<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
JASON INCORPORATED
-----------------------------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.10 PER SHARE
-----------------------------------------------------
(Title of Class of Securities)
471171108
-----------------------------------------------------
(CUSIP Number)
Joshua N. Korff
Kirkland & Ellis
153 East 53rd Street
New York, New York 10022
(212)446-4943
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 30, 2000
(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(e), 13d-1(f) or 13d-1(g), check the following box
/ /.
NOTE: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-7(b) for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 19 Pages)
<PAGE> 2
CUSIP No.471171108 13D Page 2 of 19 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Calendar Acquisition Corp.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Wisconsin
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
None.
----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,686,683
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH None.
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,683
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,805,592
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
================================================================================
<PAGE> 3
CUSIP No.471171108 13D Page 3 of 19 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Calendar Holdings, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
None.
----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,686,683
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH None.
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,683
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,805,592
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
================================================================================
<PAGE> 4
CUSIP No.471171108 13D Page 4 of 19 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Saw Mill Investments II LLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
None.
----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,686,683
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH None.
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,683
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,805,592
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
00
================================================================================
<PAGE> 5
CUSIP No.471171108 13D Page 5 of 19 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Saw Mill Capital Fund II, L.P.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
None.
----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,686,683
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH None.
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,683
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,805,592
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
00
================================================================================
<PAGE> 6
CUSIP No.471171108 13D Page 6 of 19 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Vincent L. Martin
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
125
----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,686,683
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH 125
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,683
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,805,592
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE> 7
CUSIP No.471171108 13D Page 7 of 19 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Howard D. Unger
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF with respect to the 117,780 shares with respect to which Howard D. Unger
has sole voting and dispositive power.
00 with respect to the 7,686,683 shares with respect to which Howard D.
Unger has shared voting and dispositive power.
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
117,780
----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,686,683
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH 117,780
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,683
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,805,592
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE> 8
CUSIP No.471171108 13D Page 8 of 19 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Mark Train
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
1,004
----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,686,683
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH 1,004
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,683
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,805,592
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE> 9
CUSIP No.471171108 13D Page 9 of 19 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Janet D. Martin
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
SHARES WERE ACQUIRED BY GIFT.
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
None.
----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,686,683
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH None.
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,683
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,805,592
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
================================================================================
<PAGE> 10
CUSIP No.471171108 13D Page 10 of 19 Pages
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
The Martin Family Foundation
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
SHARES WERE ACQUIRED BY GIFT.
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
[TO COME]
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
None.
----------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 7,686,683
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH None.
----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
7,686,683
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,805,592
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
00
================================================================================
<PAGE> 11
ITEM 1. SECURITY AND ISSUER.
This Statement relates to the common stock, par value $0.10 per share
(the "Common Stock"), of Jason Incorporated, a Wisconsin corporation ("Issuer").
The address of the principal executive offices of the Issuer is 411 East
Wisconsin Avenue, Suite 2120, Milwaukee, WI 53202.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed by Calendar Holdings, Inc. ("Holdings"),
Calendar Acquisition Corp. ("Merger Sub"), Saw Mill Capital Fund II, L.P. ("SMC
II"), Saw Mill Investments II LLC, the general partner of SMC II ("Saw Mill
Investments"), Howard D. Unger ("Mr. Unger"), Vincent L. Martin ("Mr. Martin"),
Mark Train ("Mr. Train"), Janet D. Martin ("Mrs. Martin") and the Martin Family
Foundation (the "Foundation") (together, the "Reporting Persons").
(a)-(c) Holdings is a Delaware corporation. The address of its
principal business office is 22 Saw Mill River Road, Hawthorne, NY 10532.
Holdings was formed solely for the purpose of holding 100% of the capital stock
of Merger Sub, and after the Merger (as defined below), the Surviving
Corporation (as defined below). As of the date hereof, SMC II owns 100% of the
Common Stock of Holdings.
Merger Sub is a Wisconsin corporation. The address of its principal
business office is 22 Saw Mill River Road, Hawthorne, NY 10532. Merger Sub is a
wholly owned subsidiary of Holdings and was formed solely for the purpose of
merging with and into the Issuer, at which time the separate corporate existence
of Merger Sub will cease and the Issuer will continue in existence as the
surviving corporation in the Merger (the "Surviving Corporation").
SMC II is a Delaware limited partnership. The address of its principal
business and office is 22 Saw Mill River Road, Hawthorne, NY 10532. SMC II was
formed for the purpose of investing in equity securities of Holdings.
Saw Mill Investments is a Delaware limited liability company. The
address of its principal business and office is 22 Saw Mill River Road,
Hawthorne, NY 10532. Saw Mill Investments was formed solely for the purpose of
acting as the general partner of SMC II.
Howard D. Unger is the President of Saw Mill Investments and the
President, Vice President, Secretary and Treasurer and sole director of Merger
Sub and Holdings. Mr. Unger's business address is 22 Saw Mill River Road,
Hawthorne, NY 10532. Mr. Unger is engaged principally in the business of making
private equity investments.
Vincent L. Martin is the Chairman of the Board of Issuer. Mr. Martin's
business address is 411 East Wisconsin Avenue, Suite 2120, Milwaukee, WI 53202.
Mark Train is the Chief Executive Officer, President and a director of
Issuer. Mr. Train's business address is 411 East Wisconsin Avenue, Suite 2120,
Milwaukee, WI 53202.
Janet D. Martin is not currently actively employed. Mrs. Martin's
address is 2601 West Cedar Lane, Milwaukee, Wisconsin 53217.
The Martin Family Foundation is a family trust for the benefit of the
Martin family created under the law of Wisconsin. The address of the Foundation
is 2601 West Cedar Lane, Milwaukee, Wisconsin 53217. Mr. and Mrs. Martin are the
co-trustees of the trust.
A joint filing agreement of the Reporting Persons is attached hereto as Exhibit
4.
(d)-(e) During the last five years, none of the Reporting Persons has
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or was a party to a civil proceeding of a judicial or
administrative
Page 11 of 19 Pages
<PAGE> 12
body of competent jurisdiction as a result of which such person was or is
subject to 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.
(f) Mr. Unger, Mr. Martin, Mr. Train and Mrs. Martin are each citizens
of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Mr. Unger acquired direct ownership of 117,780 shares of Common Stock
in open market transactions for aggregate consideration of $812,358. Such funds
were provided by cash on hand and no funds were borrowed for such purpose (other
than ordinary course margin transactions). Mr. Unger acquired indirect
beneficial ownership of 7,686,683 shares of Common Stock upon the execution of a
Voting Agreement (the "Voting Agreement"), dated as of January 30, 2000, by and
between Merger Sub, the Management Stockholders (as defined below), Janet D.
Martin and the Martin Family Foundation. In the aggregate, as of the date
hereof, Mr. Unger has direct or indirect beneficial ownership of 7,804,463
shares of Common Stock representing approximately 38.2% of the total outstanding
Common Stock.
Mr. Train and Mr. Martin founded the Issuer on December 30,1985. The
4,430,129 shares of Common Stock owned, in the aggregate, by Mr. Martin, Mrs.
Martin and the Foundation were purchased by Mr. Martin from the Issuer in a
private transaction on December 30,1985. Mr. Martin transferred by gift the
73,746 shares of Common Stock owned by Mrs. Martin to Mrs. Martin prior to 1993,
and the 134,462 shares of Common Stock owned by the Foundation to the
Foundation, during the period from 1993 to 1998. The 3,257,683 shares of Common
Stock owned by Mr. Train were purchased by Mr. Train from the Issuer in a
private transaction on December 30,1985.
On January 30, 2000, the Issuer executed a definitive merger agreement
(the "Merger Agreement") with Holdings, Merger Sub, SMC II and Mr. Train and Mr.
Martin (Mr. Martin and Mr. Train are referred to herein as the "Management
Stockholders"). Under the terms of the Merger Agreement, Merger Sub will merge
with and into the Issuer (the "Merger") and the Issuer will be the Surviving
Corporation. After the Merger, Holdings will own 100% of the capital stock of
the Surviving Corporation. As of the date hereof, SMC II owns 100% of the Common
Stock of Holdings. Immediately after the Merger, SMC II will own approximately
57% of the issued and outstanding Common Stock of Holdings. Thus, immediately
after the merger, SMC II will indirectly control the Surviving Corporation. In
the Merger, the stockholders of Issuer (other than the Management Stockholders
for some of their shares of Common Stock) will receive cash consideration of
$11.25 per share of Common Stock (the "Merger Consideration") held by each such
stockholder in exchange for their shares of Common Stock. As described below,
the Management Stockholders will contribute a portion of their Common Stock to
Holdings prior to the Merger. For the remainder of their shares of Common Stock,
they will receive Merger Consideration in the Merger. Taking into account both
the Merger Consideration and the value of the Holdings Common Stock to be
received by the Management Stockholders, after giving effect to the transactions
contemplated by the Merger Agreement and the Contribution Agreement, the
Management Stockholders will receive average consideration valued at
approximately $10.90 per share of Common Stock.
Pursuant to the Merger Agreement, prior to the consummation of the
Merger, SMC II and the Management Stockholders have agreed to enter into a
Contribution Agreement by and among Holdings, SMC II, Merger Sub and the
Management Stockholders (the "Contribution Agreement") pursuant to which,
following the consummation of the transactions contemplated thereby, Merger Sub
will hold 2,670,597 shares of Common Stock, all of which will be canceled and
retired in the Merger pursuant to the Merger Agreement without any consideration
payable therefor.
The Merger Agreement requires approval by the requisite number of
holders of the Issuer's Common Stock required by Wisconsin law. The Merger is
also subject to other conditions, including consummation of the committed
financing contemplated by the Merger Agreement, and certain regulatory
approvals. The Merger is expected to be
Page 12 of 19 Pages
<PAGE> 13
completed during the second quarter of calendar year, 2000 assuming satisfaction
or waiver of all applicable conditions.
Financing the Merger will require approximately $334.4 million to pay
the aggregate cash consideration due to all stockholders and option holders of
the Issuer upon consummation of the Merger and to refinance a portion of the
Issuer's existing debt and to pay related fees and expenses. These funds are
expected to be provided through (a) a senior secured term loan facility of $95.0
million (the "Senior Debt Financing"); (b) the issuance of $125.0 million of
senior subordinated notes (the "Senior Sub Notes") of Issuer; (c) equity
financing (i) in the amount of$35.0 million provided by Chase Capital Partners,
The Northwestern Mutual Life Insurance Company and Massachusetts Mutual Life
Insurance Company (by David L. Babson Incorporated, its Investment Advisor)
through the purchase of senior preferred stock of Holdings, together with
warrants to purchase shares of Holdings Common Stock (the "Preferred Equity
Financing"); (ii) in the amount of approximately $37 million provided by SMC II
through the purchase of Holdings Common Stock (the "Common Equity Financing"),
(iii) in the amount of approximately $28 million provided by the Management
Stockholders and certain other members of the Issuer's management team by way
of a contribution of a portion of their existing equity in the Issuer to
Holdings in exchange for equity securities of Holdings (the "Management Equity
Financing") and (iv) the assumption by the Surviving Corporation of
approximately $14.4 million of the Issuer's existing indebtedness.
Holdings has obtained commitment letters from Chase Capital Partners,
Massachusetts Mutual Life Insurance Company (by David L. Babson Incorporated,
its Investment Advisor) and The Northwestern Mutual Life Insurance Company with
respect to the terms and conditions of the Preferred Equity Financing and Credit
Agricole Indosuez with respect to the terms and conditions of the Senior Debt
Financing. A copy of the commitment letter with respect to the Senior Debt
Financing is attached hereto as Exhibit 1. Holdings has also received a
commitment letter (the "Bridge Commitment Letter") from Credit Suisse First
Boston to provide $125.0 million of senior subordinated bridge loans (the
"Bridge Loans"). Additionally, pursuant to the Merger Agreement and the
Contribution Agreement, the Management Stockholders have agreed to provide $26
million of the Management Equity Financing (with the remaining $2 million being
provided by certain members of the Issuer's management team other than the
Management Stockholders) and SMC II has agreed to provide the Common Equity
Financing.
Pursuant to the Bridge Commitment Letter, Holdings has agreed to use
its commercially reasonable best efforts to offer and sell the Senior Sub Notes
of Issuer in lieu of borrowing under the Bridge Loans. In the event that Issuer
does not sell the Senior Subordinated Notes, Credit Suisse First Boston has
agreed to provide the Bridge Loans. The Bridge Loans would have a maturity date
(the "Maturity Date") that is 364 days from the date of the closing of the
Merger. Each Lender of Bridge Loans will have the option at any time to exchange
all or a portion of its Bridge Loans for senior subordinated notes of the Issuer
(the "Exchange Notes") ranking pari passu with the Bridge Loans. Each lender of
Bridge Loans who does not elect to exchange such loans for Exchange Notes will
be required to extend the maturity date of the Bridge Loans for intervals as
determined by each Lender; provided, that no Lender will be required to extend
the maturity date of the Bridge Loans beyond the tenth anniversary of the
closing of the Merger. The interest rate on the Bridge Loans increases each
three months after the Maturity Date, up to a maximum rate.
Exchange Notes mature on the tenth anniversary of the closing of the
Merger and bear interest at a fixed rate plus an applicable margin, up to a
maximum rate. The definitive documentation for the Bridge Loans and Exchange
Notes will contain affirmative and negative covenants and events of default
customary for issuances of similar debt securities of this size and type. The
definitive documentation will also require that the Issuer use its commercially
reasonable best efforts to cause a shelf registration statement to become
effective by the Maturity Date and to keep such registration statement effective
for up to two years to permit resale of the Exchange Notes.
ITEM 4. PURPOSE OF TRANSACTION.
The information set forth in item 3 above is incorporated herein by
reference. The Merger is being consummated to permit SMC II, together with the
Management Stockholders, to acquire the Issuer from the public stockholders of
Issuer and take Issuer from being a public corporation to being a private
corporation. After the Merger, SMC II will indirectly control Issuer through its
control of Holdings.
Page 13 of 19 Pages
<PAGE> 14
Each of Holdings, Merger Sub, SMC II, Saw Mill Investments and Mr.
Unger acquired beneficial ownership of 7,686,683 shares (representing
approximately 37.61% of the outstanding Common Stock as of the date hereof) of
the securities that are the subject of this filing upon the execution of a
Voting Agreement, dated as of January 30, 2000, by and between Merger Sub, the
Management Stockholders, Janet D. Martin and the Martin Family Foundation. In
the aggregate, as of the date hereof, Mr. Unger has direct or indirect
beneficial ownership of 7,805,592 shares of Common Stock representing
approximately 38.2% of the total outstanding Common Stock. The Management
Stockholders, Mrs. Martin and the Foundation entered into the Voting Agreement
in order to induce SMC II, Merger Sub and Holdings to enter into the Merger
Agreement.
Pursuant to the Voting Agreement, the Management Stockholders, Mrs.
Martin and the Foundation have agreed that at any meeting of stockholders of the
Issuer called for the approval of the Merger Agreement and the transactions
contemplated thereby (collectively, the "Transactions") or a transaction
involving the acquisition of a material portion of the assets or capital stock
of the Issuer other than the Merger (a "Third Party Transaction"), or in
connection with any written consent of the holders of shares of the Common
Stock, or in any other circumstances in which the Management Stockholders, Mrs.
Martin or the Foundation are entitled to vote, consent or give any other
approval, with respect to the Merger Agreement, the Transactions or a Third
Party Transaction, to vote (or cause to be voted) the shares of Common Stock of
Issuer held by the Management Stockholders, Mrs. Martin and the Foundation at
the direction of Merger Sub with respect to such transactions.
The Management Stockholders, Mrs. Martin and the Foundation also agreed
pursuant to the Voting Agreement that at any meeting of stockholders of the
Issuer, or in connection with any written consent of the holders of shares of
Issuer's Common Stock to vote (or cause to be voted) the shares of Common Stock
of Issuer held by the Management Stockholders, Mrs. Martin and the Foundation
against the following actions (1) any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Issuer or the Management Stockholders under the Merger
Agreement or of the Management Stockholders, Mrs. Martin or the Foundation under
the Voting Agreement; (2) any action or agreement that could reasonably be
expected to interfere with or delay or attempt to discourage the Merger and/or
the Transactions, including, but not limited to: (A) the adoption by the Issuer
of a proposal regarding (i) the acquisition of the Issuer by merger, tender
offer or otherwise by any person other than Merger Sub or any designee thereof
(a "Third Party"), or any other merger, combination or similar transaction with
any Third Party; (ii) the acquisition by a Third Party of 5% or more of the
assets of the Issuer and its subsidiaries, taken as a whole (whether by the
acquisition of assets or securities of, or any merger, consolidation or other
business combination involving, the Issuer or any of its subsidiaries); (iii)
the acquisition by a Third Party of 5% or more of the outstanding shares of
Issuer's Common Stock, or (iv) the repurchase by the Issuer and/or any of its
subsidiaries of 5% or more of the outstanding shares of Issuer's Common Stock;
(B) any amendment of the Issuer's Articles of Incorporation or By-laws or other
proposal or transaction involving the Issuer or any of its subsidiaries, which
amendment or other proposal or transaction could in any manner reasonably be
expected to impede, prevent or nullify the Merger, the Merger Agreement or the
Transactions, or change in any manner the rights and privileges, including,
without limitation, voting rights of any class of the Issuer's capital stock;
(C) any change in the management or board of directors of the Issuer that could
in any manner reasonably be expected to impede, prevent or nullify the Merger,
the Merger Agreement or the Transactions; (D) any material change in the present
capitalization or dividend policy of the Issuer; or (E) any other material
change in the Issuer's corporate structure or business. The Management
Stockholders, Mrs. Martin and the Foundation, in their capacity as stockholders
of the Issuer, also agreed not to commit or agree to take any action
inconsistent with the foregoing and granted to Merger Sub an irrevocable proxy
to vote the shares of Common Stock of Issuer held by the Management Stockholders
as indicated above.
Furthermore, the Management Stockholders, Mrs. Martin and the
Foundation agreed not to (i) sell, transfer, pledge, assign or otherwise dispose
of, or enter into any contract, option or other arrangement to sell, transfer,
pledge, assign or otherwise dispose of any of the shares of Common Stock of
Issuer held by the Management Stockholders, Mrs. Martin or the Foundation except
as contemplated by the Voting Agreement or the Merger Agreement, (ii) enter into
any voting arrangement or understanding with respect to the shares of Common
Stock of Issuer held by the
Page 14 of 19 Pages
<PAGE> 15
Management Stockholders, Mrs. Martin or the Foundation or (iii) take any action
that could reasonably be expected to make any of the Management Stockholders',
Mrs. Martin's or the Foundation's representations or warranties contained in the
Voting Agreement untrue or incorrect or could reasonably be expected to have the
effect of preventing or disabling the Management Stockholders, Mrs. Martin or
the Foundation from performing any of their obligations under the Voting
Agreement. Pursuant to the Voting Agreement the Management Stockholders also
agreed to enter into the Stockholders Agreement (as defined below) and to enter
into Employment Agreements with the Company.
The foregoing discussion of the Voting Agreement is qualified in its
entirety by reference to the Voting Agreement filed with this Schedule 13D as
Exhibit 3 and incorporated herein by reference.
(c) Not Applicable.
(d) In connection with the Merger, Holdings and its stockholders will
enter into a Stockholders Agreement (the "Stockholders Agreement") pursuant to
which each of the stockholders of Holdings party thereto will agree to vote in
favor of certain members of the Board of Directors of Holdings designated by
certain groups of Holding's stockholders. Pursuant to the Stockholders
Agreement:
(i) Holdings will have nine directors;
(ii) SMC II will designate three directors in its sole
discretion and will designate a fourth director who is not an affiliate
of SMC II or the Management Stockholders (an "Independent Director")
subject to the approval of the Management Stockholders;
(iii) The Management Stockholders will designate three
directors in their sole discretion and will designate a fourth
Independent Director subject to the approval of SMC II; and
(iv) the ninth director will be an Independent Director
approved by SMC II and the Management Stockholders.
The Stockholders Agreement also gives the holders of the senior preferred stock
of Holdings issued in connection with the financing of the Merger the ability to
cause the size of the Board of Directors of Holdings to increase to eleven and
to fill the two vacancies created thereby in the event the Surviving
Corporation's leverage ratio increases beyond a specified amount.
(e) In connection with the Merger and pursuant to the Merger Agreement,
each share of Common Stock of the Issuer outstanding at the time of the Merger
(other than shares of Common Stock held by Merger Sub) will be converted into
the right to receive the Merger Consideration. Following completion of the
Merger, all of the issued and outstanding capital stock of the Surviving
Corporation will be owned by Holdings.
(f) Not Applicable.
(g) Not Applicable.
(h) - (i)In connection with the Merger, the Issuer's Common Stock will
be delisted from the Nasdaq Stock Market and become eligible for termination of
registration pursuant to Section 12(g)(4) of the Act.
(j) Not applicable.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Page 15 of 19 Pages
<PAGE> 16
(a)-(b) Mr. Unger, in his individual capacity, directly owns 117,780
shares of Common Stock representing less than 1% of the outstanding shares as to
which he has sole voting and dispositive power. Mr. Unger acquired indirect
beneficial ownership of an additional 7,686,683 shares of Common Stock upon the
execution of the Voting Agreement. In the aggregate, as of the date hereof, Mr.
Unger has direct or indirect beneficial ownership of 7,804,463 shares of Common
Stock representing approximately 38.2% of the total outstanding Common Stock.
Merger Sub beneficially owns 7,686,683 shares of Common Stock,
representing approximately 37.6% of the outstanding shares as to which it has
shared voting and dispositive power by way of the Voting Agreement. Each of
Holdings, SMC II, Saw Mill Investments and Mr. Unger, exclusively through their
direct or indirect control of Merger Sub also beneficially own the same
7,686,683 shares of Common Stock, representing approximately 37.6% of the
outstanding shares of Common Stock and has shared voting and dispositive powers
over such shares by virtue of the Voting Agreement.
Vincent L. Martin beneficially owns 4,430,129 shares of Common Stock
representing approximately 21.7% of the outstanding shares of Common Stock:
4,096,215 shares individually; 73,746 through shares owned by his wife, Mrs.
Martin; 125,581 through a brokerage account; 125 as trustee for the Timothy
Martin Trust and 134,462 through the Martin Family Foundation. Of these
4,430,129 shares, Mr. Martin has shared voting and dispositive power by way of
the Voting Agreement with respect to 4,430,004 of these shares. With respect to
the shares beneficially owned by Mr. Martin as trustee for the Timothy Martin
Trust, Mr. Martin has sole voting and dispositive power.
Mark Train beneficially owns 3,257,683 shares of Common Stock
representing approximately 15.9% of the outstanding shares of Common Stock:
3,116,088 shares individually; 140,591 through a brokerage account; 502 as
custodian for Amy M. Train and 502 as custodian for Susan Elizabeth Train. Of
these 3,257,683 shares, Mr. Train has shared voting and dispositive power by way
of the Voting Agreement with respect to 3,256,679 of these shares. With respect
to the 1004 shares beneficially owned by Mr. Train as custodian for Amy M. Train
and Susan Elizabeth Train, Mr. Train has sole voting and dispositive power.
(c) In January 2000, Mr. Martin gifted 45,685 shares of Common Stock to
his adult children. No consideration was paid for these shares.
(d) Mr. Martin has the right to receive and the power to direct the
receipt of dividends and the proceeds from the sale of 4,096,215 shares of
Common Stock subject to the Voting Agreement. Mr. and Mrs. Martin have the
shared ability to direct the receipt of dividends and the proceeds from the sale
of 260,043 shares of Common Stock subject to the Voting Agreement.
Mrs. Martin has the right to receive and the power to direct the
receipt of dividends and the proceeds from the sale of 73,746 shares of Common
Stock subject to the Voting Agreement.
Mr. Train has the right to receive and the power to direct the
receipt of dividends and the proceeds from the sale of 3,117,092 shares of
Common Stock subject to the Voting Agreement. Mr. and Mrs. Train have the
shared ability to direct the receipt of dividends and the proceeds from the
sale of 140,591 shares of Common Stock subject to the Voting Agreement.
(e) Not Applicable.
Except as stated above, none of the Reporting Persons beneficially owns
any of the shares of capital stock of the Issuer.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
The information set forth in items 3 and 4 above is incorporated herein
by reference.
Page 16 of 19 Pages
<PAGE> 17
To induce Saw Mill, Holdings and Merger Sub to enter into the Merger
Agreement, the Management Stockholders entered into the Voting Agreement. The
Voting Agreement obligates the Management Stockholders to vote the shares of
Common Stock of Issuer held by the Management Stockholders as directed by Merger
Sub in favor of the Merger and against certain changes that could impede the
completion of the Merger. Although the Reporting Persons and the Management
Stockholders may be deemed to be have formed a "group" within the meaning of
Section 13(d) or 13(g) of the Act, the disclosure set forth in this Schedule
shall not be construed as an admission that such persons have in fact formed
such a "group."
The Issuer, the Management Stockholders, Mrs. Martin and Anne V. Train,
Mr. Train's wife, are parties to a Stock Purchase Agreement entered into as of
December 31, 1985, as amended by an Amendment Agreement, dated February 28, 1986
and a Second Amendment Agreement dated January 23, 1987 (as amended, the "Stock
Purchase Agreement"). The Stock Purchase Agreement: (i) restricts the Management
Stockholder's and Mrs. Martin's ability to transfer their shares of Common
Stock; (ii) gives the Issuer and the stockholders party to the Stock Purchase
Agreement a right of first refusal with respect to the transfer of shares of
Common Stock held by the parties to the Stock Purchase Agreement and (iii)
provides for certain purchase options with respect to the shares of Common Stock
held by the parties to the Stockholders Agreement in favor of the Issuer in the
event of a Management Stockholder's death, disability or termination of
employment with the Issuer. Pursuant to the Voting Agreement, the Management
Stockholders and Mrs. Martin have agreed to terminate and to cause the Company
to terminate the Stock Purchase Agreement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Commitment Letter dated January 20, 2000 to Holdings from Credit
Agricole Indosuez with respect to the Senior Debt Financing.
2. Agreement and Plan of Merger, dated as of January 30, 2000, by and
among the Issuer, Merger Sub, SMC II and the Management Stockholders.
3. (a) Voting Agreement, dated as of January 30, 2000, by and among
Merger Sub, the Management Stockholders, Janet D. Martin and the Martin Family
Foundation.
(b) Stock Purchase Agreement entered into as of December 30, 1985 by
and among Jason Incorporated, Vincent L. Martin, Mark Train, Janet D. Martin and
Anne V. Train.
(c) Amendment Agreement, dated February 28, 1986 by and among Jason
Incorporated, Vincent L. Martin, Mark Train, Janet D. Martin and Anne V. Train.
(d) Second Amendment Agreement dated January 23, 1987 by and among
Jason Incorporated, Vincent L. Martin, Mark Train, Janet D. Martin and Anne V.
Train.
4. Joint Filing Agreement, dated as of February 4, 2000, by and among
Merger Sub, Holdings, SMC II, Saw Mill Investments, and Howard D. Unger, Vincent
L. Martin, Mark Train, Janet D. Martin and the Martin Family Foundation.
Page 17 of 19 Pages
<PAGE> 18
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.
Dated: February 4, 2000
CALENDAR HOLDINGS, INC.
By: /s/ Howard D. Unger
-------------------------------------
Name: Howard D. Unger
Title: President
CALENDAR ACQUISITION CORP.
By: /s/ Howard D. Unger
-------------------------------------
Name: Howard D. Unger
Title: President
SAW MILL CAPITAL FUND II, L.P.
By: Saw Mill Investments II LLC
Its: General Partner
By: /s/ Howard D. Unger
-------------------------------------
Name: Howard D. Unger
Title: President
Saw Mill Investments II LLC
By: /s/ Howard D. Unger
-------------------------------------
Name: Howard D. Unger
Title: President
/s/ Howard D. Unger
-----------------------------------------
Howard D. Unger
/s/ Vincent L. Martin
-----------------------------------------
Vincent L. Martin
/s/ Mark Train
-----------------------------------------
Mark Train
Page 18 of 19 Pages
<PAGE> 19
/s/ Janet D. Martin
-----------------------------------------
Janet D. Martin
THE MARTIN FAMILY FOUNDATION
By: /s/ Vincent L. Martin
-------------------------------------
Name: Vincent L. Martin
Title: Trustee
Page 19 of 19 Pages
<PAGE> 1
Exhibit 1
JANUARY 20, 2000
Mr. Howard D. Unger
Mr. Scott A. Budoff
Calendar Acquisition Corp.
c/o Saw Mill Capital LLC
22 Saw Mill River Road
Hawthorne, NY 10532
Dear Sirs:
You have advised us that you intend to acquire by merger (the "Acquisition")
Jason, Incorporated (the "Company"). In connection with the Acquisition, you
have advised us of your intent to obtain a total of $255 million of debt
financing and $100 million of equity. It is our understanding that the total
consideration for the Acquisition, including fees and expenses, is approximately
$334 million, and that the proceeds from the financing will be used in
connection with (i) the Acquisition, (ii) the payment of related fees and
expenses and (iii) financing the Company's ongoing working capital and general
corporate requirements. Finally, you have advised us that the pro forma
capitalization of the Company will be approximately as follows:
<TABLE>
<CAPTION>
($ in millions) PRO FORMA
CAPITALIZATION
--------------
<S> <C>
Revolving Credit Facility (a) $ 0.0
Term Loan A 20.0
Term Loan B 75.0
------
TOTAL SENIOR SECURED 95.0
High Yield Subordinated Debt 125.0
Existing Debt 14.4
------
TOTAL DEBT 234.4
Preferred Equity 35.0
Common Equity (b) 65.0
------
TOTAL EQUITY 100.0
TOTAL CAPITALIZATION $334.4
======
</TABLE>
(a) Total availability of $35 million, subject to a borrowing base.
(b) Up to $3 million to be provided by Credit Agricole Indosuez or its
affiliates. Also includes roll-over equity not to exceed approximately $28
million.
Based on the information you have provided us, Credit Agricole Indosuez
("Indosuez") is pleased to commit to provide a $130 million senior secured
credit facility (the "Senior Facility") along the lines described in the Summary
Term Sheet attached hereto. In addition, Indosuez or
<PAGE> 2
Mr. Howard D. Unger
Mr. Scott A. Budoff
January 20, 2000
Page 2
its affiliates maintain the right to purchase up to $3 million of common equity
(together with the Senior Facility, the "Financing") in SMC Partners II, LLC.
By acceptance of our commitment herein, you agree (a) whether or not the
Acquisition is consummated, to pay and, if paid by us, promptly reimburse us
for, fees and disbursements of counsel (including local counsel), in connection
with the transactions contemplated hereby and other out-of-pocket expenses
incurred by us in connection with the examination, review, documentation,
syndication and closing of the transaction, (b) to indemnify and hold harmless
Indosuez and its affiliates, and the officers, directors, employees and agents
("Indemnified Persons") of any of them, against all claims, damages, liabilities
and expenses which may be incurred by or asserted against any of them in
connection with the transactions contemplated by this letter, as provided in
Exhibit A and (c) to pay, as part of the proposed Financing, the fees set forth
in the attached fee letter dated January 20, 2000 (the "Fee Letter").
It is agreed that Indosuez will act as the sole advisor and agent for the Senior
Facility. You agree that no other agents, co-agents, arrangers or book managers
will be appointed, no other titles will be awarded and no compensation (other
than that expressly contemplated by the Summary Term Sheet and the Fee Letter)
will be paid in connection with the Senior Facility or any other senior secured
financing in connection with the Acquisition unless you and we shall so agree.
Indosuez intends to syndicate the Senior Facility to a group of financial
institutions (the "Lenders") identified by Indosuez in consultation with you.
Indosuez intends to commence syndication efforts promptly upon the public
announcement of the Acquisition, and you agree actively to assist Indosuez in
completing a syndication satisfactory to Indosuez. Such assistance shall include
(a) your using commercially reasonable efforts to ensure that the syndication
efforts benefit materially from your existing lending relationships, (b) direct
contact between senior management and advisors of the Company, Saw Mill Capital
LLC (the "Sponsor") and the proposed Lenders, (c) assistance in the preparation
of a Confidential Information Memorandum and other marketing materials to be
used in connection with the syndication and (d) the hosting, with Indosuez, of
one or more meetings of prospective Lenders. You also agree that, at your
expense, you will work with Indosuez to procure, upon their request following
the public announcement of the Acquisition, a rating for the Senior Facility by
Moody's Investors Service, Inc. and Standard & Poor's Ratings Group.
