for
the transactions contemplated hereby without imposition of a condition or
restriction of the type referred to in the last sentences of Section 9.1(b) or
9.1(c), or (ii) materially adversely affect the ability of any Party to perform
its covenants and agreements under this Agreement; provided, that the foregoing
shall not prevent any Buyer Company from acquiring any Assets or other
businesses or from discontinuing or disposing of any of its Assets or business
if such action (i) is, in the judgment of Buyer, desirable in the conduct of the
business of Buyer and its Subsidiaries; and (ii) does not adversely affect the
Buyer's ability to fund the Merger Consideration and the Option Settlement
Payment pursuant to Sections 3.1(c), 3.5 and 9.1(e).
7.4 ADVERSE CHANGES IN CONDITION. Each Party agrees to give written
notice promptly to the other Party upon becoming aware of the occurrence or
impending occurrence of any event or circumstance relating to it or any of its
Subsidiaries which (i) is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on it or (ii) would cause or constitute a
Material breach of any of its representations, warranties, or covenants
contained herein, and to use its reasonable efforts to prevent or promptly to
remedy the same.
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7.5 REPORTS. Each Party and its Subsidiaries shall file all reports
required to be filed by it with Regulatory Authorities between the date of this
Agreement and the Effective Time and shall deliver to the other Party copies of
all such reports promptly after the same are filed. If financial statements are
contained in any such reports filed with the SEC, such financial statements will
fairly present the consolidated financial position of the entity filing such
statements as of the dates indicated and the consolidated results of operations,
changes in shareholders' equity, and cash flows for the periods then ended in
accordance with GAAP (subject in the case of interim financial statements to
normal recurring year-end adjustments that are not Material). As of their
respective dates, such reports filed with the SEC will comply in all Material
respects with the Securities Laws and will not 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 therein, in light of the circumstances
under which they were made, not misleading. Any financial statements contained
in any other reports to another Regulatory Authority shall be prepared in
accordance with Laws applicable to such reports.
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 PROXY STATEMENT; SHAREHOLDER APPROVAL. Lamcor shall call a
Shareholders' Meeting, to be held as soon as reasonably practicable after
execution of this Agreement, for the purpose of voting upon adoption of this
Agreement and such other related matters as it deems appropriate. In connection
with the Shareholders' Meeting, (i) Lamcor shall prepare and file with the SEC a
Proxy Statement and mail such Proxy Statement to its shareholders, (ii) the
Parties shall furnish to each other all information concerning them (including
information described in Section 6.8) that they may reasonably request in
connection with such Proxy Statement, and (iii) the Board of Directors of Lamcor
shall recommend to its shareholders the approval of the matters submitted for
approval. Buyer and Lamcor shall make all necessary filings with respect to the
Merger under the Securities Laws.
8.2 APPLICATIONS; ANTITRUST NOTIFICATION. Buyer shall prepare and
file, and Lamcor shall cooperate in the preparation and, where appropriate,
filing of, applications with all Regulatory Authorities having jurisdiction over
the transactions contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by this Agreement. To the
extent required by the HSR Act, each of the Parties will file with the United
States Federal Trade Commission and the United States Department of Justice the
notification and report form required for the transactions contemplated hereby
and any supplemental or additional information which may reasonably be requested
in connection therewith pursuant to the HSR Act and will comply in all Material
respects with the requirements of the HSR Act. The Parties shall deliver to
each other copies of all filings, correspondence and orders to and from all
Regulatory Authorities in connection with the transactions contemplated hereby.
8.3 FILINGS WITH STATE OFFICES. Upon the terms and subject to the
conditions of this Agreement, Lamcor shall execute and file the Articles of
Merger with the Secretary of State of the State of Minnesota and Sub shall
execute and file the Certificate of Merger with the Secretary of State of the
State of Georgia in connection with the Closing.
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8.4 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
reasonably practicable after the date of this Agreement, the transactions
contemplated by this Agreement, including using its reasonable efforts to lift
or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 9; provided, that nothing herein shall preclude either
Party from exercising its rights under this Agreement. Each Party shall use,
and shall cause each of its Subsidiaries to use, its reasonable efforts to
obtain all Consents necessary or desirable for the consummation of the
transactions contemplated by this Agreement.
8.5 INVESTIGATION AND CONFIDENTIALITY.
(a) Prior to the Effective Time, each Party shall keep the
other Party advised of all Material developments relevant to its business and to
consummation of the Merger and shall permit the other Party to make or cause to
be made such investigation of the business and properties of it and its
Subsidiaries and of their respective financial and legal conditions as the other
Party reasonably requests, provided that such investigation shall be reasonably
related to the transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. No investigation by a Party shall affect
the representations and warranties of the other Party.
(b) In addition to the Parties' respective obligations under
the Confidentiality Agreement, which is hereby reaffirmed and adopted and
incorporated by reference herein, each Party shall, and shall cause its advisers
and agents to, maintain the confidentiality of all confidential information
furnished to it by the other Party concerning its and its Subsidiaries'
businesses, operations, and financial positions and shall not use such
information for any purpose except in furtherance of the transactions
contemplated by this Agreement. If this Agreement is terminated prior to the
Effective Time, each Party shall promptly return or certify the destruction of
all documents and copies thereof, and all work papers containing confidential
information received from the other Party.
(c) Each Party agrees to give the other Party notice as soon
as practicable after any determination by it of any fact or occurrence relating
to the other Party which it has discovered through the course of its
investigation and which represents, or is reasonably likely to represent, either
a Material breach of any representation, warranty, covenant or agreement of the
other Party or which has had or is reasonably likely to have a Material Adverse
Effect on the other Party.
8.6 PRESS RELEASES. Prior to the Effective Time, Lamcor and Buyer
shall consult with each other as to the form and substance of any press release
or other public disclosure materially related to this Agreement or any other
transaction contemplated hereby; provided, that nothing in this Section 8.6
shall be deemed to prohibit any Party from making any disclosure
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which its counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
8.7 CERTAIN ACTIONS. Lamcor shall deal exclusively with Buyer with
respect to the sale of the Lamcor Common Stock or any assets or properties of
Lamcor (not made in the ordinary course of business), and Lamcor shall not (and
shall direct the officers, directors, financial advisors, accountants and
counsel of Lamcor not to): (i) solicit the submission of any Acquisition
Proposal; (ii) participate in any discussions or negotiations regarding, or
furnish any information to any person or entity other than the Buyer, or
otherwise cooperate in any way or assist, facilitate or encourage, any
Acquisition Proposal by any person or entity other than the Buyer; or (iii)
enter into any agreement or understanding, whether oral or written, that would
prevent the consummation of the transaction proposed herein; provided, however,
that the foregoing restrictions shall not apply to any Acquisition Proposal that
is received by Lamcor or its Representatives from a third party which the Board
of Directors of Lamcor determines is required in the exercise of its fiduciary
duties to consider, provided that Lamcor shall promptly notify Buyer thereof.
If and only if Lamcor shall accept and close within one year after the date of
this Agreement any such other Acquisition Proposal first received before the
termination of this Agreement, Lamcor shall pay to Buyer, in reimbursement of
the expenses incurred by the Buyer in connection with the transaction proposed
herein and as liquidated damages to compensate the Buyer for the loss of the
benefit to be derived by the Buyer from the acquisition of the Lamcor Common
Stock and the consummation of the Merger and the transactions contemplated by
this Agreement, the lesser of (i) actual documented out-of-pocket expenses of
the Buyer incurred after June 14, 1996 in connection with the transaction
proposed herein or (ii) $250,000 (the "Expenses"); provided, however, that no
amount shall be paid pursuant to this Section 8.7 if the Agreement was
terminated by Lamcor pursuant to Sections 10.1(b), 10.1(c) or 10.1(f) (but only
on the basis of the failure of Buyer to satisfy the conditions set forth in
Sections 9.3(a), 9.3(b) or 9.3(c)). Upon payment of the Expenses and the Fee to
the extent required under Section 11.2, this Agreement shall terminate with no
further liability of Lamcor or at law or equity resulting therefrom.
8.8 STATE TAKEOVER LAWS. Before the Effective Time, Lamcor shall take
all necessary action so that the provisions of the MBCA do not prevent the
consummation of the Merger or have a Material Adverse Effect on Sub or Buyer.
8.9 CHARTER PROVISIONS. Lamcor shall take all necessary action to
ensure that the entering into of this Agreement and the consummation of the
Merger and the other transactions contemplated hereby do not and will not result
in the grant of any rights to any Person under the Articles of Incorporation,
Bylaws or other governing instruments of Lamcor or restrict or impair the
ability of Buyer or any of its Subsidiaries to vote, or otherwise to exercise
the rights of a shareholder with respect to, shares of Lamcor that may be
directly or indirectly acquired or controlled by them.
8.10 EMPLOYEES. Following the Effective Time, Buyer intends to cause
Lamcor to retain substantially all of its current employees and shall provide
generally to officers and employees of Lamcor employee benefits under employee
benefit and welfare plans (other than
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stock option or other plans involving the potential issuance of Buyer Common
Stock), on terms and conditions which when taken as a whole are substantially
similar to those currently provided by Buyer to its similarly situated officers
and employees. For purposes of participation, vesting and (except in the case
of Buyer retirement plans) benefit accrual under Buyer's employee benefit
plans, the service of the employees of Lamcor prior to the Effective Time shall
be treated as service with a Buyer Company participating in such employee
benefit plans. Except as otherwise contemplated herein, Buyer also shall cause
the Surviving Corporation and its Subsidiaries to honor in accordance with
their terms all employment, severance, consulting and other compensation
Contracts disclosed in Section 8.10 of the Lamcor Disclosure Memorandum to
Buyer between Lamcor and any current or former director, officer, or employee
thereof, and all provisions for vested benefits or other vested amounts earned
or accrued through the Effective Time under the Lamcor Benefit Plans.
8.11 INDEMNIFICATION.
(a) For a period of six years after the Effective Time, Buyer
shall, and shall cause the Surviving Corporation to, indemnify, defend and hold
harmless the present and former directors and officers of Lamcor (each, an
"Indemnified Party") against all Liabilities arising out of actions or omissions
arising out of the Indemnified Party's service or services as directors or
officers of Lamcor or, at Lamcor's request, of another corporation, partnership,
joint venture, trust or other enterprise occurring at or prior to the Effective
Time if (i) such Indemnified Party is determined to have met the relevant
standard of care and criteria set forth in subdivision 2 of Section 302A.521 of
the MBCA (or any successor statutory provisions) and otherwise to the extent and
as provided under Section 302A.521 of the MBCA (or any successor statutory
provisions) and (ii) such Indemnified Party notifies Buyer of each claim for
indemnification in accordance with Section 8.11(b) within the six-year period
following the Effective Time. Without limiting the foregoing, in any case in
which any determination of eligibility for such indemnification or for the
payment or reimbursement of expenses under such Section is required to be made
by the Surviving Corporation, the Surviving Corporation shall direct, at the
election of the Indemnified Party, that any such determination of eligibility
shall be made by independent counsel mutually agreed upon between Buyer and the
Indemnified Party. For a period of six (6) years after the Effective Time,
Buyer and the Surviving Corporation will not take any action, or permit any
action to be taken, which would change or amend the provisions of the Articles
of Incorporation or Bylaws of the Surviving Corporation in effect at the
Effective Time relating to indemnification provided under Section 302A.521 of
the MBCA (or any successor statutory provisions) or limitation of liability, in
any manner that would adversely affect the rights of any Indemnified Party under
Section 8.11. In the event the Surviving Corporation or any of its successors
or assigns (i) reorganizes or consolidates with or merges into or enters into
another business combination with any other Person and is not the resulting,
continuing or surviving corporation or entity of such consolidation, merger or
transaction or (ii) liquidates, dissolves or transfers all or substantially all
of its properties and assets to any Person, then, and in each such case, proper
provision will be made so that the successor and assigns of the Surviving
Corporation assume the obligations set forth in Section 8.11. Each Indemnified
Party shall be a third party beneficiary of Section 8.11 and shall be entitled
to enforce the provisions of Section 8.11.
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(b) Any Indemnified Party wishing to claim indemnification
under paragraph (a) of this Section 8.11, upon learning of any such Liability or
Litigation, shall promptly notify Buyer thereof. In the event of any such
Litigation (whether arising before or after the Effective Time), (i) Buyer or
the Surviving Corporation shall have the obligation and right to assume the
defense thereof and neither Buyer nor the Surviving Corporation shall be liable
to such Indemnified Parties for any legal expenses of other counsel or any other
expenses subsequently incurred by such Indemnified Parties in connection with
the defense thereof, except that if counsel for the Indemnified Parties advises
that there are substantive issues which raise conflicts of interest between
Buyer or the Surviving Corporation and the Indemnified Parties, the Indemnified
Parties may retain counsel satisfactory to them, and Buyer or the Surviving
Corporation shall pay all reasonable fees and expenses of such counsel for the
Indemnified Parties promptly as statements therefor are received; provided, that
Buyer and the Surviving Corporation shall be obligated pursuant to this
paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in
any jurisdiction, (ii) the Indemnified Parties will cooperate in the defense of
any such Litigation, and (iii) neither Buyer nor the Surviving Corporation shall
be liable for any settlement effected without its prior written consent; and
provided further that neither Buyer nor the Surviving Corporation shall have any
obligation hereunder to any Indemnified Party when and if a court of competent
jurisdiction shall determine, and such determination shall have become final,
that the indemnification of such Indemnified Party in the manner contemplated
hereby is prohibited by applicable Law. The provisions of this Section 8.11 do
not and shall not modify the indemnification obligations of Lamcor provided
under Section 302A.521 of the MBCA (or any successor statutory provisions).
8.12 CERTAIN POLICIES OF LAMCOR. Buyer and Lamcor also shall consult
with respect to the character, amount and timing of restructuring and
Merger-related expense charges to be taken by each of the Parties in connection
with the transactions contemplated by this Agreement and shall take such charges
in accordance with GAAP, prior to the Effective Time, as may be mutually agreed
upon by the Parties. Neither Party's representations, warranties, covenants or
agreements contained in this Agreement shall be deemed to be inaccurate or
breached in any respect as a consequence of any modifications or charges
undertaken solely on account of this Section 8.12.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each Party to perform this Agreement and consummate the Merger
and the other transactions contemplated hereby are subject to the satisfaction
of the following conditions, unless waived by both Parties pursuant to Section
11.6:
(A) SHAREHOLDER APPROVAL. The shareholders of Lamcor, by the
requisite approval required by Law and Lamcor's governing corporate
documents, shall have adopted this Agreement, and the consummation of
the transactions contemplated hereby, including
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the Merger, as and to the extent required by Law, by the provisions of
any governing instruments, or by the rules of the NASD.
(B) REGULATORY APPROVALS. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities
required for consummation of the Merger shall have been obtained
or made and shall be in full force and effect and all waiting periods
required by Law shall have expired. No Consent obtained from any
Regulatory Authority which is necessary to consummate the transactions
contemplated hereby shall be conditioned or restricted in a manner
(including requirements relating to the raising of additional capital
or the disposition of Assets) which in the reasonable judgment of the
Board of Directors of Buyer would so materially adversely impact the
economic or business assumptions of the transactions contemplated by
this Agreement that, had such condition or requirement been known, such
Party would not, in its reasonable judgment, have entered into this
Agreement.
(C) CONSENTS AND APPROVALS. Each Party shall have obtained any
and all Consents required for consummation of the Merger (other than
those referred to in Section 9.1(b)) or for the preventing of any
Default under any Contract or Permit of such Party which, if not
obtained or made, is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on such Party. No Consent so
obtained which is necessary to consummate the transactions contemplated
hereby shall be conditioned or restricted in a manner which in the
reasonable judgment of the Board of Directors of Buyer would so
materially adversely impact the economic or business assumptions of the
transactions contemplated by this Agreement that, had such condition or
requirement been known, such Party would not, in its reasonable
judgment, have entered into this Agreement.
(D) LEGAL PROCEEDINGS. No court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any Law or Order (whether
temporary, preliminary or permanent) or taken any other action which
prohibits, restricts or makes illegal consummation of the transactions
contemplated by this Agreement.
(E) ESCROW AGREEMENT. Lamcor, Buyer, the Shareholders'
Representative and the Escrow Agent shall have entered into an Escrow
Agreement in substantially the form of Exhibit 5.
9.2 CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of Buyer to
perform this Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following conditions,
unless waived by Buyer pursuant to Section 11.6(a):
(A) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Lamcor set forth in this Agreement shall be true and
correct on the date of this Agreement and as of the Effective Time
with the same effect as though all such representations and warranties
had been made on and as of the Effective Time (provided that
representations and warranties which are confined to a specified date
shall speak only as of such date).
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(B) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the Material agreements and covenants of Lamcor to be performed and
complied with pursuant to this Agreement prior to the Effective Time
shall have been duly performed and complied with.
(C) CERTIFICATES. Lamcor shall have delivered to Buyer (i) a
certificate, dated as of the Effective Time and signed on its behalf by
its chief executive officer and its chief financial officer, to the
effect that the conditions set forth in Section 9.1 as relates to Lamcor
and in Section 9.2(a) and 9.2(b) have been satisfied, and (ii) certified
copies of resolutions duly adopted by Lamcor's Board of Directors and
shareholders evidencing the taking of all corporate action necessary to
authorize the execution, delivery and performance of this Agreement, and
the consummation of the transactions contemplated hereby.
(D) OPINION OF COUNSEL. Buyer shall have received an opinion
of Gray, Plant, Mooty, Mooty & Bennett, P.A., counsel to Lamcor, dated
as of the Closing, substantially in the form set forth in Exhibit 2.
(E) CLAIMS LETTERS. Each of the directors and officers of
Lamcor shall have executed and delivered to Buyer letters in
substantially the form of Exhibit 3, and all indebtedness of any such
director or officer outstanding as of the Effective Time shall have been
paid in full to Lamcor.
(F) EMPLOYMENT AGREEMENT. Toby Jensen shall have executed,
subject to delivery to Buyer at the Closing, an Employment Agreement in
substantially the form of Exhibit 6 hereto.
(G) DISSENTING SHAREHOLDERS. Not more than five percent (5%)
of the Lamcor Common Stock issued and outstanding immediately prior to
the Effective Time shall constitute Dissenting Shares.
(H) SETTLEMENT OF CLAIMS, RELEASES. Lamcor shall have
delivered to Buyer written releases (a "Release") in form and content
acceptable to Buyer and its counsel from the shareholders of Lamcor
identified below pursuant to which each such shareholder executing any
such Release, for good and sufficient consideration (which, to the
extent such consideration is the payment of money, shall be paid by
Lamcor), agrees to release Lamcor and Buyer and Sub and all officers,
directors, agents, attorneys and employees of Lamcor and/or Buyer and
Sub of, from and in respect of all claims, demands, actions, causes of
action, damages or other liabilities (including both those known or
unknown, accrued or yet to accrue and/or those arising out of federal or
state statutory or common law) in any way relating to, based upon or
arising out of the commencement, conduct or termination by Lamcor of the
Rights Offering. A Release shall be obtained from (i) each shareholder
of Lamcor that has heretofore asserted against Lamcor, either directly
or through an attorney, any claim in any way relating to, based upon or
arising out of the commencement, conduct or termination of the Rights
Offering, (ii) not less than ninety-five percent (95%) of the
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shareholders of Lamcor who timely subscribed to shares of Lamcor Common
Stock in the Rights Offering, other than those of such shareholders
who are included within clause (i) of this sentence, and (iii) the
holders of not less than 800,000 shares of the Lamcor Common Stock
issued and outstanding on the date hereof, other than holders of Lamcor
Common Stock who are included within clauses (i) and (ii) of this
sentence.
(I) OPTION CANCELLATION AGREEMENT. Each of the holders of
Lamcor Options shall have executed, subject to delivery to Buyer at the
Closing, an Option Cancellation Agreement in substantially the form of
Exhibit 8 hereto (collectively, the "Option Cancellation Agreements").
9.3 CONDITIONS TO OBLIGATIONS OF LAMCOR. The obligations of Lamcor to
perform this Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following conditions,
unless waived by Lamcor pursuant to Section 11.6(b):
(A) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer set forth in this Agreement shall be true and
correct on the date of this Agreement and as of the Effective Time with
the same effect as though all such representations and warranties had
been made on and as of the Effective Time (provided that representations
and warranties which are confined to a specified date shall speak only
as of such date).
(B) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the Material agreements and covenants of Buyer to be performed and
complied with pursuant to this Agreement prior to the Effective Time
shall have been duly performed and complied with.
(C) CERTIFICATES. Buyer shall have delivered to Lamcor (i) a
certificate, dated as of the Effective Time and signed on its behalf by
its chief executive officer and its chief financial officer, to the
effect that the conditions set forth in Section 9.1 as relates to Buyer
and in Section 9.3(a) and 9.3(b) have been satisfied, and (ii) certified
copies of resolutions duly adopted by Buyer's Board of Directors and
Sub's Board of Directors and sole shareholder evidencing the taking of
all corporate action necessary to authorize the execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby.
(D) OPINION OF COUNSEL. Lamcor shall have received an opinion
of Alston & Bird, counsel to Buyer, dated as of the Effective Time,
substantially in the form set forth in Exhibit 4.
(E) FAIRNESS OPINION. Lamcor shall have received from R.J.
Steichen & Co. Corp. a letter, dated not more than five business days
prior to the date of the Proxy Statement, to the effect that, in the
opinion of such firm, the consideration to be received by Lamcor
shareholders in connection with the Merger is fair, from a financial
point of view, to such Shareholders.
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(F) EXCHANGE AGENT CERTIFICATION. The Exchange Agent shall
have delivered to Lamcor a certificate, dated as of the Effective Time,
to the effect that the Buyer has deposited with the Exchange Agent the
Exchange Fund required pursuant to Section 4.1.
ARTICLE 10
TERMINATION
10.1 TERMINATION. Notwithstanding any other provision of this
Agreement, and notwithstanding the approval of this Agreement by the
shareholders of Lamcor, this Agreement may be terminated and the Merger
abandoned at any time prior to the Effective Time only as follows:
(a) By mutual written consent of the Board of Directors of
Buyer and the Board of Directors of Lamcor; or
(b) By the Board of Directors of either Party (provided that
the terminating Party is not then in Material breach of any
representation, warranty, covenant, or other agreement contained in this
Agreement) in the event of a Material breach by the other Party of any
representation, warranty, covenant or agreement (other than any breach
arising out of or based upon the failure of Buyer timely to deliver to
Lamcor the items described in the second sentence of Section 6.9 of this
Agreement or the failure of Buyer to obtain the financing at Closing
sufficient to fund the Merger Consideration payable under this
Agreement) contained in this Agreement which cannot be or has not been
cured within 30 days after the giving of written notice to the breaching
Party of such breach; or
(c) By the Board of Directors of either Party (provided that
the terminating Party is not then in Material breach of any
representation, warranty, covenant, or other agreement contained in this
Agreement) in the event (i) any Consent of any Regulatory Authority
required for consummation of the Merger and the other transactions
contemplated hereby shall have been denied by final nonappealable action
of such authority or if any action taken by such authority is not
appealed within the time limit for appeal, or (ii) the shareholders of
Lamcor fail to vote their approval of the matters relating to this
Agreement and the transactions contemplated hereby at the Shareholders'
Meeting where such matters were presented to such shareholders for
approval and voted upon; or
(d) By the Board of Directors of either Party in the event
that the Merger shall not have been consummated by January 15, 1997, if
the failure to consummate the transactions contemplated hereby on or
before such date is not caused by any breach of this Agreement by the
Party electing to terminate pursuant to this Section 10.1(d); or
(e) By the Board of Directors of either Party (provided that
the terminating Party is not then in Material breach of any
representation, warranty, covenant, or other agreement contained in this
Agreement) in the event that any of the conditions precedent to
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the obligations of such Party to consummate the Merger cannot be
satisfied or fulfilled by the date specified in Section 10.1(d); or
(f) By the Board of Directors of Lamcor if Buyer shall fail
timely to deliver to Lamcor the items described in the second sentence
of Section 6.9 of this Agreement or if Buyer shall fail to obtain the
financing at Closing sufficient to fund the Merger Consideration payable
under this Agreement.
10.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 10.1, this Agreement shall
become void and have no effect, except that (i) the provisions of this Section
10.2 and Sections 11.2, 11.16, 11.18 and 8.5(b) shall survive any such
termination and abandonment, and (ii) a termination pursuant to Section 10.1(b)
shall not relieve the breaching Party from Liability for an uncured willful
breach of a representation, warranty, covenant, or agreement giving rise to such
termination. In the event this Agreement shall be terminated pursuant to
Section 10.1(f), Buyer shall pay and reimburse Lamcor for amounts actually paid
by Lamcor to third parties for legal and accounting fees and related costs in
connection with the negotiation, preparation and execution of this Agreement and
the preparation for the consummation of the transactions contemplated hereby
provided, however, that the maximum aggregate liability of Buyer for such
payment and reimbursement shall be $100,000.
10.3 GUARANTY BY PFC. Contemporaneously with the execution and
delivery by Buyer and Sub of this Agreement, Buyer has delivered to Lamcor the
written agreement of PFC guaranteeing the obligations of Buyer under the last
sentence of Section 10.2 above.
ARTICLE 11
MISCELLANEOUS
11.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized terms
set forth below shall have the following meanings:
"ACQUISITION PROPOSAL" shall mean proposals or offers from any
Person or entity other than Buyer or any of Buyer's Affiliates relating
to (i) any acquisition, issuance or purchase (whether through a merger,
consolidation, share exchange, purchase of assets or similar
transaction, and whether effected in a single transaction or series of
related transactions) of an amount of the Lamcor capital stock which
results in a Change of Control, or (ii) the purchase of all or
substantially all of the assets and properties of Lamcor, or (iii) a
transaction of the type described in the preceding clauses (i) or (ii)
but relating to any corporation or other form of entity formed by Lamcor
or any Affiliate of Lamcor to which at least 51% of the outstanding
Lamcor Common Stock or substantially all of the assets or properties of
Lamcor may be contributed.
"AFFILIATE" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control
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with such Person; (ii) any officer, director, partner, employer, or
direct or indirect beneficial owner of any 10% or greater equity or
voting interest of such Person (on a fully diluted basis); or (iii) any
other Person for which a Person described in clause (ii) acts in any
such capacity.
"AGREEMENT" shall mean this Agreement and Plan of Merger,
including the Exhibits hereto.
"ASSETS" of a Person shall mean all of the assets, properties,
businesses and rights of such Person of every kind, nature,
character and description, whether real, personal or mixed, tangible or
intangible, accrued or contingent, or otherwise relating to or utilized
in such Person's business, directly or indirectly, in whole or in part,
whether or not carried on the books and records of such Person, and
whether or not owned in the name of such Person or any Affiliate of such
Person and wherever located.
"ARTICLES OF MERGER" shall mean the Articles of Merger to be
executed by Lamcor and filed with the Secretary of State of the State
of Minnesota relating to the Merger as contemplated by Section 1.1.
"BUYER CAPITAL STOCK" shall mean the capital stock of Buyer.
"BUYER COMPANIES" shall mean, collectively, Buyer and all Buyer
Subsidiaries.
"BUYER SUBSIDIARIES" shall mean the Subsidiaries of Buyer,
which shall include any corporation or other organization acquired as a
Subsidiary of Buyer in the future and held as a Subsidiary by Buyer at
the Effective Time.
"CERTIFICATE OF MERGER" shall mean the Certificate of Merger
to be executed by Lamcor and filed with the Secretary of State of the
State of Georgia relating to the Merger as contemplated by Section 1.1.
"CHANGE OF CONTROL" shall have occurred if any "person" or
"group of persons" (as determined pursuant to Sections 13(d) and 14(d)
of the 1934 Act) (i) becomes the beneficial owner, directly or
indirectly, of voting securities of Lamcor, or securities convertible
into or exchangeable for such voting securities, representing more than
50% of the combined voting power of Lamcor's then outstanding securities
or (ii) acquires the right or power to nominate and/or control, directly
or indirectly, a majority of the members of Lamcor's Board of Directors
(or the Board of Directors of the resulting or surviving entity with
which Lamcor is merged or consolidated).
"CLOSING DATE" shall mean the date on which the Closing occurs.
"CONFIDENTIALITY AGREEMENT" shall mean that certain
Nondisclosure, Nonsolicitation and Standstill Agreement, dated June 10,
1996, between Lamcor and Buyer.
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<PAGE> 45
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture, instrument,
lease, obligation, plan, practice, restriction, understanding, or
undertaking of any kind or character, or other document to which any
Person is a party or that is binding on any Person or its capital stock,
Assets or business.
"DEFAULT" shall mean (i) any breach or violation of or
default under any Contract, Law, Order, or Permit, (ii) any occurrence
of any event that with the passage of time or the giving of notice or
both would constitute a breach or violation of or default under any
Contract, Law, Order, or Permit, or (iii) any occurrence of any event
that with or without the passage of time or the giving of notice would
give rise to a right to terminate or revoke, change the current terms
of, or renegotiate, or to accelerate, increase, or impose any Liability
under, any Contract, Law, Order, or Permit.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to
pollution or protection of human health or the environment (including
ambient air, surface water, ground water, land surface, or subsurface
strata) and which are administered, interpreted, or enforced by the
United States Environmental Protection Agency and state and local
agencies with jurisdiction over, and including common law in respect of,
pollution or protection of the environment, including the Comprehensive
Environmental Response Compensation and Liability Act, as amended, 42
U.S.C. 9601 et seq. ("CERCLA"), the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6901 et seq. ("RCRA"), and other Laws
relating to emissions, discharges, releases, or threatened releases of
any Hazardous Material, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"ESCROW AGREEMENT" shall mean the Escrow Agreement dated as
of the Closing Date by and among Buyer, Lamcor and the Shareholders'
Representative.