Indosuez will manage all aspects of the syndication, including decisions as to
the selection of institutions to be approached and when they will be approached,
when their commitments will be accepted, which institutions will participate,
the allocations of the commitments among the Lenders and the amount and
distribution of fees among the Lenders; provided, however, that Indosuez will
obtain your prior approval (not to be unreasonably withheld) with respect to
which institutions will participate and will consult with you as to the
allocations of the commitments
<PAGE> 3
Mr. Howard D. Unger
Mr. Scott A. Budoff
January 20, 2000
Page 3
among the Lenders. It is understood that Indosuez will provide you with a list
of proposed syndicate members prior to approaching such institutions. To assist
Indosuez in its syndication efforts, you agree to use commercially reasonable
efforts to promptly prepare and provide to Indosuez all information with respect
to the Company, the Acquisition and the other transactions contemplated hereby,
including all financial information and projections (the "Projections"), as we
may reasonably request in connection with the arrangement and syndication of the
Senior Facility. You hereby represent and covenant that, to the best of your
knowledge, (a) all such information other than the Projections (the
"Information") that has been or will be made available to Indosuez by you or any
of your representatives is or will be, when furnished, complete and correct in
all material respects and does not or will not, when furnished, contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein not materially misleading in
light of the circumstances under which such statements are made and (b) the
Projections that have been or will be made available to Indosuez by you or any
of your representatives have been or will be prepared in good faith based upon
reasonable assumptions (it being understood that the Projections as they relate
to future events are not to be viewed as fact and that actual results during the
period or periods covered thereby may differ from the projected results set
forth therein by a material amount). You understand that in arranging and
syndicating the Senior Facility, we may use and rely on the Information and
Projections without independent verification thereof.
The commitments and agreements of Indosuez described herein are subject to (a)
there not occurring or becoming known to us any material adverse condition or
material adverse change in or affecting the business, operations, property,
condition (financial or otherwise) or prospects of the Company and its
subsidiaries, taken as a whole, (b) there not having occurred since the date of
this Commitment Letter a material disruption of or material adverse change in
financial, banking or capital market conditions that, in our reasonable
judgement, could materially impair the syndication of the Senior Facility, (c)
our satisfaction that prior to and during the syndication of the Senior Facility
there shall be no competing offering, placement or arrangement of any debt
securities or bank financing by or on behalf of the Company or any affiliate
thereof (other than $125 million of unsecured, subordinated high yield debt),
(d) the negotiation, execution and delivery of definitive documentation with
respect to the Senior Facility reasonably satisfactory to Indosuez and its
counsel, (e) your compliance with your covenants and agreements contained herein
and the correctness of your representations and warranties contained herein and
(f) the other conditions set forth or referred to in the Summary Term Sheet. The
terms and conditions of Indosuez's commitments hereunder and of the Senior
Facility are not limited to those set forth herein and in the Summary Term
Sheet. Those matters that are not covered by the provisions hereof and of the
Summary Term Sheet are subject to the approval and agreement of Indosuez and the
Sponsor.
<PAGE> 4
Mr. Howard D. Unger
Mr. Scott A. Budoff
January 20, 2000
Page 4
You acknowledge that Indosuez and its affiliates (the term "Indosuez" being
understood to refer hereinafter in this paragraph to include such affiliates)
may be providing debt financing, equity capital or other services (including
financial advisory services) to other companies in respect of which you may have
conflicting interests regarding the transactions described herein and otherwise.
Indosuez agrees that it will use the confidential information obtained from you
by virtue of the transactions contemplated by this Commitment Letter or its
other relationships with you only in connection with the performance by Indosuez
of its services for you set forth in this Commitment Letter and the Fee Letter
and that Indosuez will not disclose any confidential information to any other
person without the prior written consent of the Sponsor except (a) to the
officers, agents and advisors of Indosuez who are directly involved in the
consideration of this matter or (b) as may be compelled in a judicial or
administrative proceeding or as otherwise required by law or regulation (in
which case Indosuez agrees to inform you promptly thereof); provided that
Indosuez may disclose confidential information at the request of any regulatory
authority or self-regulatory organization without notice. You also acknowledge
that Indosuez has no obligation to use in connection with the transactions
contemplated by this Commitment Letter, or to furnish to you, confidential
information obtained from other companies.
This Commitment Letter shall not be assignable by you (except to your
affiliates) without the prior written consent of Indosuez (and any purported
assignment without such consent shall be null and void), is intended to be
solely for the benefit of the parties hereto and is not intended to confer any
benefits upon, or create any rights in favor of, any person other than the
parties hereto and the Indemnified Persons. This Commitment Letter may not be
amended or waived except by an instrument in writing signed by you and Indosuez.
This Commitment Letter may be executed in any number of counterparts, each of
which shall be an original, and all of which, when taken together, shall
constitute one agreement. Delivery of an executed signature page of this
Commitment Letter by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. This Commitment Letter (including the
Summary Term Sheet attached hereto) and the Fee Letter are the only agreements
that have been entered into between us with respect to the Senior Facility and
set forth the entire understanding of the parties with respect thereto. This
Commitment Letter shall be governed by, and construed in accordance with, the
laws of the State of New York.
This letter is being provided to you on the condition that neither it nor its
substance will be disclosed publicly or privately except to the Company and its
advisors who have a need to know as a result of their being specifically
involved in the Acquisition or as otherwise required by applicable law,
including applicable securities law, provided that you agree to consult with
Indosuez prior to such disclosure. None of such persons shall use or refer to
Credit Agricole Indosuez's or Indosuez Capital's name in any disclosure made in
connection with the transaction described without Credit Agricole Indosuez's or
Indosuez Capital's prior written consent.
<PAGE> 5
Mr. Howard D. Unger
Mr. Scott A. Budoff
January 20, 2000
Page 5
If the terms of this Commitment Letter are acceptable to you, we ask that you
return to us an executed copy of this letter. Indosuez's offer of this
commitment shall expire at 5:00 p.m. EST on February 1, 2000 unless accepted by
you on or prior to such date. Once accepted by you, Indosuez's commitment as set
forth herein shall expire at 5:00 p.m. on July 31, 2000 unless the Acquisition
shall have theretofore been consummated. Notwithstanding the expiration of
Indosuez's commitment hereunder, the compensation, reimbursement,
indemnification and confidentiality provisions set forth herein and in the Fee
Letter shall survive such expiration.
Please acknowledge your agreement by signing a copy of this letter and returning
it to us.
<PAGE> 6
Mr. Howard D. Unger
Mr. Scott A. Budoff
January 20, 2000
Page 6
We look forward to working with you on this transaction.
Sincerely,
CREDIT AGRICOLE INDOSUEZ
By:___________________________
Name:_________________________
Title:__________________________
By:___________________________
Name:_________________________
Title:__________________________
Agreed to and Accepted this ___
day of January, 2000
CALENDAR ACQUISITION CORP.
By:___________________________
Name:_________________________
Title:__________________________
<PAGE> 7
JASON, INCORPORATED
$130 MILLION SENIOR CREDIT FACILITY
SUMMARY TERM SHEET
BORROWER: Jason, Incorporated (the "Borrower" or the
"Company").
AGENT: Credit Agricole Indosuez.
LENDERS: Credit Agricole Indosuez and other financial
institutions to be determined by the Agent.
PURPOSE: To finance the acquisition of Jason,
Incorporated (the "Acquisition"), pay
related fees and expenses and for general
corporate and working capital purposes.
TYPE AND AMOUNT OF SENIOR
FACILITY: Term Loan A: $20 million term loan, subject
to reduction as set forth below.
Term Loan B: $75 million term loan, subject
to reduction as set forth below.
Revolving Credit Facility: $35 million
revolving credit facility, including a
sublimit for letters of credit ("Letters of
Credit"), if necessary.
CLOSING DATE: The date of the initial borrowing under the
Senior Facility.
FINAL MATURITY DATE: Term Loan A: Five and one-half years from
the Closing Date.
Term Loan B: Seven years from the Closing
Date.
Revolving Credit Facility: Five and one-half
years from the Closing Date.
<PAGE> 8
AMORTIZATION: Term Loan A: The Term Loan A will be
amortized in quarterly installments
beginning 3 months following the Closing
Date and ending on the Final Maturity Date,
as follows:
TERM LOAN A
<TABLE>
<CAPTION>
YEAR %
---- ---
<S> <C>
1 5.0%
2 10.0
3 15.0
4 20.0
5 25.0
5.5 25.0
</TABLE>
Term Loan B: The Term Loan B will be
amortized in quarterly installments
beginning 3 months following the Closing
Date and ending on the Final Maturity Date,
as follows:
TERM LOAN B
<TABLE>
<CAPTION>
YEAR %
---- ---
<S> <C>
1 1.0%
2 1.0
3 1.0
4 1.0
5 1.0
6 10.0
7 85.0
</TABLE>
Revolving Credit Facility: The Revolving
Credit Facility shall be paid in full at
maturity.
AVAILABILITY: Term Loan A: A single drawing of up to $20
million may be made at the Closing Date to
finance the Acquisition, refinance existing
indebtedness and to pay related fees and
expenses.
Term Loan B: A single drawing of up to $75
million may be made at the Closing Date to
finance the Acquisition, refinance existing
indebtedness and to pay related fees and
expenses.
Revolving Credit Facility: Assuming full
utilization of Term Loan A and Term Loan B
and subject to availability
-2-
<PAGE> 9
under the Borrowing Base, a drawing of up to
$5 million may be made on the Closing Date
to finance the Acquisition, refinance
existing indebtedness and to pay related
fees and expenses, and additional drawings
may be made at any time from the Closing
Date to, but excluding, the Final Maturity
Date of the Revolving Credit Facility for
working capital and general corporate
purposes. At no time shall the sum of the
aggregate principal amount of outstanding
Revolving Credit Loans plus the aggregate
face amount of outstanding Letters of Credit
exceed the lesser of the Revolving Credit
Facility commitment or the Borrowing Base
then in effect.
BORROWING BASE: The sum of 80% of Eligible Accounts
Receivable (to be defined) and 60% of
Eligible Inventory (to be defined).
INTEREST: At the Borrower's option, Base Rate and
LIBOR loans will be available as follows:
A. Base Rate Option
Interest shall be at the Base Rate of the
Agent plus the appropriate interest margin,
calculated on the basis of the actual number
of days elapsed in a year of 365 days,
payable quarterly in arrears. The Base Rate
is defined as the higher of the Federal
Funds Rate as published by the Federal
Reserve Bank of New York plus 1/2 of 1%, or
the prime commercial lending rate of the
Agent as announced from time to time at its
head office. Base Rate drawings shall be
made available on a same-day basis if
requested prior to 12:00 p.m. New York time
and shall be in minimum amounts of $100,000
and incremental multiples of $100,000.
B. LIBOR Option
Interest shall be determined for periods
("Interest Periods") of one, two, three or
six months (as selected by the Borrower) and
shall be at an annual rate equal to the
London Interbank Offered Rate ("LIBOR") for
the corresponding deposits of U.S. Dollars
plus the appropriate interest margin. LIBOR
will be determined by the Reference Lenders
at the beginning of each Interest Period.
Interest will be paid at the end of each
Interest Period or quarterly, whichever is
earlier, and will be calculated on
-3-
<PAGE> 10
the basis of a 360-day year and actual
number of days elapsed. LIBOR drawings shall
require three business days' prior notice
and shall be in minimum amounts of $100,000
and incremental multiples of $100,000.
INTEREST MARGIN: The initial applicable interest margins
shall be as follows:
<TABLE>
<CAPTION>
BASE RATE LOANS LIBOR LOANS
--------------- -----------
<S> <C> <C>
Revolving Credit Facility 1.50% 3.00%
Term Loan A 1.50 3.00
Term Loan B 2.00 3.50
</TABLE>
Six months following the Closing Date, the
Revolving Credit Facility and the Term Loan
A Interest Margins will be subject to a
pricing grid based on total leverage.
REFERENCE LENDERS: A representative sample of banks will be
selected by the Agent as Reference Lenders
to establish LIBOR rates.
DEFAULT INTEREST: 2.0% per annum in excess of the rate
otherwise applicable upon the occurrence and
during the continuance of any payment
default.
COMMITMENT FEES: Commitment fees of 1/2 of one percent per
annum on the unused commitments under the
Revolving Credit Facility shall be payable
to the Agent, for the account of the
Lenders, from and after the Closing Date.
Accrued commitment fees will be payable
quarterly in arrears (calculated on a
360-day year basis).
MANDATORY PREPAYMENTS: 100% of the net proceeds (subject to
customary carve-outs to be negotiated) (to
be defined) received from (i) the sale or
disposition of all or any part of the assets
of the Borrower or any of its subsidiaries
(other than sales of inventory in the
ordinary course of business), (ii) the
incurrence of any indebtedness for borrowed
money or the issuance of debt (other than in
connection with the Acquisition) or equity
securities (other than equity to finance
Permitted Acquisitions (to be defined) and
equity furnished by Saw Mill Capital Fund
II, L.P. or its affiliates) (including any
off-balance sheet financing) by the Borrower
after the Closing Date, (iii) at the Agent's
discretion, insurance recoveries other than
recoveries of less than a threshold amount
to be determined that are
-4-
<PAGE> 11
promptly applied toward repair or
replacement of the damaged property and (iv)
the reversion of pension plan assets. In
addition, within 90 days after the end of
each fiscal year of the Borrower, a
mandatory repayment equal to 50% of Excess
Cash Flow (to be defined) for such fiscal
year shall be required. Mandatory
prepayments shall be applied without penalty
or premium (except for LIBOR breakage costs,
if any) pro rata to Term Loan A and Term
Loan B installments in pro rata order of
maturity, and thereafter to reduce
outstanding loans under the Revolving Credit
Facility and to cash collateralize Letters
of Credit.
VOLUNTARY PREPAYMENTS: Permitted in whole or in part with prior
notice but without premium or penalty,
subject to minimum prepayments of $100,000
or integral multiples of $100,000 in excess
of $100,000. LIBOR loans may only be prepaid
on the last day of the applicable Interest
Period, unless LIBOR breakage costs are
paid. Voluntary prepayments of Term Loan A
and Term Loan B shall be applied without
penalty or premium (except for LIBOR
breakage costs, if any) pro rata to both
Term Loan A and Term Loan B installments in
pro rata order of maturity.
SECURITY: The Senior Facility will be secured by
perfected first priority security interests
in favor of the Lenders in all tangible and
intangible assets, including, but not
limited to, accounts receivable, inventory,
property, plant and equipment, contract
rights and other personal, intellectual and
real property of the Borrower and its
domestic subsidiaries now owned or hereafter
acquired. In addition, the Senior Facility
shall be secured by a pledge of 100% of the
common stock of the Borrower and 100% of the
capital stock of each U.S. subsidiary now
owned or hereafter acquired and 66% of the
capital stock of each foreign subsidiary now
owned or hereafter acquired.
-5-
<PAGE> 12
GUARANTEE: The Senior Facility will be guaranteed by
each domestic subsidiary of the Borrower now
owned or hereafter acquired (secured by a
pledge of the common stock of the Borrower
and the capital stock of each such
subsidiary as described in "Security"
above).
CONDITIONS PRECEDENT
TO THE INITIAL AVAILABILITY: Conditions precedent to the initial
borrowings under the Senior Facility will
include the conditions set forth in the
Commitment Letter dated January 20, 2000 and
the completion or satisfaction of the
following:
(i) The negotiation, execution and
delivery of a credit agreement
(including schedules, exhibits and
ancillary documentation) and related
security agreements (including
landlord lien waivers), legal
opinions, and other supporting
documentation reasonably satisfactory
(collectively, the "Credit
Documentation") in form and substance
to the Lenders and their counsel. Such
Credit Documentation will contain
representations, warranties, events of
default and covenants (including, but
not limited to, those referred to
below), and other provisions customary
in transactions of this type.
(ii) The Lenders' satisfaction that the
debt financing, including all
borrowings under the Senior Facility,
shall be in full compliance with all
material legal requirements,
including, without limitation, all
material regulatory and third party
consents and approvals.
(iii) The Borrower will have received gross
proceeds of $125 million of
subordinated bridge or high yield
debt, with the final terms and
conditions of such debt satisfactory
to the Agent. The terms of any
existing indebtedness consisting of no
more than $20 million of foreign debt
shall be satisfactory to the Agent.
(iv) The Borrower will have been
capitalized with a minimum of $35
million of preferred equity and $65
million of common equity (including no
more than approximately $28 million of
roll-over equity),
-6-
<PAGE> 13
with the final terms and conditions
of such equity satisfactory to the
Agent.
(v) The Lenders shall have a perfected
first priority security interest in
all collateral described above under
the heading "Security", subject to
such exceptions as shall be
satisfactory to the Agent.
(vi) All documentation relating to the
Acquisition, including, without
limitation, the acquisition agreement
(the "Acquisition Agreement") shall be
in form and substance satisfactory to
the Agent.
(vii) All references to the financing
contemplated hereby and to the
financing parties contained in any
documentation relating to the
Acquisition, including, without
limitation, any proxy statement or
other any public document relating to
the Acquisition, shall be satisfactory
to the Agent.
(viii) The number of outstanding shares of
common stock of the Company shall not
have increased by a material amount
since the date of the Commitment
Letter.
(ix) Shareholders holding at least 39% of
the outstanding shares of common stock
of the Company (calculated in
accordance with the Securities
Exchange Act of 1934 and the
regulations thereunder) shall have
entered into a binding agreement to
vote in favor of the Acquisition.
(x) The Acquisition shall have been
consummated in accordance with the
Acquisition Agreement without any
material waiver, amendment, supplement
or other modification not consented to
by the Agent, and in compliance with
all applicable laws.
(xi) The Lenders shall be satisfied that
the consummation of the Acquisition
and the financing thereof will not
violate Regulations T, U or X of the
Board of Governors of the Federal
Reserve System.
-7-
<PAGE> 14
(xii) The Lenders shall have received the
results of a recent lien search in
each relevant jurisdiction with
respect to the Borrower and its
subsidiaries, and such search shall
reveal no liens on any of the assets
of the Borrower or its subsidiaries
except for liens permitted by the
Credit Documentation or liens to be
discharged on or prior to the Closing
Date pursuant to documentation
satisfactory to the Agent.
(xiii) The Lenders shall have received (i)
audited consolidated financial
statements of the Borrower for the two
most recent fiscal years ended prior
to the Closing Date as to which such
financial statements are available,
(ii) unaudited interim consolidated
financial statements of the Borrower
for each quarterly period ended
subsequent to the date of the latest
financial statements delivered
pursuant to clause (i) of this
paragraph as to which such financial
statements are available (it being
understood that the Lenders have
received audited consolidated
financial statements of the Borrower
for the 1997 and 1998 fiscal years and
unaudited interim consolidated
financial statements of the Borrower
for the fiscal quarters ended March
31, 1999, June 30, 1999 and September
30, 1999), (iii) a pro forma
consolidated balance sheet of the
Borrower as of a date to be agreed,
adjusted to give effect to the
consummation of the Acquisition and
the financings contemplated hereby as
if such transactions had occurred on
such date and (iv) such other
financial statements as may be
reasonably requested by the Agent, and
all such financial statements,
historical and pro forma, delivered
pursuant to this paragraph (xiii)
shall be in compliance with GAPP and
the requirements of Regulation S-X,
and shall not be materially
inconsistent with financial statements
previously provided to the Agent and,
if applicable, the Lenders.
(xiv) All costs, fees and expenses
(including, without limitation, legal
fees and expenses) and other
compensation payable to the Lenders
shall have
-8-
<PAGE> 15
been paid in full to the extent due.
(xv) No litigation by any entity (private
or governmental) shall be pending or
threatened at closing which in the
Lenders' good faith judgment could
reasonably be expected to have a
materially adverse effect on the
business, operations, property,
assets, liabilities, condition
(financial or otherwise), or prospects
of the Borrower, its subsidiaries or
the Borrower's parent, taken as a
whole, going forward.
(xvi) The Borrower's compliance with all
material applicable federal, state,
local and foreign laws and
regulations, including all material
applicable environmental laws and
regulations.
(xvii) Receipt of customary and satisfactory
certificates of the officers of the
Borrower including a solvency
certificate.
(xviii) The Lenders shall have received an
environmental report, together with a
reliance report to the Lenders with
respect to the Borrower and its
subsidiaries satisfactory to the
Agent.
(xix) The Lenders' receipt of a pro forma
Borrowing Base certificate
satisfactory in form and substance to
the Agent.
(xx) Satisfactory senior management
employment contracts including
non-compete agreements.
(xxi) Satisfaction with corporate governance
structure.
(xxii) The Lenders' satisfactory review of
the fees and expenses associated with
the transaction, and in any case, not
in excess of $20 million.
-9-
<PAGE> 16
REPRESENTATIONS &
WARRANTIES: Customary for the Agent and those
appropriate to this transaction, including,
but not limited to, accuracy of financial
statements, no material adverse change,
corporate existence, compliance with law,
corporate power and authority,
enforceability of Credit Documentation, no
material litigation, no default, no conflict
with law or contractual obligations and
payment of taxes.
AFFIRMATIVE COVENANTS: Affirmative covenants for the Senior
Facility will include those customary for
the Agent and those appropriate to this
transaction, including, but not limited to,
delivery of financial statements, budgets,
reports, accountants' letters, projections,
officers' certificates and other information
requested by the Lenders; payment of other
obligations, continuation of business and
maintenance of existence and material rights
and privileges; compliance with laws and
material contractual obligations;
maintenance of property and insurance;
maintenance of books and records; and
implementation of an interest rate
protection program reasonably acceptable to
the Agent.
NEGATIVE COVENANTS: Negative covenants for the Senior Facility
will include those customary for the Agent
and appropriate to this transaction,
including, but not limited to, minimum
EBITDA, maximum senior leverage ratio,
maximum total leverage ratio, minimum
interest coverage ratio, minimum fixed
charge coverage ratio, maximum capital
expenditures, limitations on indebtedness,
guarantee obligations, consolidations,
liquidations and dissolutions, sales of
assets, leases, dividends, affiliate
transactions, management fees, investments
and loans and advances.
EVENTS OF DEFAULT: Will include those customary for the Agent
and appropriate to this transaction,
including (without limitation and subject,
in certain cases, to notice and cure
provisions to be agreed upon) nonpayment,
misrepresentation, breach of covenant,
cross-defaults, bankruptcy, ERISA events,
judgments, change of control and change in
the security granted to Lenders.
-10-
<PAGE> 17
FEES AND EXPENSES: The Borrower is responsible for all
reasonable counsel's fees and expenses
regardless of whether the Credit
Documentation is executed or the transaction
is closed.
INDEMNIFICATION: As provided in Exhibit A hereto.
ASSIGNMENTS AND
PARTICIPATIONS: Each Lender may assign all or a portion of
its loans and commitments under the Senior
Facility (which shall not have to be pro
rata among the Senior Facility) or sell
participations therein to another person or
persons subject to limitation, if any,
established by the Agent, provided that the
minimum assignment shall be $5,000,000,
unless otherwise agreed by the Borrower and
the Agent.
GOVERNING LAW: The laws of the State of New York.
-11-
<PAGE> 18
EXHIBIT A
INDEMNIFICATION
(a) You agree to and hereby do indemnify and hold harmless us and our
affiliates, directors, officers, counsel, agents and employees and each other
person, if any, controlling us or any of our respective affiliates (each an
"Indemnified Party") within the meaning of either Section 15 of the Securities
Act of 1933, as amended (the "33 Act") or Section 20(a) of the Securities
Exchange Act of 1934 (the "34 Act") (each, an "Indemnified Party") from and
against any and all losses, claims, damages, expenses (including attorneys' fees
and disbursements) or liabilities resulting from any actual or threatened legal
actions, proceedings or investigations arising out of our engagement hereunder
or the financings contemplated hereby or our role in connection therewith
whether or not we or any other Indemnified Party is named as a party to any such
legal action, proceeding or investigation ("Claims"). You further agree to
reimburse each Indemnified Party promptly upon demand from time to time for all
expenses (including attorneys' fees and disbursements) as they are incurred in
connection with the investigation of, preparation for or defense of any Claim.
You will not, however, be responsible to any Indemnified Party hereunder for any
Claims to the extent that a court of competent jurisdiction shall have finally
judicially determined that any such claim shall have arisen primarily out of or
resulted primarily from actions taken or omitted to be taken by any Indemnified
Party constituting the gross negligence or willful malfeasance of such
Indemnified Party. Further, should any of our employees be involved in any legal
action or proceeding or investigation in connection with the transactions
contemplated hereby, you shall compensate us in an amount to be mutually agreed
upon per employee per day for each day or portion thereof that such employee is
involved in preparation and testimony pertaining to any such legal action or
proceeding.
(b) We agree to notify you promptly of the assertion in writing of any
claim or the commencement of any action, proceeding or investigation against any
Indemnified Party relating to the Loan contemplated hereby. Our failure so to
notify you shall not relieve you from any obligation or liability that you would
otherwise have pursuant to this letter unless (and only to the extent that) you
have been prejudiced by such failure.
(c) In the event of the assertion against any Indemnified Party of any
such claim or the commencement of any such action or proceeding, you shall be
entitled to participate in such action or proceeding and in the investigation of
such claim, and, after written notice from you to us, to assume and control the
investigation or defense of such claim, action or proceeding with counsel of
your choice at your expense; provided, however, that such counsel shall be
nationally recognized in such matters. Notwithstanding your election to assume
the defense or investigation of such claim, action or proceeding, we shall at
our sole cost and expense have the right to employ separate counsel and to
participate in the defense or investigation of such claim, action or proceeding.
You shall bear the expense of such separate counsel and we shall control our own
defense or investigation if (i) in the written opinion of counsel to us there
could reasonably be expected to be a conflict of interest between you and any
Indemnified Party, (ii) you shall not have employed counsel to represent the
Indemnified Party within a reasonable time after notice of the commencement of
any such litigation or proceeding or (iii) you shall authorize us to employ
separate counsel at your expense.
(d) If for any reason the foregoing indemnity is unavailable to any
Indemnified Party or insufficient to hold it harmless as contemplated by the
preceding clause (a), then you shall contribute to the amount paid or payable by
the Indemnified Party as a result of any Claim in such proportion as is
appropriate to reflect the relative benefits received or sought to be received
by you on the one hand and such Indemnified Party on the other hand, or, if such
allocation of liabilities with respect to contributions shall be held to be
unenforceable, then in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of you and such Indemnified
Party, as well as any other relevant equitable considerations.
-12-
<PAGE> 1
Exhibit 2
EXECUTION COPY
- --------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
AMONG
SAW MILL CAPITAL FUND II, L.P.,
CALENDAR HOLDINGS, INC.,
CALENDAR ACQUISITION CORP.,
JASON INCORPORATED
AND
THE SHAREHOLDERS OF THE COMPANY NAMED HEREIN
- --------------------------------------------------------------------------------
January 30, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
ARTICLE I
<S> <C>
THE MERGER AND THE OTHER TRANSACTIONS ......................................... 2
SECTION 1.01 Contribution Agreement .......................................... 2
SECTION 1.02 Debt and Preferred Equity Financing ............................. 2
SECTION 1.03 The Merger ...................................................... 3
SECTION 1.04 Effective Time; Closing ......................................... 3
SECTION 1.05 Effect of the Merger ............................................ 3
SECTION 1.06 Articles of Incorporation; By-laws .............................. 3
SECTION 1.07 Directors and Officers .......................................... 4
SECTION 1.08 Additional Actions .............................................. 4
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES; DEPOSIT ................... 4
SECTION 2.01 Effect on Capital Stock and Company Stock Options ............... 4
SECTION 2.02 Exchange of Certificates ........................................ 5
SECTION 2.03 Company Stock Options; Plans .................................... 7
SECTION 2.05 Adjustment of Merger Consideration and Option Consideration ..... 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY ................................. 9
SECTION 3.01 Organization and Qualification; Subsidiaries .................... 9
SECTION 3.02 Articles of Incorporation and By-laws ........................... 10
SECTION 3.03 Capitalization .................................................. 10
SECTION 3.04 Authority Relative to this Agreement ............................ 11
SECTION 3.05 No Conflict; Required Filings and Consents ...................... 11
SECTION 3.06 SEC Filings; Financial Statements; Undisclosed Liabilities ...... 12
SECTION 3.07 Absence of Certain Changes or Events ............................ 13
SECTION 3.08 Absence of Litigation ........................................... 14
SECTION 3.09 Shareholder Vote Required ....................................... 14
SECTION 3.10 Opinion of Financial Advisor .................................... 14
SECTION 3.11 Brokers ......................................................... 15
SECTION 3.12 Company Action; State Takeover Statutes ......................... 15
SECTION 3.13 Information Supplied ............................................ 15
SECTION 3.14 Compliance with Laws ............................................ 15
SECTION 3.15 Tax Matters ..................................................... 15
SECTION 3.16 Change of Control Provisions .................................... 16
SECTION 3.17 Transactions with Affiliates .................................... 16
SECTION 3.18 Foreign Corrupt Practices Act ................................... 16
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
(CONT'D)
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
SAW MILL, PARENT AND MERGER SUB ............................................... 17
SECTION 4.01 Organization and Qualification; Subsidiaries .................... 17
SECTION 4.02 Authority Relative to this Agreement ............................ 17
SECTION 4.03 No Conflict; Required Filings and Consents ...................... 17
SECTION 4.04 Interim Operations of Parent and Merger Sub. .................... 18
SECTION 4.05 Information Supplied ............................................ 18
SECTION 4.06 Brokers ......................................................... 18
SECTION 4.07 Financing ....................................................... 18
SECTION 4.08 Capitalization of Merger Sub. ................................... 19
SECTION 4.09 Solvency ........................................................ 19
SECTION 4.10 Pro Formas ...................................................... 19
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS ............................ 20
SECTION 5.01 No Conflict; Required Filings and Consents ...................... 20
SECTION 5.02 Ownership of Owned Shares ....................................... 20
SECTION 5.03 Authority Relative to this Agreement ............................ 20
SECTION 5.04 No Finder's Fees ................................................ 21
SECTION 5.05 Transactions with Shareholders .................................. 21
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER ........................................ 21
SECTION 6.01 Conduct of Business by the Company Pending the Merger ........... 21
ARTICLE VII
ADDITIONAL AGREEMENTS ......................................................... 23
SECTION 7.01 Shareholders' Meeting ........................................... 23
SECTION 7.02 Preparation of Proxy Statement .................................. 24
SECTION 7.03 Appropriate Action; Consents; Filings; Further Assurances ....... 25
SECTION 7.04 Confidentiality; Access to Information .......................... 26
SECTION 7.05 Fiduciary Responsibilities ...................................... 28
SECTION 7.06 Indemnification and Insurance ................................... 30
SECTION 7.07 Notification of Certain Matters ................................. 31
SECTION 7.08 Public Announcements ............................................ 32
SECTION 7.09 Cooperation with Financing ...................................... 32
SECTION 7.10 Shareholder Approval ............................................ 33
SECTION 7.11 Exchange Act and NASDAQ Filings ................................. 33
SECTION 7.13 State Takeover Laws ............................................. 33
SECTION 7.14 Capital Stock of Merger Sub and Parent .......................... 33
</TABLE>
ii
<PAGE> 4
TABLE OF CONTENTS
(CONT'D)
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 7.15 Debt and Preferred Equity Financing ............................. 33
SECTION 7.16 Equity Securities of the Company ................................ 34
ARTICLE VIII
CONDITIONS TO THE MERGER ...................................................... 34
SECTION 8.01 Conditions to the Obligations of Each Party ..................... 34
SECTION 8.02 Conditions to the Obligations of Merger Sub. .................... 35
SECTION 8.03 Conditions to the Obligations of the Company and the Shareholders 36
SECTION 8.04 Conditions to the Obligations of Saw Mill and Parent ............ 36
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER ............................................. 37
SECTION 9.01 Termination ..................................................... 37
SECTION 9.02 Method of Termination; Effect of Termination .................... 38
SECTION 9.03 Fees and Expenses ............................................... 38
SECTION 9.04 Amendment ....................................................... 40
SECTION 9.05 Waiver .......................................................... 41
ARTICLE X
GENERAL PROVISIONS .......................................................... 41
SECTION 10.01 Non-Survival of Representations and Warranties ............... 41
SECTION 10.02 Notices ...................................................... 41
SECTION 10.03 Certain Definitions .......................................... 43
SECTION 10.04 Accounting Terms ............................................. 45
SECTION 10.05 Severability ................................................. 45
SECTION 10.06 Entire Agreement; Assignment ................................. 45
SECTION 10.07 Parties in Interest .......................................... 45
SECTION 10.08 Specific Performance ......................................... 45
SECTION 10.09 Governing Law ................................................ 46
SECTION 10.10 Headings ..................................................... 46
SECTION 10.11 Counterparts ................................................. 46
SECTION 10.12 Construction ................................................. 46
SECTION 10.13 Recitals ..................................................... 46
SECTION 10.14 Knowledge of Saw Mill, Parent and Merger Sub. ................ 46
</TABLE>
iii
<PAGE> 5
TABLE OF CONTENTS
(CONT'D)
<TABLE>
<CAPTION>
EXHIBITS:
<S> <C> <C>
Exhibit A - Form of Contribution Agreement
Exhibit B - Pro Formas
Exhibit C - Owned Shares
Exhibit D - Permitted Indebtedness for Borrowed Money
Exhibit E - Required Consents
Exhibit F - Agreements with Shareholder Related Parties
Exhibit G-1 - Senior Debt Commitment Letter
Exhibit G-2 - Subordinated Debt Commitment Letter
Exhibit G-3 - Preferred Equity Commitment Letter
Exhibit H - Form of Legal Opinion
</TABLE>
DISCLOSURE SCHEDULES:
Company Disclosure Schedule
iv
<PAGE> 6
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of January 30, 2000
(this "Agreement") among Saw Mill Capital Fund II, L.P., a Delaware limited
partnership ("Saw Mill"), Calendar Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of Saw Mill ("Parent"), Calendar Acquisition Corp., a
Wisconsin corporation and a wholly-owned subsidiary of Parent, ("Merger Sub"),
Jason Incorporated, a Wisconsin corporation (the "Company"), Vincent L. Martin
("Chairman"), and Mark Train ("Chief Executive Officer", and together with the
Chairman, the "Shareholders"). Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in Section 10.03.