"EXHIBITS" 1 through 8, inclusive, shall mean the Exhibits
so marked, copies of which are attached to this Agreement. Such
Exhibits are hereby incorporated by reference herein and made a part
hereof, and may be referred to in this Agreement and any other related
instrument or document without being attached hereto.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"GBCC" shall mean the Georgia Business Corporation Code.
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<PAGE> 46
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable Environmental
Laws) and (ii) any chemicals, pollutants, contaminants, petroleum,
petroleum products, or oil (and specifically shall include asbestos
requiring abatement, removal, or encapsulation pursuant to the
requirements of governmental authorities and any polychlorinated
biphenyls).
"HSR ACT" shall mean Section 7A of the Clayton Act, as added by
Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
"INTELLECTUAL PROPERTY" shall mean copyrights, patents,
trademarks, service marks, service names, trade names, applications
therefor, technology rights and licenses, computer software (including
any source or object codes therefor or documentation relating thereto),
trade secrets, franchises, know-how, inventions, and other intellectual
property rights.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of
1986, as amended, and the rules and regulations promulgated thereunder.
"KNOWLEDGE" as used with respect to (i) Buyer, shall mean the
actual knowledge of William C. Beddingfield or Allen D. Barnes and
(ii) with respect to Lamcor, shall mean the actual knowledge of Toby
Jensen, Leo Lund, Mark Steele, and Dave Shonka.
"LAMCOR COMMON STOCK" shall mean the no par value capital stock
of Lamcor.
"LAMCOR DISCLOSURE MEMORANDUM" shall mean the written information
entitled "Lamcor, Incorporated Disclosure Memorandum" delivered prior
to the date of this Agreement to Buyer describing in reasonable detail
the matters contained therein and, with respect to each disclosure made
therein, specifically referencing each Section of this Agreement under
which such disclosure is being made. Information disclosed with
respect to one Section shall be deemed to be disclosed for purposes of
any other Section not specifically referenced with respect thereto.
"LAMCOR FINANCIAL STATEMENTS" shall mean (i) the consolidated
balance sheets (including related notes and schedules, if any) of
Lamcor as of June 30, 1996, and as of September 30, 1995 and 1994, and
the related statements of income, changes in shareholders' equity, and
cash flows (including related notes and schedules, if any) for the nine
months ended June 30, 1996, and for each of the three fiscal years
ended September 30, 1995, 1994 and 1993, as filed by Lamcor in SEC
Documents, and (ii) the consolidated balance sheets of Lamcor
(including related notes and schedules, if any) and related statements
of income, changes in shareholders' equity, and cash flows (including
related
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<PAGE> 47
notes and schedules, if any) provided to Buyer or included in SEC
Documents filed with respect to periods ended subsequent to June 30,
1996.
"LAW" shall mean any code, law (including common law), ordinance,
regulation, reporting or licensing requirement, rule, or statute
applicable to a Person or its Assets, Liabilities, or business,
including those promulgated, interpreted or enforced by any Regulatory
Authority.
"LIABILITY" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or expense
(including costs of investigation, collection and defense), claim,
deficiency, guaranty or endorsement of or by any Person (other than
endorsements of notes, bills, checks, and drafts presented for
collection or deposit in the ordinary course of business) of any type,
whether accrued, absolute or contingent, liquidated or unliquidated,
matured or unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement,
lien, mortgage, pledge, reservation, restriction, security interest,
title retention or other security arrangement, or any adverse right or
interest, charge, or claim of any nature whatsoever of, on, or with
respect to any property or property interest, other than (i) Liens for
current property Taxes not yet due and payable, and (iii) Liens which do
not materially impair the use of or title to the Assets subject to such
Lien.
"LITIGATION" shall mean any action, arbitration, cause of action,
claim, complaint, criminal prosecution, governmental or other
examination or investigation, hearing, administrative or other
proceeding relating to or affecting a Party, its business, its Assets
(including Contracts related to it), or the transactions contemplated
by this Agreement.
"LOSS" shall mean any and all direct or indirect demands, claims,
payments, obligations, recoveries, deficiencies, fines, penalties,
interest, assessments, actions, causes of action, suits, losses,
diminution in the value of Assets, punitive, exemplary or consequential
damages (including, but not limited to, lost income and profits and
interruptions of business), liabilities, costs, expenses, and interest
on any amount payable to a third party as a result of the foregoing.
This definition shall include all Losses, whether accrued, absolute,
contingent, known, unknown or otherwise.
"MATERIAL" for purposes of this Agreement shall be determined in
light of the facts and circumstances of the matter in question;
provided that any specific monetary amount stated in this Agreement
shall determine materiality in that instance.
"MATERIAL ADVERSE EFFECT" on a Party shall mean an event, change
or occurrence which, individually or together with any other event,
change or occurrence, has a Material adverse impact on (i) the
financial position, business, or results of operations of such Party
and its Subsidiaries, taken as a whole, or (ii) the ability of such
Party to perform
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<PAGE> 48
its obligations under this Agreement or to consummate the Merger or the
other transactions contemplated by this Agreement.
"MBCA" shall mean the Minnesota Business Corporation Act.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"NASDAQ NATIONAL MARKET" shall mean the National Market System of
the National Association of Securities Dealers Automated Quotations
System.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"ORDER" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi- judicial decision or award, ruling,
or writ of any federal, state, local or foreign or other court,
arbitrator, mediator, tribunal, administrative agency, or Regulatory
Authority.
"PARTY" shall mean either Lamcor, Sub or Buyer, and "PARTIES"
shall mean Lamcor, Sub and Buyer.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person or its securities, Assets, or business.
"PERSON" shall mean a natural person or any legal, commercial or
governmental entity, such as, but not limited to, a corporation,
general partnership, joint venture, limited partnership, limited liability
company, trust, business association, group acting in concert, or any
person acting in a representative capacity.
"PROXY STATEMENT" shall mean the proxy statement used by Lamcor
to solicit the approval of its shareholders of the transactions
contemplated by this Agreement.
"REGULATORY AUTHORITIES" shall mean, collectively, the SEC, the
NASD, the United States Department of Justice, and all other federal,
state, county, local or other governmental or regulatory agencies,
authorities (including self-regulatory authorities), instrumentalities,
commissions, boards or bodies having jurisdiction over the Parties and
their respective Subsidiaries.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other representative of a
Person.
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<PAGE> 49
"RIGHTS" shall mean all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip, understandings,
warrants, or other binding obligations of any character whatsoever
relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of a Person or by which a Person is or
may be bound to issue additional shares of its capital stock or other
Rights.
"SEC DOCUMENTS" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents filed,
or required to be filed, by a Party or any of its Subsidiaries with any
Regulatory Authority pursuant to the Securities Laws.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act
of 1940, as amended, the Trust Indenture Act of 1939, as amended,
applicable state securities Laws, and the rules and regulations of any
Regulatory Authority promulgated thereunder.
"SHAREHOLDER" and "SHAREHOLDERS" shall mean the holders of Lamcor
Common Stock.
"SHAREHOLDERS' MEETING" shall mean the meeting of the
shareholders of Lamcor to be held pursuant to Section 8.1, including any
adjournment or adjournments thereof.
"SHAREHOLDERS' REPRESENTATIVE" shall mean David P. Stewart in his
capacity as the Shareholders' Representative pursuant to Section 11.16
of this Agreement.
"SUB COMMON STOCK" means the no par value common stock of Sub.
"SUBSIDIARIES" shall mean all those corporations, associations,
or other business entities of which the entity in question either (i)
owns or controls 50% or more of the outstanding equity securities
either directly or through an unbroken chain of entities as to each of
which 50% or more of the outstanding equity securities is owned
directly or indirectly by its parent (provided, there shall not be
included any such entity the equity securities of which are owned or
controlled in a fiduciary capacity), or (ii) in the case of
partnerships, serves as a general partner.
"SURVIVING CORPORATION" shall mean Lamcor as the surviving
corporation resulting from the Merger.
"TAX" or "TAXES" shall mean any federal, state, county, local, or
foreign taxes, charges, fees, levies, imposts, duties, or other
assessments, including income, gross receipts, excise, employment, sales,
use, transfer, license, payroll, franchise, severance, stamp, occupation,
windfall profits, environmental, federal highway use, commercial rent,
customs duties, capital stock, paid-up capital, profits, withholding,
Social Security, single business and unemployment, disability, real
property, personal property, registration, ad valorem, value added,
alternative or add-on minimum, estimated, or other tax or governmental fee
of
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<PAGE> 50
any kind whatsoever, imposes or required to be withheld by the United
States or any state, county, local or foreign government or subdivision
or agency thereof, including any interest, penalties, and additions
imposed thereon or with respect thereto.
"TAX RETURN" shall mean any report, return, information return,
or other information required to be supplied to a taxing authority in
connection with Taxes, including any return of an affiliated or
combined or unitary group that includes a Party or its Subsidiaries.
(b) The terms set forth below shall have the meanings ascribed
thereto in the referenced sections:
<TABLE>
<S> <C>
Business Combination Section 11.2(b)
Buyer Preamble
Cash Payment Section 3.1(c)
Certificates Section 4.1(b)
CGW Section 6.9
Closing Section 1.2
Construction Loan Section 7.2(b)
Dissenting Shares Section 3.4(a)
Effective Time Section 1.3
Escrow Claim Section 11.15
Escrowed Funds Section 11.15
Exchange Agent Section 4.1(a)
Exchange Fund Section 4.1(a)
Expenses Section 8.7
Fee Section 11.2(b)
Indemnified Party Section 8.11(a)
Lamcor Preamble
Lamcor Benefit Plans Section 5.13(a)
Lamcor Contracts Section 5.14
Lamcor Convertible Securities Section 3.5
Lamcor Options Section 3.5
Lamcor Expenses Section 11.15
Lamcor SEC Reports Section 5.5(a)
Merger Section 1.1
Merger Consideration Section 3.1(c)
Option Cancellation Agreements Section 9.2(i)
Option Settlement Payment Section 3.5
PFC Section 6.9
Release Section 9.2(h)
Representative's Expenses Section 11.16(e)
Rights Offering Section 5.6
Shareholders' Representative Section 11.16(a)
Shares Section 3.4(a)
</TABLE>
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<PAGE> 51
<TABLE>
<S> <C>
Steichen Section 11.3
Sub Preamble
</TABLE>
(c) Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed followed by the words "without limitation."
11.2 EXPENSES AND FEE.
(a) Except as otherwise provided in this Section 11.2 or in
Section 8.7, each of the Parties shall bear and pay all direct costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including filing, registration and application fees,
printing fees, and fees and expenses of its own financial or other consultants,
investment bankers, accountants, and counsel.
(b) In addition to the foregoing, if, after the date of this
Agreement and within twelve (12) months following:
(i) any termination of this Agreement by Buyer pursuant
to Sections 10.1(b) or 10.1(f) (but only on the basis of the failure of
Lamcor to satisfy any of the conditions enumerated in Section 9.2,
other than Section 9.2(d)); or
(ii) failure to consummate the Merger by reason of any
failure of Lamcor to satisfy the conditions enumerated in Section 9.2,
other than Section 9.2(d);
any third-party, in a single transaction or series of related transactions and
whether through a merger, consolidation, share exchange, purchase or similar
transaction, shall purchase all or substantially all of the Assets of Lamcor or
any corporation or business entity owned by Lamcor or its Affiliates and to
which such Assets are contributed or acquire or purchase an amount of the
capital stock of Lamcor or such other corporation or business entity that
results in a Change of Control (collectively, a "Business Combination"), then
Lamcor shall pay to Buyer upon consummation and closing of the Business
Combination an amount in cash equal to the sum of:
(x) the Expenses determined under Section 8.7 above (if
not previously paid by Lamcor), plus
(y) a fee ("Fee") equal to 2% of the aggregate fair
market value of the consideration received by the Shareholders of Lamcor
in such Business Combination;
which sum represents additional compensation for Buyer's loss as the result of
the transactions contemplated by this Agreement not being consummated;
provided, however, that no Expenses or Fee shall be paid to Buyer if the
Agreement was terminated by Lamcor pursuant to Sections 10.1(b) or 10.1(f) (but
only on the basis of the failure of Buyer to satisfy any of the conditions set
forth in Sections 9.3(a), 9.3(b) or 9.3(c)). Upon payment of the Expenses and
the Fee, this Agreement shall terminate with no further liability of Lamcor or
such third party at law or equity
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<PAGE> 52
resulting therefrom. In the event such third-party shall refuse to pay such
amounts within ten days of demand therefor by Buyer, the amounts shall be an
obligation of Lamcor and shall be paid by Lamcor promptly upon notice to Lamcor
by Buyer.
11.3 BROKERS AND FINDERS. Except for R.J. Steichen & Co. Corp.
("Steichen") as to Lamcor, each of the Parties represents and warrants that
neither it nor any of its officers, directors, employees, or Affiliates has
employed any broker or finder or incurred any Liability for any financial
advisory fees, investment bankers' fees, brokerage fees, commissions, or
finders' fees in connection with this Agreement or the transactions contemplated
hereby. In the event of a claim by any broker or finder based upon his or its
representing or being retained by or allegedly representing or being retained by
Lamcor or Buyer, each of Lamcor and Buyer, as the case may be, agrees to
indemnify and hold the other harmless of and from any Liability in respect of
any such claim; provided, however, the Surviving Corporation will pay upon the
Effective Time the balance of any fees payable to Steichen so long as Lamcor has
not breached the covenant set forth in Section 7.2(m).
11.4 ENTIRE AGREEMENT. Except as otherwise expressly provided herein,
this Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral (except, as to Section
8.5(b), for the Confidentiality Agreement). Nothing in this Agreement expressed
or implied, is intended to confer upon any Person, other than the Parties or
their respective successors, any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, other than as provided in Sections 8.11.
11.5 AMENDMENTS. To the extent permitted by Law, this Agreement may be
amended by a subsequent writing signed by each of the Parties upon the approval
of the Boards of Directors of each of the Parties, whether before or after
shareholder approval of this Agreement has been obtained; provided, that after
any such approval by the holders of Lamcor Common Stock, there shall be made no
amendment that pursuant to Section 302A.613 of the MBCA requires further
approval by such Shareholders without the further approval of such Shareholders.