WHEREAS, the Board of Directors of the Company formed a
special committee of the Board of Directors consisting entirely of outside,
independent members of the Company's Board of Directors (the "Special
Committee");
WHEREAS, the Special Committee has engaged independent legal
and financial advisors (the "Independent Advisors"), and together with the
Independent Advisors, has explored various strategic alternatives for the
Company;
WHEREAS, after exploring the various available strategic
alternatives for the Company and after consultation with the Independent
Advisors, the Special Committee has determined that the Acquisition is fair to,
and is in the best interest of the Company and the holders of shares of Company
Common Stock (as such term is defined in Section 3.03), and the Board of
Directors of the Company has adopted the recommendation of the Special
Committee;
WHEREAS, immediately prior to the Closing (as defined below),
Parent, Merger Sub, Saw Mill and the Shareholders shall (i) execute and deliver
a contribution agreement substantially in the form attached hereto as Exhibit A
(the "Contribution Agreement") and (ii) consummate the transactions contemplated
thereby (the "Pre-Merger Contributions");
WHEREAS, pursuant to the terms of the Contribution Agreement,
immediately prior to the Closing, the Shareholders are contributing 2,552,817
shares of Company Common Stock at an agreed upon value per share of Company
Common Stock as set forth in the Contribution Agreement and, pursuant to the
terms of this Agreement, at the Closing, the Shareholders and certain of the
Shareholders' related parties will be entitled to receive $11.25 per share of
Company Common Stock (other than any Contributed Company Common Shares (as such
term is defined in the Contribution Agreement)); accordingly, in connection with
the consummation of the transactions contemplated by this Agreement, the
Shareholders and such related parties of the Shareholders shall be entitled to
receive aggregate consideration equal to approximately $10.896 per share of
Company Common Stock owned by them;
WHEREAS, the respective Boards of Directors of the Company and
Merger Sub have approved and declared advisable a merger (the "Merger") of
Merger Sub with and into the Company upon the terms and subject to the
conditions set forth in this Agreement, with the
<PAGE> 7
Company surviving the Merger, and the Board of Directors of the Company (acting
upon the recommendation of the Special Committee) has resolved to recommend,
subject to its obligations under applicable law, that the holders of shares of
Company Common Stock approve the Acquisition upon the terms of this Agreement;
WHEREAS, the Boards of Directors of Merger Sub and Company
have determined that the Merger is fair to and in the best interests of their
respective shareholders;
WHEREAS, the Merger is subject to the approval by the
requisite holders of the outstanding shares of Company Common Stock and
satisfaction of certain other conditions described in this Agreement;
WHEREAS, the Surviving Corporation and/or Parent, as the case
may be, shall, contemporaneously with the Merger, obtain the debt and preferred
equity financing (the "Debt and Preferred Equity Financing") described in the
Commitment Letters (as defined below) to fund a portion of the Merger
Consideration (as defined below); and
WHEREAS, it is intended that the transactions contemplated by
this Agreement be recorded as a purchase of the Company for financial reporting
purposes.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER AND THE OTHER TRANSACTIONS
SECTION 1.01 Contribution Agreement. Subject to the conditions
set forth in this Agreement, (i) Parent, Merger Sub, Saw Mill and the
Shareholders hereby agree to execute and deliver the Contribution Agreement as
of immediately prior to the Closing, (ii) Saw Mill and Parent hereby agree to
consummate the Saw Mill Contribution (as such term is defined in the
Contribution Agreement) as of immediately prior to the Closing, (iii) Chairman
and Parent hereby agree to consummate the Chairman Contribution (as such term is
defined in the Contribution Agreement) as of immediately prior to the Closing,
(iv) Chief Executive Officer and Parent hereby agree to consummate the CEO
Contribution (as such term is defined in the Contribution Agreement) as of
immediately prior to the Closing and (v) immediately after the consummation of
the Saw Mill Contribution, the Chairman Contribution and the CEO Contribution,
Parent and Merger Sub hereby agree to consummate the Parent Contribution (as
such term is defined in the Contribution Agreement).
SECTION 1.02 Debt and Preferred Equity Financing.
Contemporaneously with the Merger, the Surviving Corporation and/or Parent, as
the case may be, will consummate the Debt and Preferred Equity Financing. Upon
receipt, Parent hereby agrees to immediately contribute the net proceeds of any
Debt and Preferred Equity Financing received by Parent to Merger Sub (if
received
2
<PAGE> 8
by Parent prior to the Merger) or to the Surviving Corporation (if received by
Parent contemporaneously with the Merger).
SECTION 1.03 The Merger. Upon the terms and subject to the
conditions set forth in Article VIII, and in accordance with Section 180.1101 of
the Wisconsin Business Corporation Law ("Wisconsin Law"), at the Effective Time
(as defined below), Merger Sub shall be merged with and into the Company. As a
result of the Merger, the separate corporate existence of Merger Sub shall
cease, and the Company shall be the surviving corporation of the Merger (the
"Surviving Corporation").
SECTION 1.04 Effective Time; Closing. As promptly as
practicable, and in no event later than five business days after the
satisfaction or, if permissible, waiver of the conditions set forth in Article
VIII (other than those conditions that can only be satisfied on the Closing Date
(as defined below)), including, without limitation, the approval of the Merger
by an affirmative vote of the requisite holders of the outstanding shares of the
Company Common Stock, the parties hereto shall cause the Merger to be
consummated by filing articles of merger (the "Articles of Merger") with the
Department of Financial Institutions of the State of Wisconsin, in such form as
is required by, and executed in accordance with, Section 180.1105 of Wisconsin
Law. The term "Effective Time" means the date and time of the filing of the
Articles of Merger with the Department of Financial Institutions of the State of
Wisconsin (or such later time as may be agreed by the parties hereto and
specified in the Articles of Merger). Immediately prior to the filing of the
Articles of Merger, a closing (the "Closing") will be held at the offices of
Kirkland & Ellis, Citicorp Center, 153 East 53rd Street, New York, New York
10022 (or such other place as the parties may agree) (the date on which such
closing takes place being the "Closing Date").
SECTION 1.05 Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable provisions of
Wisconsin Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the property, rights, immunities,
privileges, powers and franchises of the Company and Merger Sub shall vest in
the Surviving Corporation, without further act or deed, and all debts,
liabilities, obligations, restrictions, disabilities and duties of each of the
Company and Merger Sub shall become the debts, liabilities, obligations,
restrictions, disabilities and duties of the Surviving Corporation and be
enforceable against the Surviving Corporation to the same extent as if the same
had been contracted by the Surviving Corporation.
SECTION 1.06 Articles of Incorporation; By-laws.
(a) From and after the Effective Time, subject to the terms of
Section 7.06, the Articles of Incorporation of the Surviving
Corporation shall be the Articles of Incorporation of Merger Sub as in
effect immediately prior to the Effective Time until thereafter amended
in accordance with its terms and as provided by applicable Law (as
herein defined) and this Agreement, except that, as of the Effective
Time, Article I of such Articles of Incorporation shall be amended to
read as follows: "The name of the Corporation is "Jason Incorporated".
3
<PAGE> 9
(b) From and after the Effective Time, subject to the terms of
Section 7.06, the By-laws of Merger Sub, as in effect immediately prior
to the Effective Time, shall be the By-laws of the Surviving
Corporation until thereafter amended as provided by applicable Law, the
Articles of Incorporation of the Surviving Corporation and such
By-laws.
SECTION 1.07 Directors and Officers.
(a) Directors. From and after the Effective Time, the
directors of Merger Sub immediately prior to the Effective Time shall
be the directors of the Surviving Corporation until the earlier of
their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be, in accordance with the
Articles of Incorporation and By-laws of the Surviving Corporation and
applicable Law.
(b) Officers. From and after the Effective Time, the officers
of the Company immediately prior to the Effective Time shall be the
officers of the Surviving Corporation and shall hold office until the
earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be, in
accordance with the Articles of Incorporation and By-laws of the
Surviving Corporation and applicable Law.
SECTION 1.08 Additional Actions. If, at any time at or after
the Effective Time, the Surviving Corporation shall consider or be advised that
any further deeds, assignments or assurances in law or any other acts are
necessary or desirable to (a) vest, perfect or confirm, of record or otherwise,
in the Surviving Corporation its rights, title or interest in, to or under any
of the rights, properties or assets of the Company or its subsidiaries, or (b)
otherwise carry out the provisions of this Agreement, the Company and its
officers and directors shall be deemed to have granted to the Surviving
Corporation an irrevocable power of attorney to execute and deliver all such
deeds, assignments or assurances in law and to take all acts necessary, proper
or desirable to vest, perfect or confirm title to and possession of such rights,
properties or assets in the Surviving Corporation and otherwise to carry out the
provisions of this Agreement, and the officers and directors of the Surviving
Corporation are authorized in the name of the Company or otherwise to take any
and all such action.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES; DEPOSIT
SECTION 2.01 Effect on Capital Stock and Company Stock
Options. As of the Effective Time, by virtue of the Merger and without any
action on the part of the holder of any Company Common Stock or any other holder
of capital stock of the Company or any shares of capital stock of Merger Sub:
(a) Cancellation of Company Owned Stock. All shares of Company
Common Stock that are held (i) in the treasury of the Company, (ii) by
any wholly owned subsidiary of the Company or (iii) by Merger Sub
(including the Contributed Company Common Shares
4
<PAGE> 10
(as such term is defined in the Contribution Agreement)) shall be
canceled and retired and shall cease to exist without any consideration
payable therefor.
(b) Conversion of Company Common Stock. Each share of Company
Common Stock issued and outstanding immediately prior to Effective Time
(other than Dissenting Shares (as herein defined) and shares of the
Company Common Stock referred to in Section 2.01(a) (including the
Contributed Company Common Shares (as such term is defined in the
Contribution Agreement)) shall be converted into the right to receive
from the Surviving Corporation in cash $11.25 per share of Company
Common Stock (the "Merger Consideration") without interest thereon upon
surrender of the certificate previously representing such share of
Company Common Stock. As of the Effective Time, all such shares of
Company Common Stock shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and
each holder of a certificate representing any such share of Company
Common Stock shall cease to have any rights with respect thereto,
except the right to receive the cash into which their shares of Company
Common Stock have been converted by the Merger as provided in this
Section 2.01(b).
(c) Conversion of Common Stock of Merger Sub. Each share of
Merger Sub's common stock issued and outstanding immediately prior to
the Effective Time shall be converted into and become that certain
number of fully paid and nonassessable (except as set forth in Section
180.0622 of Wisconsin Law as judicially interpreted) shares of Common
Stock, par value $0.01, of the Surviving Corporation (the "Surviving
Corporation Common Stock") equal to the Conversion Number (as herein
defined) upon the surrender of the certificates previously representing
such share(s) of Merger Sub's common stock. For purposes of this
Agreement, the "Conversion Number" shall equal the sum of (i) the
number of Contributed Company Common Shares (as such term is defined in
the Contribution Agreement) plus (ii) (x) the amount of Saw Mill
Contributed Cash (as such term is defined in the Contribution
Agreement) plus 100 divided by (y) the per share Merger Consideration.
(d) Conversion of Company Stock Options. Each Company Stock
Option (as defined in Section 2.03(a) hereof), issued and outstanding
immediately prior to the Effective Time shall be converted into the
right to receive from the Surviving Corporation the Option
Consideration (as defined in Section 2.03(a) hereof) without interest
thereon. As of the Effective Time, all such Company Stock Options shall
no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of any such Company
Stock Option shall cease to have any rights with respect thereto,
except the right to receive the cash into which their Company Stock
Options have been converted by the Merger as provided in this Section
2.01(d) and Section 2.03(a).
5
<PAGE> 11
SECTION 2.02 Exchange of Certificates.
(a) Paying Agent. Prior to the Effective Time, Merger Sub
shall designate a bank or trust company, reasonably satisfactory to the
Company, to act as paying agent in the Merger (the "Paying Agent").
(b) At the Closing, Merger Sub or Surviving Corporation shall
deliver:
(i) to the Persons who shall have surrendered to the
Merger Sub at the Closing the certificates which, immediately
prior to the Effective Time, represented shares of outstanding
common stock of Merger Sub, the securities of the Surviving
Corporation into which the shares of common stock of Merger
Sub represented by such certificates have been converted
pursuant to the provisions of this Article II; and
(ii) to the Paying Agent, for the benefit of the
holders of Company Common Stock entitled to receive Merger
Consideration, the amount of Merger Consideration which such
holders of Company Common Stock are entitled to receive
pursuant to the provisions of this Article II.
(c) Exchange Procedure. As soon as reasonably practicable
after the Effective Time, the Surviving Corporation shall mail or
caused to be mailed to each holder of record of any certificate, which
as of immediately prior to the Effective Time represented shares of
Company Common Stock and as of the Effective Time represents the right
to receive Merger Consideration (all such certificates, the
"Certificates"), (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the
address specified therein) and (ii) instructions for use in effecting
the surrender of the Certificates in exchange for the applicable Merger
Consideration. Upon surrender of a Certificate for cancellation to the
Paying Agent, together with such letter of transmittal, duly executed,
and such other documents as may reasonably be required by the Paying
Agent, the holder of such Certificate shall be entitled to receive in
exchange therefor from the Paying Agent the amount of cash into which
the shares of Company Common Stock theretofore represented by such
Certificate shall have been converted pursuant to Section 2.01, and the
Certificate so surrendered shall forthwith be canceled. In the event of
a transfer of ownership of the shares of Company Common Stock that is
not registered in the transfer records of the Company, payment may be
made to a person other than the person in whose name the Certificate so
surrendered is registered, if such Certificate shall be properly
endorsed or otherwise be in proper form for transfer and the person
requesting such payment shall pay any transfer or other taxes required
by reason of the payment to a person other than the registered holder
of such Certificate or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not applicable. Until
surrendered as contemplated by this Section 2.02, each Certificate
shall be deemed at any time after the Effective Time to represent only
the right to receive upon such surrender the amount of cash, without
interest, into which the shares of Company Common Stock theretofore
represented by such Certificate shall have been converted pursuant to
6
<PAGE> 12
Section 2.01. No interest will be paid or will accrue on the cash
payable upon the surrender of any Certificate. In the event any
Certificate shall have been lost, stolen or destroyed, upon making of
an affidavit of that fact by the Person claiming such Certificate to be
lost, stolen or destroyed, the Surviving Corporation will pay in
exchange for such lost, stolen or destroyed Certificate, the amount of
cash into which the shares of Company Common Stock theretofore
represented by such Certificate have been converted pursuant to Section
2.01, except that when authorizing such payment, the Board of Directors
of the Surviving Corporation, may, in its discretion and as a condition
precedent to such payment, require the owner of such lost, stolen or
destroyed Certificate to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be made
against the Surviving Corporation or the Paying Agent with respect to
such Certificate.
(d) Withholding. Merger Sub, Surviving Corporation and Paying
Agent shall be entitled to deduct and withhold from the Merger
Consideration otherwise payable or issuable pursuant to this Agreement
to any holder of Company Common Stock such amount as Merger Sub,
Surviving Corporation or Paying Agent is required to deduct and
withhold with respect to such payment or issuance under the Code, or
any provision of state, local or foreign tax law. To the extent that
amounts are so withheld, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of Company
Common Stock in respect of which such deduction and withholding was
made.
(e) No Further Ownership Rights in Company Common Stock. All
cash paid upon the surrender of Certificates in accordance with the
terms of this Article II shall be deemed to have been paid in full
satisfaction of all rights pertaining to the shares of Company Common
Stock theretofore represented by such Certificates. At the Effective
Time, the stock transfer books of the Company shall be closed, and
there shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of the shares of Company
Common Stock that were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates are presented to the
Surviving Corporation or the Paying Agent for any reason, they shall be
canceled and exchanged as provided in this Article II.
(f) No Liability. At any time following the expiration of six
months after the Effective Time, the Surviving Corporation shall, in
its sole discretion, be entitled to require the Paying Agent to deliver
to it any funds (including any interest received with respect thereto)
which had been made available to the Paying Agent and which have not
been disbursed to holders of Certificates, and thereafter such holders
shall be entitled to look to the Surviving Corporation (subject to any
applicable abandoned property, escheat or similar law) only as general
creditors thereof with respect to the Merger Consideration payable upon
due surrender of their Certificates, without any interest thereon.
Notwithstanding the foregoing, none of Merger Sub, the Shareholders,
the Company, the Surviving Corporation or the Paying Agent shall be
liable to any person in respect of any cash delivered to a public
official or entity pursuant to any applicable abandoned property,
escheat or similar law.
7
<PAGE> 13
SECTION 2.03 Company Stock Options; Plans.
(a) Except as set forth in this Section 2.03 and except to the
extent that Merger Sub and the holder of any option otherwise agree,
the Surviving Corporation shall promptly after the Effective Time pay
to each holder of an outstanding option to purchase Company Common
Stock (a "Company Stock Option") issued pursuant to the Company's 1987
Nonqualified Stock Option Plan dated April 16, 1987, as amended and
restated January 30, 1989 (the "Company Stock Option Plan"), in
settlement of each such Company Stock Option, whether or not
exercisable or vested, an amount of cash in respect thereof equal to
the product of (x) the excess, if any, of the Merger Consideration over
the exercise price of each such Company Stock Option, and (y) the
number of shares of Company Common Stock subject to the Company Stock
Option immediately prior to its settlement (the "Option Consideration")
(such payment to be net of applicable withholding taxes). Upon receipt
of the Option Consideration, the Company Stock Option shall be
canceled. The surrender of a Company Stock Option to the Company in
exchange for the Option Consideration shall be deemed a release of all
rights the holder had or may have had in respect of that Company Stock
Option.
(b) Prior to the Effective Time, the Company shall use its
commercially reasonable best efforts to obtain any consents from
holders of the Company Stock Options and make any amendments to the
terms of the Company Stock Option Plans or arrangements that are
necessary to give effect to the transactions contemplated by Section
2.01(d) and this Section 2.03.
(c) Except as may otherwise be agreed by Merger Sub and the
Company, the Company Stock Option Plan shall terminate as of the
Effective Time, and no holder of Company Stock Options or any
participant in the Company Stock Option Plan shall have any rights
thereunder, including any rights to acquire any equity securities of
the Company, the Surviving Corporation or any subsidiary thereof, other
than to receive Option Consideration payable pursuant to Section
2.03(a).
(d) Except as may otherwise be agreed by Merger Sub and the
Company, all other plans, programs or arrangements providing for the
issuance or grant of any other interest in respect of the capital stock
of the Company or any of its subsidiaries shall terminate as of the
Effective Time, and no participant in any such plans, programs or
arrangements shall have any rights thereunder to acquire any equity
securities of the Company, the Surviving Corporation or any subsidiary
thereof.
SECTION 2.04 Shares of Dissenting Shareholders.
(a) Notwithstanding anything in this Agreement to the
contrary, any shares of Company Common Stock that are issued and
outstanding as of the Effective Time and that are held by a holder who
has not voted in favor of the Merger or consented thereto in writing
and who has properly exercised his or her appraisal rights (the
"Dissenting Shares") under
8
<PAGE> 14
Wisconsin Law, shall not be converted into the right to receive the
Merger Consideration, unless and until such holder shall have failed to
perfect, or shall have effectively withdrawn or lost, his or her right
to dissent from the Merger under Wisconsin Law and to receive such
consideration as may be determined to be due with respect to such
Dissenting Shares pursuant to and subject to the requirements of
Wisconsin Law. If, after the Effective Time, any such holder shall have
failed to perfect or shall have effectively withdrawn or lost such
right, each share of such holder's Company Common Stock shall thereupon
be deemed to have been converted into and to have become, as of the
Effective Time, the right to receive, without interest or dividends
thereon, the consideration provided for in this Article II.
(b) The Company shall give Merger Sub and Saw Mill (i) prompt
notice of any notices or demands for appraisal or payment for shares of
Company Common Stock received by the Company and (ii) the opportunity
to participate in all negotiations and proceedings with respect to any
such demands or notices. Any decision to settle, offer to settle, make
any payments or otherwise negotiate, with respect to any such demands,
shall be mutually agreeable to Saw Mill and the Company.
(c) Dissenting Shares, if any, after payments of fair value in
respect thereto have been made to the holders thereof pursuant to
Wisconsin Law, shall be canceled.
SECTION 2.05 Adjustment of Merger Consideration and Option
Consideration. In the event that, subsequent to the date of this Agreement but
prior to the Effective Time, the outstanding shares of Company Common Stock
shall have been changed into a different number of shares of a different class
as a result of a stock split, reverse stock split, stock dividend, subdivision,
reclassification, split, combination, exchange, recapitalization or other
similar transaction, the Merger Consideration and the Option Consideration shall
be appropriately adjusted. The Merger Consideration and the Option Consideration
have been calculated based upon the representations and warranties made by the
Company in Section 3.03. The provisions of this Section 2.05 shall not, in any
event, derogate from the representation and warranty set forth in Section 3.03.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
For the avoidance of doubt and notwithstanding anything to the
contrary set forth herein, all representations and warranties made by the
Company herein are made solely by the Company and not by any member of the
Special Committee in his individual capacity. No member of the Special Committee
shall have any liability for any breach of any representation or warranty of the
Company set forth herein.
Except as disclosed in a separate disclosure schedule
referring to the Sections contained in this Agreement, which is attached hereto
(the "Company Disclosure Schedule") (any matter disclosed with respect to a
particular Section on the Company Disclosure Schedule shall be deemed to be
disclosed with respect to each other Section of this Article III to which it
relates), the Company hereby represents and warrants to Merger Sub that:
9
<PAGE> 15
SECTION 3.01 Organization and Qualification; Subsidiaries.
(a) Each of the Company and its subsidiaries is duly formed
and organized, validly existing and in good standing (or the equivalent
thereof) under the laws of the jurisdiction of its incorporation or
formation, as applicable, and has the requisite power and authority and
all necessary and material governmental approvals to own, lease and
operate the properties and assets it currently owns, operates or holds
under lease and to carry on its business as it is now being conducted.
Each of the Company and its subsidiaries is duly qualified or licensed
as a foreign corporation or other entity to do business, and is in good
standing (or the equivalent thereof), in each jurisdiction where the
character of the properties owned, leased or operated by it or the
nature of its business makes such qualification or licensing necessary,
except for such failures to be so qualified or licensed and in good
standing that would not, individually or in the aggregate, have a
Company Material Adverse Effect. The term "Company Material Adverse
Effect" means, when used in connection with the Company and its
subsidiaries, any change, effect, event, occurrence, condition or
development that is or is reasonably likely to be materially adverse to
(i) the business, assets, liabilities, properties, results of
operations or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole (excluding any change or effect
resulting from general economic conditions or relating to those
industries specific to the business of the Company) or (ii) the ability
of the Company to perform its obligations under this Agreement, except
for such changes, effects, events, occurrences, conditions or
developments directly resulting from the Company's performance of its
obligations under this Agreement.
(b) Except as set forth in Section 3.01 of the Company
Disclosure Schedule, the Company does not directly or indirectly own
any equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for any equity or similar interest in, any
corporation, partnership, limited liability company, joint venture or
other business association or entity. Section 3.01 of the Company
Disclosure Schedule sets forth the name, owner, jurisdiction of
organization and type and percentages of outstanding equity securities
owned, directly or indirectly, by the Company, with respect to each
corporation, partnership, limited liability company, joint venture or
other business association or entity of which the Company owns directly
or indirectly, any equity or equity related securities. Except as set
forth in Section 3.01 of the Company Disclosure Schedule, all
outstanding shares of stock or other equity securities of each
subsidiary of the Company have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned, directly or
indirectly, by the Company free and clear of any Liens, and there are
no outstanding options, warrants, convertible securities, calls,
rights, commitments, preemptive rights or agreements or instruments or
understandings of any character, obligating any subsidiary of the
Company to issue, deliver or sell, or cause to be issued, delivered or
sold, contingently or otherwise, additional shares of such subsidiary
or any securities or obligations convertible or exchangeable for such
shares or to grant, extend or enter into any such option, warrant,
convertible security, call, right, commitment, preemptive right or
agreement.
10
<PAGE> 16
SECTION 3.02 Articles of Incorporation and By-laws. The
Company has heretofore made available to Merger Sub complete and correct copies
of its Articles of Incorporation and Bylaws, each as amended to the date hereof.
Such Articles of Incorporation and By-laws are in full force and effect and have
not been modified or amended in any way. The Company is not in any material
violation of any provision of its Articles of Incorporation or By-laws.
SECTION 3.03 Capitalization. The authorized capital stock of
the Company consists of 30,000,000 shares of Common Stock par value $0.10 per
share ("Company Common Stock"). As of the date hereof, there are 20,435,353
shares of Company Common Stock issued and outstanding. Section 3.03 of the
Company Disclosure Schedule identifies and describes the number of shares of
Company Common Stock to be received upon exercise or conversion and the exercise
or conversion price of each outstanding Company Stock Option (the "Company
Common Stock Equivalents") as well as the aggregate number of shares of Company
Common Stock and the aggregate exercise price for all of the outstanding Company
Common Stock Equivalents. All of the Company Common Stock Equivalents will be
fully vested upon a change of control of the Company. Except for the Company
Common Stock Equivalents or as contemplated by this Agreement, there are no
existing options, warrants, convertible securities, calls, subscriptions, or
other rights or other agreements or commitments obligating the Company to issue,
transfer or sell, or caused to be issued, transferred or sold, contingently or
otherwise, any shares of capital stock of the Company or any other securities
convertible into or evidencing the right to subscribe for any such shares.
Except as identified and described in Section 3.03 of the Company Disclosure
Schedule, there are no outstanding stock appreciation rights or similar phantom
equity securities with respect to the capital stock of the Company. All issued
and outstanding shares of Company Common Stock are duly authorized and validly
issued, fully paid, non-assessable and free of preemptive rights with respect
thereto, except as set forth in Section 180.0622 of Wisconsin Law as judicially
interpreted. To the Company's Knowledge, other than the Voting Agreement, there
are no voting trusts or shareholder agreements to which the Company is a party
with respect to the voting of the capital stock of the Company and, to the
Company's Knowledge, there are no such agreements among its shareholders other
than those listed in Section 3.03 of the Company Disclosure Schedule. To the
Company's Knowledge, other than the Voting Agreement, there are no irrevocable
proxies with respect to shares of capital stock of the Company or any Subsidiary
that cover more than 2% of the Company's outstanding capital stock. A list of
the holders of record of shares of the Company's capital stock and their
respective state of residency as of a recent date is set forth in Section 3.03
of the Company Disclosure Schedule.
SECTION 3.04 Authority Relative to this Agreement. The Company
has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
Acquisition. The execution and delivery of this Agreement by the Company and the
consummation by the Company of the Acquisition have been duly and validly
authorized by all necessary corporate action and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or to
consummate the Acquisition (other than, with respect to the Merger, the adoption
of this Agreement by the holders of the shares of Company Common Stock and the
filing and recordation of appropriate merger documents as required by Wisconsin
Law). This Agreement has been duly and validly executed and delivered by
11
<PAGE> 17
the Company and, assuming the due authorization, execution and delivery by
Merger Sub, Parent, Saw Mill and the Shareholders, constitutes a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
SECTION 3.05 No Conflict; Required Filings and Consents.
(a) Subject to the approval of the Company's shareholders and
compliance with applicable provisions of Wisconsin Law or any other
applicable Law, the execution and delivery of this Agreement by the
Company does not, and the consummation by the Company of the
Acquisition will not (i) conflict with or violate the Articles of
Incorporation or By-laws of the Company or any of its subsidiaries,
(ii) to the Company's Knowledge, conflict with or violate any domestic
(federal, state or local) or foreign law, rule, regulation, order,
judgment or decree (collectively, "Laws") applicable to the Company or
its subsidiaries or by which any of their respective properties or
assets is bound or affected or (iii) to the Company's Knowledge, result
in a violation or breach of or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or
give to others any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any property or
asset of the Company or its subsidiaries pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Company or its
subsidiaries is a party or by which the Company, its subsidiaries or
any of its properties or assets is bound or affected, except as
disclosed in Section 3.05(a) of the Company Disclosure Schedule and
except, in the case of clauses (ii) and (iii) above, conflicts,
violations, breaches or defaults which would not, individually or in
the aggregate, have or be reasonably expected to have a Company
Material Adverse Effect.
(b) To the Company's Knowledge, the execution and delivery of
this Agreement by the Company do not, and the consummation by the
Company of the Acquisition will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any
governmental or subdivision thereof, or any administrative,
governmental or regulatory authority, agency, commission, tribunal or
body, domestic, foreign or supranational, except for (i) applicable
requirements, if any, of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act of 1933, as amended
(the "Securities Act"), state securities or "blue sky" laws ("Blue Sky
Laws"), the rules of the National Association of Securities Dealers
("NASD"), state takeover laws, the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act"), and Wisconsin Law or any other applicable
Law and (ii) where the failure to obtain such other consents,
approvals, authorizations, or permits, or to make such filings or
notifications, would not, individually or in the aggregate, have or be
reasonably expected to have a Company Material Adverse Effect.
12
<PAGE> 18
SECTION 3.06 SEC Filings; Financial Statements; Undisclosed
Liabilities.
(a) To the Company's Knowledge, the Company has filed all
forms, reports and documents required to be filed by it with the
Securities and Exchange Commission (the "SEC") since January 1, 1997
and has made available to the Merger Sub all registration statements
filed by the Company with the SEC, including all exhibits filed in
connection therewith (on all forms applicable to the registration of
securities) since January 1, 1997 and prior to the date of this
Agreement (collectively, the "Company SEC Reports"). To the Company's
Knowledge, as of their respective dates, the Company SEC Reports (i)
complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules
and regulations thereunder and (ii) did 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 made
therein, in the light of the circumstances under which they were made,
not misleading. The Company will deliver to the Merger Sub as soon as
they become available true and complete copies of any Company SEC
Reports filed subsequent to the date hereof and prior to the Effective
Time.
(b) Each of the financial statements (including, in each case,
any notes and schedules thereto) contained in the Company SEC Reports
complied as to form in all material respects with the applicable
accounting requirements and rules and regulations of the SEC and was
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods indicated (except as may be indicated in the notes thereto),
and each fairly presented in all material respects the consolidated
financial position, results of operations and cash flows of the Company
and its consolidated subsidiaries as at the respective dates thereof
and for the respective periods indicated therein in accordance with
GAAP (subject, in the case of unaudited statements (the "Interim
Financial Statements"), to normal and recurring year-end adjustments
and the absence of footnotes none of which would, individually or in
the aggregate, have or be reasonably expected to have a Company
Material Adverse Effect).
(c) Except as set forth on Section 3.06 of the Company
Disclosure Schedule, since December 31, 1998, to the Company's
Knowledge, there has not been any Company Material Adverse Effect, or
any event, condition or development which is reasonably likely to
result in a Company Material Adverse Effect.