11.6 WAIVERS.
(a) Prior to or at the Effective Time, Buyer, acting through
its Board of Directors, chief executive officer or other authorized officer,
shall have the right to waive any Default in the performance of any term of this
Agreement by Lamcor, to waive or extend the time for the compliance or
fulfillment by Lamcor of any and all of its obligations under this Agreement,
and to waive any or all of the conditions precedent to the obligations of Buyer
under this Agreement, except any condition which, if not satisfied, would result
in the violation of any Law. No such waiver shall be effective unless in
writing signed by a duly authorized officer of Buyer.
(b) Prior to or at the Effective Time, Lamcor, acting through
its Board of Directors, chief executive officer or other authorized officer,
shall have the right to waive any Default in the performance of any term of this
Agreement by Buyer, to waive or extend the time
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<PAGE> 53
for the compliance or fulfillment by Buyer of any and all of its obligations
under this Agreement, and to waive any or all of the conditions precedent to
the obligations of Lamcor under this Agreement, except any condition which, if
not satisfied, would result in the violation of any Law. No such waiver shall
be effective unless in writing signed by a duly authorized officer of Lamcor.
(c) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
11.7 ASSIGNMENT. Except as expressly contemplated hereby, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any Party hereto (whether by operation of Law or otherwise) without
the prior written consent of the other Party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the Parties and their respective successors and assigns.
11.8 NOTICES. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered by hand,
by facsimile transmission, by registered or certified mail, postage pre- paid,
or by courier or overnight carrier, to the persons at the addresses set forth
below (or at such other address as may be provided hereunder), and shall be
deemed to have been delivered as of the date so delivered:
Lamcor: Lamcor, Incorporated
P.O. Box 70
Highway 169 North
Le Sueur, Minnesota 56058
Telecopy Number: (612) 665-6390
Attention: Special Committee of the Board of Directors
Copy to Counsel: Gray, Plant, Mooty, Mooty & Bennett, P.A.
3400 City Center
33 South Sixth Street
Minneapolis, Minnesota 55402-3796
Telecopy Number: (612) 333-0066
Attention: Bruce B. McPheeters, Esq.
Buyer: Packaging Acquisition Corporation
1633 Mt. Vernon Road
Dunwoody, Georgia 30338
Telecopy Number: (770) 604-9077
Attention: William C. Beddingfield
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<PAGE> 54
Copy to Counsel: Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Telecopy Number: (404) 881-7777
Attention: Teri L. McMahon, Esq.
11.9 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the Laws of the State of Georgia and as to statutory
dissenters' rights, the MBCA, without regard to any applicable conflicts of
Laws.
11.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11.11 CAPTIONS; ARTICLES AND SECTIONS. The captions contained in this
Agreement are for reference purposes only and are not part of this Agreement.
Unless otherwise indicated, all references to particular Articles or Sections
shall mean and refer to the referenced Articles and Sections of this Agreement.
11.12 INTERPRETATIONS. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any party, whether under
any rule of construction or otherwise. No party to this Agreement shall be
considered the draftsman. The parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all parties and their attorneys
and shall be construed and interpreted according to the ordinary meaning of the
words used so as fairly to accomplish the purposes and intentions of all parties
hereto.
11.13 ENFORCEMENT OF AGREEMENT. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
11.14 SEVERABILITY. Any term or provision of this Agreement 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
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, the provision shall be
interpreted to be only so broad as is enforceable.
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<PAGE> 55
11.15 ESCROW. The Exchange Agent shall deliver to the Escrow Agent on
behalf of the Shareholders at the Effective Time an amount equal to Two Hundred
Thirty One Thousand Eight Hundred Seventy Eight Dollars and 04/100 ($231,878.04)
(the "Escrowed Funds") representing the aggregate of (a) the amount allocated to
the Escrowed Fund with respect to each share of Lamcor Common Stock issued and
outstanding immediately prior to the Effective Time and (b) the amount allocated
to each share of Lamcor Common Stock that is subject to any Lamcor Option or
Lamcor Convertible Security purchased pursuant to Section 3.5. The term "Escrow
Claim" means any and all claims, individually or in the aggregate, made by Buyer
within one year after the Effective Time for the purpose of compensating Buyer
for Losses resulting from (x) the breach or inaccuracy of any representation or
warranty of Lamcor contained herein, (y) the failure of Lamcor to perform any
covenant or agreement of Lamcor under this Agreement, and (z) all amounts in
excess of $275,000 paid or incurred by Lamcor in connection with the negotiation
and preparation of this Agreement, in settlement of claims relating to, based
upon or arising out of the Rights Offering or in consideration for the Releases,
or in attorneys fees and expenses and other costs in obtaining such settlement
or Releases, and in connection with the consummation of the transactions
provided for herein (collectively, the "Lamcor Expenses"); provided, however,
that Buyer shall not be entitled to assert a claim against the Escrowed Funds
for breaches of representations and warranties pursuant to the preceding clause
(x) if Buyer had actual knowledge of the breach at the Effective Time; provided
further, that Buyer shall not be entitled to assert an Escrow Claim against the
Escrowed Funds unless each such Escrow Claim is in excess of $1,000.00. An
Escrow Claim shall be satisfied or liquidated only from the Escrowed Funds in
accordance with the terms and conditions of the Escrow Agreement; provided,
however, that Buyer shall not be entitled to receive any of the Escrowed Funds
unless (i) the Surviving Corporation is not in breach in any Material respect of
any of its covenants or agreements arising after the Effective Time and (ii) the
aggregate amount of all Escrow Claims arising out of clauses (x) and (y) of the
preceding sentence exceeds $50,000. Once such $50,000 threshold has been
reached, Buyer shall be entitled to full payment for all Escrow Claims arising
out of such clauses (x) and (y) out of the Escrowed Funds as if no such
limitation on payment had existed, provided that the conditions of clause (i) of
this sentence is satisfied at the time of payment. Buyer shall pay all fees and
expenses in connection with the escrow and the Escrowed Funds, without
reimbursement therefor to Buyer from the Escrowed Funds. Notwithstanding the
foregoing, any amount of Lamcor Expenses in excess of $275,000 shall be paid to
Buyer out of the Escrowed Funds, to the extent thereof, without regard to such
$50,000 threshold.
11.16 SHAREHOLDERS' REPRESENTATIVE.
(a) The Shareholders irrevocably make, constitute and appoint
David P. Stewart as their agent (the "Shareholders' Representative") and
authorize and empower him to fulfill the role of Shareholders' Representative
hereunder and under the Escrow Agreement. In the event of the resignation of
the Shareholders' Representative, the resigning Shareholders' Representative
shall appoint a successor from among the Shareholders and who shall agree in
writing to accept such appointment. If the Shareholders' Representative should
die or become incapacitated, his successor shall be appointed within 15 days of
his death or incapacity by a majority of the Shareholders, and such successor
shall be a Shareholder. The choice of a successor Shareholders' Representative
appointed in any manner permitted above shall be final
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<PAGE> 56
and binding upon all of the Shareholders. The decisions and actions of any
successor Shareholders' Representative shall be, for all purposes, those of a
Shareholders' Representative as if originally named herein.
(b) Each Shareholder has made, constituted and appointed
and by the approval of this Agreement hereby irrevocably makes, constitutes and
appoints the Shareholders' Representative as such person's true and lawful
attorney in fact and agent, for such person and in such person's name, place
and stead for all purposes necessary or desirable in order for the
Shareholders' Representative to take the actions contemplated by this Agreement
and the Escrow Agreement on behalf of the Shareholders, with the ability to
execute and deliver all instruments, certificates and other documents of every
kind incident to the foregoing to all intents and purposes and with the same
effect as such Shareholder could do personally, and each such Shareholder
hereby ratifies and confirms as his, her or its own act, all that the
Shareholders' Representative shall do or cause to be done pursuant to the
provisions hereof.
(c) The death or incapacity of any Shareholder shall not
terminate the authority and agency of the Shareholders' Representative.
(d) Buyer shall be entitled to rely exclusively upon any
communication given or other action taken by the Shareholders' Representative
pursuant hereto and shall not be liable for any action taken or not taken in
reliance upon the Shareholders' Representative. Buyer shall not be obligated
to inquire as to the authority of the Shareholders' Representative to take any
action that the Shareholders' Representative takes or purports to take on
behalf of the Shareholders.
(e) The Shareholders agree to indemnify the Shareholders'
Representative and to hold him or her harmless against any and all loss,
liability or expense incurred without bad faith on the part of the
Shareholders' Representative and arising out of or in connection with his or
her duties as Shareholders' Representative, including the reasonable costs and
expenses incurred by the Shareholders' Representative in defending against any
claim or liability in connection herewith (the "Representative's Expenses"),
and authorize the Shareholder's Representative to receive following the first
anniversary of the Effective Date a portion of the amount by which the then
remaining balance of the Escrowed Funds exceeds the sum of the Tentatively
Impounded Funds (as defined in the Escrow Agreement) equal to the
Representative's Expenses in accordance with Section 6(f) of the Escrow
Agreement, subject to Section 11.16(f) below; provided, however, that Buyer
shall pay all reasonable Representative's Expenses incurred by the
Shareholders' Representative and its counsel in defending against any Escrow
Claim in the event that the Shareholders' Representative prevails in such
defense, and the Shareholders and Buyer authorize a maximum amount equal to the
lesser of (i) Five Thousand Dollars ($5,000.00), or (ii) the actual amount of
the reasonable Representative's Expenses incurred by the Shareholders'
Representative and its counsel in carrying out the provisions of this Section
11.16 and Section 6 of the Option Cancellation Agreements (as evidenced by a
written notice from the Shareholders' Representative to Buyer setting forth the
actual amount and a description of such Representative's Expenses), to be
remitted prior to the first anniversary of the Effective Date to the
Shareholders' Representative
- 45 -
<PAGE> 57
out of the Escrowed Funds upon the Escrow Agent's receipt of written notice
from Buyer stating the amount to be so remitted.
(f) Each Shareholder shall have the right to receive upon
written request therefor an accounting of the Representative's Expenses for
which the Shareholder's Representative is reimbursed from the Escrowed Funds
pursuant to Section 11.16(e) hereof.
11.17 SURVIVAL. Article 4, Sections 8.10 and 8.11, and Article 11
(other than Section 11.2) shall survive the Effective Time pursuant to their
respective terms. The representations and warranties found in Articles 5 and 6
shall survive until termination of the Escrow Agreement.
11.18 ARBITRATION. Any dispute, controversy or claim arising out of
or relating to this Agreement, shall be settled by arbitration in accordance
with the then-prevailing Commercial Arbitration Rules of the American
Arbitration Association. Such arbitration shall be held in Minneapolis,
Minnesota before a panel of three arbitrators, one selected by Buyer and Sub,
one selected by Lamcor and the third selected by mutual agreement of the first
two arbitrators. Each arbitrator shall be independent and impartial. Judgment
upon any award rendered by the arbitrators may be entered into any court of
competent jurisdiction. The determinations of which Party (or combination of
them) bears the costs and expenses incurred in connection with any such
arbitration proceeding shall be made by the arbitrators.
(signatures appear on the following page)
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<PAGE> 58
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
ATTEST: LAMCOR, INCORPORATED
/s/ Leo W. Lund By: /s/ Toby Jensen
- ----------------------------------- -------------------------
Secretary President
[CORPORATE SEAL]
ATTEST: PACKAGING ACQUISITION CORPORATION
/s/ William C. Beddingfield By: /s/ Allen D. Barnes
- ----------------------------------- -------------------------
Secretary President
[CORPORATE SEAL]
ATTEST: LI ACQUISITION CORPORATION
/s/ William C. Beddingfield By: /s/ Allen D. Barnes
- ----------------------------------- -------------------------
Secretary President
[CORPORATE SEAL]
- 47 -
<PAGE> 59
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of September 30, 1996, by and between Packaging Acquisition
Corporation, a Georgia corporation ("Buyer"), Lamcor, Incorporated, a Minnesota
corporation ("Lamcor"), and the undersigned (the "Shareholder").
WHEREAS, the Shareholder desires that Buyer, LI Acquisition Corporation, a
wholly owned subsidiary of Buyer ("Sub"), and Lamcor enter into an Agreement
and Plan of Merger dated the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") with respect to the merger of Sub with
and into Lamcor (the "Merger"); and
WHEREAS, the Shareholder and Lamcor are executing this Agreement as an
inducement to Buyer to enter into and execute, and to cause Sub to enter into
and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Buyer
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to Buyer as follows:
(a) The Shareholder is the record and beneficial owner of the number
of shares (such "Shareholder's Shares") of common stock, no par value, of
Lamcor ("Lamcor Stock") set forth below such Shareholder's name on the
signature page hereof. Except for the Shareholder's Shares, the
Shareholder is not the record or beneficial owner of any shares of Lamcor
Stock. This Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder,
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Shareholder is a party or bound or to
which the Shareholder's Shares are subject. If the Shareholder is married
and the Shareholder's Shares constitute community property, this Agreement
has been duly executed and delivered by, and constitutes a valid and
binding agreement of, the Shareholder's spouse, enforceable against such
person in accordance with its terms, and reference herein to "Shareholder"
shall, unless the context clearly requires otherwise, also mean and
include such spouse. Consummation by the Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Shareholder or the Shareholder's
Shares.
<PAGE> 60
(c) The Shareholder's Shares and the certificates representing such
Shareholder's Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that Buyer is entering
into, and causing Sub to enter into, the Merger Agreement in reliance upon
the Shareholder's execution and delivery of this Agreement. The
Shareholder acknowledges that the irrevocable proxy set forth in Section 4
is granted in consideration for the execution and delivery of the Merger
Agreement by Buyer and Sub.
2. Voting Agreements. The Shareholder agrees with, and covenants to, Buyer
as follows:
(a) At any meeting of Shareholders of Lamcor called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought (the
"Shareholders' Meeting"), the Shareholder shall vote (or cause to be
voted) the Shareholder's Shares in favor of the Merger, the execution and
delivery by Lamcor of the Merger Agreement, and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of Shareholders of Lamcor or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, the Shareholder shall vote (or cause to be
voted) such Shareholder's Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by Lamcor or (ii) any
amendment of Lamcor's Articles of Incorporation or Bylaws or other
proposal or transaction involving Lamcor or any of its subsidiaries which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
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<PAGE> 61
3. Covenants. The Shareholder agrees with, and covenants to, Buyer as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, offer
for sale, solicitation of offer to purchase, gift, pledge or other
disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, except pursuant to the
Merger; (ii) enter into or agree to enter into any contract, option or
other agreement or understanding with respect to any transfer of any or
all of such Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to such
Shareholder's Shares, except for this Agreement, or (iv) deposit such
Shareholder's Shares into a voting trust or enter into or agree to enter
into a voting agreement or arrangement with respect to such Shareholder's
Shares; provided, however, that the Shareholder may transfer (as defined
above) any of the Shareholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable institution
which prior to the Shareholders Meeting and prior to such transfer
becomes, a party to this Agreement bound by all the obligations of the
"Shareholder" hereunder.