(d) To the Company's Knowledge, neither the Company nor its
subsidiaries have any known or asserted liabilities or obligations
(whether absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated and whether due or to become due, including
any liability for taxes) including without limitation any liabilities
or obligations with respect to environmental, health or safety matters,
other than such liabilities or obligations (i) disclosed in the Company
Disclosure Statement, (ii) that have been specifically disclosed or
reserved for in the audited consolidated balance sheet of the Company
for calendar year 1998 as filed with the SEC, (iii) that have been
incurred in the ordinary course of business consistent with past
practice since December 31, 1998, or
13
<PAGE> 19
(iv) that would not, individually or in the aggregate, have or be
expected to have a Company Material Adverse Effect.
(e) Section 3.06 of the Company Disclosure Schedule sets forth
a list of all of the Company's and its subsidiaries' indebtedness for
borrowed money which is outstanding as of December 31, 1999, except for
amounts of indebtedness which are not individually in excess of
$250,000.
SECTION 3.07 Absence of Certain Changes or Events. Except as
disclosed in Section 3.07 of the Company Disclosure Schedule or in the Company
SEC Reports and except for the execution of this Agreement and the consummation
of the transactions contemplated hereby, since December 31, 1998, (i) to the
Company's Knowledge, the Company and its subsidiaries have conducted their
respective businesses only in, and have not engaged in any material transaction
other than in accordance with, the ordinary course of business consistent with
past custom and practice (including with respect to quantity and frequency) in
all material respects and (ii) neither the Company nor any of its subsidiaries
have, directly or indirectly:
(a) redeemed, purchased, otherwise acquired, or agreed to
redeem, purchase or otherwise acquire, any shares of capital stock of
the Company, or declared, set aside or paid any dividend or otherwise
made a distribution (whether in cash, stock or property or any
combination thereof) in respect of the Company's capital stock;
(b) instituted any material change in its accounting methods,
principles or practices;
(c) granted any increase in the base compensation of, or made
any other material change in the employment terms for, any of its
directors, officers and/or employees, except (i) for increases or
changes reflecting or based upon changed responsibilities or duties and
increases or changes made in the ordinary course of business consistent
with past practice and (ii) reasonable compensation payable to the
members of the Special Committee in connection with their performance
of services as members of the Special Committee; or
(d) adopted, modified or terminated any bonus, profit-sharing,
incentive, severance or other plan or contract for the benefit of any
of its directors, officers and/or employees other than changes which do
not materially increase the aggregate cost of such plan or contract and
changes made in the ordinary course of business consistent with past
practices.
SECTION 3.08 Absence of Litigation. Except as disclosed in the
Company SEC Reports, as of the date hereof, there is no claim, action,
proceeding or investigation pending or, to the Company's Knowledge, threatened
in writing against the Company, its subsidiaries, or any of its properties or
assets, before any court, arbitrator or Governmental Authority, which,
individually or when aggregated with other claims, actions, proceedings or
investigations or product liability claims, would have or could reasonably be
expected to have a Company Material Adverse Effect.
14
<PAGE> 20
As of the date hereof, neither the Company nor its subsidiaries nor any of their
respective properties or assets is subject to any order, writ, judgment,
injunction, decree, determination or award having or which could reasonably be
expected to have, individually or in the aggregate, a Company Material Adverse
Effect.
SECTION 3.09 Shareholder Vote Required. The affirmative vote
of the holders of the outstanding shares of Company Common Stock in accordance
with Wisconsin Law and other applicable Law is the only vote of the holders of
any class or series of securities of the Company necessary to approve the
Merger, this Agreement and the other transactions contemplated hereby.
SECTION 3.10 Opinion of Financial Advisor. The Special
Committee has received the opinion, dated January 29, 2000 (the "Lehman
Opinion"), of Lehman Brothers Inc. (the "Company Financial Advisor"), to the
effect that the Merger Consideration is fair to the Company's shareholders
(other than the Shareholders) from a financial point of view.
SECTION 3.11 Brokers. No broker, finder or investment banker
(other than the Company Financial Advisor) is entitled to any brokerage,
finder's or other fee or commission in connection with the Merger based upon
arrangements made by or on behalf of the Company or any of its subsidiaries. The
Company has heretofore furnished to Merger Sub a complete and correct copy of
all agreements between the Company and the Company Financial Advisor pursuant to
which such firm would be entitled to any payment relating to the Merger and the
other transactions contemplated hereby, and there have been no amendments to
such agreements.
SECTION 3.12 Company Action; State Takeover Statutes. The
Company's Board of Directors (at a meeting duly called and held) has by
requisite vote of directors (i) approved and adopted this Agreement, the Merger
and all of the other transactions contemplated hereby and (ii) agreed to
recommend that the shareholders of the Company approve and adopt this Agreement,
the Merger and all of the other transactions contemplated hereby.
SECTION 3.13 Information Supplied. The Proxy Statement (as
defined below) and any other document to be filed with the SEC or any
Governmental Authority in connection with the Acquisition (the "Other Filings")
will not, at the respective times filed with the SEC or other Governmental
Authority, to the Company's Knowledge, contain any untrue statement of a
material fact (other than information furnished by Merger Sub, Parent or Saw
Mill for which no representation or warranty is being made by the Company) or
omit to state any material fact (other than information required to be furnished
by Merger Sub, Parent or Saw Mill for which no representation or warranty is
being made by the Company) required to be stated therein or necessary in order
to make the statements made therein, in light of the circumstances in which they
were made, not misleading. The Proxy Statement will, to the Company's Knowledge,
comply as to form in all material respects with the provisions of the Exchange
Act and the rules and regulations thereunder.
SECTION 3.14 Compliance with Laws. To the Company's Knowledge,
neither the Company nor any of its subsidiaries is in violation of or has
violated or failed to comply with any Law, including without limitation any
relating to environmental, health or safety matters, except for
15
<PAGE> 21
violations and failures to comply that would not, individually or in the
aggregate, be reasonably likely to result in a Company Material Adverse Effect.
SECTION 3.15 Tax Matters.
(a) The Company, each domestic subsidiary of the Company and,
to the Company's Knowledge, each foreign subsidiary of the Company has
filed all Tax Returns that it was required to file prior to the date
hereof. To the Company's Knowledge, all such Tax Returns were filed in
good faith and were complete in all material respects. All Taxes owed
by any of the Company and each subsidiary of the Company (whether or
not shown on any Tax Return) have been paid or reserved. Except as
provided in Section 3.15 of the Company Disclosure Schedule, neither
the Company nor any domestic subsidiary of the Company currently is the
beneficiary of any extension of time within which to file any Tax
Return. No claim has ever been made by an authority in a jurisdiction
where any of the Company or any subsidiary of the Company does not file
Tax Returns that the Company or any such subsidiary so not filing is or
may be subject to taxation by that jurisdiction except for claims
which, individually or in the aggregate, would not result or be
expected to result in a Company Material Adverse Effect.
(b) Neither the Company nor any subsidiary of the Company has
made any payments, is obligated to make any payments, or is a party to
any agreement that under certain circumstances could obligate it to
make any payments that will not be deductible under Code Section 280G.
Neither the Company nor any subsidiary of the Company has made any
payments or is obligated to make any payments (other than payments
required as a result of the operation of this Agreement) that may not
be deductible under Code Section 162(m).
(c) Neither the Company nor any subsidiary of the Company has
any liability for the Taxes of any person other than the Company and
the subsidiaries of the Company (i) under Treas. Reg. Section 1.1502-6
(or any similar provision of state, local, or foreign law), (ii) as a
transferee or successor, (iii) by contract, or (iv) otherwise. Neither
the Company nor any subsidiary of the Company is a party to any Tax
allocation or sharing agreement.
SECTION 3.16 Change of Control Provisions. Except as disclosed
on Section 3.16 of the Company Disclosure Schedule or as expressly provided for
in or permitted by this Agreement, no director, officer or employee of the
Company or any subsidiary of the Company (other than the Shareholders) will be
entitled to receive additional compensation, other payments or other rights
(whether as a result of any employee benefit plan, program or arrangement, any
contract or other agreement, or otherwise) as a result of the execution of this
Agreement, the consummation of the Merger, the consummation of any of the other
transactions contemplated hereby or otherwise in connection with a change of
control of the Company.
SECTION 3.17 Transactions with Affiliates. Except as disclosed
on Section 3.17 of the Company Disclosure Schedule and subject to the final
sentence of this Section 3.17, neither the Company nor any of its subsidiaries
is a party to any executory contract or other arrangement
16
<PAGE> 22
with any of its affiliates, and no affiliate of the Company or any of its
subsidiaries (other than the Company and its subsidiaries) owns any material
asset, property, or right, tangible or intangible, that is used in the Company's
or any of its subsidiaries' businesses. For purpose of this Section 3.17, the
term"affiliate" shall not include any of the Shareholders. Notwithstanding the
foregoing, the Company makes the representations set forth in the first sentence
of this Section 3.17 to its Knowledge with respect to the Company's Chinese and
Romanian ventures.
SECTION 3.18 Foreign Corrupt Practices Act. To the Company's
Knowledge, neither the Company, any subsidiary of the Company, nor any director,
manager, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries has used any funds for any
unlawful contribution, gift, entertainment or other expense relating to
political activity or made any direct or indirect unlawful payment to any United
States or foreign government official or employee from company funds or violated
or is in violation of any provision of the Foreign Corrupt Practices Act of 1977
or paid or made any bribe, rebate, payoff, influence payment, kickback, or other
unlawful payment.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
SAW MILL, PARENT AND MERGER SUB
Saw Mill, Parent and Merger Sub hereby jointly and severally
represent and warrant to the Company that:
SECTION 4.01 Organization and Qualification; Subsidiaries.
Each of Merger Sub, Parent and Saw Mill is duly organized, validly existing and
in good standing (or the equivalent thereof) under the laws of the jurisdiction
of its incorporation or formation, as applicable, and has the requisite power
and authority to carry on its respective business as now being conducted, except
where the failure to have such power of authority would not be reasonably
expected to prevent or materially delay the consummation of the Merger.
SECTION 4.02 Authority Relative to this Agreement. Each of
Merger Sub, Parent and Saw Mill has all necessary power and authority to execute
and deliver this Agreement, to perform its respective obligations hereunder and
to consummate the Acquisition. The execution and delivery of this Agreement by
each of Merger Sub, Parent and Saw Mill and the consummation by each of Merger
Sub, Parent and Saw Mill of the Acquisition have been duly and validly
authorized by all necessary action and no other proceedings on the part of
Merger Sub, Parent or Saw Mill are necessary to authorize this Agreement or to
consummate the Merger (other than the filing and recordation of appropriate
merger documents as required by Wisconsin Law). This Agreement has been duly and
validly executed and delivered by each of Merger Sub, Parent or Saw Mill and,
assuming the due authorization, execution and delivery by the Company and the
Shareholders, constitutes a legal, valid and binding obligation of each of
Merger Sub, Parent and Saw Mill, enforceable against each of Merger Sub, Parent
and Saw Mill in accordance with its terms, subject
17
<PAGE> 23
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
SECTION 4.03 No Conflict; Required Filings and Consents.
(a) Subject to compliance with applicable provisions of
Wisconsin Law or any other applicable Law, the execution and delivery
of this Agreement by each of Merger Sub, Parent and Saw Mill does not,
and the consummation of the Acquisition by each of Merger Sub, Parent
and Saw Mill will not (i) conflict with or violate the charter
documents, By-laws or other organizational documents of Merger Sub,
Parent or Saw Mill, (ii) to Merger Sub's, Parent's and Saw Mill's
knowledge, conflict with or violate any Laws applicable to Merger Sub,
Parent or Saw Mill or by which any of their respective properties or
assets is bound or affected, or (iii) to Merger Sub's, Parent's and Saw
Mill's knowledge, result in a violation or any breach of or constitute
a default (or an event which with notice or lapse of time or both would
become a default) under any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which Merger Sub, Parent or Saw Mill is a party or by
which Merger Sub, Parent or Saw Mill or any property or asset of Merger
Sub, Parent or Saw Mill is bound or affected, except, in the case of
clauses (ii) and (iii), for violations, breaches or defaults which
would not, individually or in the aggregate, be reasonably expected to
prevent or materially delay the consummation of the Acquisition.
(b) To Merger Sub's, Parent's and Saw Mill's knowledge, the
execution and delivery of this Agreement by each of Merger Sub, Parent
and Saw Mill does not, and the consummation of this Agreement by each
of Merger Sub, Parent and Saw Mill will not, require any consent,
approval, authorization or permit of, or filing with or notification
to, any government or subdivision thereof, or any administration,
governmental or regulatory authority, agency, commission, tribunal or
body, domestic, foreign or supranational, except (i) for applicable
requirements, if any, of the Exchange Act, the Securities Act, Blue Sky
Laws, the rules of any applicable stock exchange, state takeover laws,
the HSR Act, and by Wisconsin Law or any other applicable Law, and (ii)
where the failure to obtain such other consents, approvals,
authorizations, or permits, or to make such filings or notifications,
would not, individually or in the aggregate, be reasonably expected to
prevent or materially delay the consummation of the Acquisition.
SECTION 4.04 Interim Operations of Parent and Merger Sub.
Parent and Merger Sub were each formed solely for the purpose of engaging in the
transactions contemplated hereby, has engaged in no other business activities
(other than those incident to its organization and the execution of this
Agreement and obtaining the Commitment Letters (as herein defined)) and has
conducted its operations only as contemplated hereby.
SECTION 4.05 Information Supplied. None of the information
supplied in writing or to be supplied in writing by Merger Sub specifically for
inclusion or incorporation by reference in the Proxy Statement or the Other
Filings, at the respective time filed with the SEC or such other
18
<PAGE> 24
Governmental Authority, and, in addition, in the case of the Proxy Statement, at
the date it is first mailed to the Company's shareholders or at the time of the
Shareholders Meeting (as defined below), contains or will contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.
SECTION 4.06 Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or investment banker's fee or commission
in connection with the Merger based upon arrangements made by or on behalf of
Merger Sub, Parent or Saw Mill.
SECTION 4.07 Financing. Saw Mill has received written
commitments from (a) Credit Agricole Indosuez (the "Senior Lender"), dated as of
January 20, 2000 (the "Senior Debt Commitment Letter"), pursuant to which the
Senior Lender has committed, subject to the terms and conditions contained
therein, to provide up to $130,000,000 in senior debt financing for the
Transactions, (b) Credit Suisse First Boston (the "Subordinated Debt Lender"),
dated as of January 19, 2000 (the "Subordinated Debt Commitment Letter"),
pursuant to which the Subordinated Debt Lender has committed, subject to the
terms and conditions contained therein, to provide up to $125,000,000 in
subordinated debt financing for the Transactions, and (c) Chase Capital
Partners, Massachusetts Mutual Life Insurance Company and The Northwestern
Mutual Life Insurance Company (collectively, the "Preferred Equity Investors"),
dated as of January 27, 2000 (the "Preferred Equity Commitment Letter", and
collectively with the Senior Debt Commitment Letter and the Subordinated Debt
Commitment Letter, the "Commitment Letters"), pursuant to which the Preferred
Equity Investors have committed, subject to the terms and conditions contained
therein, to provide up to $35,000,000 in preferred equity financing for the
Transactions. The proceeds from the Debt and Preferred Equity Financing,
assuming the Commitment Letters have been funded pursuant to and in accordance
with their respective terms, together with the Pre-Merger Contributions, shall
provide sufficient funds to pay, pursuant to the Merger, the Merger
Consideration, the Option Consideration and the repayment of indebtedness for
borrowed money of the Company or any of its subsidiaries that is required to be
repaid as a result of the Transactions, if any, and to pay all fees and expenses
related to the Transactions. A true, correct and complete copy of (i) the Senior
Debt Commitment Letter is attached hereto as Exhibit G-1, (ii) the Subordinated
Debt Commitment Letter is attached hereto as Exhibit G-2, (iii) the Preferred
Equity Commitment Letter is attached hereto as Exhibit G-3 and (iv) Saw Mill's
agreement of limited partnership (the "Saw Mill Limited Partnership Agreement")
has been provided to the Special Committee prior to date hereof. The partners
named in the Saw Mill Limited Partnership Agreement, taken together, have
committed, subject to the terms and conditions contained therein, to contribute
the Contributed Cash and the Contributed Company Common Shares to Saw Mill.
Merger Sub is not aware of any facts which in its reasonable judgment would
prevent the consummation of the financing contemplated by the Commitment
Letters. As of the date hereof, the Commitment Letters and the Saw Mill Limited
Partnership Agreement have not been modified or amended and are in full force
and effect.
SECTION 4.08 Capitalization of Merger Sub. Immediately prior
to the Effective Time, the authorized capital stock of Merger Sub will consist
of shares of common stock, par value
19
<PAGE> 25
$0.01 per share, of which only one share will be issued and outstanding and such
share shall be owned by Parent.
SECTION 4.09 Solvency. Immediately after giving effect to the
Transactions, the Surviving Corporation shall be able to pay its debts as they
become due, shall own assets having a fair market value greater than the amounts
required to pay its debts (including a reasonable estimate of the amount of
contingent liabilities) and shall not have an unreasonably small amount of
capital to conduct its business. No transfer of property is being made, and no
obligation is being incurred, in connection with the Transactions with the
intent to hinder, delay or defraud present or future creditors of the Company,
Parent, Merger Sub or Surviving Corporation.
SECTION 4.10 Pro Formas. Set forth on Exhibit B is the current
estimated sources and uses of funds in connection with the Contribution
Agreement, the Debt and Preferred Equity Financing and the consummation of the
Transactions, which reflect the current assumptions regarding the sources and
uses of funds for such purposes, and Merger Sub shall notify the Special
Committee of any material changes in such estimated sources and uses of funds.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder hereby severally but not jointly represents
and warrants to the Company, Saw Mill, Parent and Merger Sub that:
SECTION 5.01 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such
Shareholder does not, and the consummation of the Acquisition will not,
(i) to such Shareholder's knowledge, violate any Law applicable to such
Shareholder, (ii) prevent or materially delay the consummation of the
Merger or (iii) to such Shareholder's knowledge, result in a violation
or any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Shareholder
is a party.
(b) To such Shareholder's knowledge, the execution and
delivery of this Agreement by such Shareholder does not, and the
consummation of the Acquisition will not, require any consent,
approval, authorization or permit of, or filing with or notification
to, any government or subdivision thereof, or any administrative,
governmental or regulatory authority, agency, commission, tribunal or
body, domestic, foreign or supranational, except for applicable
requirements, if any, of the Exchange Act, the Securities Act, Blue Sky
Laws, the rules of any applicable exchange, state takeover laws, the
HSR Act, and filings and recordation of appropriate merger documents as
required by Wisconsin Law or any other applicable Law.
20
<PAGE> 26
SECTION 5.02 Ownership of Owned Shares. Except as set forth on
Exhibit C hereof, as of the date hereof, such Shareholder is the sole record and
beneficial owner of the number of shares of Company Common Stock listed opposite
such Shareholder's name on Exhibit C hereof, free and clear of any Liens
(including, without limitation, any restriction on the right to vote, sell or
otherwise dispose of the Owned Shares or any interest therein) except pursuant
to this Agreement, the Voting Agreement or applicable securities Laws. The Owned
Shares constitute all of the capital stock of the Company owned of record or
beneficially owned by such Shareholder. Exhibit C hereof sets forth for each
Owned Share the date such Owned Share was acquired by the respective Shareholder
and the purchase price paid for such Owned Share by the respective Shareholder.
SECTION 5.03 Authority Relative to this Agreement. Each
Shareholder has all necessary capacity to execute and deliver this Agreement and
to perform his obligations hereunder. This Agreement has been duly and validly
executed and delivered by such Shareholder and, assuming the due authorization,
execution and delivery by Merger Sub, Parent, Saw Mill, the other Shareholder
and the Company, constitutes a legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
SECTION 5.04 No Finder's Fees. No broker, investment banker,
financial advisor or other person is entitled to any broker's finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
such Shareholder.
SECTION 5.05 Transactions with Shareholders. Except as set
forth on Exhibit F hereof, neither the Company nor any of its subsidiaries is a
party to any executory contract or other arrangement with any Shareholder or any
family member or affiliate of any Shareholder (other than the Company or any of
its subsidiaries) (collectively, the "Shareholder Related Parties") and no
Shareholder Related Party owns any material asset, property or right, tangible
or intangible, that is used in the Company's or any of its subsidiaries'
businesses.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 6.01 Conduct of Business by the Company Pending the
Merger. The Company covenants and agrees that, between the date of this
Agreement and the Effective Time, except as set forth in Section 6.01 of the
Company Disclosure Schedule or as otherwise expressly provided for in this
Agreement, unless Merger Sub shall otherwise agree in writing, the Company
shall, and shall cause its subsidiaries, to conduct its business in the ordinary
course and in a manner consistent with past custom and practice (including with
respect to quantity and frequency in all material respects). The Company shall,
and shall cause its subsidiaries to, use commercially reasonable efforts to (i)
preserve intact its business organization, (ii) keep available the services of
21
<PAGE> 27
the current officers, employees and consultants of the Company and its
subsidiaries, (iii) preserve the current relationships of the Company and its
subsidiaries with customers, distributors, suppliers, licensors, licensees,
contractors and other persons with which the Company or its subsidiaries has
significant business relations, (iv) maintain all assets in good repair and
condition (except for ordinary wear and tear) other than those disposed of in
the ordinary course of business consistent with past custom and practice, (v)
maintain all insurance currently used in the conduct of the Company's and its
subsidiaries' business as currently conducted, (vi) maintain the Company's and
its subsidiaries' books of account and records in the usual, regular and
ordinary manner and (vii) maintain and protect all of its material Intellectual
Property Rights, in each case, in a manner consistent in all material respects
with the Company's ordinary course of business, consistent with past practice.
Except as contemplated by this Agreement, or as set forth in Section 6.01 of the
Company Disclosure Schedule, the Company shall not, and shall cause its
subsidiaries not to, between the date of this Agreement and the Effective Time,
directly or indirectly do any of the following without the prior written consent
of Merger Sub (which consent shall not be unreasonably withheld or delayed):
(a) amend or otherwise change its Articles of Incorporation or
By-laws;
(b) issue, sell, pledge, dispose of, grant or encumber, or
authorize the issuance, sale, pledge, disposition, grant or encumbrance
of, (i) any shares of capital stock or other equity securities of any
type or class of the Company or its subsidiaries, or any options,
warrants, convertible securities or other rights of any kind to acquire
any shares of such capital stock or other equity securities, or any
other ownership interest (including, without limitation, any phantom
interests), of the Company or its subsidiaries or (ii) any assets of
the Company or its subsidiaries, except for sales in the ordinary
course of business consistent with past custom and practice and other
asset sales for consideration or having a fair market value aggregating
not more than $500,000;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its capital stock or other equity securities;
(d) reclassify, combine, split, subdivide or redeem, purchase
or otherwise acquire, or propose to redeem, purchase or otherwise
acquire, directly or indirectly, any of its capital stock or other
equity securities;
(e) acquire (including, without limitation, by merger,
consolidation or acquisition of stock or assets) or agree to acquire
any corporation, partnership, limited liability company, or other
business organization or division thereof, other than the acquisition
of assets pursuant to the Letter of Intent, dated September 27, 1999;
(f) (i) other than under the Company's existing credit
facilities as in effect as of the date hereof, incur or agree to incur
any indebtedness for borrowed money or issue any debt securities or
assume, guarantee or endorse, or otherwise as an accommodation become
22
<PAGE> 28
responsible for, the obligations of any person, or make any loans,
advances, or capital contributions to or investments in, any other
person; or (ii) authorize or make capital expenditures which are not in
accordance with the Company's calendar year 2000 budget which has been
presented to the Company's board of directors prior to the date hereof;
(g) enter into, establish, adopt, amend or renew any
employment, consulting, severance or similar agreement or arrangements
with any director, officer, or employee, or grant any salary or wage
increase (other than in the ordinary course of business consistent with
past custom and practice);
(h) establish, adopt, amend or increase benefits under any
pension, retirement, stock option, stock purchase, savings, profit
sharing, deferred compensation, consulting, welfare benefit contract,
plan or arrangement (other than in the ordinary course of business
consistent with past custom and practice or as may be required by
applicable Law);
(i) commence any voluntary petition, proceeding or action
under any bankruptcy, insolvency or other similar law;
(j) make or institute any material change in accounting
methods, procedures or practices in its accounting methods, procedures
and practices unless mandated by GAAP;
(k) enter into any agreement or other arrangement with any
director, officer or shareholder of the Company, its subsidiaries or
any affiliate of any of the foregoing, except (i) in the ordinary
course of business consistent with past custom and practice and (ii)
with respect to the payment of reasonable compensation to the members
of the Special Committee in connection with their performance of
services as members of the Special Committee;
(l) take any action or omit to take any action which would
result in a violation of any applicable Law or would cause a breach of
any agreement, contract or commitment, which violation or breach would
have or could reasonably be expected to have a Company Material Adverse
Effect;
(m) license, assign or otherwise transfer to any person or
entity any rights to any material Intellectual Property Rights owned or
used by the Company or its subsidiaries, except in the ordinary course
of business consistent with past custom or practice, or fail to
maintain or enforce any material Intellectual Property Rights owned or
used by the Company or its subsidiaries, except in the ordinary course
of business consistent with past custom or practice; or
(n) authorize, propose, or agree to take, any of the foregoing
actions prohibited under the other provisions of this Section 6.01.
23
<PAGE> 29
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.01 Shareholders' Meeting.
(a) Subject to the provisions of Section 7.05 and Section
9.01, the Company shall, consistent with applicable Law, call and hold
a meeting of the holders of shares of Company Common Stock (the
"Shareholders' Meeting") as promptly as practicable for the purpose of
voting upon the approval and adoption of this Agreement and the Merger.
The Company, through its Board of Directors, shall recommend to its
shareholders approval and adoption of this Agreement and the Merger,
which recommendation shall be contained in the Proxy Statement (as
defined below); provided, however, that the Board of Directors may fail
to make its recommendation to the shareholders of the Company or may
withdraw, modify or change its recommendation to the shareholders of
the Company, in accordance with Section 7.05(a). Subject to the
foregoing, the Company shall solicit from the holders of shares of
Company Common Stock proxies in favor of the approval and adoption of
the Merger, and shall take all other action necessary or advisable to
secure the vote or consent of such holders required by Wisconsin Law.
(b) Saw Mill, Parent and Merger Sub shall vote (or consent
with respect to) any shares of Company Common Stock beneficially owned
by them, or with respect to which they have the power (by agreement,
proxy or otherwise) to cause to be voted (or to provide a consent), in
favor of the approval and adoption of this Agreement and the Merger at
any meeting of the shareholders of the Company at which this Agreement
and the Merger shall be submitted for approval and adoption and at all
adjournments or postponements thereof (or, if applicable, by any action
of the shareholders of the Company by consent in lieu of a meeting).
SECTION 7.02 Preparation of Proxy Statement.
(a) The Company, the Shareholders, Merger Sub, Parent and Saw
Mill shall furnish to each other all information concerning such person
or such person's business that is required for the Proxy Statement (as
herein defined). Under the direct control of the Special Committee, the
Company shall, as soon as practicable, prepare and file (after
providing Merger Sub with a reasonable opportunity to review and
comment thereon) preliminary proxy materials (including, without
limitation, a Schedule 13e-3 filing) relating to the meeting of the
holders of shares of Company Common Stock to be held in connection with
the Merger (together with any amendments thereof or supplements
thereto, the "Proxy Statement") with the SEC and shall use its best
efforts to respond to any comments of the SEC (after providing Merger
Sub with a reasonable opportunity to review and comment thereon) and to
cause the Proxy Statement to be mailed to the Company's shareholders as
promptly as practicable after responding to all such comments to the
satisfaction of the staff; provided, that, subject to Saw Mill's,
Parent's and Merger Sub's compliance with the immediately preceding
sentence, in no event shall the Company file the Proxy Statement
24
<PAGE> 30
with the SEC any later than the date forty-five (45) days after the
date hereof. The Company shall notify Merger Sub promptly of the
receipt of any comments from the SEC and of any request by the SEC for
amendments or supplements to the Proxy Statement or for additional
information and shall supply Merger Sub with copies of all
correspondence between the Company or any of its representatives, on
the one hand, and the SEC, on the other hand, with respect to the Proxy
Statement or the Transactions. The Company will cause the Proxy
Statement to comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations thereunder
applicable to the Proxy Statement and the solicitation of proxies for
the Shareholders' Meeting (including any requirement to amend or
supplement the Proxy Statement) and each party shall furnish to the
other such information relating to it and its affiliates and the
Transactions and such further and supplemental information as may be
reasonably requested by the other party. If at any time prior to the
Shareholders Meeting there shall occur any event that should be set
forth in an amendment or supplement to the Proxy Statement, the Company
shall promptly prepare and mail to its shareholders such an amendment
or supplement; provided, that no such amendment or supplement to the
Proxy Statement will be made by the Company without providing the
Merger Sub the reasonable opportunity to review and comment thereon and
without the approval of Merger Sub, which approval shall not be
unreasonably withheld. To the extent practicable, the Special Committee
and its counsel shall permit Merger Sub and its counsel and the Company
and its counsel to participate in all communications with the SEC and
its staff, including all meetings and telephone conferences, relating
to the Proxy Statement, this Agreement or the Transactions; provided
that in the event that such participation by Merger Sub or the Company
is not practicable, the Special Committee shall promptly inform Merger
Sub and the Company of the content of all such communications and the
participants involved therein.
(b) Subject to the provisions of Section 7.05 and Section
9.01, the Company agrees to include in the Proxy Statement the
recommendation of the Company's Board of Directors, subject to any
modification, amendment or withdrawal thereof as provided in this
Agreement. The Proxy Statement shall contain a copy of the Lehman
Opinion.
SECTION 7.03 Appropriate Action; Consents; Filings; Further
Assurances.
(a) Subject to the provisions of Section 7.05 and Section
9.01, the Company, Merger Sub, Parent and Saw Mill shall use their
commercially reasonable efforts to (i) take, or cause to be taken, all
appropriate action and do, or cause to be done, all things necessary,
proper or advisable under applicable Law or otherwise to consummate the
Transactions and make effective the Merger as promptly as practicable,
(ii) obtain expeditiously from any Governmental Authorities any
consents, licenses, permits, waivers, approvals, authorizations or
orders required to be obtained or made by Merger Sub, Parent or the
Company or any of its subsidiaries in connection with the
authorization, execution and delivery of this Agreement and the
consummation of the Transactions, and (iii) as promptly as practicable,
make all necessary filings, and thereafter make any other required
submissions, with respect to this Agreement and the Transactions
required under (A) the Securities Act and the
25
<PAGE> 31
Exchange Act, and any other applicable federal or state securities
Laws, (B) the HSR Act and any related governmental request thereunder
and (C) any other applicable Law; provided, that Merger Sub, Parent and
the Company shall cooperate with each other in connection with the
making of all such filings, including providing copies of all such
documents to the non-filing party and its advisors prior to filing.
From the date of this Agreement until the Effective Time, each party
shall promptly notify the other party in writing of any pending or, to
the knowledge of the first party, threatened action, proceeding or
investigation by any Governmental Authority or any other person (i)
challenging or seeking material damages in connection with the Merger
or the conversion of the Company Common Stock into cash pursuant to the
Merger or (ii) seeking to restrain or prohibit the consummation of the
Transactions or otherwise limit the right of Surviving Corporation to
own or operate all or any portion of the businesses or assets of the
Company or its subsidiaries, which in either case would have a Company
Material Adverse Effect prior to or after the Effective Time, or a
Surviving Corporation Material Adverse Effect after the Effective Time.
The term "Surviving Corporation Material Adverse Effect" means, when
used in connection with the Surviving Corporation, any change, effect,
event, occurrence, condition or development that is or is reasonably
likely to be materially adverse to the business, assets, liabilities,
properties, results of operations or condition (financial or otherwise)
of the Surviving Corporation and its subsidiaries, taken as a whole.
(b) The Company, the Shareholders, Merger Sub, Parent and Saw
Mill shall furnish to each other all information required for any
application or other filing to be made pursuant to the rules and
regulations of any applicable Law (including all information required
to be included in the Proxy Statement) in connection with the
transactions contemplated by this Agreement.
(c) Each of Merger Sub, Parent, Saw Mill and the Company shall
give (or shall cause its respective subsidiaries to give) any notices
to third parties and use, and cause its respective subsidiaries to use,
their respective commercially reasonable efforts, at, subject to
Section 9.03(b), Merger Sub's expense, to obtain any third party
consents, (A) necessary, proper or advisable to consummate the
Transactions, (B) disclosed or required to be disclosed in the Company
Disclosure Schedule or (C) required to prevent a Company Material
Adverse Effect from occurring prior to or after the Effective Time or a
Surviving Corporation Material Adverse Effect from occurring after the
Effective Time. In the event that Merger Sub, Parent or the Company
shall fail to obtain any third party consent described in the
immediately preceding sentence, it shall use its commercially
reasonable efforts, at, subject to Section 9.03(b), Merger Sub's
expense, and shall take any such actions reasonably requested by the
other party, to minimize any adverse effect upon the Company, Merger
Sub and Parent, their respective subsidiaries, and their respective
businesses resulting, or which could reasonably be expected to result
after the Effective Time, from the failure to obtain such consent.
(d) If any state takeover statute or similar statute or
regulation becomes applicable to this Agreement or any of the
Transactions, the Company, Merger Sub and
26
<PAGE> 32
Parent will take all action reasonably necessary to ensure that the
Merger and the other Transactions may be lawfully consummated as
promptly as practicable on the terms contemplated by this Agreement and
otherwise to minimize the effect of such statute or regulation on the
Merger and the other Transactions.
(e) If at any time after the Effective Time any further action
is necessary or desirable to carry out the purposes of this Agreement,
including the execution of additional documents, the proper officers
and directors of each party to this Agreement (including the
Shareholders) shall take all such necessary action.
SECTION 7.04 Confidentiality; Access to Information.
(a) Merger Sub, Parent and Saw Mill shall each, and shall each
use its reasonable best efforts to cause its Representatives (as
defined below) to, keep confidential and not disclose to any other
person (other than such Representatives) or use for its own benefit or
the benefit of any other person any trade secrets or other confidential
proprietary information in its or their possession or control regarding
the Company or any of its subsidiaries. The obligation of Merger Sub,
Parent and Saw Mill under this Section 7.04(a) shall not apply to
information which (i) is or becomes generally available to the public
without breach of the commitment provided for in this Section 7.04(a);
or (ii) is required to be disclosed by Law or a Governmental Authority;
provided, however, that, in any such case, the person subject to such
requirement shall notify the Company as early as reasonably practicable
prior to disclosure to allow the Company to take appropriate measures
to preserve the confidentiality of such information. The provisions of
this Section 7.04(a) (other than the provisions of this sentence) shall
terminate as of the Effective Time and all confidentiality agreements
entered into between the Company and Saw Mill and/or any affiliate of
Saw Mill (including Saw Mill Capital LLC) prior to the date hereof are
hereby terminated and have no further force or effect. Notwithstanding
the foregoing, nothing in this Section 7.04(a) shall prevent the
Company from complying with its obligations contained in Section 7.09.
(b) The Shareholders shall each, and shall each use his
reasonable best efforts to cause his accountants, consultants, legal
counsel, agents and other representatives, as applicable, to, keep
confidential and not disclose to any other person or use for his or its
own benefit or the benefit of any other person any trade secrets or
other confidential proprietary information in his, its or their
possession or control regarding Merger Sub, Parent, Saw Mill or any of
their respective affiliates. The obligation of the Shareholders under
this Section 7.04(b) shall not apply to information which (i) is or
becomes generally available to the public without breach of the
commitment provided for in this Section 7.04(b); or (ii) is required to
be disclosed by Law or a Governmental Authority; provided, however,
that, in any such case, the Shareholder subject to such requirement
shall notify Merger Sub and Parent as early as reasonably practicable
prior to disclosure to allow Merger Sub and Parent to take appropriate
measures to preserve the confidentiality of such information.
27
<PAGE> 33
(c) Except as otherwise dictated by the legal duties or legal
obligations of the Special Committee or the Company and subject to the
requirements of agreements with third parties, from the date hereof to
the Effective Time, the Company shall (and shall cause each of its
subsidiaries to) provide to Merger Sub (and its lenders, other
financing sources, officers, directors, employees, accountants,
consultants, legal counsel, agents and other representatives,
collectively, "Representatives") reasonable access to all information
and documents which Merger Sub may reasonably request regarding the
business, assets, liabilities, employees and other aspects of the
Company or its subsidiaries.
(d) Except as otherwise dictated by the legal duties or legal
obligations of the Special Committee or the Company and subject to the
requirements of agreements with third parties, from the date hereof to
the Effective Time, the Company shall (and shall cause each of its
subsidiaries to): (i) provide to Merger Sub and its Representatives
access at reasonable times upon prior notice to the officers,
employees, agents, properties, offices and other facilities of the
Company and its subsidiaries and to the books and records thereof and
(ii) furnish promptly such information concerning the business,
properties, contracts, assets, liabilities, personnel and other aspects
of the Company and its subsidiaries as Merger Sub or its
Representatives may reasonably request.
(e) No investigation by Merger Sub or the Company, as
applicable, whether prior to the execution of this Agreement or
pursuant to this Section 7.04, shall affect any representation or
warranty in this Agreement of any party hereto or any condition to the
obligations of the parties hereto.
(f) Merger Sub and its Representatives shall have the right to
conduct any environmental and engineering inspections at any of the
Company's properties (whether owned or leased), which inspections shall
be, subject to Section 9.03(b), at Merger Sub's expense; provided, that
in no event shall Merger Sub have the right to conduct so-called "Phase
II" environmental tests without the Company's prior consent, which
consent shall not be unreasonably withheld. Notwithstanding anything
contained herein to the contrary, all of Merger Sub's and their
Representatives' activities pursuant to this Section 7.04(f) shall be
conducted in a manner that does not unreasonably interfere with the
ongoing operations of the Company and its subsidiaries.
SECTION 7.05 Fiduciary Responsibilities.
(a) If, after the date of this Agreement, the Special
Committee or the Company receives a bona-fide inquiry or proposal (any
such inquiry, an "Acquisition Inquiry" or any such proposal, an
"Acquisition Proposal") from a person whom the Special Committee, in
good faith, reasonably determines has the financial capacity to
consummate a merger, consolidation, tender offer, exchange offer,
recapitalization or other business combination involving the Company or
the acquisition (of any kind) of a material portion of the assets or
capital stock of the Company or its subsidiaries (any such transaction,
other than the Merger, a "Third Party Transaction") and the Special
Committee reasonably concludes, after
28
<PAGE> 34
consultation with its legal counsel, that the failure to provide
information to, or to engage in discussions or negotiations with, such
person would be inconsistent with the fiduciary duties of the Company's
directors to the Company's shareholders under applicable Law (the
"Board's Fiduciary Duties"), then (i) the Special Committee may,
through any of the Company's directors, officers, employees, agents,
representatives or affiliates (the "Company's Agents"), directly or
indirectly, (x) provide access to, furnish or cause to be furnished
information concerning the Company's business, properties, assets,
financial position, operations and/or prospects to such person pursuant
to an appropriate confidentiality agreement, and (y) engage in
discussions related thereto; and (ii) the Special Committee may,
through any of the Company's Agents, participate in and engage in
discussions and negotiations with such person regarding the Acquisition
Inquiry or Acquisition Proposal, as the case may be. In the event that,
after the date of this Agreement and prior to the Shareholders'
Meeting, the Special Committee or the Company receives an Acquisition
Proposal from a person whom the Special Committee, in good faith,
reasonably determines has the financial capabilities to consummate such
Acquisition Proposal and the Special Committee determines, in good
faith and after consultation with its legal counsel, that the failure
to do any or all of the following would be inconsistent with the
Board's Fiduciary Duties, the Board of Directors of the Company (acting
on the recommendation of the Special Committee) may do any or all of
the following: (xx) withdraw, modify or change the Company's Board of
Directors' approval or recommendation of this Agreement and the Merger;
(yy) approve or recommend to the Company's shareholders such
Acquisition Proposal; and (zz) terminate this Agreement. The Board of
Directors of the Company shall not take the action described in clause
(zz) above prior to three business days after the Board of Directors of
the Company shall have given Merger Sub written notice stating that the
Board of Directors of the Company intends to terminate this Agreement
and setting forth the information specified in Section 7.05(d) hereof
with respect to any Acquisition Proposal which the Board of Directors
of the Company intends to accept or recommend. If the Company shall
exercise its right to terminate this Agreement pursuant to clause (zz)
of this Section 7.05(a), the Company shall deliver to Saw Mill (or at
Saw Mill's direction, such other person as Saw Mill may designate in
writing), and any such termination shall be conditioned upon Saw Mill's
or such other person's receipt of, a wire transfer of same day funds in
the amount of the Termination Fee (as defined in Section 9.03(d)).
Notwithstanding anything contained in this Agreement to the contrary,
so long as there has been no breach of Section 7.05(b), the exercise of
the rights of the Board of Directors of the Company and the Special
Committee pursuant to this Section 7.05 shall not constitute a breach
of this Agreement by the Company.
(b) Notwithstanding anything contained herein to the contrary,
the Board of Directors of the Company, the Shareholders and the Special
Committee shall not, and the Company shall cause its subsidiaries not
to, and the Company agrees that it shall not authorize nor permit any
of the Company's Agents to, directly or indirectly, solicit, knowingly
encourage, participate in or initiate discussions or negotiations with,
or provide any non-public information to any person (other than Merger
Sub, Parent, Saw Mill or any of their affiliates or representatives)
concerning any potential Third Party Transaction;
29
<PAGE> 35
provided, that after the Special Committee (i) has received an
Acquisition Inquiry or Acquisition Proposal and (ii) has reached the
applicable conclusions required by the first sentence of Section
7.05(a) with respect to such Acquisition Inquiry or Acquisition
Proposal, as the case may be, the Special Committee may, through any of
the Company's Agents, directly or indirectly participate in or initiate
discussions or negotiations or provide information and conduct any
other activities it determines, in good faith, after consultation with
its legal counsel, are necessary to satisfy the Board's Fiduciary
Duties regarding such Acquisition Inquiry or Acquisition Proposal, as
the case may be, but only in the manner and to the extent expressly
permitted by Section 7.05(a).
(c) Subject to Section 7.05(a) hereof, nothing contained in
this Section 7.05 shall prohibit the Company's Board of Directors or
the Special Committee from taking and disclosing to the Company's
shareholders a position with respect to a tender or exchange offer by a
third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the
Exchange Act or from making such disclosure to the Company's
shareholders which, in the judgment of the Board of Directors of the
Company or the Special Committee, after consultation with its legal
counsel, is necessary under applicable Law or the rules of any stock
exchange to meet the Board's Fiduciary Duties. The Company shall give
Merger Sub prompt written notice and a copy of any such disclosure.
(d) The Company shall promptly, but in any event within one
business day, give Merger Sub written notice of any Acquisition Inquiry
or Acquisition Proposal, which written notice shall include the
material terms and conditions of such Acquisition Inquiry or
Acquisition Proposal, as the case may be. The Company shall keep Merger
Sub reasonably informed of the status of any such Acquisition Inquiry
or Acquisition Proposal, including any change in the material terms or
conditions thereof.
(e) Notwithstanding anything contained herein to the contrary,
the initial press release issued by the Company announcing the
execution of this Agreement, which press release may not be issued in
any manner other than as is customary for issuing a press release for a
transaction such as the Merger, may include the following language and
the inclusion of such language shall not be a breach of any provision
of this Section 7.05 and Saw Mill, Parent and Merger Sub hereby consent
to the inclusion of the following language in any such press release:
"Notwithstanding its recommendation and consistent with the
terms of the Merger Agreement, the Special Committee of the
Company's Board of Directors requested that the Special
Committee's financial advisor, Lehman Brothers Inc., and legal
advisor, Michael Best & Friedrich LLP, be available to receive
unsolicited inquiries from any other parties interested in the
possible acquisition of the Company. If the Special Committee
of the Company's Board of Directors concludes that the failure
to provide information to, or engage in discussions or
negotiations with, such parties would be inconsistent
30
<PAGE> 36
with its fiduciary duties to the Company's shareholders,
Lehman Brothers Inc. and Michael Best & Friedrich LLP, in
conjunction with the Special Committee of the Company's Board
of Directors, may provide information to and engage in
discussions and negotiations with such parties in connection
with any such indicated interest."
(f) Nothing in this Agreement shall require or be deemed to
require the Special Committee or the Company's Board of Directors to
take or refrain from taking any action which would violate any
obligation (including any fiduciary duty) under applicable Law. In
taking or refraining from taking such action, the Special Committee or
the Company's Board of Directors shall act in good faith and shall
obtain the written advice from its counsel; provided, that, in the
event that the Special Committee or the Company's Board of Directors,
as the case may be, shall exercise any of its rights under this Section
7.05(f) with respect to any action taken or any inaction, the Special
Committee or the Company's Board of Directors, as the case may be,
shall give prompt written notice to Saw Mill, of such action or
inaction (along with a reasonable description thereof) and the basis
for the exercise of such right(s).
SECTION 7.06 Indemnification and Insurance.
(a) The Surviving Corporation, the Shareholders and the
Company agree that, except as may be limited by applicable Laws, for
six and one half years from and after the Effective Time, the Surviving
Corporation shall indemnify, defend and hold harmless any person who is
now, or has been at any time prior to the date hereof, or who becomes
prior to the Effective Time, an officer or director ("Covered Parties")
of the Company against all losses, claims, damages, liabilities, costs
and expenses (including attorneys' fees and expenses), judgments,
fines, losses, and amounts paid in settlement in connection with any
actual or threatened action, suit, claim, proceeding or investigation
(whether arising before or after the Effective Time) (each a "Claim")
to the extent that any such Claim is based on, or arises out of, (i)
the fact that such person is or was a director or officer of the
Company or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture,
trust or other enterprise, or (ii) this Agreement, or any of the
transactions contemplated hereby, in each case to the extent that any
such Claim pertains to any matter or fact arising, existing or
occurring prior to or at the Effective Time, regardless of whether such
Claim is asserted or claimed prior to, at or after the Effective Time,
to the full extent permitted under applicable Law or the Company's
Articles of Incorporation, By-laws or indemnification agreements in
effect at the date hereof, including provisions relating to the
advancement of expenses incurred in the defense of any action or suit.
Without limiting the foregoing, in the event any Covered Party becomes
involved in any capacity in any Claim, then from and after the
Effective Time, the Surviving Corporation shall periodically advance to
such Covered Party its legal and other expenses (including the cost of
any investigation and preparation incurred in connection therewith),
subject to the provision by such Covered Party of an undertaking to
reimburse the amounts so advanced
31
<PAGE> 37
in the event of a final non-appealable determination by a court of
competent jurisdiction that such Covered Party is not entitled thereto.
(b) The Surviving Corporation shall maintain in effect, for
six and one half years from and after the Effective Time, directors'
and officers' liability insurance policies for the Covered Parties on
terms not materially less favorable than the existing insurance
coverage with respect to matters occurring prior to the Effective Time
and otherwise on terms reasonably satisfactory to such directors.
(c) Subject to the fiduciary duties of the Special Committee
and the Company's Board of Directors under Wisconsin Law, in the event
that any action, suit, proceeding or investigation relating thereto or
to the transactions contemplated by this Agreement is commenced,
whether before or after the Effective Time, the parties hereto agree to
cooperate and use their respective reasonable efforts to vigorously
defend against and respond thereto.
(d) The provisions of this Section 7.06 are for the benefit
of, and shall be enforceable by, the Covered Parties. This Section 7.06
shall be binding on the Surviving Corporation and its successors and
assigns.
SECTION 7.07 Notification of Certain Matters. From and after
the date of this Agreement until the Effective Time, each party hereto shall
promptly notify the other parties hereto of:
(a) the occurrence, or non-occurrence, of any event the
occurrence or non-occurrence of which would be reasonably likely to
cause any (i) representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect or (ii) any covenant or
any condition to the obligations of any party to effect the Merger not
to be complied with or satisfied;
(b) the failure of any party hereto to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied
by it pursuant to this Agreement;
(c) the receipt of any notice or other communication from any
person alleging that the consent of such person is or may be required
in connection with the Transactions;
(d) the receipt of any notice or other communication from any
Governmental Authority in connection with the Transactions; and
(e) any actions, suits, claims, investigations or proceedings
commenced or, to the knowledge of the party, threatened against,
relating to or involving or otherwise affecting the Company or Merger
Sub, which relates to the consummation of the Transactions;
in each case, to the extent such event or circumstance is or becomes known to
the party required to give such notice; provided, however, that the delivery of
any notice pursuant to this Section 7.07
32
<PAGE> 38
shall not be deemed to be an amendment of this Agreement or any Section in the
Company Disclosure Schedule and shall not cure any breach of any representation
or warranty requiring disclosure of such matter prior to the date of this
Agreement.
SECTION 7.08 Public Announcements. Subject to the fiduciary
duties of the Special Committee and the Company's Board of Directors under
Wisconsin Law, during the period beginning on the date hereof and ending on the
Closing, Merger Sub, Parent, Saw Mill and the Company shall consult with each
other before issuing (and give one another a reasonable opportunity to comment
on) any press release or otherwise making any public statements with respect to
this Agreement or any of the Transactions, except as may be required by Law or
any listing agreement with the NASD or any national securities exchange to which
Merger Sub, Parent, Saw Mill or the Company is a party and, in such case, shall
use reasonable efforts to consult with all the parties hereto prior to such
release or statement being issued.
SECTION 7.09 Cooperation with Financing. In order to assist
with the financing of the Transactions, at or prior to Closing, the Company
shall, and shall cause its subsidiaries to, take such commercially reasonable
steps as are necessary to cause the following to occur:
(a) At Merger Sub's request and, subject to Section 9.03(b),
expense, (i) with respect to each real property leased by the Company
or its subsidiaries within the United States, the Company shall use its
commercially reasonable best efforts to deliver to Merger Sub, if
required by the lender of any such financing, a nondisturbance
agreement, a consent and waiver and/or an estoppel letter executed by
the landlord, lessor and/or licensor of such leased property and (ii)
with respect to each parcel of real property owned by the Company or
its subsidiaries that is located within the United States, the Company
shall deliver title insurance and surveys, in each case, in form and
substance reasonably acceptable to Merger Sub;
(b) At Merger Sub's request and, subject to Section 9.03(b),
expense, the Company shall furnish such financial statements as may be
reasonably requested by Merger Sub in connection with the financing of
the Transactions; and
(c) At Merger Sub's request and, subject to Section 9.03(b),
expense, the Company shall cause its and its subsidiaries' officers,
employees, consultants, agents, accountants and attorneys to cooperate
with Merger Sub and its lenders and authorized representatives in
connection with a review of the Company and the financing of the
Transactions, including the preparation by Merger Sub and its financing
sources of any offering memorandum or other documents related to the
financing of the Transactions and making senior management available to
meet with any prospective providers of financing (including pursuant to
any "road show").
SECTION 7.10 Shareholder Approval. Subject to the provisions
of Section 7.05 and Section 9.01, the Company shall take all reasonable action
necessary in accordance with Wisconsin
33
<PAGE> 39
Law and its Articles of Incorporation and By-laws to obtain the requisite
approval and adoption of this Agreement and the Merger by the shareholders of
the Company.
SECTION 7.11 Exchange Act and NASDAQ Filings. Unless an
exemption shall be expressly applicable to the Company, or unless Merger Sub
agrees otherwise in writing, the Company will file with the SEC and the National
Association of Security Dealers ("NASD") all reports required to be filed by it
pursuant to the rules and regulations of the SEC and NASD (including, without
limitation, all required financial statements). Such reports and other
information shall comply in all material respects with all of the requirements
of the SEC and NASD rules and regulations, and when filed, to the Company's
Knowledge, will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 7.12 Solvency Opinion. If any of the providers of the
Debt and Preferred Equity Financing require the delivery of a solvency opinion
from an independent valuation firm at the Closing, Merger Sub shall cause such
solvency opinion to also be delivered to the Special Committee.
SECTION 7.13 State Takeover Laws. The Company shall take all
reasonably necessary steps to exempt the Transactions contemplated by this
Agreement, including the Merger, from the requirements of any applicable state
takeover law and to assist Merger Sub in any challenge to the validity or
applicability to the Transactions of any state takeover law.
SECTION 7.14 Capital Stock of Merger Sub and Parent. Except as
contemplated by this Agreement and the Contribution Agreement, during the period
beginning on the date hereof and ending on the Closing, (i) Merger Sub shall not
issue or commit to issue any capital stock to any person, (ii) Parent shall not
sell, transfer or otherwise dispose of any capital stock of Merger Sub and (iii)
Saw Mill shall not sell, transfer or otherwise dispose of any capital stock of
Parent, in each case, without the approval of the Company (which approval shall
not be unreasonably withheld or delayed).
SECTION 7.15 Debt and Preferred Equity Financing. Merger Sub,
Parent and Saw Mill shall be solely responsible for all negotiations with
respect to definitive agreements regarding the financing contemplated by the
Commitment Letters. Merger Sub, Parent and Saw Mill shall conduct such
negotiations reasonably and in good faith and, at the request of the Special
Committee, shall promptly inform the Special Committee as to the status of such
negotiations. So long as the Company is in compliance with Sections 7.04(c),
7.04(d), 7.04(f) and 7.09, Saw Mill, Merger Sub and Parent shall use
commercially reasonable efforts to satisfy the requirements of the Commitment
Letters and to obtain the funding contemplated by and on the terms contained in
the Commitment Letters, or if any of the Commitment Letters is terminated or
such funds shall not otherwise be available, use commercially reasonable efforts
to obtain an alternative source of financing, in each case, on financial and
other terms no less favorable than those set forth in the respective Commitment
Letters or to the extent not set forth therein, on terms reasonably acceptable
to Saw Mill, Merger Sub and Parent. Following the date hereof, any amendment,
termination, cancellation
34
<PAGE> 40
or modification of any Commitment Letter or any information known to Merger Sub
which makes it unlikely to obtain the financing on the terms set forth in the
Commitment Letters, shall be promptly disclosed to the Special Committee;
provided, that Merger Sub shall consult with the Company Financial Advisor with
respect to any such amendment or modification.
SECTION 7.16 Equity Securities of the Company. During the
period beginning on the date hereof and ending on the first to occur of (x) the
Closing or (y) the date nine months after the date of the termination of this
Agreement, neither Saw Mill, Parent nor Merger Sub shall, directly or
indirectly, acquire or propose to acquire ownership, beneficially or of record,
of any equity securities of the Company or any subsidiary thereof, except (i)
pursuant to and as contemplated by this Agreement and (ii) immediately prior to
the Closing, pursuant to and as contemplated by the Saw Mill Limited Partnership
Agreement and the Contribution Agreement.
ARTICLE VIII
CONDITIONS TO THE MERGER
SECTION 8.01 Conditions to the Obligations of Each Party. The
obligations of the Company, Merger Sub and the Shareholders to consummate the
Merger are subject to the satisfaction (or, if permitted by applicable Law,
waiver by the party for whose benefit such condition exist) of the following
conditions:
(a) this Agreement and the Merger shall have been approved and
adopted by the affirmative vote of the requisite holders of the
outstanding shares of Company Common Stock in accordance with Wisconsin
Law and the Company's Articles of Incorporation;
(b) any applicable waiting period under the HSR Act relating
to the Merger and/or the Pre-Merger Contributions shall have expired or
been terminated;
(c) no order, statute, rule, regulation, executive order,
stay, decree, judgment or injunction shall have been enacted, entered,
issued, promulgated or enforced by any Governmental Authority or a
court of competent jurisdiction shall be in effect which has the effect
of making the Merger illegal or otherwise prohibiting consummation of
the Merger or of limiting or restricting the Surviving Corporation's
conduct or operation of the business of the Company after the Merger;
and
(d) all other necessary and material governmental and
regulatory clearances, consents, or approvals shall have been received.
SECTION 8.02 Conditions to the Obligations of Merger Sub. The
obligations of Merger Sub to consummate the Merger are subject to the
satisfaction or, if permitted by applicable Law, waiver by Merger Sub of the
following further conditions:
35
<PAGE> 41
(a) The Company shall have performed, in all material
respects, all of its obligations hereunder required to be performed by
it at or prior to the Effective Time; each of the representations and
warranties of the Company contained in this Agreement (i) that are
qualified by materiality or by Company Material Adverse Effect shall be
true and correct and (ii) that are not qualified by materiality or by
Company Material Adverse Effect shall be true and correct in all
material respects, in each case, as of the date hereof and as of the
Closing Date as if made at and as of such time; and Merger Sub shall
have received a certificate signed by an executive officer of the
Company as to compliance with the conditions set forth in this Section
8.02(a);
(b) Saw Mill, Parent and Merger Sub shall have received an
opinion of counsel from Michael Best & Friedrich LLP, which opinion of
counsel shall be substantially in the form attached hereto as Exhibit
H;
(c) Surviving Corporation shall have obtained the Debt and
Preferred Equity Financing on the terms and conditions set forth in the
Commitment Letters or otherwise obtained debt and/or other financing
sufficient to consummate the Merger (including the payment of the
Merger Consideration, the Option Consideration and the repayment of
indebtedness for borrowed money of the Company or any of its
subsidiaries that is required to be repaid as a result of the
Transactions, if any) and to pay all fees and expenses in connection
therewith and to provide working capital for the Surviving Corporation;
(d) Since December 31, 1998, no event shall have occurred
which has or which would reasonably be expected to have a Company
Material Adverse Effect;
(e) All Company Stock Options shall be extinguished and, as of
immediately prior to Closing, the Company shall have no liability or
obligation with respect to any such Company Stock Options, except as
provided in Section 2.03;
(f) Except as set forth on Exhibit D hereto, all outstanding
indebtedness for borrowed money of the Company or any of its
subsidiaries shall be paid in full, (ii) any letters of credit of the
Company or any of its subsidiaries shall be terminated and (iii) the
Company shall have obtained (x) the release of all liens or
encumbrances on the capital stock of the Company or any of its
subsidiaries and all assets of the Company or any of its subsidiaries
securing indebtedness and (y) the release of all guarantees by the
Company or any of its subsidiaries of indebtedness for borrowed money.
At the Closing, the Company shall provide or arrange to be provided to
Merger Sub all releases and other documents in form and substance
reasonably satisfactory to Merger Sub demonstrating the release of such
liens, encumbrances and guarantees;
(g) The Company shall have obtained all consents,
authorizations, approvals and waivers from third parties, in form
reasonably acceptable to Merger Sub (x) which are necessary in order to
enable (i) the consummation of the Transactions and (ii) the Surviving
Corporation to conduct its business in all material respects after the
Closing Date on the
36
<PAGE> 42
same basis as conducted prior to the date hereof, in each case, except
for those failure of which to obtain would not have, individually or in
the aggregate, a Company Material Adverse Effect and (y) which are
listed on Exhibit E hereto; and
(h) The Dissenting Shares, if any, shall not include greater
than 10% of the issued and outstanding shares of Company Common Stock.
SECTION 8.03 Conditions to the Obligations of the Company and
the Shareholders. The obligations of the Company and the Shareholders to
consummate the Merger are subject to the satisfaction or, if permitted by
applicable Law, waiver by the Company or the Shareholders, as the case may be,
of the following further conditions:
(a) Each of Merger Sub, Parent and Saw Mill shall have
performed, in all material respects, all of its obligations hereunder
required to be performed by it at or prior to the Effective Time; each
of the representations and warranties of Merger Sub, Parent and Saw
Mill contained in this Agreement (i) that are qualified by materiality
shall be true and correct and (ii) that are not qualified by
materiality, shall be true and correct in all material respects, in
each case, as of date hereof and as of the Closing Date as if made at
and as of such time; and the Company and Shareholders shall have
received a certificate signed by an executive officer of Merger Sub, an
executive officer of Parent and an authorized person of Saw Mill as to
compliance with the conditions set forth in this Section 8.03(a).
SECTION 8.04 Conditions to the Obligations of Saw Mill and
Parent. The obligations of Saw Mill to execute and deliver the Contribution
Agreement and to make the Saw Mill Contribution (as such term is defined in the
Contribution Agreement) and the obligations of Parent to execute and deliver the
Contribution Agreement and to consummate the Pre-Merger Contributions are
subject to the satisfaction or, if permitted by applicable Law, waiver by Saw
Mill of the following conditions:
(a) the conditions set forth in Section 8.01 of this
Agreement; and
(b) the conditions set forth in Section 8.02.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.01 Termination. This Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time,
notwithstanding any requisite approval and adoption of this Agreement and the
transactions contemplated hereby by the shareholders of the Company:
(a) by mutual written consent of the Company and Merger Sub;
37
<PAGE> 43
(b) by Merger Sub or the Company, if (i) the waiting period
applicable to the consummation of the Merger under the HSR Act shall
not have expired or been terminated prior to August 31, 2000, (ii) any
court of competent jurisdiction in the United States or other United
States Governmental Authority shall have issued an order (other than a
temporary restraining order), decree or ruling, or taken any other
action, in each case, which is final and non-appealable and which
restrains, enjoins or otherwise prohibits the Merger or (iii) the
Effective Time shall not have occurred on or before August 31, 2000;
provided, that the right to terminate this Agreement under this Section
9.01(b) shall not be available to any party whose failure to fulfill
any obligation under this Agreement has been the cause of or resulted
in the failure of the Closing to occur;
(c) by Merger Sub or the Company, if the Shareholders' Meeting
shall have been held and the holders of outstanding shares of Company
Common Stock shall have failed to approve and adopt this Agreement and
the Merger upon a vote taken at such meeting (including any adjournment
or postponement thereof); provided, that the right to terminate this
Agreement under this Section 9.01(c) shall not be available to the
Company if its breach of this Agreement has been the cause of or
resulted in the failure to obtain such shareholder approval;
(d) by Merger Sub, if the Board of Directors of the Company or
any committee thereof (including the Special Committee) (i) shall
withdraw, modify in a manner adverse to Merger Sub, or refrain from
giving its approval or recommendation of this Agreement or any of the
Transactions or (ii) recommends an Acquisition Proposal or a potential
Third Party Transaction to the Company's shareholders pursuant to
Section 7.05;
(e) by the Company, upon a material breach of any
representation, warranty, or agreement of any of Parent, Saw Mill or
Merger Sub set forth in this Agreement; provided, however, that, if
such breach is of a type curable and is curable by Parent, Saw Mill or
Merger Sub, as the case may be, through the exercise of its reasonable
best efforts and Parent, Saw Mill or Merger Sub, as the case may be,
continues to exercise such reasonable best efforts, the Company may not
terminate this Agreement under this Section 9.01(e) for a period of 20
business days from the date on which the Company delivers to Parent,
Saw Mill or Merger Sub, as the case may be, written notice setting
forth in reasonable detail the circumstances giving rise to such
breach;
(f) by Merger Sub, upon a material breach of any
representation, warranty, or agreement of the Company set forth in this
Agreement; provided, however, that, if such breach (other than a breach
of Section 7.05) is of a type curable and is curable by the Company
through the exercise of its reasonable best efforts and the Company
continues to exercise such reasonable best efforts, Merger Sub may not
terminate this Agreement under this Section 9.01(f) for a period of 20
business days from the date on which Merger Sub delivers to the Company
written notice setting forth in reasonable detail the circumstances
giving rise to such breach; or
38
<PAGE> 44
(g) by the Company in accordance with Section 7.05(a);
provided, that in order for the termination of this Agreement pursuant
to this Section 9.01(g) to be deemed effective, the Company shall have
complied with all of the provisions of Section 7.05, including the
notice provisions contained therein and the payment of the Termination
Fee.
SECTION 9.02 Method of Termination; Effect of Termination.
(a) Any such right of termination hereunder shall be exercised
by written notice of termination given by the terminating party to the
applicable other parties hereto in the manner hereinafter provided in
Section 10.02.
(b) In the event of the termination of this Agreement pursuant
to Section 9.01, this Agreement shall forthwith become void, there
shall be no liability under this Agreement on the part of any of the
parties hereto or any of their respective officers or directors and all
rights and obligations of any party hereto shall cease, except for (i)
fraud, (ii) as set forth in Section 9.03 and (iii) the provisions of
Sections 7.04; provided, however, that nothing herein shall relieve any
party from liability for, or be deemed to waive any rights of specific
performance of this Agreement available to a party by reason of, any
intentional breach by the other party or parties of this Agreement.
SECTION 9.03 Fees and Expenses.
(a) Except as provided in this Section 9.03, all expenses
incurred by the parties hereto shall be borne solely and entirely by
the party which has incurred the same; provided, however, that (i) the
Company shall bear all expenses related to printing, filing and mailing
the Proxy Statement and all SEC and other regulatory filing fees
incurred in connection with the Proxy Statement, and (ii) Merger Sub
and the Company shall each pay one-half of the filing fee in connection
with any filing by Merger Sub and the Company under the HSR Act which
relates to the Merger.