(b) If a majority of the holders of Lamcor Stock approve the Merger and
the Merger Agreement, the Shareholder's Shares shall, pursuant to the
terms of the Merger Agreement, be exchanged for the consideration provided
in the Merger Agreement. The Shareholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such Shareholder may
have.
(c) The Shareholder shall not, nor shall it permit any person who is an
adviser or representative of the Shareholder to, directly or indirectly,
alone or in concert with others (i) solicit, initiate or encourage the
submission of, any Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding, or furnish to
any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Takeover Proposal; provided,
however, that such restrictions shall not apply to the extent required by
the fiduciary duties of the Shareholder arising out of his or her status
as a director of Lamcor. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence
by any person who is an adviser or representative of the Shareholder,
whether or not such person is purporting to act on behalf of the
Shareholder, shall be deemed to be in violation of this Section 3(c) by
the Shareholder. For all purposes hereof, "Takeover Proposal" means any
proposal for a merger, consolidation, share exchange or other business
combination involving Lamcor or any of its subsidiaries or any proposal,
tender or other offer to acquire in any manner, directly or indirectly, an
equity interest in any voting securities of, or a substantial portion of
the assets of Lamcor or any of its subsidiaries, other than the Merger and
the other transactions contemplated by the Merger Agreement.
- 3 -
<PAGE> 62
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, Buyer
and Allen D. Barnes, President of Buyer, and William C. Beddingfield, Executive
Vice President, Treasurer and Secretary of Buyer, in their respective
capacities as officers of Buyer, and any individual who shall hereafter succeed
to any such office of Buyer, and each of them individually, the Shareholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Shareholder, to vote the Shareholder's Shares, or
grant a consent or approval in respect of such Shareholder's Shares (i) in
favor of the Merger, the execution and delivery of the Merger Agreement and
approval of the terms thereof and each of the other transactions contemplated
by the Merger Agreement and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance
of the duties of the Shareholder under this Agreement. The Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. The Shareholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 302A.449 of the Minnesota Business
Corporation Act.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Lamcor affecting
the Lamcor Stock, or the acquisition of additional shares of Lamcor Stock or
other voting securities of Lamcor by any Shareholder, the number of
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Lamcor Stock or other voting securities of Lamcor
issued to or acquired by the Shareholder.
6. Stop Transfer. Lamcor agrees with, and covenants to, Buyer that Lamcor
shall not register the transfer of any certificate representing any of the
Shareholder's Shares, unless such transfer is made to Buyer or Sub or otherwise
in compliance with this Agreement. The Shareholder agrees that the Shareholder
will tender to Lamcor, within five business days after the date thereof, any
and all certificates representing such Shareholder's Shares and Lamcor will
inscribe upon such certificates the following legend:
- 4 -
<PAGE> 63
"The shares of Common Stock, no par value, of Lamcor, Incorporated
represented by this certificate are subject to a Shareholder Voting
Agreement dated as of _______, 1996, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of Lamcor,
Incorporated."
In the event that this Agreement is terminated in accordance with Section 9
hereof, Lamcor or its legal counsel may cause the foregoing legend to be
removed from such certificates.
7. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
8. Further Assurances. The Shareholder shall, upon request of Buyer,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Buyer to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 in Buyer and the other irrevocable proxies described
therein at the expense of Buyer.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (x) the Effective
Time of the Merger or (y) the date upon which the Merger Agreement is
terminated in accordance with its terms.
10. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to Buyer, to the address set forth
in Section 11.8 of the Merger Agreement; and (ii) if to the Shareholder; to its
address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
- 5 -
<PAGE> 64
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Minnesota, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that Buyer would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Buyer
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Minnesota or in Minnesota state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Minnesota or any
Minnesota state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Minnesota or a Minnesota state court.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed
by such party.
- 6 -
<PAGE> 65
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Shareholder Voting Agreement as of the day and year first above written.
PACKAGING ACQUISITION CORPORATION
By: /s/ Allen D. Barnes
-----------------------------------
President
LAMCOR, INCORPORATED
By: /s/ Toby Jensen
-----------------------------------
President
SHAREHOLDER:
/s/ Mark A. Steele
--------------------------------------
Name: Mark A. Steele
Address:1007 Lexington Ave. N.
New Prague, Minnesota 55031
Number of Shares
Beneficially Owned: 10,000
- 7 -
<PAGE> 66
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of September 30, 1996, by and between Packaging Acquisition
Corporation, a Georgia corporation ("Buyer"), Lamcor, Incorporated, a Minnesota
corporation ("Lamcor"), and the undersigned (the "Shareholder").
WHEREAS, the Shareholder desires that Buyer, LI Acquisition Corporation, a
wholly owned subsidiary of Buyer ("Sub"), and Lamcor enter into an Agreement
and Plan of Merger dated the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") with respect to the merger of Sub with
and into Lamcor (the "Merger"); and
WHEREAS, the Shareholder and Lamcor are executing this Agreement as an
inducement to Buyer to enter into and execute, and to cause Sub to enter into
and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Buyer
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to Buyer as follows:
(a) The Shareholder is the record and beneficial owner of the number of
shares (such "Shareholder's Shares") of common stock, no par value, of
Lamcor ("Lamcor Stock") set forth below such Shareholder's name on the
signature page hereof. Except for the Shareholder's Shares, the
Shareholder is not the record or beneficial owner of any shares of Lamcor
Stock. This Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder,
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Shareholder is a party or bound or to
which the Shareholder's Shares are subject. If the Shareholder is married
and the Shareholder's Shares constitute community property, this Agreement
has been duly executed and delivered by, and constitutes a valid and
binding agreement of, the Shareholder's spouse, enforceable against such
person in accordance with its terms, and reference herein to "Shareholder"
shall, unless the context clearly requires otherwise, also mean and
include such spouse. Consummation by the Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Shareholder or the Shareholder's
Shares.
<PAGE> 67
(c) The Shareholder's Shares and the certificates representing such
Shareholder's Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that Buyer is entering
into, and causing Sub to enter into, the Merger Agreement in reliance upon
the Shareholder's execution and delivery of this Agreement. The
Shareholder acknowledges that the irrevocable proxy set forth in Section 4
is granted in consideration for the execution and delivery of the Merger
Agreement by Buyer and Sub.
2. Voting Agreements. The Shareholder agrees with, and covenants to, Buyer
as follows:
(a) At any meeting of Shareholders of Lamcor called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought (the
"Shareholders' Meeting"), the Shareholder shall vote (or cause to be
voted) the Shareholder's Shares in favor of the Merger, the execution and
delivery by Lamcor of the Merger Agreement, and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of Shareholders of Lamcor or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, the Shareholder shall vote (or cause to be
voted) such Shareholder's Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by Lamcor or (ii) any
amendment of Lamcor's Articles of Incorporation or Bylaws or other
proposal or transaction involving Lamcor or any of its subsidiaries which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
- 2 -
<PAGE> 68
3. Covenants. The Shareholder agrees with, and covenants to, Buyer as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, offer
for sale, solicitation of offer to purchase, gift, pledge or other
disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, except pursuant to the
Merger; (ii) enter into or agree to enter into any contract, option or
other agreement or understanding with respect to any transfer of any or
all of such Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to such
Shareholder's Shares, except for this Agreement, or (iv) deposit such
Shareholder's Shares into a voting trust or enter into or agree to enter
into a voting agreement or arrangement with respect to such Shareholder's
Shares; provided, however, that the Shareholder may transfer (as defined
above) any of the Shareholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable institution
which prior to the Shareholders Meeting and prior to such transfer
becomes, a party to this Agreement bound by all the obligations of the
"Shareholder" hereunder.
(b) If a majority of the holders of Lamcor Stock approve the Merger and
the Merger Agreement, the Shareholder's Shares shall, pursuant to the
terms of the Merger Agreement, be exchanged for the consideration provided
in the Merger Agreement. The Shareholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such Shareholder may
have.
(c) The Shareholder shall not, nor shall it permit any person who is an
adviser or representative of the Shareholder to, directly or indirectly,
alone or in concert with others (i) solicit, initiate or encourage the
submission of, any Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding, or furnish to
any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Takeover Proposal; provided,
however, that such restrictions shall not apply to the extent required by
the fiduciary duties of the Shareholder arising out of his or her status
as a director of Lamcor. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence
by any person who is an adviser or representative of the Shareholder,
whether or not such person is purporting to act on behalf of the
Shareholder, shall be deemed to be in violation of this Section 3(c) by
the Shareholder. For all purposes hereof, "Takeover Proposal" means any
proposal for a merger, consolidation, share exchange or other business
combination involving Lamcor or any of its subsidiaries or any proposal,
tender or other offer to acquire in any manner, directly or indirectly, an
equity interest in any voting securities of, or a substantial portion of
the assets of Lamcor or any of its subsidiaries, other than the Merger and
the other transactions contemplated by the Merger Agreement.
- 3 -
<PAGE> 69
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, Buyer
and Allen D. Barnes, President of Buyer, and William C. Beddingfield, Executive
Vice President, Treasurer and Secretary of Buyer, in their respective
capacities as officers of Buyer, and any individual who shall hereafter succeed
to any such office of Buyer, and each of them individually, the Shareholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Shareholder, to vote the Shareholder's Shares, or
grant a consent or approval in respect of such Shareholder's Shares (i) in
favor of the Merger, the execution and delivery of the Merger Agreement and
approval of the terms thereof and each of the other transactions contemplated
by the Merger Agreement and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance
of the duties of the Shareholder under this Agreement. The Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. The Shareholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 302A.449 of the Minnesota Business
Corporation Act.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Lamcor affecting
the Lamcor Stock, or the acquisition of additional shares of Lamcor Stock or
other voting securities of Lamcor by any Shareholder, the number of
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Lamcor Stock or other voting securities of Lamcor
issued to or acquired by the Shareholder.
6. Stop Transfer. Lamcor agrees with, and covenants to, Buyer that Lamcor
shall not register the transfer of any certificate representing any of the
Shareholder's Shares, unless such transfer is made to Buyer or Sub or otherwise
in compliance with this Agreement. The Shareholder agrees that the Shareholder
will tender to Lamcor, within five business days after the date thereof, any
and all certificates representing such Shareholder's Shares and Lamcor will
inscribe upon such certificates the following legend:
- 4 -
<PAGE> 70
"The shares of Common Stock, no par value, of Lamcor, Incorporated
represented by this certificate are subject to a Shareholder Voting
Agreement dated as of _______, 1996, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of Lamcor,
Incorporated."
In the event that this Agreement is terminated in accordance with Section 9
hereof, Lamcor or its legal counsel may cause the foregoing legend to be
removed from such certificates.
7. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
8. Further Assurances. The Shareholder shall, upon request of Buyer,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Buyer to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 in Buyer and the other irrevocable proxies described
therein at the expense of Buyer.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (x) the Effective
Time of the Merger or (y) the date upon which the Merger Agreement is
terminated in accordance with its terms.
10. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to Buyer, to the address set forth
in Section 11.8 of the Merger Agreement; and (ii) if to the Shareholder; to its
address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
- 5 -
<PAGE> 71
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Minnesota, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that Buyer would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Buyer
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Minnesota or in Minnesota state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Minnesota or any
Minnesota state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Minnesota or a Minnesota state court.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed
by such party.
- 6 -
<PAGE> 72
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Shareholder Voting Agreement as of the day and year first above written.
PACKAGING ACQUISITION CORPORATION
By: /s/ Allen D. Barnes
-----------------------------------
President
LAMCOR, INCORPORATED
By: /s/ Toby Jensen
-----------------------------------
President
SHAREHOLDER:
/s/ Sue Jones
--------------------------------------
Name: Sue Jones
Address:18546 Vista Del Sol
Dallas, Texas 75287
Number of Shares
Beneficially Owned: 5,000
- 7 -
<PAGE> 73
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of September 30, 1996, by and between Packaging Acquisition
Corporation, a Georgia corporation ("Buyer"), Lamcor, Incorporated, a Minnesota
corporation ("Lamcor"), and the undersigned (the "Shareholder").
WHEREAS, the Shareholder desires that Buyer, LI Acquisition Corporation, a
wholly owned subsidiary of Buyer ("Sub"), and Lamcor enter into an Agreement
and Plan of Merger dated the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") with respect to the merger of Sub with
and into Lamcor (the "Merger"); and
WHEREAS, the Shareholder and Lamcor are executing this Agreement as an
inducement to Buyer to enter into and execute, and to cause Sub to enter into
and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Buyer
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to Buyer as follows:
(a) The Shareholder is the record and beneficial owner of the number of
shares (such "Shareholder's Shares") of common stock, no par value, of
Lamcor ("Lamcor Stock") set forth below such Shareholder's name on the
signature page hereof. Except for the Shareholder's Shares, the
Shareholder is not the record or beneficial owner of any shares of Lamcor
Stock. This Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder,
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Shareholder is a party or bound or to
which the Shareholder's Shares are subject. If the Shareholder is married
and the Shareholder's Shares constitute community property, this Agreement
has been duly executed and delivered by, and constitutes a valid and
binding agreement of, the Shareholder's spouse, enforceable against such
person in accordance with its terms, and reference herein to "Shareholder"
shall, unless the context clearly requires otherwise, also mean and
include such spouse. Consummation by the Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Shareholder or the Shareholder's
Shares.
<PAGE> 74
(c) The Shareholder's Shares and the certificates representing such
Shareholder's Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that Buyer is entering
into, and causing Sub to enter into, the Merger Agreement in reliance upon
the Shareholder's execution and delivery of this Agreement. The
Shareholder acknowledges that the irrevocable proxy set forth in Section 4
is granted in consideration for the execution and delivery of the Merger
Agreement by Buyer and Sub.
2. Voting Agreements. The Shareholder agrees with, and covenants to, Buyer
as follows:
(a) At any meeting of Shareholders of Lamcor called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought (the
"Shareholders' Meeting"), the Shareholder shall vote (or cause to be
voted) the Shareholder's Shares in favor of the Merger, the execution and
delivery by Lamcor of the Merger Agreement, and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of Shareholders of Lamcor or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, the Shareholder shall vote (or cause to be
voted) such Shareholder's Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by Lamcor or (ii) any
amendment of Lamcor's Articles of Incorporation or Bylaws or other
proposal or transaction involving Lamcor or any of its subsidiaries which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
- 2 -
<PAGE> 75
3. Covenants. The Shareholder agrees with, and covenants to, Buyer as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, offer
for sale, solicitation of offer to purchase, gift, pledge or other
disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, except pursuant to the
Merger; (ii) enter into or agree to enter into any contract, option or
other agreement or understanding with respect to any transfer of any or
all of such Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to such
Shareholder's Shares, except for this Agreement, or (iv) deposit such
Shareholder's Shares into a voting trust or enter into or agree to enter
into a voting agreement or arrangement with respect to such Shareholder's
Shares; provided, however, that the Shareholder may transfer (as defined
above) any of the Shareholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable institution
which prior to the Shareholders Meeting and prior to such transfer
becomes, a party to this Agreement bound by all the obligations of the
"Shareholder" hereunder.