(b) In the event that this Agreement is terminated pursuant to
Sections 9.01(a) or 9.01(b) and at the time of such termination the
conditions contained in Section 8.02(d) have not been satisfied (other
than from an event which is directly caused by or directly results from
facts known by Merger Sub as of the date hereof) or pursuant to
Sections 9.01(d), 9.01(f) or 9.01(g), on the date of such termination,
the Company shall pay Saw Mill (or at Saw Mill's direction, to such
other person as Saw Mill may designate in writing) by wire transfer of
immediately available funds to an account specified by Saw Mill an
amount (such amount, the "Saw Mill Reimbursable Expenses") in cash
equal to the lesser of (x) the aggregate amount of (i) the costs, fees
and expenses of counsel, accountants, financial advisors and other
experts and advisors as well as fees and expenses incident to the
negotiation, preparation and execution of this Agreement and the
attempted financing and consummation of the transactions contemplated
by this Agreement (including investment banking and commitment fees),
the related documentation and the shareholders' meetings and consents
("Costs"), including without limitation, the legal fees of the
providers of the
39
<PAGE> 45
Commitment Letters and (ii) out-of-pocket expenses, in each case, of
Parent, Merger Sub, Saw Mill and/or any of their respective affiliates
(as such Costs and out-of-pocket expenses may be estimated by Saw Mill
in good faith prior to the date of such payment, subject to an
adjustment payment between the parties upon Saw Mill's definitive
determination of such Costs and out-of-pocket expenses) and (y)
$1,500,000; provided, however, that Saw Mill shall have no right to
receive Saw Mill Reimbursable Expenses pursuant to this Section 9.03(b)
if (i) Saw Mill's, Parent's or Merger Sub's breach of or failure to
fulfill any obligation under this Agreement caused or resulted in the
termination of this Agreement or (ii) if this Agreement is terminated
pursuant to Section 9.01(d)(i) and the applicable withdrawal or
modification referred to in Section 9.01(d)(i) is a direct result of
(xx) Saw Mill's, Parent's and/or Merger Sub's breach of Section 7.15
which continues for a period of 20 business days from the date on which
the Company delivers to Saw Mill written notice setting forth in
reasonable detail the circumstances giving rise to such breach (other
than if prior to such termination an event has occurred which has or
which would reasonably be expected to have a Company Material Adverse
Effect or the Company has materially breached any of its
representations, warranties or covenants contained in this Agreement)
or (yy) a material adverse change in any of the Commitment Letters,
which results in a material adverse change in the capital structure for
the Surviving Corporation as of immediately after the Closing (the
"Surviving Corporation Capital Structure") as compared to the Surviving
Corporation Capital Structure as contemplated as of the date hereof,
which causes the Company Financial Advisor to either withdraw the
Lehman Opinion or modify the Lehman Opinion in a manner which is
materially adverse to the consummation of the Merger, but only if the
Company Financial Advisor has provided Saw Mill with a period of at
least 20 business days (which period shall commence upon written notice
from the Company Financial Advisor setting forth its concerns regarding
the changed Surviving Corporation Capital Structure and the reasons for
the issuance of such negative opinion), during which time Saw Mill has
had an opportunity to address or cure the Company Financial Advisor's
concerns regarding the changed Surviving Corporation Capital Structure;
provided, further, that if the Company at any time pays the Termination
Fee, the Company shall thereafter have no obligation to pay any Saw
Mill Reimbursable Expenses.
(c) In the event that this Agreement is terminated pursuant to
Section 9.01(e), Saw Mill, Parent or Merger Sub shall pay the Company
by wire transfer of immediately available funds to an account specified
by the Company an amount (such amount, the "Company Reimbursable
Expenses") in cash equal to the lesser of (x) the aggregate amount of
(i) the Costs incurred in connection with pursuing the transactions
contemplated by this Agreement and (ii) out-of-pocket expenses, in each
case, of the Company (as such Costs and out-of-pocket expenses may be
estimated by the Company in good faith prior to the date of such
payment, subject to an adjustment payment between the parties upon the
Company's definitive determination of such Costs and out-of-pocket
expenses) and (y) $1,500,000; provided, however, that the Company shall
have no right to receive Company Reimbursable Expenses pursuant to this
Section 9.03(c) if the Company's breach of or failure to fulfill any
obligation under this Agreement caused or resulted in the termination
of this Agreement.
40
<PAGE> 46
(d) In the event that this Agreement is terminated by Merger
Sub or the Company pursuant to Section 9.01(d) or Section 9.01(g), on
the date of such termination, the Company shall pay Saw Mill (or at Saw
Mill's direction, such other person as Saw Mill may designate in
writing) by wire transfer of immediately available funds to an account
specified by Saw Mill a payment in the amount (such amount, the
"Termination Fee") equal to (i) $6,700,000 minus (ii) the amount of Saw
Mill Reimbursable Expenses, if any, paid by the Company on or prior to
the date of such termination; provided, however, that Saw Mill shall
have no right to receive the Termination Fee pursuant to this Section
9.03(d) if this Agreement is terminated pursuant to Section 9.01(d)(i)
and the applicable withdrawal or modification referred to in Section
9.01(d)(i) is a result of (x) Saw Mill's, Parent's and/or Merger Sub's
breach of Section 7.15 which continues for a period of 20 business days
from the date on which the Company delivers to Saw Mill written notice
setting forth in reasonable detail the circumstances giving rise to
such breach (other than if prior to such termination an event has
occurred which has or which would reasonably be expected to have a
Company Material Adverse Effect or the Company has materially breached
any of its representations, warranties or covenants contained in this
Agreement) or (y) a material adverse change in any of the Commitment
Letters, which results in a material adverse change in the Surviving
Corporation Capital Structure as compared to the Surviving Corporation
Capital Structure as contemplated as of the date hereof, which causes
the Company Financial Advisor to either withdraw the Lehman Opinion or
modify the Lehman Opinion in a manner which is materially adverse to
the consummation of the Merger, but only if the Company Financial
Advisor has provided Saw Mill with a period of at least 20 business
days (which period shall commence upon written notice from the Company
Financial Advisor setting forth its concerns regarding the changed
Surviving Corporation Capital Structure and the reasons for the
issuance of such negative opinion), during which time Saw Mill has had
an opportunity to address or cure the Company Financial Advisor's
concerns regarding the changed Surviving Corporation Capital Structure.
If this Agreement is terminated pursuant to Section 9.01(b), Section
9.01(c) or Section 9.01(f) and a potential Third Party Transaction has
been publicly disclosed prior to such termination, then if within nine
months after such termination a Third Party Transaction with the party
or parties or any of their respective affiliates which proposed such
Third Party Transaction is consummated, on the date of the consummation
of such Third Party Transaction, the Company shall pay the Termination
Fee to Saw Mill (or at Saw Mill's direction, such other person as Saw
Mill may designate in writing) by wire transfer of immediately
available funds to an account specified by Saw Mill.
SECTION 9.04 Amendment. This Agreement may be amended by the
parties hereto at any time prior to the Effective Time; provided, that after the
approval and adoption of this Agreement by the shareholders of the Company, no
amendment may be made which would (a) change the amount or the type of Merger
Consideration to be received by the shareholders of the Company pursuant to the
Merger, (b) change any other term or condition of the Agreement if such change
would materially and adversely affect the Company or the holders of shares of
Company Common Stock or (c) without the vote of the shareholders entitled to
vote on the matter, change any term of the Articles of Incorporation of the
Company. This Agreement may not be amended nor
41
<PAGE> 47
may any provision of this Agreement be waived except by an instrument in writing
signed by the parties hereto.
SECTION 9.05 Waiver. At any time prior to the Effective Time,
any party hereto may (a) extend the time for the performance of any obligation
or other act of any other party hereto, (b) waive any inaccuracy in the
representations and warranties of the other party contained herein or in any
document, certificate or writing delivered by the other party pursuant hereto
and (c) waive compliance with any agreement or condition to its obligations
(other than the conditions set forth in Sections 8.01(a) and (b)) contained
herein. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01 Non-Survival of Representations and Warranties.
The representations and warranties in this Agreement and any certificate
delivered pursuant hereto by any person shall terminate at the Effective Time or
upon the termination of this Agreement pursuant to Section 9.01.
SECTION 10.02 Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
facsimile or by registered or certified mail (postage prepaid, return receipt
requested) or by a nationally recognized overnight courier service to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section
10.02):
if to Merger Sub, Parent or Saw Mill:
c/o Saw Mill Capital LLC
22 Saw Mill River Road
Hawthorne, New York 10532
Telecopy: (914) 592-8548
Attention: Howard Unger
Scott Budoff
with copies to:
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022
Telecopy: (212) 446-4900
Attention: Frederick Tanne, Esq.
W. Brian Raftery, Esq.
42
<PAGE> 48
if to the Company:
Jason Incorporated
411 E. Wisconsin Avenue, Suite 2120
Milwaukee, Wisconsin 53202
Telecopy No.: (414) 277-9445
Attention: Frank Jones
with copies to:
Michael Best & Friedrich LLP
100 East Wisconsin Avenue
Milwaukee, WI 53202
Telecopy: (414) 277-0656
Attention: K. Thor Lundgren, Esq.
and
Reinhart Boerner Van Deuren Norris & Rieselbach
1000 North Water Street, Suite 2100
Milwaukee, Wisconsin 53202
Telecopy: (414) 298-8097
Attention: Richard W. Graber, Esq.
if to any Shareholder:
c/o Jason Incorporated
411 E. Wisconsin Avenue, Suite 2120
Milwaukee, Wisconsin 53202
Telecopy No.: (414) 277-9445
Attention: Vincent L. Martin and Mark Train
with a copy to:
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-5367
Telecopy No.: (414) 297-4900
Attention: Joe Tyson
43
<PAGE> 49
SECTION 10.03 Certain Definitions. For purposes of this
Agreement, the term:
(a) "Acquisition" means the Merger and the other transactions
contemplated by this Agreement (other than the Pre-Merger Contributions
and the Debt and Preferred Equity Financing);
(b) "affiliate" of a specified person means a person who
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with, such specified person;
(c) "beneficial owner" with respect to any shares means a
person who shall be deemed to be the beneficial owner of such shares
(i) which such person or any of its affiliates or associates (as such
term is defined in Rule 12b-2 promulgated under the Exchange Act)
beneficially owns, directly or indirectly, (ii) which such person or
any of its affiliates or associates has, directly or indirectly, (A)
the right to acquire (whether such right is exercisable immediately or
subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of consideration
rights, exchange rights, warrants or options, or otherwise, or (B) the
right to vote pursuant to any agreement, arrangement or understanding
or (iii) which are beneficially owned, directly or indirectly, by any
other persons with whom such person or any of its affiliates or
associates or any person with whom such person or any of its affiliates
or associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any such shares;
(d) "business day" means any day on which the principal
offices of the SEC in Washington, D.C. are open to accept filings, or,
in the case of determining a date when any payment is due, any day on
which banks are not required or authorized to close in the City of
Milwaukee, Wisconsin;
(e) "Code" means the Internal Revenue Code of 1986, as
amended;
(f) "Control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly or
as trustee or executor, of the power to direct or cause the direction
of the management and policies of a person, whether through the
ownership of voting securities, as trustee or executor, by contract or
credit arrangement or otherwise;
(g) "Governmental Authority" means any United States (federal,
state or local), foreign or supra-national Government, or governmental,
regulatory or administrative authority, agency or commission;
(h) "Intellectual Property Rights" means all patents, patent
applications and patent disclosures; all inventions (whether or not
patentable and whether or not reduced to practice); all trademarks,
service marks, trade dress, trade names and corporate names and all the
44
<PAGE> 50
goodwill associated therewith; all mask works; all registered and
unregistered statutory and common law copyrights; all registrations,
applications and renewals for any of the foregoing; and all trade
secrets, confidential information, ideas, formulae, compositions,
know-how, manufacturing and production processes and techniques,
research information, drawings, specifications, designs, plans,
improvements, proposals, technical and computer data, documentation and
software, financial business and marketing plans, customer and supplier
lists and related information, marketing materials and all other
proprietary rights;
(i) "Knowledge" means the actual knowledge of any of the
Company's Chairman, Chief Executive Officer or Chief Financial Officer.
(j) "Lien" shall mean, with respect to any property or asset,
any mortgage, pledge, security interest, lien (statutory or other),
charge, encumbrance or other similar restrictions or limitations of any
kind or nature whatsoever on or with respect to such property or asset;
(k) "Owned Shares" means the aggregate shares of Company
Common Stock owned beneficially and of record by the Shareholders as of
the date hereof as set forth on Exhibit C hereof (as such number may be
reduced as a result of the consummation of the transactions
contemplated by the Contribution Agreement);
(l) "person" means an individual, corporation, limited
liability company, partnership, limited partnership, syndicate, person
(including, without limitation, a "person" as defined in Section
13(d)(3) of the Exchange Act), trust, association or entity or
government, political subdivision, agency or instrumentality of a
government;
(m) "subsidiary" or "subsidiaries" of any person means any
corporation, partnership, joint venture or other legal entity of which
such person (either above or through or together with any other
subsidiary), owns, directly or indirectly, 50% or more of the stock or
other equity interests, the holders of which are generally entitled to
vote for the election of the board of directors or other governing body
of such corporation or other legal entity;
(n) "Tax" or "Taxes" means federal, state, county, local,
foreign or other income, gross receipts, ad valorem, franchise,
profits, sales or use, transfer, registration, excise, utility,
environmental, communications, real or personal property, capital
stock, license, payroll, wage or other withholding, employment, social
security, severance, stamp, occupation, alternative or add-on minimum,
estimated and other taxes of any kind whatsoever (including
deficiencies, penalties, additions to tax, and interest attributable
thereto) whether disputed or not;
(o) "Tax Return" means any return, information report or
filing with respect to Taxes, including any schedules attached thereto
and including any amendment thereof;
45
<PAGE> 51
(p) "Transactions" means the Acquisition and the Debt and
Preferred Equity Financing; and
(q) "Voting Agreement" means that certain Voting Agreement,
dated as of the date hereof, by and among Merger Sub and the
Shareholders and the other shareholders of the Company named therein.
SECTION 10.04 Accounting Terms. All accounting terms used
herein which are not expressly defined in this Agreement shall have the
respective meanings given to them in accordance with GAAP.
SECTION 10.05 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
Law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the Merger is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the Merger be consummated as originally contemplated to the fullest
extent possible.
SECTION 10.06 Entire Agreement; Assignment. This Agreement
(including the Exhibits, and the Company Disclosure Schedule, which are hereby
incorporated herein and made a part hereof for all purposes as if fully set
forth herein) constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof. This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of the other parties, except that
Parent, Merger Sub and the Company may assign their respective rights and
obligations hereunder as collateral security to any person providing financing
to Parent, Merger Sub and/or the Company; provided, that no such assignment
shall change the amount or nature of the Merger Consideration or relieve the
assigning party of its obligations hereunder if such assignee does not perform
such obligations.
SECTION 10.07 Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement, other than Section 7.06 (which is intended to be for
the benefit of the persons covered thereby and may be enforced by such persons).
SECTION 10.08 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
46
<PAGE> 52
SECTION 10.09 Governing Law. The provisions of this Agreement
shall be governed by and construed in accordance with the laws of the State of
Wisconsin (excluding any conflict of law rule or principle that would refer to
the laws of another jurisdiction). EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO
SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.
SECTION 10.10 Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 10.11 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 10.12 Construction. This Agreement and any documents
or instruments delivered pursuant hereto or in connection herewith shall be
construed without regard to the identity of the person who drafted the various
provisions of the same. Each and every provision of this Agreement and such
other documents and instruments shall be construed as though all of the parties
participated equally in the drafting of the same. Consequently, the parties
acknowledge and agree that any rule of construction that a document is to be
construed against the drafting party shall not be applicable either to this
Agreement or such other documents and instruments.
SECTION 10.13 Recitals. The Recitals to this Agreement are a
part of this Agreement and are hereby incorporated by reference.
SECTION 10.14 Knowledge of Saw Mill, Parent and Merger Sub.
For all purposes of this Agreement, the phrases "to Saw Mill's Knowledge", "to
Parent's Knowledge", "to Merger Sub's Knowledge" and "known by Merger Sub" shall
mean as of the applicable date, the actual knowledge of Howard Unger, Scott
Budoff or William Gerstner.
* * * * *
47
<PAGE> 53
IN WITNESS WHEREOF, Saw Mill, Parent, Merger Sub, Shareholders
and the Company have caused this Agreement and Plan of Merger to be executed as
of the date first written above by their respective officers thereunto duly
authorized.
SAW MILL CAPITAL FUND II, L.P.
By: Saw Mill Investments II, LLC,
Its General Partner
By: /s/ Howard Unger
------------------------------
Name: Howard Unger
Title: President
CALENDAR HOLDINGS, INC.
By: /s/ Howard Unger
-------------------------------------
Name: Howard Unger
Title: President
CALENDAR ACQUISITION CORP.
By: /s/ Howard Unger
-------------------------------------
Name: Howard Unger
Title: President
JASON INCORPORATED
By: /s/ Mark Train
-------------------------------------
Name: Mark Train
Title: Chief Executive Officer
/s/ VINCENT L. MARTIN
----------------------------------------
VINCENT L. MARTIN
/s/ MARK TRAIN
----------------------------------------
MARK TRAIN
<PAGE> 1
Exhibit 3
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 30, 2000 (this
"Agreement") by and among Calendar Acquisition Corp., a Wisconsin corporation
("Merger Sub"), Mark Train ("Chief Executive Officer"), Vincent L. Martin,
("Chairman," and together with the Chief Executive Officer, the "Executives"),
Janet D. Martin ("Chairman's Wife") and Martin Family Foundation (the
"Foundation," and collectively with the Executives and Chairman's Wife, the
"Stockholders").
RECITALS
Merger Sub, Jason Incorporated, a Wisconsin corporation (the
"Company"), the Executives and the other parties named therein propose to enter
into an Agreement and Plan of Merger dated as of the date hereof (as the same
may be amended or supplemented, the "Merger Agreement") providing for the merger
of Merger Sub with and into the Company, in which the Company will be the
surviving entity, upon the terms and subject to the conditions set forth in the
Merger Agreement. Capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement as entered into on the date hereof.
As of the date hereof, the Stockholders are the record and
beneficial owner of an aggregate of 7,686,683 shares of Company Common Stock
(the "Existing Shares" and, together with any shares of Company Common Stock
acquired by the Stockholders after the date hereof, whether upon the exercise of
warrants, options or rights, the conversion or exchange of any Existing Shares
or convertible or exchangeable securities or by means of purchase, dividend,
distribution or otherwise, the "Subject Shares").
As an inducement and a condition to entering into the Merger
Agreement, Merger Sub has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
The Stockholders and Merger Sub desire to set forth their
agreement with respect to the voting of the Subject Shares in connection with
the Merger Agreement and the Transactions upon the terms and subject to the
conditions set forth herein.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Covenants of the Stockholders. Until the termination of
this Agreement in accordance with Section 8, the Stockholders agree as follows:
<PAGE> 2
(a) Agreement to Vote. At any meeting of shareholders
of the Company called for the approval of the Merger Agreement, the Transactions
or any Third Party Transaction, however called, or at any adjournment thereof,
or in connection with any written consent of the holders of shares of Company
Common Stock, or in any other circumstances in which the Stockholders are
entitled to vote, consent or give any other approval with respect to the Merger
Agreement, the Transactions or any Third Party Transaction, the Stockholders
shall vote (or cause to be voted) the Subject Shares at the sole discretion and
direction of Merger Sub with respect to adoption and approval of the Merger
Agreement, the Transactions or any Third Party Transaction and the approval of
the terms thereof and each of the other actions contemplated by this Agreement,
the Merger Agreement or any Third Party Transaction and any amendments hereto or
thereto.
At any meeting of shareholders of the Company, however called,
or at any adjournment thereof, or in connection with any written consent of the
holders of shares of Company Common Stock or in any other circumstances in which
the Stockholders are entitled to vote, consent or give any other approval,
except as otherwise agreed to in writing in advance by Merger Sub, the
Stockholders shall vote (or cause to be voted) the Subject Shares against the
following actions:
(i) any action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company or the Executives under the Merger
Agreement or of the Stockholders hereunder; or
(ii) any action or agreement that could
reasonably be expected to impede, interfere with, delay, postpone or attempt to
discourage the Merger and/or the other Transactions, including, but not limited
to: (A) the adoption by the Company of a proposal regarding (1) the acquisition
of the Company by merger, tender offer or otherwise by any person other than
Merger Sub or any designee thereof (a "Third Party"), or any other merger,
combination or similar transaction with any Third Party; (2) the acquisition by
a Third Party of 5% or more of the assets of the Company and its subsidiaries,
taken as a whole (whether by the acquisition of assets or securities of, or any
merger, consolidation or other business combination involving, the Company or
any of its subsidiaries); (3) the acquisition by a Third Party of 5% or more of
the outstanding shares of Company Common Stock, or (4) the repurchase by the
Company and/or any of its subsidiaries of 5% or more of the outstanding shares
of Company Common Stock; (B) any amendment of the Company's Articles of
Incorporation or By-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which amendment or other proposal or transaction
could in any manner reasonably be expected to impede, prevent or nullify the
Merger, the Merger Agreement or the Transactions, or change in any manner the
rights and privileges, including, without limitation, voting rights of any class
of the Company's capital stock; (C) any change in the management or board of
directors of the Company that could in any manner reasonably be expected to
impede, prevent or nullify the Merger, the Merger Agreement or the Transactions;
(D) any material change in the present capitalization (other than pursuant to
the Contribution Agreement) or dividend policy of the Company; or (E) any other
material change in the Company's corporate structure or business. The
Stockholders, in their capacity as shareholders of the Company, further agree
not to commit or agree to take any action inconsistent with the foregoing
agreements.
2
<PAGE> 3
(b) PROXIES. AS SECURITY FOR THE AGREEMENTS OF THE
STOCKHOLDERS PROVIDED FOR HEREIN, THE STOCKHOLDERS HEREBY GRANT TO MERGER SUB AN
IRREVOCABLE PROXY TO VOTE THE SUBJECT SHARES AS INDICATED IN SECTION 1(a) ABOVE.
THE STOCKHOLDERS AGREE THAT THIS PROXY SHALL BE IRREVOCABLE DURING THE TERM OF
THIS AGREEMENT AND COUPLED WITH AN INTEREST AND EACH OF THE STOCKHOLDERS AND
MERGER SUB WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY. THE STOCKHOLDERS HEREBY
REVOKE ANY PROXY PREVIOUSLY GRANTED BY THE STOCKHOLDERS WITH RESPECT TO THE
SUBJECT SHARES.
(c) Transfer Restrictions. The Stockholders agree not
to (i) sell, transfer, tender pursuant to a tender offer, pledge, encumber,
assign or otherwise dispose of or hypothecate (including by gift or by
contribution or distribution to any trust or similar instrument or to any
beneficiaries of the Stockholders (collectively, "Transfer")), or enter into any
contract, option or other arrangement or understanding (including any profit
sharing arrangement) with respect to the Transfer of any of the Subject Shares
other than pursuant to the terms hereof and the Merger Agreement, (ii) enter
into any voting arrangement or understanding with respect to the Subject Shares,
whether by proxy, voting agreement or otherwise, or (iii) take any action that
could reasonably be expected to make any of such Stockholders' representations
or warranties contained herein untrue or incorrect or could reasonably be
expected to have the effect of preventing or disabling the Stockholders from
performing any of their obligations hereunder; provided, that notwithstanding
anything contained herein to the contrary, after the date hereof, the Chairman
may Transfer any of his Subject Shares to the Foundation and such Subject Shares
shall remain subject to and fully bound by the terms of this Agreement.
Notwithstanding anything contained herein to the contrary, the restrictions
contained in this Section 1(c) shall not apply with respect to any Transfer of
Subject Shares by any Stockholder pursuant to applicable laws of descent and
distribution; provided, that such proposed transferee must agree to take such
Subject Shares subject to and to be fully bound by the terms of this Agreement
applicable to such Subject Shares by executing a joinder to this Agreement
substantially in the form attached hereto as Exhibit B and delivering such
executed joinder to the Secretary of Merger Sub as soon as reasonably possible
after such Transfer.
(d) Stop Transfer. The Stockholders hereby authorize
and request the Company and its counsel to notify the Company's transfer agent
that there is a stop transfer order with respect to all of the Subject Shares
(and that this Agreement places limits on the voting of the Subject Shares). The
Stockholders agree with, and covenant to, Merger Sub that the Stockholders shall
not request that the Company register the Transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any of the Subject
Shares, unless such Transfer is made in compliance with this Agreement and the
Merger Agreement. In the event of a stock dividend or distribution, or any
change in the shares of Company Common Stock by reason of any
3
<PAGE> 4
stock dividend or distribution, or any change in the shares of Company Common
Stock by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Subject Shares" shall be deemed to
refer to and include the Subject Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Subject
Shares may be changed or exchanged. The Stockholders shall be entitled to
receive and retain any cash dividend paid by the Company during the term of this
Agreement until the Subject Shares are canceled in the Merger.
(e) Appraisal Rights. THE STOCKHOLDERS HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHTS WHICH THEY MAY HAVE AS TO APPRAISAL,
DISSENT OR ANY SIMILAR OR RELATED MATTER WITH RESPECT TO THE MERGER OR THE OTHER
TRANSACTIONS.
2. Representations and Warranties of the Stockholders. Each
Stockholder hereby severally but not jointly represents and warrants to Merger
Sub as of the date hereof as follows:
(a) No Conflict. The execution and delivery of this
Agreement by such Stockholder does not, and the consummation by such Stockholder
of the transactions contemplated hereby will not, (i) to such Stockholder's
knowledge, violate any Law applicable to such Stockholder, (ii) prevent or
materially delay the consummation of the Merger or the other Transactions or
(iii) to such Stockholder's knowledge, result in a violation or any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party, except for any such breaches or defaults
which would not materially impair the ability of such Stockholder to consummate
the transactions contemplated hereby.
(b) Required Filings and Consents. To such
Stockholder's knowledge, the execution and delivery of this Agreement by such
Stockholder does not, and the consummation by such Stockholder of the
transactions contemplated hereby will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any government or
subdivision thereof, or any administrative, governmental or regulatory
authority, agency, commission, tribunal or body, domestic, foreign or
supranational, except for applicable requirements, if any, of the Exchange Act,
the Securities Act, Blue Sky Laws, the rules of any applicable exchange, state
takeover laws, the pre-merger notification requirements of the HSR Act, and
filings and recordation of appropriate merger documents as required by Wisconsin
Law or any other applicable law or regulation.
(c) Shares. The Existing Shares of such Stockholder
are, and the Subject Shares of such Stockholder as of the Effective Time will
be, owned beneficially and of record by such Stockholder, except as otherwise
permitted by this Agreement. The Existing Shares and all warrants, options or
other rights to acquire any shares of Company Common Stock (including the
applicable exercise price) owned, of record or beneficially, by such Stockholder
are set forth opposite such Stockholder's name on Schedule 2(c) attached hereto.
The Existing Shares of such
4
<PAGE> 5
Stockholder constitute all of the shares of Company Common Stock owned of record
or beneficially by such Stockholder as of the date hereof. All of the Existing
Shares of such Stockholder are issued and outstanding and except as set forth on
Schedule 2(c) attached hereto, such Stockholder does not own, of record or
beneficially, any warrants, options or other rights to acquire any shares of
Company Common Stock. Such Stockholder has sole voting power, sole power of
disposition, sole power to issue instructions with respect to the matters set
forth in Section 1 hereof, sole power to demand appraisal rights (to the extent
such rights are available) and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Existing Shares
of such Stockholder, and will have sole voting power, sole power of disposition,
sole power to issue instructions with respect to the matters set forth in
Section 1 hereof, sole power to demand appraisal rights (to the extent such
rights are available) and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Subject Shares of such
Stockholder as of the Effective Time, in each case with no limitations,
qualifications or restrictions on such rights, subject to applicable federal
securities laws and the terms of this Agreement. Such Stockholder has good and
valid title to the Existing Shares of such Stockholder and at all times during
the term hereof and on the Effective Time will have good and valid title to the
Subject Shares of such Stockholder, in each case, free and clear of all Liens,
except pursuant to the Pledge Agreement (as defined below), this Agreement, the
Merger Agreement or applicable securities laws.
(d) No Finder's Fees. No broker, investment banker,
financial advisor or other person is entitled to any broker's finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
such Stockholder.
3. Representations and Warranties of Chairman. Chairman
additionally represents and warrants to Merger Sub that as of the date hereof no
event of default has occurred, or will occur as a result of the execution and
delivery of this Agreement or the Merger Agreement by Chairman or as a result of
the consummation of the transactions contemplated hereby and thereby, under (i)
the Amended and Restated Credit Agreement, dated June 22, 1999, by and among
Bank One, Wisconsin ("Bank One"), Chairman and Swiss-Tech, LLC (the "Credit
Agreement"), (ii) the Amended and Restated Collateral Pledge Agreement, dated
June 22, 1999 by and between Bank One and Chairman (the "Pledge Agreement") or
(iii) any other Collateral Document (as defined in the Credit Agreement).
4. Representations and Warranties of Merger Sub. Merger Sub
hereby represents and warrants to the Stockholders as of the date hereof as
follows:
(a) Organization. Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Corporate Authorization; Validity of Agreement;
Necessary Action. Merger Sub has full corporate power and authority to execute
and deliver this Agreement and to
5
<PAGE> 6
consummate the transactions contemplated hereby. The execution, delivery and
performance by Merger Sub of this Agreement and the consummation by Merger Sub
of the transactions contemplated hereby have been duly and validly authorized by
its Board of Directors and no other corporate action or proceedings on the part
of Merger Sub is necessary to authorize the execution and delivery by Merger Sub
of this Agreement and the consummation by Merger Sub of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Merger Sub, and, assuming this Agreement constitutes a valid and binding
obligation of the Stockholders, constitutes a valid and binding obligation of
Merger Sub, enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law),
an implied covenant of good faith and fair dealing and considerations of public
policy.
(c) No Conflict. The execution and delivery of this
Agreement by Merger Sub does not, and the consummation by Merger Sub of the
transactions contemplated hereby by will not (i) conflict with or violate the
charter documents, By-laws or other organizational documents of Merger Sub, (ii)
conflict with or violate any Law applicable to Merger Sub or by which any
property or asset of Merger Sub is bound or affected, except for such conflicts
or violations which would not, individually or in the aggregate, have a Merger
Sub Material Adverse Effect, or (iii) result in a violation or any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Merger Sub is a party or by which Merger Sub or any property or asset
of Merger Sub is bound or affected, except for any such breaches or defaults
which would not materially impair the ability of Merger Sub to consummate the
transactions contemplated hereby.
(d) Required Filings and Consents. The execution and
delivery of this Agreement by Merger Sub does not, and the consummation by
Merger Sub of the transactions contemplated hereby will not require any consent,
approval, authorization or permit of, or filing with or notification to, any
government or subdivision thereof, or any administration, governmental or
regulatory authority, agency, commission, tribunal or body, domestic, foreign or
supranational, except (i) for applicable requirements, if any, of the Exchange
Act, the Securities Act, Blue Sky Laws, the rules of any applicable stock
exchange, state takeover laws, the pre-merger notification requirements of the
HSR Act, and filing and recordation of appropriate merger documents as required
by Wisconsin Law or any other applicable state law, and (ii) where the failure
to obtain such other consents, approvals, authorizations, or permits, or to make
such filings or notifications would not materially impair the ability of Merger
Sub to consummate the transactions contemplated hereby.
5. Additional Agreements of Executives. Immediately after the
closing of the Merger:
6
<PAGE> 7
(a) the Executives agree to enter into a Stockholders
Agreement and a Registration Rights Agreement substantially in the form attached
hereto as Exhibit A-1 and Exhibit A-2, respectively;
(b) the Chief Executive Officer agrees to, and Merger
Sub agrees to cause the Company to, enter into an Employment Agreement with the
Company substantially in the form attached hereto as Exhibit A-3; and
(c) the Chairman agrees to, and Merger Sub agrees to
cause the Company to, enter into an Employment Agreement with the Company
substantially in the form attached hereto as Exhibit A-4.
6. Further Assurances. From time to time prior to the
Effective Time, at any other party's request and without further consideration,
each party hereto shall execute and deliver such additional documents and take
all such further lawful action as may be necessary or desirable to consummate
and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement and the Merger Agreement.
7. Additional Covenants of the Stockholders.
(a) Filings. The Stockholders shall furnish to Merger
Sub all information required for any application or other filing to be made
pursuant to the rules and regulations of any applicable Law (including, without
limitation, all information required to be included in the Proxy Statement, a
Schedule 13D filing and a Schedule 13e-3 filing) in connection with the
transactions contemplated by the Merger Agreement.
(b) Confidentiality. Each Stockholder shall, and
shall use its reasonable best efforts to cause its officers, directors,
employees, accountants, consultants, legal counsel, agents and other
representatives, as applicable, to, keep confidential and not disclose to any
other person or use for its own benefit or the benefit of any other person, any
trade secrets or other confidential proprietary information in its or their
possession or control regarding Merger Sub, Parent, Saw Mill or any of their
respective affiliates. The obligation of the Stockholders under this Section
7(b) shall not apply to information which (i) is or becomes generally available
to the public without breach of the commitment provided for in this Section
7(b); or (ii) is required to be disclosed by law, order or regulation of a court
or tribunal or Governmental Authority; provided, however, that, in any such
case, the Stockholder subject to such requirement shall notify Merger Sub as
early as reasonably practicable prior to disclosure to allow Merger Sub to take
appropriate measures to preserve the confidentiality of such information.
(c) Public Announcements. The Stockholders shall
consult with Merger Sub before issuing (and give one another a reasonable
opportunity to comment on) any press release or otherwise making any public
statements with respect to this Agreement, the Merger Agreement
7
<PAGE> 8
or any of the Transactions. Prior to the Closing, the Stockholders shall not
issue any such press release or make any such public statement without the prior
consent of Merger Sub, except as may be required by Law and, in such case, shall
use reasonable efforts to consult with Merger Sub prior to such release or
statement being issued.
(d) Merger Agreement. Each of the Executives agrees
to perform all of his obligations under the Contribution Agreement and the
Merger Agreement, including such Executive's obligation to consummate the
Chairman Contribution and the CEO Contribution (as such terms are defined in the
Contribution Agreement).
(e) Credit Agreement. Chairman agrees to remove as
soon as possible, but in no event later than 60 days after the date hereof, any
Liens imposed on the Subject Shares pursuant to the Credit Agreement, the Pledge
Agreement or any other Collateral Document (as defined in the Credit Agreement).
(f) Termination of Other Agreements. Immediately
after the consummation of the Merger, (a) each of the Executives agrees that the
Shareholder Voting Agreement made effective as of December 30, 1985 by and
between the Executives shall automatically terminate without any further action
by the Executives and shall have no further force and effect and (b) each of the
Executives and the Chairman's Wife shall, and shall cause the Company and the
other parties named therein to, terminate the Stock Purchase Agreement entered
into as of December 30, 1985 by and among the Company, the Executives, the
Chairman's Wife and the other parties named therein, as amended by the Amendment
Agreement, dated February 28, 1986, and the Second Amendment Agreement, dated
January 23, 1987.
8. Termination. This Agreement (other than Sections 6,
7(b), 7(c) and 9 hereof) shall terminate, and no party shall have any rights or
obligations hereunder and this Agreement shall become null and void and have no
further effect upon the earliest to occur of (a) the Effective Time, (b)
termination of the Merger Agreement pursuant to Section 9.01(a), (b) or (e)
thereof or (c) nine months following the termination of the Merger Agreement
pursuant to Section 9.01(c), (d), (f) or (g) thereof. Nothing in this Section 8
shall relieve any party of liability for breach of this Agreement.
9. Fees and Expenses.
(a) In the event that the transactions contemplated
by the Merger Agreement are not consummated due to a material breach of any
representation, warranty, covenant or other agreement of any Stockholder set
forth in this Agreement or the Merger Agreement, then, in addition to the
remedies at law or equity for breach of the Merger Agreement or this Agreement,
the Executives shall, to the extent Merger Sub is not reimbursed by the Company
pursuant to the terms of the Merger Agreement, reimburse Merger Sub (or at
Merger Sub's direction, Saw Mill) by wire transfer of immediately available
funds to an account specified by Merger Sub an amount (such
8
<PAGE> 9
amount, the "Reimbursable Expenses") in cash equal to the lesser of (i) the
aggregate amount of (x) the costs, fees and expenses of counsel, accountants,
financial advisors and other experts and advisors as well as fees and expenses
incident to the negotiation, preparation and execution of this Agreement, the
Merger Agreement and the attempted financing and consummation of the
transactions contemplated by this Agreement and the Merger Agreement (including
investment banking and commitment fees), the related documentation and the
shareholders' meetings and consents ("Costs"), including without limitation, the
legal fees of the providers of the Commitment Letters and (y) out-of-pocket
expenses, in each case, of Parent, Merger Sub, Saw Mill and/or any of their
respective affiliates (as such Reimbursable Expenses may be estimated by Saw
Mill in good faith prior to the date of such reimbursement, subject to an
adjustment between the parties upon Saw Mill's definitive determination of such
Reimbursable Expenses) and (ii) $1,500,000.
(b) Notwithstanding anything contained herein to the
contrary, the obligations of the Executives under this Section 9 shall be
several.
(c) Except as otherwise provided in this Section 9,
all costs and expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby shall be borne solely and
entirely by the party incurring such expenses.
10. General Provisions.
(a) Amendment. This Agreement may not be amended
except by an instrument in writing signed by the party to be charged therewith.
(b) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other addresses
for a party as shall be specified by like notice):
(i) if to Merger Sub:
Saw Mill Capital LLC
22 Saw Mill River Road
Hawthorne, New York 10532
Telecopy: (914) 592-8548
Attention: Howard Unger
Scott Budoff
9
<PAGE> 10
with copies (which shall not constitute
notice) to:
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022
Telecopy: (212) 446-4900
Attention: Frederick Tanne, Esq.
W. Brian Raftery, Esq.
(ii) if to the Chief Executive Officer, to:
Mark Train
Jason Incorporated
411 E. Wisconsin Avenue, Suite 2120
Milwaukee, Wisconsin 53202
Telephone No.: (414) 277-9300
Telecopy No.: (414) 277-9445
with a copy (which shall not constitute
notice) to:
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-5367
Telephone No.: (414) 271-2400
Telecopy No.: (414) 297-4900
Attention: Joe Tyson
(iii) if to the Chairman, Chairman's Wife or the
Foundation, to:
Vincent L. Martin
Jason Incorporated
411 E. Wisconsin Avenue, Suite 2120
Milwaukee, Wisconsin 53202
Telephone No.: (414) 277-9300
Telecopy No.: (414) 277-9445
with a copy (which shall not constitute
notice) to:
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-5367
10
<PAGE> 11
Telephone No.: (414) 271-2400
Telecopy No.: (414) 297-4900
Attention: Joe Tyson
(c) Interpretation. Whenever the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation." The phrases "the date of this
Agreement," "the date hereof," and terms of similar import, unless the context
otherwise requires, shall be deemed to refer to January 30, 2000.
(d) Counterparts. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
(e) Entire Agreement; No Third Party Beneficiaries.
This Agreement 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, and is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(f) Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby may be
consummated as originally contemplated to the fullest extent possible.
(g) Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that Merger Sub may assign, in
Merger Sub's sole discretion, any or all of their respective rights, interests
and obligations hereunder to any affiliate of Merger Sub (including Saw Mill).
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, heirs, agents, representatives, trust beneficiaries, attorneys,
affiliates and associates and all of their respective predecessors, successors,
permitted assigns, heirs, executors and administrators.
(h) Enforcement; Governing Law; Waiver of Jury Trial.
11
<PAGE> 12
(i) The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to specific performance of the terms hereof, in addition to any other remedy
at law or in equity.
(ii) The provisions of this Agreement shall be
governed by and construed in accordance with the laws of the State of Wisconsin
(excluding any conflict of law rule or principle that would refer to the laws of
another jurisdiction). EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY
JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.
* * * * *
12
<PAGE> 13
IN WITNESS WHEREOF, Merger Sub and the Stockholders have
caused this Agreement to be executed as of the date first written above.
CALENDAR ACQUISITION CORP.
By: /s/ Howard Unger
-----------------------------
Name: Howard Unger
Title: President
STOCKHOLDERS
/s/ Mark Train
---------------------------------
Mark Train
/s/ Vincent L. Martin
---------------------------------
Vincent L. Martin
/s/ Janet D. Martin
---------------------------------
Janet D. Martin
MARTIN FAMILY FOUNDATION
By: /s/ Vincent L. Martin
------------------------------
Name: Vincent L. Martin
Title: Trustee
By: /s/ Janet D. Martin
------------------------------
Name: Janet D. Martin
Title: Trustee
13
<PAGE> 14
SCHEDULE 2(c)
<TABLE>
<CAPTION>
Existing Shares Options/Warrants
Name of Stockholder Owned by Owned by Exercise Price of
Stockholder Stockholder Options/Warrants
<S> <C> <C> <C>
Chief Executive Officer 3,256,679
Chairman 4,221,796
Chairman's Wife 73,746
Foundation 134,462
</TABLE>
<PAGE> 1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is entered this 30 day of December, 1985, by and
among JASON INCORPORATED, a Delaware corporation (the "Corporation"), VINCENT
L. MARTIN ("Martin"), JANET D. MARTIN, Martin's spouse, MARK TRAIN ("Train")
and ANNE V. TRAIN, Train's spouse.
RECITALS
The parties acknowledge the following:
A. Martin owns 400 shares of the issued and outstanding $.10
par value voting common stock of the Corporation.
B. Train owns 300 shares of the issued and outstanding $.10
par value voting common stock of the Corporation.
C. Martin and Train (collectively, the "Shareholders") are
personally active in the management of the Corporation's business and the
Shareholders and the Corporation desire to promote the interests of the
Corporation by imposing certain restrictions and obligations on the stock
owned by the Shareholders in order to (1) stabilize the Corporation's
business; (2) prevent the separation of ownership from management of the
Corporation; (3) prevent the possibility of inexperienced shareholders
injecting themselves into the management of the Corporation's business; (4)
preclude, if possible, dissension, litigation or deadlock at the death of a
Shareholder; (5) assure continuity in the business of the Corporation for the
purpose of attracting key personnel; and (6) provide for the financial
stability of the Corporation.
AGREEMENTS
In consideration of the premises and mutual agreements contained
herein, IT IS AGREED:
1. General Restrictions on Stock - Applicability.
(a) Restrictions. The Shareholders shall not, during
their lives or upon their deaths, sell, transfer, give, assign, bequeath,
pledge or otherwise encumber or divest themselves of ownership or control of
all or any part of their Stock (as defined below), whether voluntarily or by
operation of law, except in accordance with the terms of this Agreement or by
written consent of the Corporation and the other Shareholder.
(b) Stock Subject to Agreement. The parties expressly
agree that this Agreement covers all shares of $.10 par value voting and
nonvoting common stock of the Corporation now owned or acquired in the future
by the Shareholders or their spouses while this Agreement remains in effect
(the "Stock"). "Stock" shall include, without limitation, all of the
Corporation's stock now owned or acquired in the future by the Shareholders
or their spouses as marital property or as their individual property and,
with respect to such Stock, the parties
<PAGE> 2
expressly agree that if a Shareholder's spouse shall predecease a Shareholder,
the interest of the deceased spouse in the Stock owned by the Shareholder shall
remain subject to the terms and provisions of this Agreement. The Stock shall
remain subject to this Agreement regardless of the termination of the marital
relationship of a Shareholder and his spouse for any reason.
The Shareholders' obligation to sell Stock shall include an
obligation on the part of their spouses to sell or offer to sell such spouses'
marital property interests in the Stock in the same manner.
2. Voluntary Transfers.
(a) Right of First Refusal in the Corporation. If a
Shareholder receives a written bona fide third-party offer to sell, transfer
or otherwise dispose of all or any part of his Stock (including any interest
of his spouse in such Stock), and such Shareholder desires to sell pursuant
to said offer, the Shareholder (the "Seller") shall immediately deliver a
copy of such written third-party offer to the President and Secretary of the
Corporation and to the other Shareholder and shall, simultaneously with the
delivery of such third-party offer, give written notice of his intention to
sell to the President and Secretary of the Corporation and to the other
Shareholder and, in such notice, shall offer to sell such Stock to the
Corporation at the price offered to Seller by the proposed third-party
purchaser of the Stock (the "Third-Party Price") and, at the Corporation's
option, upon the terms and conditions offered by the third-party purchaser of
the Stock (the "Third Party Terms") or upon the terms and conditions set
forth in paragraph 8 hereof (the "Terms and Conditions"). Within 45 days
after the receipt of said written notice, the Corporation may, by notice in
writing to Seller, elect to purchase all, but not less than all, of the Stock
thus offered.
(b) Right of First Refusal in Other Shareholder. If the
Corporation elects not to purchase the Stock thus offered, then the Stock
shall be offered for sale and shall be subject to an option on the part of
the other Shareholder to purchase all of the Stock at the Third-Party Price
and, at the option of the other Shareholder, upon the Third-Party Terms or
the Terms and Conditions. Such option shall be exercised by written notice
to Seller from the other Shareholder within 30 days from the date upon which
the Corporation's option period described above expires.
(c) Sale to Third Party. If the Seller's offer to sell
all of his Stock is not accepted by the Corporation or the other Shareholder
within the time limits stated above, Seller shall be free to make a bona fide
transfer of his Stock to any bona fide third-party purchaser at a price equal
to or greater than the Third-Party Price and upon the Third-Party Terms. If
the Seller shall fail to make and close the sale of his Stock within 60 days
after the date upon which the Shareholder's acceptance period described in
paragraph 2(b) expires, such Stock shall not be sold and shall again be
subject to the restrictions of this Agreement.
(d) Other Shareholder's Right to Sell. Within 30 days
after the Shareholder's acceptance period set forth in paragraph 2(b)
expires, the other Shareholder shall have the right, but not the obligation,
to elect by notice in writing to Seller to sell all, but not less than all,
of his Stock to the third-party purchaser at the same price per share and on
the same
-2-
<PAGE> 3
terms and conditions received by Seller at Seller's closing with the third-party
purchaser. Seller's agreement with the third-party purchaser shall contain a
provision requiring the third-party purchaser to purchase all of the shares
owned by the other Shareholder if he elects to sell pursuant to this paragraph
2(d).
(e) Sale to other Shareholder. Either Shareholder may
sell all or any part of his Stock (including any rights of his spouse in such
Stock) to the other Shareholder at a price and upon terms mutually agreeable
to the Shareholders.
3. Death. Upon the death of a Shareholder, the Corporation
shall purchase from the Shareholder's personal representative (the "Personal
Representative") and the Personal Representative shall sell to the
Corporation all of the Stock owned by the deceased Shareholder (including any
rights of his spouse in such Stock) at the purchase price described in
paragraph 7 hereof (the "Purchase Price") and upon the Terms and Conditions.
4. Disability of a Shareholder. In the event of a
Shareholder's Permanent Total Disability (as defined herein):
(a) The Corporation shall have an option to purchase from
the disabled Shareholder all of the Stock owned by him (including any rights
of his spouse in such Stock) at the Purchase Price and upon the Terms and
Conditions. The option to purchase by the Corporation may be exercised by
written notice to the disabled Shareholder at any time after the commencement
of Permanent Total Disability.
(b) Disabled Shareholder's Option. The disabled
Shareholder shall have an option to sell to the Corporation all of the Stock
owned by the disabled Shareholder (including any rights of his spouse in such
Stock) at the Purchase Price and upon the Terms and, Conditions. The option
to sell by the disabled Shareholder may be exercised by written notice to the
Corporation at any time one year after the commencement of Permanent Total
Disability.
(c) Definition of Permanent Total Disability. The term
"Permanent Total Disability" shall have the same meaning as that set forth in
those certain employment agreements dated December 30 , 1985 between the
Corporation and Martin and Train, respectively.
5. Termination of Shareholder's Employment.
(a) For Cause or Voluntary Termination On or Before
December 30, 1989. In the event that a Shareholder's employment with the
Corporation is terminated for Cause (as defined herein) or in the event that
a Shareholder terminates his employment with the Corporation for any reason
other than death or Permanent Total Disability on or before December 30,
1989, the Corporation shall purchase and the Shareholder shall sell all of
the Stock owned by the Shareholder (including any rights of his spouse in
such Stock) at the Purchase Price, less 25%, and upon the Terms and
Conditions. For purposes of this paragraph, the term "Cause" shall mean
fraud, dishonesty, acts of gross negligence in the course of employment,
material misrepresentation to shareholders of the Corporation and directors
of the Corporation,
-3-
<PAGE> 4
the commission of a felony or a failure to perform the duties set forth in that
certain employment agreement dated December 30, 1985 between the Corporation and
Martin or Train, as the case may be, or prescribed by the Board of Directors of
the Corporation to the reasonable satisfaction of the Board of Directors of the
Corporation.
(b) Without Cause or Voluntary Termination After December
30, 1989. In the event that a Shareholder terminates his employment with the
Corporation for any reason after December 30, 1989 or the event the
Shareholder's employment with the Corporation is terminated by the
Corporation at any time without Cause, the Shareholder shall sell and the
Corporation shall purchase all of the Stock owned by the Shareholder
(including any rights of his spouse in such Stock) at the Purchase Price and
upon the Terms and Conditions.
(c) Retirement of Shareholder. On a Shareholder's
retirement from active employment with the Corporation, the Shareholder shall
sell to the Corporation and the Corporation shall purchase from the
Shareholder all of the Stock owned by the Shareholder (including any rights
of his spouse in such Stock) at the Purchase Price and upon the Terms and
Conditions. For purposes of this Agreement, retirement shall mean
termination of employment at or after the Corporation's normal retirement age
of 65.
6. Termination of Marital Relationship - Involuntary
Disposition.
(a) If the marital relationship of a Shareholder is
terminated by death or divorce and the Shareholder does not succeed to his
spouse's marital property interest in the Stock, then the Shareholder shall
have an option to purchase all of his spouse's interest in the Stock and his
spouse or the executor or administrator of the spouse's estate, whichever is
applicable, shall be obligated to sell such interest in the Stock at the
Purchase Price and upon the Terms and Conditions. Such option must be
exercised in writing within 90 days after the death or divorce of such
Shareholder's spouse. If the Shareholder fails to exercise the option within
such 90-day period, the Corporation shall have the option to purchase the
spouse's interest in the Stock at the Purchase Price and upon the Terms and
Conditions for a period of 90 days after the lapse of the initial 90-day
period.
(b) Involuntary Disposition. Before any involuntary
disposition of the Stock, a Shareholder or a Shareholder's representative
shall give written notice to the Corporation disclosing in full the nature
and details of the involuntary disposition and the Corporation shall have the
option to purchase the Stock for 90 days after receipt of such notice at the
Purchase Price and upon the Terms and Conditions.
7. Purchase Price. Subject to paragraphs 2 and 5, the
purchase price ("Purchase Price") for any stock purchased and sold pursuant
to this Agreement shall be established by appraisal. Two appraisers shall be
chosen by agreement of the Corporation and the selling Shareholder or his
Personal Representative, as the case may be, within 30 days of the event
giving rise to the purchase and sale obligation. Each appraiser shall make
an independent appraisal as of the date of the Purchase Event (as defined
herein) in question and such appraisals shall not be discounted for minority
interests. The Purchase Price shall be the average of the two appraisals.
If the Corporation and selling Shareholder or his Personal Representative, as
the case
-4-
<PAGE> 5
may be, cannot agree upon two appraisers within such 30-day period, each party
shall select an appraiser within the next 15 days and the two appraisers shall
select two other appraisers and such other appraisers shall each determine the
Purchase Price of Stock being purchased and sold as soon thereafter as
practicable. The Purchase Price, as finally determined, shall be the average of
such two appraisals. The appraisals shall be conclusive and binding upon the
parties. The cost of any appraisals hereunder shall be shared equally by the
Corporation and the selling Shareholder or his estate, as the case may be. For
purposes of this Agreement, a Purchase Event shall occur upon the following
dates:
(a) In the event of purchases pursuant to paragraph 3,
the date of death of the Shareholder shall be the Purchase Event.
(b) In the event of purchases pursuant to paragraph 4
hereof, the date upon which Permanent Total Disability commences shall be the
Purchase Event.
(c) In the event of purchases pursuant to paragraph 5
hereof, the date of termination of employment of the Shareholder shall be the
Purchase Event.
(d) In the event of purchases pursuant to paragraph 6(a)
hereof, the date a spouse or such spouse's personal representative receives
notice of the exercise of an option under paragraph 6(a) shall be the
Purchase Event.
(e) In the event of purchases pursuant to paragraph 6(b)
hereof, the date a Shareholder receives notice of the Corporation's exercise
of its option under paragraph 6(b) shall be the Purchase Event.
8. Payment of Purchase Price.
(a) Sales Upon Death of a Shareholder. In the event of
(i) the death of a Shareholder and (ii) the Corporation receives the proceeds
of any insurance policy upon the life of the deceased Shareholder, the
Corporation shall, subject to the provisions of this paragraph 8(a), pay the
Personal Representative the amount of the proceeds of said policy at Closing
(as defined herein) as partial or complete payment for the Stock. In the
event the Purchase Price is less than the proceeds of the insurance policy,
the excess insurance shall be retained by the Corporation. In the event the
Purchase Price exceeds the amount of insurance proceeds, the proceeds shall
constitute the initial installment and the balance shall be paid As follows:
In the event the unpaid balance of the Purchase Price is less than $5,000,
the balance shall be paid in full on the first anniversary date of Closing.
In the event the unpaid balance exceeds $5,000, the unpaid balance shall be
paid in four equal installments, the first installment to be made on the
later of the first anniversary date of Closing or December 30, 1987 and the
remaining installments to be made on the three successive anniversary dates
of the first installment. In the event the Corporation receives no insurance
proceeds, the Corporation shall pay the Personal Representative 20% of the
Purchase Price on the later of Closing or December 30, 1987 (the "Initial
Installment") and shall pay the balance of the Purchase Price in four equal
annual installments, the first installment to be made on the first
anniversary date of the Initial
-5-
<PAGE> 6
Installment and the remaining installments to be made on the three successive
anniversary dates thereof.
(b) Voluntary Transfers, Termination of Employment and
Disability. In the event of a sale pursuant to paragraphs 2 (except
paragraph 2(e)), 4, 5 or 6, the Corporation or other Shareholder, as the case
may be ("Purchaser") shall, subject to the terms of paragraphs 2 and 5, pay
the Shareholder 20% of the Purchase Price on the later of Closing or December
30, 1987 (the "Initial Installment") and shall pay the balance in four equal
annual installments, the first installment to be made on the first
anniversary date of the Initial Installment and the remaining installments to
be made on the three successive anniversary dates thereof.
(c) Promissory Note. The unpaid balance of the Purchase
Price shall be represented by a promissory note (the "Note") delivered to the
Shareholder or the Personal Representative, as the case may be, at Closing.
The Note shall bear interest on the outstanding principal balance as of
Closing at the rate equal to the rate of interest charged by the Bank of
Boston its most creditworthy customers on 90-day unsecured loans as of
Closing (the "Prime Rate"), which rate shall be adjusted on each anniversary
date of the Note to the Prime Rate as of such anniversary date. Interest
shall be paid simultaneously with each payment of principal. The Note shall
provide for acceleration of maturity of the unpaid principal and interest
upon default of the payment of any installment of principal or interest. The
Purchaser shall have the right to prepay without penalty all or any part of
the unpaid balance at any time.
(d) Security. Except for a Note delivered pursuant to
paragraph 5(a) hereof, the Note shall be secured by a pledge of the Stock
purchased hereunder. Purchaser shall execute a collateral pledge agreement
("Collateral Pledge Agreement") in form and content satisfactory to the
selling Shareholder, or his estate, as the case may be, granting a security
interest for payment of the purchase price in an amount of the Stock,
purchased equal in value to the balance of the purchase price remaining
unpaid. For purposes of valuing the shares of Stock as collateral, each
share of Stock shall be deemed to have a value equal to the purchase price
paid per share of Stock. Certificates representing the shares of Stock so
pledged shall be delivered to Shareholder or his estate at Closing along with
stock powers signed in blank by the Purchaser. Upon payment of each
installment under the Note, Shareholder or his estate shall, within five days
after receipt of such installment, release to Purchaser a portion of the
shares of Stock so pledged in an amount equal in value to the amount of the
purchase price so paid. Shareholder or his estate shall not be entitled to
vote the shares of Stock so pledged or to receive dividends, if any, declared
thereon as long as the Purchaser is not in default in payment of the purchase
price and has not breached this Agreement.
9. Closing. The closing of purchases and sales of Stock
pursuant to this Agreement shall take place at the offices of the
Corporation. For purchases under this Agreement, the date of Closing shall
be as follows:
(a) In the event of purchases under paragraph 2 hereof
(except paragraph 2(e)), the date of Closing shall be within 30 days after
the date upon which the Shareholder is in receipt of all written acceptances
of his offer to sell.
-6-
<PAGE> 7
(b) In the event of purchases under paragraph 3 hereof,
the date of Closing shall be within 90 days after the date upon which the
Personal Representative is appointed.
(c) In the event of purchases under paragraph 4 hereof,
the date of Closing shall be within 40 days after the exercise- of an option
described in paragraph 4.
(d) In the event of purchases under paragraph 5 hereof,
the date of Closing shall be within 30 days after the date upon which
Shareholder's employment with the Corporation finally terminates.
(e) In the event of purchases under paragraph 6 hereof,
the date of Closing shall be within 40 days after the exercise of an option
described in paragraph 6.
10. Registration Rights.
(a) The Corporation agrees that if, at any time, it
purposes to file a registration statement with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended
(the "Act"), covering any shares of its common stock, whether as a primary or
secondary offering, it will give written notice to the Shareholders of its
intention to do so and, on the written request of a Shareholder, made within
30 days after the notice of the Corporation, to include the shares of Stock
held by such Shareholder in such registration, the Corporation shall, subject
to the terms and conditions hereinafter set forth and the limitations herein
contained, use its best efforts to cause all shares of Stock referred to in
the written request to be registered under the Act so as to permit the sale
or other disposition thereof by the Shareholder in accordance with the terms
of such written request provided at least 50% of the shares of Stock held by
the Shareholder are included in the request. The Corporation shall not be
required to effect more than one registration under this paragraph 10(a).
(b) Each written request submitted to the Corporation
pursuant to the provisions of paragraph 10(a) shall be signed by the
Shareholder requesting registration and shall state the number of shares of
Stock with respect to which registration is requested and shall state the
intended method of distribution of such shares of Stock by the Shareholder.
(c) The Corporation shall be required to register or use
its best efforts to effect a registration pursuant to paragraph 10(a) only if
all of the following conditions are satisfied:
(i) The Shareholder shall undertake and agree with
the Corporation to complete the sale or other disposition of such Stock (in
accordance with the intended methods of distribution thereof set forth in the
written request) except that the Corporation shall have the right to select
the underwriter (as such term is defined in section 2(11) of the Act) and the
method of distribution, subject to approval by the Shareholder (which
approval shall not be unreasonably withheld) or withdraw from sale any unsold
Stock within nine months from the effective date of the registration and in
such event, such shares of Stock may be deregistered by the Corporation;
-7-
<PAGE> 8
(ii) the Shareholder shall furnish to the
Corporation such information and representations regarding the Stock held by
the Shareholder and the intended method or methods of disposition thereof as
the Corporation shall reasonably request and as shall be required under the
then existing law in connection with actions to be taken by the Corporation;
(iii) the Shareholder shall undertake, by an
agreement reasonably satisfactory to the Corporation, to indemnify and hold
harmless the Corporation, each of its directors, each of its officers who
have signed such registration statement and each person, if any, who controls
the Corporation within the meaning of the Act, against such losses, claims,
damages or liabilities to which the Corporation, any director, officer or
controlling person may become subject under the Act, or otherwise, in so far
as such losses, claims, damages or liabilities (or actions in respect
thereof), arise out of or are based upon an untrue statement or alleged
untrue statement of any material fact contained in such registration
statement, any prospectus or preliminary prospectus, or any amendment or
supplement thereto, or arise out of are based on an omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was so made in reliance on information furnished
to the Corporation by the Shareholder specifically for use in the preparation
of such registration statement, prospectus, preliminary prospectus or
amendment or supplement thereto; and will reimburse the Corporation or any
such director, officer or controlling party for any reasonable legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof. It is agreed that the obligations of the Shareholder
hereunder shall be limited to an amount equal to the proceeds to the
Shareholder of shares sold pursuant to which a loss, claim, damage, liability
or action relates.
(d) If the Corporation proposes to file a registration
and written requests are submitted by the Shareholder pursuant to paragraph
10(a), the Shareholder and the Corporation agree to jointly abate their
offerings pro rata (in proportion to the number of shares intended to be
sold) if either is requested to do so by the principal underwriter for the
offering.
(e) The Shareholder shall not be liable under the
indemnity agreement referred to in paragraph 10(c) unless, promptly after
written communication asserting a claim in respect of which payment may be
sought pursuant to such indemnity agreement shall have been received by any
party indemnified hereunder, either the indemnified party shall give written
notice thereof to the Shareholder or the Shareholder received actual notice
thereof. The Shareholder shall be entitled to participate at his own expense
in the defense or, if he so elects, jointly with any other indemnifying party
similarly notified, to assume the defense of any such suit or administrative
or other proceeding brought to enforce or determine any such liability.
After notice by the Shareholder of his election to assume the defense of any
such suit or administrative or other proceedings, the Shareholder shall not
be liable for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs for investigation. The Shareholder shall not be required to
indemnify any person for any payment made in settlement of any suit or claim
unless such payment is consented to by the Shareholder.
-8-
<PAGE> 9
(f) The Corporation's obligation to register or use its
best efforts to effect registration of or make a prospectus available with
respect to any Stock shall terminate in the event the Shareholder has
heretofore transferred any shares of Stock in violation of this Agreement.
11. Acts of Corporation. If and whenever the Corporation is
required by this Agreement to use its best efforts to effect the registration
under the Act of any Stock, it will:
(a) prepare and file with the Commission a registration
statement with respect to the Stock and use its best efforts to cause such
registration to become effective;
(b) use its best efforts to prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus comprised therein as may be necessary to keep such
registration effective and to comply with the provisions of the Act with
respect to the sale or other disposition of all stock covered by such
registration statement, in accordance with the intended method or methods of
distribution thereof set forth in such registration statement, for a period
of not more than nine months after the original effective date of such
registration statement; and
(c) furnish to the Shareholder such number of copies of a
summary prospectus or other prospectus, including the preliminary prospectus,
in conformity with the requirements of the Act, and such other documents as
the Shareholder may reasonably request pursuant to the terms hereof in order
to facilitate the public sale or other disposition of the Stock owned by the
Shareholder in accordance with the intended method or methods of distribution
thereof set forth in the registration statement.
12. Expenses. If and whenever the Corporation is required by
the provisions of paragraph 10(a) of this Agreement to use its best efforts
to effect the registration of any of the Stock under the Act, the Corporation
shall pay all expenses (other than underwriters' commissions and discounts)
of every kind and character (including, but without limitation, registration
fees, qualification fees, printing fees, legal and accounting fees and the
services of the regular full-time employees of the Corporation) of such
registration (and the qualification and sale of the Stock so registered).
13. Delay of Sales. The Shareholder agrees that if he submits
a written request pursuant to paragraph 10(a) hereof, he will not, without
the Corporation's written consent, sell any of such Stock from the date of
receipt by him of a written notice from the Corporation that it proposes to
file a registration statement as set forth in paragraph 10(a) hereof until
the earlier of four months thereafter or the expiration of 90 days after the
effective date of such registration statement except to the extent that his
shares are included in such registration statement.
14. Limitation Upon Ability of Corporation to Purchase. If, at
any time when the Corporation is required to purchase Stock hereunder, it
cannot satisfy the conditions precedent to acquisition of its shares under
any applicable loan agreement, covenant or statute, the Corporation shall
purchase as many shares of Stock as it shall have legal capacity so to do
-9-
<PAGE> 10
and the purchase commitment hereunder shall remain in effect as to any
unpurchased shares of Stock. If the Corporation is unable to complete any such
purchase because it cannot satisfy the conditions for acquisition of its own
shares under such agreement, covenant or statute, the Corporation and its
officers, directors and shareholders shall promptly take all steps reasonable
necessary to satisfy the requirements of such agreement, covenant or statute,
including, without limitation, the procurement of current appraisals on the
assets of the Corporation.