(b) If a majority of the holders of Lamcor Stock approve the Merger and
the Merger Agreement, the Shareholder's Shares shall, pursuant to the
terms of the Merger Agreement, be exchanged for the consideration provided
in the Merger Agreement. The Shareholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such Shareholder may
have.
(c) The Shareholder shall not, nor shall it permit any person who is an
adviser or representative of the Shareholder to, directly or indirectly,
alone or in concert with others (i) solicit, initiate or encourage the
submission of, any Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding, or furnish to
any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Takeover Proposal; provided,
however, that such restrictions shall not apply to the extent required by
the fiduciary duties of the Shareholder arising out of his or her status
as a director of Lamcor. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence
by any person who is an adviser or representative of the Shareholder,
whether or not such person is purporting to act on behalf of the
Shareholder, shall be deemed to be in violation of this Section 3(c) by
the Shareholder. For all purposes hereof, "Takeover Proposal" means any
proposal for a merger, consolidation, share exchange or other business
combination involving Lamcor or any of its subsidiaries or any proposal,
tender or other offer to acquire in any manner, directly or indirectly, an
equity interest in any voting securities of, or a substantial portion of
the assets of Lamcor or any of its subsidiaries, other than the Merger and
the other transactions contemplated by the Merger Agreement.
- 3 -
<PAGE> 76
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, Buyer
and Allen D. Barnes, President of Buyer, and William C. Beddingfield, Executive
Vice President, Treasurer and Secretary of Buyer, in their respective
capacities as officers of Buyer, and any individual who shall hereafter succeed
to any such office of Buyer, and each of them individually, the Shareholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Shareholder, to vote the Shareholder's Shares, or
grant a consent or approval in respect of such Shareholder's Shares (i) in
favor of the Merger, the execution and delivery of the Merger Agreement and
approval of the terms thereof and each of the other transactions contemplated
by the Merger Agreement and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance
of the duties of the Shareholder under this Agreement. The Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. The Shareholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 302A.449 of the Minnesota Business
Corporation Act.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Lamcor affecting
the Lamcor Stock, or the acquisition of additional shares of Lamcor Stock or
other voting securities of Lamcor by any Shareholder, the number of
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Lamcor Stock or other voting securities of Lamcor
issued to or acquired by the Shareholder.
6. Stop Transfer. Lamcor agrees with, and covenants to, Buyer that Lamcor
shall not register the transfer of any certificate representing any of the
Shareholder's Shares, unless such transfer is made to Buyer or Sub or otherwise
in compliance with this Agreement. The Shareholder agrees that the Shareholder
will tender to Lamcor, within five business days after the date thereof, any
and all certificates representing such Shareholder's Shares and Lamcor will
inscribe upon such certificates the following legend:
- 4 -
<PAGE> 77
"The shares of Common Stock, no par value, of Lamcor, Incorporated
represented by this certificate are subject to a Shareholder Voting
Agreement dated as of _______, 1996, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of Lamcor,
Incorporated."
In the event that this Agreement is terminated in accordance with Section 9
hereof, Lamcor or its legal counsel may cause the foregoing legend to be
removed from such certificates.
7. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
8. Further Assurances. The Shareholder shall, upon request of Buyer,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Buyer to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 in Buyer and the other irrevocable proxies described
therein at the expense of Buyer.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (x) the Effective
Time of the Merger or (y) the date upon which the Merger Agreement is
terminated in accordance with its terms.
10. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to them in the Merger
Agreement.
(b) All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice): (i) if to Buyer, to the
address set forth in Section 11.8 of the Merger Agreement; and (ii) if to the
Shareholder; to its address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
- 5 -
<PAGE> 78
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Minnesota, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur
and that Buyer would not have any adequate remedy at law in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Buyer
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Minnesota or in Minnesota state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Minnesota or any
Minnesota state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Minnesota or a Minnesota state court.
(i) If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in writing
and signed by such party.
- 6 -
<PAGE> 79
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Shareholder Voting Agreement as of the day and year first above written.
PACKAGING ACQUISITION CORPORATION
By: /s/ Allen D. Barnes
-----------------------------------
President
LAMCOR, INCORPORATED
By: /s/ Toby Jensen
-----------------------------------
President
SHAREHOLDER:
/s/ Tim Stewart
--------------------------------------
Name: Tim Stewart
Address:9427 Olympia Drive
Eden Prairie, Minnesota 55347
Number of Shares
Beneficially Owned: 42,400
- 7 -
<PAGE> 80
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of September 30, 1996, by and between Packaging Acquisition
Corporation, a Georgia corporation ("Buyer"), Lamcor, Incorporated, a Minnesota
corporation ("Lamcor"), and the undersigned (the "Shareholder").
WHEREAS, the Shareholder desires that Buyer, LI Acquisition Corporation, a
wholly owned subsidiary of Buyer ("Sub"), and Lamcor enter into an Agreement
and Plan of Merger dated the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") with respect to the merger of Sub with
and into Lamcor (the "Merger"); and
WHEREAS, the Shareholder and Lamcor are executing this Agreement as an
inducement to Buyer to enter into and execute, and to cause Sub to enter into
and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Buyer
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to Buyer as follows:
(a) The Shareholder is the record and beneficial owner of the number of
shares (such "Shareholder's Shares") of common stock, no par value, of
Lamcor ("Lamcor Stock") set forth below such Shareholder's name on the
signature page hereof. Except for the Shareholder's Shares, the
Shareholder is not the record or beneficial owner of any shares of Lamcor
Stock. This Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder,
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Shareholder is a party or bound or to
which the Shareholder's Shares are subject. If the Shareholder is married
and the Shareholder's Shares constitute community property, this Agreement
has been duly executed and delivered by, and constitutes a valid and
binding agreement of, the Shareholder's spouse, enforceable against such
person in accordance with its terms, and reference herein to "Shareholder"
shall, unless the context clearly requires otherwise, also mean and
include such spouse. Consummation by the Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Shareholder or the Shareholder's
Shares.
<PAGE> 81
(c) The Shareholder's Shares and the certificates representing such
Shareholder's Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that Buyer is entering
into, and causing Sub to enter into, the Merger Agreement in reliance upon
the Shareholder's execution and delivery of this Agreement. The
Shareholder acknowledges that the irrevocable proxy set forth in Section 4
is granted in consideration for the execution and delivery of the Merger
Agreement by Buyer and Sub.
2. Voting Agreements. The Shareholder agrees with, and covenants to, Buyer
as follows:
(a) At any meeting of Shareholders of Lamcor called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought (the
"Shareholders' Meeting"), the Shareholder shall vote (or cause to be
voted) the Shareholder's Shares in favor of the Merger, the execution and
delivery by Lamcor of the Merger Agreement, and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of Shareholders of Lamcor or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, the Shareholder shall vote (or cause to be
voted) such Shareholder's Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by Lamcor or (ii) any
amendment of Lamcor's Articles of Incorporation or Bylaws or other
proposal or transaction involving Lamcor or any of its subsidiaries which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
- 2 -
<PAGE> 82
3. Covenants. The Shareholder agrees with, and covenants to, Buyer as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, offer
for sale, solicitation of offer to purchase, gift, pledge or other
disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, except pursuant to the
Merger; (ii) enter into or agree to enter into any contract, option or
other agreement or understanding with respect to any transfer of any or
all of such Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to such
Shareholder's Shares, except for this Agreement, or (iv) deposit such
Shareholder's Shares into a voting trust or enter into or agree to enter
into a voting agreement or arrangement with respect to such Shareholder's
Shares; provided, however, that the Shareholder may transfer (as defined
above) any of the Shareholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable institution
which prior to the Shareholders Meeting and prior to such transfer
becomes, a party to this Agreement bound by all the obligations of the
"Shareholder" hereunder.
(b) If a majority of the holders of Lamcor Stock approve the Merger and
the Merger Agreement, the Shareholder's Shares shall, pursuant to the
terms of the Merger Agreement, be exchanged for the consideration provided
in the Merger Agreement. The Shareholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such Shareholder may
have.
(c) The Shareholder shall not, nor shall it permit any person who is an
adviser or representative of the Shareholder to, directly or indirectly,
alone or in concert with others (i) solicit, initiate or encourage the
submission of, any Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding, or furnish to
any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Takeover Proposal; provided,
however, that such restrictions shall not apply to the extent required by
the fiduciary duties of the Shareholder arising out of his or her status
as a director of Lamcor. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence
by any person who is an adviser or representative of the Shareholder,
whether or not such person is purporting to act on behalf of the
Shareholder, shall be deemed to be in violation of this Section 3(c) by
the Shareholder. For all purposes hereof, "Takeover Proposal" means any
proposal for a merger, consolidation, share exchange or other business
combination involving Lamcor or any of its subsidiaries or any proposal,
tender or other offer to acquire in any manner, directly or indirectly, an
equity interest in any voting securities of, or a substantial portion of
the assets of Lamcor or any of its subsidiaries, other than the Merger and
the other transactions contemplated by the Merger Agreement.
- 3 -
<PAGE> 83
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints,
Buyer and Allen D. Barnes, President of Buyer, and William C. Beddingfield,
Executive Vice President, Treasurer and Secretary of Buyer, in their respective
capacities as officers of Buyer, and any individual who shall hereafter succeed
to any such office of Buyer, and each of them individually, the Shareholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Shareholder, to vote the Shareholder's Shares, or
grant a consent or approval in respect of such Shareholder's Shares (i) in
favor of the Merger, the execution and delivery of the Merger Agreement and
approval of the terms thereof and each of the other transactions contemplated
by the Merger Agreement and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore
given in respect of the Shareholder's shares are not irrevocable, and that any
such proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with
an interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 302A.449 of the
Minnesota Business Corporation Act.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Lamcor affecting
the Lamcor Stock, or the acquisition of additional shares of Lamcor Stock or
other voting securities of Lamcor by any Shareholder, the number of
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Lamcor Stock or other voting securities of Lamcor
issued to or acquired by the Shareholder.
6. Stop Transfer. Lamcor agrees with, and covenants to, Buyer that Lamcor
shall not register the transfer of any certificate representing any of the
Shareholder's Shares, unless such transfer is made to Buyer or Sub or otherwise
in compliance with this Agreement. The Shareholder agrees that the Shareholder
will tender to Lamcor, within five business days after the date thereof, any
and all certificates representing such Shareholder's Shares and Lamcor will
inscribe upon such certificates the following legend:
- 4 -
<PAGE> 84
"The shares of Common Stock, no par value, of Lamcor, Incorporated
represented by this certificate are subject to a Shareholder Voting
Agreement dated as of _______, 1996, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of Lamcor,
Incorporated."
In the event that this Agreement is terminated in accordance with Section 9
hereof, Lamcor or its legal counsel may cause the foregoing legend to be
removed from such certificates.
7. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
8. Further Assurances. The Shareholder shall, upon request of Buyer,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Buyer to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 in Buyer and the other irrevocable proxies described
therein at the expense of Buyer.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (x) the Effective
Time of the Merger or (y) the date upon which the Merger Agreement is
terminated in accordance with its terms.
10. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to Buyer, to the address set forth
in Section 11.8 of the Merger Agreement; and (ii) if to the Shareholder; to its
address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
- 5 -
<PAGE> 85
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Minnesota, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that Buyer would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Buyer
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Minnesota or in Minnesota state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Minnesota or any
Minnesota state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Minnesota or a Minnesota state court.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed
by such party.
- 6 -
<PAGE> 86
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Shareholder Voting Agreement as of the day and year first above written.
PACKAGING ACQUISITION CORPORATION
By: /s/ Allen D. Barnes
-----------------------------------
President
LAMCOR, INCORPORATED
By: /s/ Toby Jensen
-----------------------------------
President
SHAREHOLDER:
/s/ Kathy Young
--------------------------------------
Name: Kathy Young
Address:9427 Olympia Drive
Eden Prairie, Minnesota 55347
Number of Shares
Beneficially Owned: 229,520
- 7 -
<PAGE> 87
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of September 30, 1996, by and between Packaging Acquisition
Corporation, a Georgia corporation ("Buyer"), Lamcor, Incorporated, a Minnesota
corporation ("Lamcor"), and the undersigned (the "Shareholder").
WHEREAS, the Shareholder desires that Buyer, LI Acquisition Corporation, a
wholly owned subsidiary of Buyer ("Sub"), and Lamcor enter into an Agreement
and Plan of Merger dated the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") with respect to the merger of Sub with
and into Lamcor (the "Merger"); and
WHEREAS, the Shareholder and Lamcor are executing this Agreement as an
inducement to Buyer to enter into and execute, and to cause Sub to enter into
and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Buyer
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to Buyer as follows:
(a) The Shareholder is the record and beneficial owner of the number of
shares (such "Shareholder's Shares") of common stock, no par value, of
Lamcor ("Lamcor Stock") set forth below such Shareholder's name on the
signature page hereof. Except for the Shareholder's Shares, the
Shareholder is not the record or beneficial owner of any shares of Lamcor
Stock. This Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder,
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Shareholder is a party or bound or to
which the Shareholder's Shares are subject. If the Shareholder is married
and the Shareholder's Shares constitute community property, this Agreement
has been duly executed and delivered by, and constitutes a valid and
binding agreement of, the Shareholder's spouse, enforceable against such
person in accordance with its terms, and reference herein to "Shareholder"
shall, unless the context clearly requires otherwise, also mean and
include such spouse. Consummation by the Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Shareholder or the Shareholder's
Shares.
<PAGE> 88
(c) The Shareholder's Shares and the certificates representing such
Shareholder's Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that Buyer is entering
into, and causing Sub to enter into, the Merger Agreement in reliance upon
the Shareholder's execution and delivery of this Agreement. The
Shareholder acknowledges that the irrevocable proxy set forth in Section 4
is granted in consideration for the execution and delivery of the Merger
Agreement by Buyer and Sub.
2. Voting Agreements. The Shareholder agrees with, and covenants to, Buyer
as follows:
(a) At any meeting of Shareholders of Lamcor called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought (the
"Shareholders' Meeting"), the Shareholder shall vote (or cause to be
voted) the Shareholder's Shares in favor of the Merger, the execution and
delivery by Lamcor of the Merger Agreement, and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of Shareholders of Lamcor or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, the Shareholder shall vote (or cause to be
voted) such Shareholder's Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by Lamcor or (ii) any
amendment of Lamcor's Articles of Incorporation or Bylaws or other
proposal or transaction involving Lamcor or any of its subsidiaries which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
- 2 -
<PAGE> 89
3. Covenants. The Shareholder agrees with, and covenants to, Buyer as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, offer
for sale, solicitation of offer to purchase, gift, pledge or other
disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, except pursuant to the
Merger; (ii) enter into or agree to enter into any contract, option or
other agreement or understanding with respect to any transfer of any or
all of such Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to such
Shareholder's Shares, except for this Agreement, or (iv) deposit such
Shareholder's Shares into a voting trust or enter into or agree to enter
into a voting agreement or arrangement with respect to such Shareholder's
Shares; provided, however, that the Shareholder may transfer (as defined
above) any of the Shareholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable institution
which prior to the Shareholders Meeting and prior to such transfer
becomes, a party to this Agreement bound by all the obligations of the
"Shareholder" hereunder.
(b) If a majority of the holders of Lamcor Stock approve the Merger and
the Merger Agreement, the Shareholder's Shares shall, pursuant to the
terms of the Merger Agreement, be exchanged for the consideration provided
in the Merger Agreement. The Shareholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such Shareholder may
have.
(c) The Shareholder shall not, nor shall it permit any person who is an
adviser or representative of the Shareholder to, directly or indirectly,
alone or in concert with others (i) solicit, initiate or encourage the
submission of, any Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding, or furnish to
any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Takeover Proposal; provided,
however, that such restrictions shall not apply to the extent required by
the fiduciary duties of the Shareholder arising out of his or her status
as a director of Lamcor. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence
by any person who is an adviser or representative of the Shareholder,
whether or not such person is purporting to act on behalf of the
Shareholder, shall be deemed to be in violation of this Section 3(c) by
the Shareholder. For all purposes hereof, "Takeover Proposal" means any
proposal for a merger, consolidation, share exchange or other business
combination involving Lamcor or any of its subsidiaries or any proposal,
tender or other offer to acquire in any manner, directly or indirectly, an
equity interest in any voting securities of, or a substantial portion of
the assets of Lamcor or any of its subsidiaries, other than the Merger and
the other transactions contemplated by the Merger Agreement.
- 3 -
<PAGE> 90
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, Buyer
and Allen D. Barnes, President of Buyer, and William C. Beddingfield, Executive
Vice President, Treasurer and Secretary of Buyer, in their respective
capacities as officers of Buyer, and any individual who shall hereafter succeed
to any such office of Buyer, and each of them individually, the Shareholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Shareholder, to vote the Shareholder's Shares, or
grant a consent or approval in respect of such Shareholder's Shares (i) in
favor of the Merger, the execution and delivery of the Merger Agreement and
approval of the terms thereof and each of the other transactions contemplated
by the Merger Agreement and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance
of the duties of the Shareholder under this Agreement. The Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. The Shareholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 302A.449 of the Minnesota Business
Corporation Act.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Lamcor affecting
the Lamcor Stock, or the acquisition of additional shares of Lamcor Stock or
other voting securities of Lamcor by any Shareholder, the number of
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Lamcor Stock or other voting securities of Lamcor
issued to or acquired by the Shareholder.
6. Stop Transfer. Lamcor agrees with, and covenants to, Buyer that Lamcor
shall not register the transfer of any certificate representing any of the
Shareholder's Shares, unless such transfer is made to Buyer or Sub or otherwise
in compliance with this Agreement. The Shareholder agrees that the Shareholder
will tender to Lamcor, within five business days after the date thereof, any
and all certificates representing such Shareholder's Shares and Lamcor will
inscribe upon such certificates the following legend:
- 4 -
<PAGE> 91
"The shares of Common Stock, no par value, of Lamcor, Incorporated
represented by this certificate are subject to a Shareholder Voting
Agreement dated as of _______, 1996, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of Lamcor,
Incorporated."
In the event that this Agreement is terminated in accordance with Section 9
hereof, Lamcor or its legal counsel may cause the foregoing legend to be
removed from such certificates.
7. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
8. Further Assurances. The Shareholder shall, upon request of Buyer,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Buyer to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 in Buyer and the other irrevocable proxies described
therein at the expense of Buyer.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (x) the Effective
Time of the Merger or (y) the date upon which the Merger Agreement is
terminated in accordance with its terms.
10. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to Buyer, to the address set forth
in Section 11.8 of the Merger Agreement; and (ii) if to the Shareholder; to its
address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
- 5 -
<PAGE> 92
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Minnesota, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that Buyer would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Buyer
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Minnesota or in Minnesota state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Minnesota or any
Minnesota state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Minnesota or a Minnesota state court.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed
by such party.
- 6 -
<PAGE> 93
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Shareholder Voting Agreement as of the day and year first above written.
PACKAGING ACQUISITION CORPORATION
By: /s/ Allen D. Barnes
-------------------------------------------
President
LAMCOR, INCORPORATED
By: /s/ Toby Jensen
-------------------------------------------
President
SHAREHOLDER:
/s/ David P. Stewart
----------------------------------------------
Name: David P. Stewart
Address:4500 First Bank Place - 601 2nd Ave. S.
Minneapolis, Minnesota 55402
Number of Shares
Beneficially Owned: 14,400
- 7 -
<PAGE> 94
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of September 30, 1996, by and between Packaging Acquisition
Corporation, a Georgia corporation ("Buyer"), Lamcor, Incorporated, a Minnesota
corporation ("Lamcor"), and the undersigned (the "Shareholder").
WHEREAS, the Shareholder desires that Buyer, LI Acquisition Corporation, a
wholly owned subsidiary of Buyer ("Sub"), and Lamcor enter into an Agreement
and Plan of Merger dated the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") with respect to the merger of Sub with
and into Lamcor (the "Merger"); and
WHEREAS, the Shareholder and Lamcor are executing this Agreement as an
inducement to Buyer to enter into and execute, and to cause Sub to enter into
and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Buyer
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to Buyer as follows:
(a) The Shareholder is the record and beneficial owner of the number of
shares (such "Shareholder's Shares") of common stock, no par value, of
Lamcor ("Lamcor Stock") set forth below such Shareholder's name on the
signature page hereof. Except for the Shareholder's Shares, the
Shareholder is not the record or beneficial owner of any shares of Lamcor
Stock. This Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder,
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Shareholder is a party or bound or to
which the Shareholder's Shares are subject. If the Shareholder is married
and the Shareholder's Shares constitute community property, this Agreement
has been duly executed and delivered by, and constitutes a valid and
binding agreement of, the Shareholder's spouse, enforceable against such
person in accordance with its terms, and reference herein to "Shareholder"
shall, unless the context clearly requires otherwise, also mean and
include such spouse. Consummation by the Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Shareholder or the Shareholder's
Shares.
<PAGE> 95
(c) The Shareholder's Shares and the certificates representing such
Shareholder's Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that Buyer is entering
into, and causing Sub to enter into, the Merger Agreement in reliance upon
the Shareholder's execution and delivery of this Agreement. The
Shareholder acknowledges that the irrevocable proxy set forth in Section 4
is granted in consideration for the execution and delivery of the Merger
Agreement by Buyer and Sub.
2. Voting Agreements. The Shareholder agrees with, and covenants to, Buyer
as follows:
(a) At any meeting of Shareholders of Lamcor called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought (the
"Shareholders' Meeting"), the Shareholder shall vote (or cause to be
voted) the Shareholder's Shares in favor of the Merger, the execution and
delivery by Lamcor of the Merger Agreement, and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of Shareholders of Lamcor or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, the Shareholder shall vote (or cause to be
voted) such Shareholder's Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by Lamcor or (ii) any
amendment of Lamcor's Articles of Incorporation or Bylaws or other
proposal or transaction involving Lamcor or any of its subsidiaries which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
- 2 -
<PAGE> 96
3. Covenants. The Shareholder agrees with, and covenants to, Buyer as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, offer
for sale, solicitation of offer to purchase, gift, pledge or other
disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, except pursuant to the
Merger; (ii) enter into or agree to enter into any contract, option or
other agreement or understanding with respect to any transfer of any or
all of such Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to such
Shareholder's Shares, except for this Agreement, or (iv) deposit such
Shareholder's Shares into a voting trust or enter into or agree to enter
into a voting agreement or arrangement with respect to such Shareholder's
Shares; provided, however, that the Shareholder may transfer (as defined
above) any of the Shareholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable institution
which prior to the Shareholders Meeting and prior to such transfer
becomes, a party to this Agreement bound by all the obligations of the
"Shareholder" hereunder.
(b) If a majority of the holders of Lamcor Stock approve the Merger and
the Merger Agreement, the Shareholder's Shares shall, pursuant to the
terms of the Merger Agreement, be exchanged for the consideration provided
in the Merger Agreement. The Shareholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such Shareholder may
have.
(c) The Shareholder shall not, nor shall it permit any person who is an
adviser or representative of the Shareholder to, directly or indirectly,
alone or in concert with others (i) solicit, initiate or encourage the
submission of, any Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding, or furnish to
any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Takeover Proposal; provided,
however, that such restrictions shall not apply to the extent required by
the fiduciary duties of the Shareholder arising out of his or her status
as a director of Lamcor. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence
by any person who is an adviser or representative of the Shareholder,
whether or not such person is purporting to act on behalf of the
Shareholder, shall be deemed to be in violation of this Section 3(c) by
the Shareholder. For all purposes hereof, "Takeover Proposal" means any
proposal for a merger, consolidation, share exchange or other business
combination involving Lamcor or any of its subsidiaries or any proposal,
tender or other offer to acquire in any manner, directly or indirectly, an
equity interest in any voting securities of, or a substantial portion of
the assets of Lamcor or any of its subsidiaries, other than the Merger and
the other transactions contemplated by the Merger Agreement.
- 3 -
<PAGE> 97
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints,
Buyer and Allen D. Barnes, President of Buyer, and William C. Beddingfield,
Executive Vice President, Treasurer and Secretary of Buyer, in their respective
capacities as officers of Buyer, and any individual who shall hereafter succeed
to any such office of Buyer, and each of them individually, the Shareholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Shareholder, to vote the Shareholder's Shares, or
grant a consent or approval in respect of such Shareholder's Shares (i) in
favor of the Merger, the execution and delivery of the Merger Agreement and
approval of the terms thereof and each of the other transactions contemplated
by the Merger Agreement and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore
given in respect of the Shareholder's shares are not irrevocable, and that any
such proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with
an interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 302A.449 of the
Minnesota Business Corporation Act.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Lamcor affecting
the Lamcor Stock, or the acquisition of additional shares of Lamcor Stock or
other voting securities of Lamcor by any Shareholder, the number of
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Lamcor Stock or other voting securities of Lamcor
issued to or acquired by the Shareholder.
6. Stop Transfer. Lamcor agrees with, and covenants to, Buyer that Lamcor
shall not register the transfer of any certificate representing any of the
Shareholder's Shares, unless such transfer is made to Buyer or Sub or otherwise
in compliance with this Agreement. The Shareholder agrees that the Shareholder
will tender to Lamcor, within five business days after the date thereof, any
and all certificates representing such Shareholder's Shares and Lamcor will
inscribe upon such certificates the following legend:
- 4 -
<PAGE> 98
"The shares of Common Stock, no par value, of Lamcor, Incorporated
represented by this certificate are subject to a Shareholder Voting
Agreement dated as of _______, 1996, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of Lamcor,
Incorporated."
In the event that this Agreement is terminated in accordance with Section 9
hereof, Lamcor or its legal counsel may cause the foregoing legend to be
removed from such certificates.
7. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
8. Further Assurances. The Shareholder shall, upon request of Buyer,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Buyer to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 in Buyer and the other irrevocable proxies described
therein at the expense of Buyer.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (x) the Effective
Time of the Merger or (y) the date upon which the Merger Agreement is
terminated in accordance with its terms.
10. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to Buyer, to the address set forth
in Section 11.8 of the Merger Agreement; and (ii) if to the Shareholder; to its
address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
- 5 -
<PAGE> 99
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Minnesota, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that Buyer would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Buyer
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Minnesota or in Minnesota state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Minnesota or any
Minnesota state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Minnesota or a Minnesota state court.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed
by such party.
- 6 -
<PAGE> 100
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Shareholder Voting Agreement as of the day and year first above written.
PACKAGING ACQUISITION CORPORATION
By: /s/ Allen D. Barnes
-------------------------------------------
President
LAMCOR, INCORPORATED
By: /s/ Toby Jensen
-------------------------------------------
President
SHAREHOLDER:
/s/ Christopher A. Elliott
----------------------------------------------
Name: Christopher A. Elliott
Address:4500 First Bank Place - 601 2nd Ave. S.
Minneapolis, Minnesota 55402
Number of Shares
Beneficially Owned: 156,333
- 7 -
<PAGE> 101
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of September 30, 1996, by and between Packaging Acquisition
Corporation, a Georgia corporation ("Buyer"), Lamcor, Incorporated, a Minnesota
corporation ("Lamcor"), and the undersigned (the "Shareholder").
WHEREAS, the Shareholder desires that Buyer, LI Acquisition Corporation, a
wholly owned subsidiary of Buyer ("Sub"), and Lamcor enter into an Agreement
and Plan of Merger dated the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") with respect to the merger of Sub with
and into Lamcor (the "Merger"); and
WHEREAS, the Shareholder and Lamcor are executing this Agreement as an
inducement to Buyer to enter into and execute, and to cause Sub to enter into
and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Buyer
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to Buyer as follows:
(a) The Shareholder is the record and beneficial owner of the number of
shares (such "Shareholder's Shares") of common stock, no par value, of
Lamcor ("Lamcor Stock") set forth below such Shareholder's name on the
signature page hereof. Except for the Shareholder's Shares, the
Shareholder is not the record or beneficial owner of any shares of Lamcor
Stock. This Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder,
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Shareholder is a party or bound or to
which the Shareholder's Shares are subject. If the Shareholder is married
and the Shareholder's Shares constitute community property, this Agreement
has been duly executed and delivered by, and constitutes a valid and
binding agreement of, the Shareholder's spouse, enforceable against such
person in accordance with its terms, and reference herein to "Shareholder"
shall, unless the context clearly requires otherwise, also mean and
include such spouse. Consummation by the Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Shareholder or the Shareholder's
Shares.
<PAGE> 102
(c) The Shareholder's Shares and the certificates representing such
Shareholder's Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that Buyer is entering
into, and causing Sub to enter into, the Merger Agreement in reliance upon
the Shareholder's execution and delivery of this Agreement. The
Shareholder acknowledges that the irrevocable proxy set forth in Section 4
is granted in consideration for the execution and delivery of the Merger
Agreement by Buyer and Sub.
2. Voting Agreements. The Shareholder agrees with, and covenants to, Buyer
as follows:
(a) At any meeting of Shareholders of Lamcor called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought (the
"Shareholders' Meeting"), the Shareholder shall vote (or cause to be
voted) the Shareholder's Shares in favor of the Merger, the execution and
delivery by Lamcor of the Merger Agreement, and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of Shareholders of Lamcor or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, the Shareholder shall vote (or cause to be
voted) such Shareholder's Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by Lamcor or (ii) any
amendment of Lamcor's Articles of Incorporation or Bylaws or other
proposal or transaction involving Lamcor or any of its subsidiaries which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
- 2 -
<PAGE> 103
3. Covenants. The Shareholder agrees with, and covenants to, Buyer as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, offer
for sale, solicitation of offer to purchase, gift, pledge or other
disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, except pursuant to the
Merger; (ii) enter into or agree to enter into any contract, option or
other agreement or understanding with respect to any transfer of any or
all of such Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to such
Shareholder's Shares, except for this Agreement, or (iv) deposit such
Shareholder's Shares into a voting trust or enter into or agree to enter
into a voting agreement or arrangement with respect to such Shareholder's
Shares; provided, however, that the Shareholder may transfer (as defined
above) any of the Shareholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable institution
which prior to the Shareholders Meeting and prior to such transfer
becomes, a party to this Agreement bound by all the obligations of the
"Shareholder" hereunder.
(b) If a majority of the holders of Lamcor Stock approve the Merger and
the Merger Agreement, the Shareholder's Shares shall, pursuant to the
terms of the Merger Agreement, be exchanged for the consideration provided
in the Merger Agreement. The Shareholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such Shareholder may
have.
(c) The Shareholder shall not, nor shall it permit any person who is an
adviser or representative of the Shareholder to, directly or indirectly,
alone or in concert with others (i) solicit, initiate or encourage the
submission of, any Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding, or furnish to
any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Takeover Proposal; provided,
however, that such restrictions shall not apply to the extent required by
the fiduciary duties of the Shareholder arising out of his or her status
as a director of Lamcor. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence
by any person who is an adviser or representative of the Shareholder,
whether or not such person is purporting to act on behalf of the
Shareholder, shall be deemed to be in violation of this Section 3(c) by
the Shareholder. For all purposes hereof, "Takeover Proposal" means any
proposal for a merger, consolidation, share exchange or other business
combination involving Lamcor or any of its subsidiaries or any proposal,
tender or other offer to acquire in any manner, directly or indirectly, an
equity interest in any voting securities of, or a substantial portion of
the assets of Lamcor or any of its subsidiaries, other than the Merger and
the other transactions contemplated by the Merger Agreement.
- 3 -
<PAGE> 104
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, Buyer
and Allen D. Barnes, President of Buyer, and William C. Beddingfield, Executive
Vice President, Treasurer and Secretary of Buyer, in their respective
capacities as officers of Buyer, and any individual who shall hereafter succeed
to any such office of Buyer, and each of them individually, the Shareholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Shareholder, to vote the Shareholder's Shares, or
grant a consent or approval in respect of such Shareholder's Shares (i) in
favor of the Merger, the execution and delivery of the Merger Agreement and
approval of the terms thereof and each of the other transactions contemplated
by the Merger Agreement and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance
of the duties of the Shareholder under this Agreement. The Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. The Shareholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 302A.449 of the Minnesota Business
Corporation Act.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Lamcor affecting
the Lamcor Stock, or the acquisition of additional shares of Lamcor Stock or
other voting securities of Lamcor by any Shareholder, the number of
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Lamcor Stock or other voting securities of Lamcor
issued to or acquired by the Shareholder.
6. Stop Transfer. Lamcor agrees with, and covenants to, Buyer that Lamcor
shall not register the transfer of any certificate representing any of the
Shareholder's Shares, unless such transfer is made to Buyer or Sub or otherwise
in compliance with this Agreement. The Shareholder agrees that the Shareholder
will tender to Lamcor, within five business days after the date thereof, any
and all certificates representing such Shareholder's Shares and Lamcor will
inscribe upon such certificates the following legend:
- 4 -
<PAGE> 105
"The shares of Common Stock, no par value, of Lamcor, Incorporated
represented by this certificate are subject to a Shareholder Voting
Agreement dated as of _______, 1996, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of Lamcor,
Incorporated."
In the event that this Agreement is terminated in accordance with Section 9
hereof, Lamcor or its legal counsel may cause the foregoing legend to be
removed from such certificates.
7. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
8. Further Assurances. The Shareholder shall, upon request of Buyer,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Buyer to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 in Buyer and the other irrevocable proxies described
therein at the expense of Buyer.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (x) the Effective
Time of the Merger or (y) the date upon which the Merger Agreement is
terminated in accordance with its terms.
10. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to Buyer, to the address set forth
in Section 11.8 of the Merger Agreement; and (ii) if to the Shareholder; to its
address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
- 5 -
<PAGE> 106
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Minnesota, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that Buyer would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Buyer
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Minnesota or in Minnesota state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Minnesota or any
Minnesota state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Minnesota or a Minnesota state court.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed
by such party.
- 6 -
<PAGE> 107
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Shareholder Voting Agreement as of the day and year first above written.
PACKAGING ACQUISITION CORPORATION
By: /s/ Allen D. Barnes
-----------------------------------
President
LAMCOR, INCORPORATED
By: /s/ Toby Jensen
-----------------------------------
President
SHAREHOLDER:
/s/ Leo W. Lund
--------------------------------------
Name: Leo W. Lund
Address:8321 Dupont Ave. S.
Minneapolis, Minnesota 55420
Number of Shares
Beneficially Owned: 154,000
- 7 -
<PAGE> 108
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is made and entered
into as of September 30, 1996, by and between Packaging Acquisition
Corporation, a Georgia corporation ("Buyer"), Lamcor, Incorporated, a Minnesota
corporation ("Lamcor"), and the undersigned (the "Shareholder").
WHEREAS, the Shareholder desires that Buyer, LI Acquisition Corporation, a
wholly owned subsidiary of Buyer ("Sub"), and Lamcor enter into an Agreement
and Plan of Merger dated the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") with respect to the merger of Sub with
and into Lamcor (the "Merger"); and
WHEREAS, the Shareholder and Lamcor are executing this Agreement as an
inducement to Buyer to enter into and execute, and to cause Sub to enter into
and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by Buyer
and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein, the parties agree as follows:
1. Representations and Warranties. The Shareholder represents and warrants
to Buyer as follows:
(a) The Shareholder is the record and beneficial owner of the number of
shares (such "Shareholder's Shares") of common stock, no par value, of
Lamcor ("Lamcor Stock") set forth below such Shareholder's name on the
signature page hereof. Except for the Shareholder's Shares, the
Shareholder is not the record or beneficial owner of any shares of Lamcor
Stock. This Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder,
enforceable in accordance with its terms.
(b) Neither the execution and delivery of this Agreement nor the
consummation by the Shareholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Shareholder is a party or bound or to
which the Shareholder's Shares are subject. If the Shareholder is married
and the Shareholder's Shares constitute community property, this Agreement
has been duly executed and delivered by, and constitutes a valid and
binding agreement of, the Shareholder's spouse, enforceable against such
person in accordance with its terms, and reference herein to "Shareholder"
shall, unless the context clearly requires otherwise, also mean and
include such spouse. Consummation by the Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Shareholder or the Shareholder's
Shares.
<PAGE> 109
(c) The Shareholder's Shares and the certificates representing such
Shareholder's Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit
of such Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Shareholder.
(e) The Shareholder understands and acknowledges that Buyer is entering
into, and causing Sub to enter into, the Merger Agreement in reliance upon
the Shareholder's execution and delivery of this Agreement. The
Shareholder acknowledges that the irrevocable proxy set forth in Section 4
is granted in consideration for the execution and delivery of the Merger
Agreement by Buyer and Sub.
2. Voting Agreements. The Shareholder agrees with, and covenants to, Buyer
as follows:
(a) At any meeting of Shareholders of Lamcor called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought (the
"Shareholders' Meeting"), the Shareholder shall vote (or cause to be
voted) the Shareholder's Shares in favor of the Merger, the execution and
delivery by Lamcor of the Merger Agreement, and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of Shareholders of Lamcor or at any adjournment
thereof or in any other circumstances upon which their vote, consent or
other approval is sought, the Shareholder shall vote (or cause to be
voted) such Shareholder's Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by Lamcor or (ii) any
amendment of Lamcor's Articles of Incorporation or Bylaws or other
proposal or transaction involving Lamcor or any of its subsidiaries which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement (each of the
foregoing in clause (i) or (ii) above, a "Competing Transaction").
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<PAGE> 110
3. Covenants. The Shareholder agrees with, and covenants to, Buyer as
follows:
(a) The Shareholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, offer
for sale, solicitation of offer to purchase, gift, pledge or other
disposition), or consent to any transfer of, any or all of the
Shareholder's Shares or any interest therein, except pursuant to the
Merger; (ii) enter into or agree to enter into any contract, option or
other agreement or understanding with respect to any transfer of any or
all of such Shareholder's Shares or any interest therein, (iii) grant any
proxy, power of attorney or other authorization in or with respect to such
Shareholder's Shares, except for this Agreement, or (iv) deposit such
Shareholder's Shares into a voting trust or enter into or agree to enter
into a voting agreement or arrangement with respect to such Shareholder's
Shares; provided, however, that the Shareholder may transfer (as defined
above) any of the Shareholder's Shares to any other person who is on the
date hereof, or to any family member of a person or charitable institution
which prior to the Shareholders Meeting and prior to such transfer
becomes, a party to this Agreement bound by all the obligations of the
"Shareholder" hereunder.
(b) If a majority of the holders of Lamcor Stock approve the Merger and
the Merger Agreement, the Shareholder's Shares shall, pursuant to the
terms of the Merger Agreement, be exchanged for the consideration provided
in the Merger Agreement. The Shareholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such Shareholder may
have.
(c) The Shareholder shall not, nor shall it permit any person who is an
adviser or representative of the Shareholder to, directly or indirectly,
alone or in concert with others (i) solicit, initiate or encourage the
submission of, any Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding, or furnish to
any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes,
or may reasonably be expected to lead to, any Takeover Proposal; provided,
however, that such restrictions shall not apply to the extent required by
the fiduciary duties of the Shareholder arising out of his or her status
as a director of Lamcor. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence
by any person who is an adviser or representative of the Shareholder,
whether or not such person is purporting to act on behalf of the
Shareholder, shall be deemed to be in violation of this Section 3(c) by
the Shareholder. For all purposes hereof, "Takeover Proposal" means any
proposal for a merger, consolidation, share exchange or other business
combination involving Lamcor or any of its subsidiaries or any proposal,
tender or other offer to acquire in any manner, directly or indirectly, an
equity interest in any voting securities of, or a substantial portion of
the assets of Lamcor or any of its subsidiaries, other than the Merger and
the other transactions contemplated by the Merger Agreement.
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<PAGE> 111
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Shareholder hereby irrevocably grants to, and appoints, Buyer
and Allen D. Barnes, President of Buyer, and William C. Beddingfield, Executive
Vice President, Treasurer and Secretary of Buyer, in their respective
capacities as officers of Buyer, and any individual who shall hereafter succeed
to any such office of Buyer, and each of them individually, the Shareholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Shareholder, to vote the Shareholder's Shares, or
grant a consent or approval in respect of such Shareholder's Shares (i) in
favor of the Merger, the execution and delivery of the Merger Agreement and
approval of the terms thereof and each of the other transactions contemplated
by the Merger Agreement and (ii) against any Competing Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shareholder's shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance
of the duties of the Shareholder under this Agreement. The Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. The Shareholder hereby ratifies and confirms
all that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 302A.449 of the Minnesota Business
Corporation Act.
5. Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shareholder's Shares shall pass, whether by operation of law or otherwise,
including without limitation the Shareholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of Lamcor affecting
the Lamcor Stock, or the acquisition of additional shares of Lamcor Stock or
other voting securities of Lamcor by any Shareholder, the number of
Shareholder's Shares subject to the terms of this Agreement shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Lamcor Stock or other voting securities of Lamcor
issued to or acquired by the Shareholder.
6. Stop Transfer. Lamcor agrees with, and covenants to, Buyer that Lamcor
shall not register the transfer of any certificate representing any of the
Shareholder's Shares, unless such transfer is made to Buyer or Sub or otherwise
in compliance with this Agreement. The Shareholder agrees that the Shareholder
will tender to Lamcor, within five business days after the date thereof, any
and all certificates representing such Shareholder's Shares and Lamcor will
inscribe upon such certificates the following legend:
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<PAGE> 112
"The shares of Common Stock, no par value, of Lamcor, Incorporated
represented by this certificate are subject to a Shareholder Voting
Agreement dated as of _______, 1996, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such Agreement
may be obtained at the principal executive offices of Lamcor,
Incorporated."
In the event that this Agreement is terminated in accordance with Section 9
hereof, Lamcor or its legal counsel may cause the foregoing legend to be
removed from such certificates.
7. Regulatory Approvals. Each of the provisions of this Agreement is
subject to compliance with applicable regulatory conditions and receipt of any
required regulatory approvals.
8. Further Assurances. The Shareholder shall, upon request of Buyer,
execute and deliver any additional documents and take such further actions as
may reasonably be deemed by Buyer to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 in Buyer and the other irrevocable proxies described
therein at the expense of Buyer.
9. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first to occur of (x) the Effective
Time of the Merger or (y) the date upon which the Merger Agreement is
terminated in accordance with its terms.
10. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice): (i) if to Buyer, to the address set forth
in Section 11.8 of the Merger Agreement; and (ii) if to the Shareholder; to its
address shown below its signature on the last page hereof.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
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<PAGE> 113
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Minnesota, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except as expressly contemplated by Section 3(a).
Any assignment in violation of the foregoing shall be void.
(h) The Shareholder agrees that irreparable damage would occur and
that Buyer would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Buyer
shall be entitled to an injunction or injunctions to prevent breaches by the
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States located in the
State of Minnesota or in Minnesota state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Minnesota or any
Minnesota state court in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Minnesota or a Minnesota state court.
(i) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed
by such party.
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<PAGE> 114
IN WITNESS WHEREOF, the undersigned parties have executed and delivered
this Shareholder Voting Agreement as of the day and year first above written.
PACKAGING ACQUISITION CORPORATION
By: /s/ Allen D. Barnes
-----------------------------------
President
LAMCOR, INCORPORATED
By: /s/ Toby Jensen
-----------------------------------
President
SHAREHOLDER:
/s/ Toby Jensen
--------------------------------------
Name: Toby Jensen
Address:10646 1st Timberlane Dr.
Northfield, Minnesota 55057
Number of Shares
Beneficially Owned: 70,050
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