Any shares of Stock which the Corporation is unable to
purchase hereunder, because of the limitations stated in this paragraph 14
shall, for a period of five years be held for transfer by the owner thereof
subject to the provisions of this Agreement without in any way relieving the
Corporation of its purchase commitment or the owner or transferee thereof of
the duty to sell. The Purchase Price of such Stock shall be reestablished
pursuant to paragraph 7 at such time as the Corporation is able to complete
the purchase without violating the above-mentioned agreements, covenants or
statutes and Closing shall take place within 30 days of the reestablishment
of the Purchase Price. The owner or transferee of Stock not redeemed by the
Corporation within five years after the purchase obligation arose shall have
the option after such period to continue to require the Corporation to
purchase such shares of Stock for successive one-year periods as provided
above or to transfer such shares of Stock free of the restrictions contained
in this Agreement.
15. Legend on Certificate. Each certificate representing
shares of Stock in the Corporation issued and delivered to Shareholders shall
have endorsed thereon the following legend:
The shares of stock represented by this certificate
are restricted and subject to the terms of a stock purchase
agreement dated December _, 1985, a copy of which is on file with
the Secretary of the Corporation and will be furnished to any
interested party upon written request.
16. Specific Performance. The Stock cannot be readily
purchased or sold on the open market and, for that reason, among others, the
parties would be irrevocably damaged in the event that this Agreement is not
specifically enforced Should any dispute arise concerning the sale or
disposition of the Stock, an injunction may be issued restraining any sale or
disposition pending the determination of such controversy. In the event of
any controversy concerning the right or obligation to purchase or sell any of
the Stock, such right or obligation shall be enforceable in a court of equity
by a decree of specific performance. Such remedy shall, however, be
cumulative and nonexclusive and shall be in addition to any other remedy
which the parties may have.
17. Marriage of a Shareholder. The Shareholders agree that,
during the term of this Agreement, if a Shareholder marries and his spouse
fails to sign a counterpart to this Agreement which shall bind whatever
interest such spouse shall then or thereafter acquire in this Stock,
Shareholder shall offer his Stock to the Corporation at the price and on the
terms specified above as if Permanent Total Disability commenced on the date
of his marriage. On the execution of a counterpart to this Agreement, such
new spouse shall become a party to this Agreement together with all of the
then present parties to this Agreement as though such spouse were an
10
<PAGE> 11
original party hereto. For this purpose, all parties to this Agreement hereby
expressly bind themselves to such counterpart agreement by the Corporation's
execution of that agreement without further action on their part.
18. Notices. Any and all notices, offers and acceptances or
other communications provided for herein shall be in writing and shall be
delivered in person or by registered or certified mail, return receipt
requested, addressed in the case of the Corporation to its principal office
or, in the case of the Shareholders, to their respective addresses as they
appear on the records of the Corporation, or to such other address designated
in writing by them. Notice given in accordance with these provisions shall
be deemed given when delivered or mailed.
19. Modification. No change, modification or amendment to this
Agreement shall be valid unless the same shall be in writing and signed by
the parties hereto.
20. Termination. This Agreement shall terminate upon the
occurrence of any of the following events:
(a) bankruptcy, receivership or dissolution of the
Corporation; or
(b) voluntary agreement of the parties hereto;
provided, however, that the occurrence of the above-mentioned events shall
not affect payment due under purchases, arising prior to said occurrences.
Upon termination of this Agreement, the Shareholders shall be
entitled to have certificates representing their Stock reissued without the
endorsement, provided in paragraph 15 hereof.
21. Governing Laws. This Agreement shall be subject to and
governed by the laws of the State of Wisconsin.
-11-
<PAGE> 12
22. Benefits and Obligations. This Agreement shall inure to
the benefit of and shall be binding upon the Corporation, its successors and
assigns, including, without limitation, any person, partnership or
corporation which may acquire all or substantially all of the Corporation's
assets or business or into which the Corporation shall be consolidated or
merged and upon the Shareholders and, their spouses, their heirs, successors,
assigns and personal representatives.
JASON INCORPORATED
BY
----------------------------
Vincent L.,Martin, President
Attest:
/s/ Mark Train
----------------------------
Mark Train, Secretary
/s/ Vincent L. Martin
----------------------------
Vincent L. Martin
/s/ Janet D. Martin
----------------------------
Janet D. Martin
/s/ Mark Train
----------------------------
Mark Train
/s/ Anne V. Train
----------------------------
Anne V. Train
12
<PAGE> 1
AMENDMENT AGREEMENT
THIS AGREEMENT is entered into this 28 day of February, 1986 by
and among JASON INCORPORATED, a Delaware corporation (the "Corporation"),
VINCENT L.. MARTIN ("Martin"), JANET D. MARTIN ("Martin's Spouse"), MARK
TRAIN ("Train") and ANNE V. TRAIN ("Train's Spouse"),
RECITAL
The parties desire to amend that certain Stock Purchase Agreement
dated December 30, 1985 (the "Stock Purchase Agreement").
AGREEMENTS
In consideration of the premises and mutual agreements contained in
the Stock Purchase Agreement and herein, IT IS AGREED:
1. Paragraph 3 of the Stock Purchase Agreement is hereby amended to
read as follows:
3. Death.
(a) Upon the death of a Shareholder, the Corporation
shall purchase from the Shareholder's personal representative (the
"Personal Representative") and the Personal Representative shall sell to
the Corporation all of the Stock owned by the deceased Shareholder
(including any rights of his spouse in such Stock) at the purchase price
described in paragraph 7 hereof (the "Purchase Price") and upon the Terms
and Conditions.
(b) Notwithstanding the terms of paragraph 3(a), in the
event a Shareholder dies prior to January 1, 1988, the Personal
Representative may, by notice in writing to the Corporation at any time
within 30 days after the appointment of the Personal Representative, elect
not to sell the Stock to the Corporation in accordance with paragraph
3(a). In the event of such election, the Personal Representative or
successor to the Stock, as the case may be, shall have an option to sell
all of the Stock (including any rights of the deceased Shareholder's
spouse in such Stock) to the Corporation at any time prior to January 1,
1989 at the Purchase Price and upon the Terms and Conditions. The option
to sell by the Personal Representative or successor shall be exercised by
written notice to the Corporation, which notice shall specify the date as
of which the option is being exercised. In the event the Personal
Representative or successor fails to exercise such option prior to January
1, 1989, the Corporation shall purchase and the Personal Representative or
successor shall sell all of the Stock formerly owned by the deceased
Shareholder (including any rights of his spouse in such Stock) at the
Purchase Price and upon the Terms and Conditions.
<PAGE> 2
(c) In the event a Shareholder dies on or after January
1, 1988, the Personal Representative may, by notice in writing to the
Corporation at any time within 30 days after the appointment of the
Personal Representative, elect not to sell the Stock to the Corporation in
accordance with paragraph 3(a). In the event of such election, the
Personal Representative or successor to the Stock, as the case may be,
shall have an option to sell all of the Stock, as the case may be, shall
have an option to sell all of the Stock (including any rights of the
deceased Shareholder's spouse in such Stock) to the Corporation at any
time within one year after the death of the Shareholder at the Purchase
Price and upon the Terms and Conditions. The option to sell by the
Personal Representative or successor shall be exercised by written notice
to the Corporation, which notice shall specify the date as of which the
option is being exercised. In the event the Personal Representative or
successor fails to exercise such option within such one-year period, the
Corporation shall purchase and the Personal Representative or successor
shall sell all of the Stock formerly owned by the deceased Shareholder
(including any rights of the deceased Shareholder's spouse in such Stock)
at the Purchase Price and upon the Terms and Conditions.
(d) In the event the Personal Representative elects not
to sell the Stock pursuant to paragraph 3(a) pursuant to paragraph 3(b) or
3(c), the Personal Representative, the estate of the deceased Shareholder,
the deceased Shareholder's spouse, the surviving Shareholder and the
surviving Shareholder's spouse shall enter into a Voting Trust Agreement
in substantially the form of Exhibit A at such time that the Personal
Representative elects not to sell the Stock pursuant to paragraph 3(a) or
within 10 days thereafter. The failure of the Personal Representative, the
estate of the deceased Shareholder and the deceased Shareholder's spouse
to execute and deliver such Voting Trust Agreement within the above
described 10-day period shall nullify the election made by the Personal
Representative not to sell the Stock pursuant to paragraph 3(a). In the
event of such nullification, the Stock shall be purchased and sold
pursuant to paragraph 3(a).
2. Paragraph 4 of the Stock Purchase Agreement is hereby amended to
add the following provisions:
(d) Exercise of Option Prior to January 1, 1988.
Notwithstanding the terms of paragraph 4(a), in the event the Corporation
exercises the option described in paragraph 4(a) prior to January 1, 1988,
the Shareholder may, by notice in writing to the corporation at any time
within 30 days after the exercise of such option, elect not to sell the
Stock to the Corporation in accordance with paragraph 4(a). In the event
of such election, the Shareholder shall have an option to sell all of the
Stock (including any rights of the Disabled Shareholder's spouse in such
Stock) to the Corporation at any time prior to January 1, 1989 at the
Purchase Price and upon the Terms and Conditions. The option to sell by
the Shareholder shall be exercised by written notice to the Corporation,
which notice shall specify the date as of which the option is being
exercised. In the event the Shareholder fails to exercise such option
prior to January 1, 1989, the Corporation shall
-2-
<PAGE> 3
purchase and the Shareholder shall sell all of the Stock (including any
rights of his spouse in such Stock) at the Purchase Price and upon the
Terms and Conditions.
(e) Exercise of Option on or After January 1, 1988.
Notwithstanding the terms of paragraph 4(a), in the event the Corporation
exercises the option described in paragraph 4(a) on or after January 1,
1988, the Shareholder may, by notice in writing to the Corporation at any
time within 30 days after the exercise of such option, elect not to sell
the Stock to the Corporation in accordance with paragraph 4(a). In the
event of such election, the Shareholder shall have an option to sell all
of the Stock (including any rights of the disabled Shareholder's spouse in
such Stock) to the Corporation at any time within one year after the
commencement of Permanent Total Disability at the Purchase Price and upon
the Terms and Conditions. The option to sell by the Shareholder shall be
exercised by written notice to the Corporation, which notice shall specify
the date as of which the option is being exercised. In the event the
Shareholder fails to exercise such option within such one-year period, the
Corporation shall purchase and the Shareholder shall sell all of the Stock
(including any rights of the disabled Shareholder's spouse in such Stock)
at the Purchase Price and upon the Terms and Conditions.
(f) Voting Trust Agreement. In the event the Shareholder
elects not to sell the Stock pursuant to paragraph 4(a) pursuant to
paragraph 4(d) or paragraph 4(e), the Shareholder, the Shareholder's
spouse, the nondisabled Shareholder and the nondisabled Shareholder's
spouse shall enter into a Voting Trust Agreement in substantially the form
of Exhibit B at such time that the Shareholder elects not to sell the
Stock pursuant to paragraph 4(a) or within ten days thereafter. The
failure of the disabled Shareholder and the disabled Shareholder's spouse
to execute and deliver such Voting Trust Agreement within the
above-described ten-day period shall nullify the election made by the
Shareholder not to sell the Stock pursuant to paragraph 4(a). In the event
of such nullification, the Stock shall be purchased and sold pursuant to
paragraph 4(a).
3. Paragraph 7(a) of the Stock Purchase Agreement is hereby amended
to read as follows:
(a) In the event of purchases pursuant to paragraph 3(a), the
date of death of the Shareholder shall be the Purchase Event. In the event
of purchases pursuant to paragraph 3(b), the date as of which the Personal
Representative or successor to the Stock exercises the option described in
paragraph 3(b) shall be the Purchase Event or, in the event the option
described in paragraph 3(b) is not exercised, January 1, 1989 shall be the
date of the Purchase Event. In the event of purchases pursuant to
paragraph 3(c), the date as of which the Personal Representative or
successor to the Stock exercises the option described in paragraph 3(c)
shall be the Purchase Event or, in the event the option described in
paragraph 3(c) is not exercised, the date which is one year after the
death of the Shareholder shall be the Purchase-Event.
4. Paragraph 7(b) of the Stock Purchase Agreement is hereby amended
to read as follows:
-3-
<PAGE> 4
(b) In the event of purchases pursuant to paragraph 4(a), the
date upon which Permanent Total Disability companies shall be the Purchase
Event. In the event of purchases pursuant to paragraph 4(d), the date as
of which the Shareholder exercises the option described in paragraph 4(d)
shall be the Purchase Event or, in the event the option described in
paragraph 4(d) is not exercised, January 1, 1989 shall be the date of the
Purchase Event. In the event of purchases pursuant to paragraph 4(e), the
date as of which the Shareholder exercises the option described in
paragraph 4(e) shall be the Purchase Event or, in the event the option
described in paragraph 4(e) is not exercised, the date which is one year
after the commencement of Permanent Total Disability shall be the Purchase
Event.
5. Paragraph 9(b) of the Stock Purchase Agreement is hereby amended
to read as follows:
(b) In the event of purchases under paragraph 3(a) hereof, the
date of Closing shall be within 90 days after the date upon which the
Personal Representative is appointed. In the event of purchases under
paragraph 3(b) or 3(c) hereof., the date of Closing shall be within 40
days after the delivery of the notice exercising the option described in
paragraphs 3(b) and 3(c). In the event the option described in paragraph
3(b) is not exercised, the date of Closing shall be no later than February
15, 1989. In the event the option described in paragraph 3(c) is not
exercised, the date of Closing shall be within 40 days after the first
anniversary of the death of the Shareholder.
6. Paragraph 9(c) of the Stock Purchase Agreement is hereby amended
to read as follows:
In the event of purchases under paragraph 4(a) or paragraph
4(b), the date of Closing shall be within 40 days after the exercise of an
option described in paragraph 4(a) or paragraph 4(b). In the event of
purchases, under paragraph 4(d) or paragraph 4(e) hereof, the date of
Closing shall be within 40 days after the delivery by the disabled
Shareholder of the notice exercising the option described in paragraphs
4(d) or 4(e). In the event the option described in paragraph 4(d) is not
exercised, the date of Closing shall be no later than February 15, 1989.
In the event the option described in paragraph 4(e) is not exercised, the
date of Closing shall be within 40 days after the first anniversary of the
commencement of the Shareholder's Permanent Total Disability.
7. The Stock Purchase Agreement is hereby amended to add the
following paragraph after paragraph 22:
23. Pledge. Notwithstanding the terms of this Agreement,
Martin and Train shall be entitled to pledge their respective shares of
Stock to financial institutions for purposes of securing obligations of
Martin or Train, as the case may be, to such financial institutions;
provided, however, that in the
-4-
<PAGE> 5
event any party hereto obtains notice or knowledge of the intent of any
such financial institution to transfer title to such Stock into its name,
such party shall provide written notice thereof to the Corporation. In the
event of such an intended transfer, the Corporation shall have an
immediate option to purchase the Stock at the Purchase Price, less 25%,
and upon the Terms and Conditions. Such option shall be exercised by
notice in writing to the Shareholder in question. Closing of the purchase
and sale shall occur is soon as reasonably practicable after exercise of
such option.
8. Except as set forth in this Amendment Agreement all of the terms
of the Stock Purchase Agreement shall remain in full force and effect. Defined
terms herein shall have the same meaning as such terms in the Stock Purchase
Agreement.
JASON INCORPORATED
BY /s/ Vincent L. Martin
------------------------------
Vincent L. Martin, President
Attest:
/s/ Mark Train
-----------------------------
Mark Train, Secretary
/s/ Vincent L. Martin
-----------------------------
Vincent L. Martin
/s/ Janet D. Martin
-----------------------------
Janet D. Martin
/s/ Mark Train
-----------------------------
Mark Train
/s/ Anne V. Train
-----------------------------
Anne V. Train
-5-
<PAGE> 6
EXHIBIT A
VOTING TRUST AGREEMENT
THIS AGREEMENT is entered into this __________ day of ___________,
__ by and among the Estate of ________________________ (the "Estate"),
_____________________ (the "Personal Representative"),
___________________________________ (the "Deceased Shareholder's Spouse")
_____________________________, (the "Voting Trustee") and
________________________________ (the "Voting Trustee's Spouse").
RECITALS
A. The Estate owns ___________ shares of the 700 issued and
outstanding shares of $.10 par value Class A Voting Common Stock (the "Stock")
of Jason Incorporated, a Delaware corporation ("Jason").
B. The Estate desires to vest voting power with respect to the Stock
owned by it in the Voting Trustee.
C. The Voting Trustee personally owns all of the remaining issued
and outstanding shares of Class A Voting Common Stock of Jason.
AGREEMENTS
In consideration of the premises and mutual agreements hereinafter
set forth, the parties hereto agree as follows:
1. Transfer of Stock and Voting Power to Voting Trustee. The Estate
hereby assigns to the Voting Trustee full power to vote all of its shares of
Stock owned or which may hereafter be acquired by it for any and all purposes
for said shares of Stock may from time to time be voted and agrees to transfer
or cause to be transferred into the name of the Voting Trustee upon the books of
Jason legal title to all of the said shares of Stock with all rights and powers
of whatever nature necessary to enable the Voting Trustee to exercise the powers
vested in him hereunder. The Estate hereby authorizes and empowers the Voting
Trustee, as attorney-in-fact for the Estate, to cause to be made on the books of
Jason, subject to the conditions hereinafter set forth, a transfer to the Voting
Trustee of all of the certificates for said shares of Stock. In lieu of the
certificates for Stock of Jason now or hereafter deposited hereunder,
certificates for all of such Stock shall be issued to and in the name of the
Voting Trustee and shall be held by the Voting Trustee in a place of
safekeeping. The certificates shall be held by the Voting Trustee in accordance
with the terms of this Agreement and shall be retained by the Voting Trustee
until the termination of this Agreement. All such stock certificates shall refer
to the fact that they are issued to the Voting Trustee under this Agreement.
2. Voting Trust Certificates. The Voting Trustee shall execute and
deliver to the Estate Voting Trust Certificates for the number of shares of
Stock now and which hereafter
<PAGE> 7
may be deposited hereunder. Said Voting Trust Certificates shall be in
substantially the form of Exhibit A attached hereto.
3. Assignment. The Voting Trust Certificates issued hereunder shall
not be transferred or assigned except pursuant to the Stock Purchase Agreement
dated December 30, 1985 by and among Jason, Vincent L. Martin, Janet D. Martin,
Mark Train and Anne V. Train, as amended ("Stock Purchase Agreement"). Upon any
such assignment, the assignor of said Voting Trust Certificates shall notify the
Voting Trustee of such assignment in writing. Every assignee of a Voting Trust
Certificate issued hereunder shall, by the acceptance of such Voting Trust
Certificate, become a party hereto, with like effect as though an actual signer
of this Agreement and shall be embraced within the meaning of the terms "Voting
Trust Certificate holder" or "holder of the Voting Trust Certificate" as used
herein, unless the context shall otherwise require.
4. Replacement of Voting Trust Certificates. In case any Voting
Trust Certificate issued hereunder shall be mutilated or defaced or be
destroyed, lost or stolen, the Voting Trustee shall, in his discretion, issue or
cause to be issued in exchange for and upon cancellation of the mutilated Voting
Trust Certificate or, in lieu of the Voting Trust Certificate so destroyed, lost
or stolen, a new Voting Trust Certificate representing the same number and kind
of shares, upon the production of evidence of such loss, destruction or theft
satisfactory to the Voting Trustee, upon receipt of indemnity satisfactory to
the Voting Trustee and upon compliance with such other reasonable requirements
as the Voting Trustee may prescribe.
5. Rights and Duties of Voting Trustee.
(a) Except as herein provided, the Voting Trustee stall be
entitled to exercise, in his uncontrolled discretion, all rights and powers of
every kind and nature with respect to any or all of the shares of Stock of Jason
at any time deposited hereunder, including especially, (but without limiting the
general rights and powers of the Voting Trustee):
(i) the right to collect all distributions and
dividends payable on any of said shares of Stock which shall be promptly
distributed in accordance with the provisions of this Agreement and the Voting
Trust Certificate applicable thereto; and
(ii) the right to vote said shares for every purpose
and to consent to every and any corporate act of Jason or its stockholders.
(b) The Voting Trustee hereby accepts the powers and the trust
created hereunder and agrees to faithfully perform the duties set forth herein.
The Voting Trustee shall be entitled to receive advice or counsel upon any and
all matters concerning his duties hereunder and the Voting Trustee shall not be
accountable or liable for any loss, damage or liability whatsoever, except for
his own malfeasance. The Voting Trustee shall not be required to give any bond
or security for the discharge of his duties hereunder. If the Voting Trustee
receives any dividend or distribution of cash property other than common or
other voting stock, the Voting Trustee shall distribute such dividend or
distribution to the beneficiaries as their respective interests appeared as of
the date and time of such dividend or other distribution. In the case of
dividends or distributions of common stock or other voting stock, such stock
shall be added to
-2-
<PAGE> 8
the Stock held by the Voting Trustee hereunder and trust certificates evidencing
such stock shall be distributed to the beneficiaries in proportion to their
holdings or trust certificates representing stock deposited hereunder.
(c) The Voting Trustee may hold common stock of Jason and,
individually or as a trustee, may vote for himself as a director and/or officer
of Jason and participate in fixing the amount of compensation therefor.
6. Death of Disability. If the Voting Trustee shall die or become
unable to act, this Agreement shall terminate in accordance with paragraph 8
hereof.
7. Compensation. The Voting Trustee shall not be entitled to any
compensation for his services hereunder as Voting Trustee. However, the Voting
Trustee shall be reimbursed by the holders of the Voting Trust Certificates for
expenses incurred and shall be entitled to act as, and receive compensation as,
an officer, director or employee of Jason.
8. Termination. This Agreement shall remain in full force and effect
unless terminated as provided below. This Agreement shall terminate upon the
first to occur of the following:
(a) the voluntary agreement of all of the parties hereto;
(b) the death of or inability to act of the Voting
Trustee; or
(c) sale of the Stock to the Corporation pursuant to paragraph
3 of the Stock Purchase Agreement.
Upon termination of this Agreement, the Voting Trustee, in exchange for and upon
surrender of the trust certificates then outstanding, shall in accordance with
the terms hereof deliver or cause to be delivered to the holders thereof the
shares of Stock and any of the securities held by him as Voting Trustee in the
amounts represented by the interest therein of the holders of said trust
certificates and then require the respective holders to exchange such trust
certificates for their respective shares of Stock and other securities.
9. Voting Trust Agreement on File. The Voting Trustee shall file a
copy of this Agreement in the registered office of the Corporation in the State
of Wisconsin, which copy shall be open to the inspection of any stockholder of
Jason or any beneficiary of the trust created under this Agreement, daily during
business hours.
10. Notice. All calls for surrender or presentation of Voting Trust
Certificates and all other notices to be given hereunder shall be in writing and
be deemed given when properly delivered or deposited in the United States mail,
proper postage prepaid, addressed to the registered holders of the Voting Trust
Certificates at their respective addresses as shown in the register books of the
Voting Trustee and to the Voting Trustee at:
-3-
<PAGE> 9
--------------------------------
--------------------------------
--------------------------------
or at such other addresses as the Voting Trustee shall designate in writing
given to each Voting Trust Certificate holder.
11. Severability. If, for any reason, any provision or part of any
provision hereof shall be or become invalid or inoperative, the validity and
effect of the other provisions hereof shall not be affected thereby.
12. Amendment. This Agreement may be amended or modified only by an
agreement signed by the parties hereto.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Wisconsin.
ESTATE OF --------------------------------
BY ---------------------------------------
---------------------------------------
Voting Trustee
---------------------------------------
Deceased Shareholder's Spouse
---------------------------------------
Voting Trustee's Spouse
---------------------------------------
Personal Representative
-4-
<PAGE> 10
EXHIBIT A
Number ________
JASON INCORPORATED
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
VOTING TRUST CERTIFICATE FOR
_______________ SHARES OF $.10 PAR VALUE CLASS A
VOTING COMMON STOCK
This is to certify that upon termination of the Voting Trust
Agreement dated ________________, ____ and upon the condition hereinafter set
forth, _____________________ will be entitled, upon surrender hereof to the
Voting Trustee duly endorsed, to receive a certificate or certificates for
_____________________ fully paid and nonassessable shares of $.10 par value
Class A Voting Common Stock of Jason Incorporated ("Jason") , a Delaware
corporation. Until termination of the Voting Trust Agreement, the Estate of
_______________, or its successors and assigns, is entitled to all benefits and
interests and is subject to all of the terms specified in such Agreement (which
is on file with Jason), including, but not limited to, the right to receive
payments equal to the distribution or dividends, if any, received by the
undersigned Voting Trustee upon a like number of shares of Class A Voting Common
Stock of Jason. Until the termination of the Voting Trust Agreement, the voting
Trustee shall possess and be entitled to exercise all rights of every kind and
nature pertaining to the Class A Voting Common Stock owned by the Estate of
__________________, or its successors and assigns, including the right to vote
such stock at any meeting in which the same are entitled to vote, it being
expressly understood and agreed that no voting right pertaining to said stock
and no right to take part in or consent to any corporate or stockholders' action
or to do or perform any other act pertaining to ownership of such stock passes
by or under or belongs to this Voting Trust Certificate or the owner hereof or
its successors or assigns or by or under any agreement, express or implied,
except to the extent expressly provided in said Voting Trust Agreement.
This Voting Trust Certificate is transferable only on the books of
the Voting Trustee by the registered holder hereof either in person or by
attorney, duly authorized in writing, upon surrender hereof, properly endorsed,
and in accordance with the rules established by the Voting Trustee for that
purpose.
<PAGE> 11
Until so surrendered, the Voting Trustee and all other persons
dealing with Voting Trust Certificates may treat the registered holder as the
owner hereof for all purposes whatsoever, any notice to the contrary
notwithstanding, and every holder hereof, by accepting this Voting Trust
Certificate, assents to and agrees to be bound by all of the terms of this
Voting Trust Certificate and of said Voting Trust Agreement.
Dated this ________ day of ___________________, 19__.
VOTING TRUSTEE:
_______________________________________
<PAGE> 12
EXHIBIT B
VOTING TRUST AGREEMENT
THIS AGREEMENT is entered into this ________ day of _____________,
____ by and among ___________________________ (the "Disabled Shareholder"),
_____________________________ (the "Disabled Shareholder's Spouse"),
_____________________________ (the "Voting Trustee") and
__________________________ (the "Voting Trustee's Spouse").
RECITALS
A. The Disabled Shareholder owns _____________ shares of the 700
issued and outstanding shares of $.10 par value Class A Voting Common Stock (the
"Stock") of Jason Incorporated, a Delaware corporation ("Jason").
B. The Disabled Shareholder desires to vest voting power with
respect to the Stock owned by it in the Voting Trustee.
C. The Voting Trustee personally owns all of the remaining issued
and outstanding shares of Class A Voting Common Stock of Jason.
AGREEMENTS
In consideration of the premises and mutual agreements hereinafter
set forth, the parties hereto agree as follows:
1. Transfer of Stock and Voting Power to Voting Trustee. The
Disabled Shareholder hereby assigns to the Voting Trustee full power to vote all
of his shares of Stock owned or which may hereafter be acquired by him for any
and all purposes for which said shares of Stock may from time to time be voted
and agrees to transfer or cause to be transferred into the name of the Voting
Trustee upon the books of Jason legal title to all of the said shares of Stock
with all rights and powers of whatever nature necessary to enable the Voting
Trustee to exercise the powers vested in him hereunder. The Disabled Shareholder
hereby authorizes and empowers the Voting Trustee, as attorney-in-fact for the
Disabled Shareholder, to cause to be made on the books of Jason, subject to the
conditions hereinafter set forth, a transfer to the Voting Trustee of all of the
certificates for said shares of Stock. In lieu of the certificates for Stock of
Jason now or hereafter deposited hereunder, certificates for all of such Stock
shall be issued to and in the name of the Voting Trustee and shall be held by
the Voting Trustee in a place of safekeeping. The certificates shall be held by
the Voting Trustee in accordance with the terms of this Agreement and shall be
retained by the Voting Trustee until the termination of this Agreement. All such
stock certificates shall refer to the fact that they are issued to the Voting
Trustee under this Agreement.
2. Voting Trust Certificates. The Voting Trustee shall execute and
deliver to the Disabled Shareholder Voting Trust Certificates for the number of
shares of Stock now and which
<PAGE> 13
hereafter may be deposited hereunder. Said Voting Trust Certificates shall be in
substantially the form of Exhibit A attached hereto.
3. Assignment. The Voting Trust Certificates issued hereunder shall
not be transferred or assigned except pursuant to the Stock Purchase Agreement
dated December 30, 1985 by and among Jason, Vincent L. Martin, Janet D. Martin,
Mark Train and Anne V. Train, as amended ("Stock Purchase Agreement"). Upon any
such assignment, the assignor of said Voting Trust Certificates shall notify the
Voting Trustee of such assignment in writing. Every assignee of Voting Trust
Certificate issued hereunder shall, by the acceptance of such Voting Trust
Certificate, become a party hereto, with like effect as though an actual signer
of this Agreement and shall be embraced within the meaning of the terms "Voting
Trust Certificate holder" or "holder of the Voting Trust Certificate" as used
herein, unless the context shall otherwise require.
4. Replacement of Voting Trust Certificates. In case any voting
Trust Certificate issued hereunder shall be mutilated or defaced or be
destroyed, lost or stolen, the Voting Trustee shall, in his discretion, issue or
cause to be issued in exchange for and upon cancellation of the mutilated Voting
Trust Certificate or, in lieu of the Voting Trust Certificate so destroyed, lost
or stolen, a new Voting Trust Certificate representing the same number and kind
of shares, upon the production of evidence of such loss, destruction or theft
satisfactory to the Voting Trustee, upon receipt of indemnity satisfactory to
the Voting Trustee and upon compliance with such other reasonable requirements
as the Voting Trustee may prescribe.
5. Rights and Duties of Voting Trustee.
(a) Except as herein provided, the Voting Trustee shall be
entitled to exercise, in his uncontrolled discretion, all rights and powers of
every kind and nature with respect to any or all of the shares of Stock of Jason
at any time deposited hereunder, including especially, (but without limiting the
general rights and powers of the Voting Trustee):
(i) the right to collect all distributions and
dividends payable on any of said shares of Stock which shall be promptly
distributed in accordance with the provisions of this Agreement and the Voting
Trust Certificate applicable thereto; and
(ii) the right to vote said shares for every purpose
and to consent to every and any corporate act of Jason or its stockholders.
(b) The Voting Trustee hereby accepts the powers and the trust
created hereunder and agrees to faithfully perform the duties set forth herein.
The Voting Trustee shall be entitled to receive advice or counsel upon any and
all matters concerning his duties hereunder and the Voting Trustee shall not be
accountable or liable for any loss, damage or liability whatsoever, except for
his own malfeasance. The Voting Trustee shall not be required to give any bond
or security for the discharge of his duties hereunder. If the Voting Trustee
receives any dividend or distribution of cash property other than common or
other voting stock, the Voting Trustee shall immediately distribute such
dividend or distribution to the beneficiaries as their respective interests
appeared as of the date and time of such dividend or other distribution. In the
case of dividends or distributions of common stock or other voting stock, such
stock shall be added to the Stock held by
-2-
<PAGE> 14
the Voting Trustee hereunder and trust certificates evidencing such stock shall
be distributed to the beneficiaries in proportion to their holdings or trust
certificates representing stock deposited hereunder.
(c) The Voting Trustee may hold common stock of Jason and,
individually or as a trustee, may vote for himself as a director and/or officer
of Jason and participate in fixing the amount of compensation therefor.
6. Death of Disability. If the Voting Trustee shall die or become
unable to act, this Agreement shall terminate in accordance with paragraph 8
hereof.
7. Compensation. The Voting Trustee shall not be entitled to any
compensation for his services hereunder as Voting Trustee. However, the Voting
Trustee shall be reimbursed by the holders of the Voting Trust Certificates for
expenses incurred and shall be entitled to act as, and receive compensation as,
an officer, director or employee of Jason.
8. Termination. This Agreement shall remain in full force and effect
unless terminated as provided below. This Agreement shall terminate upon the
first to occur of the following:
(a) the voluntary agreement of all of the parties hereto;
(b) the death of or inability to act of the Voting
Trustee;
(c) sale of the Stock to the Corporation pursuant to paragraph
4 of the Stock Purchase Agreement; or
(d) death of the Disabled Shareholder.
Upon termination of this Agreement, the Voting Trustee, in exchange for and upon
surrender of the trust certificates then outstanding, shall in accordance with
the terms hereof deliver or cause to be delivered to the holders thereof the
shares of Stock and any of the securities held by him as Voting Trustee in the
amounts represented by the interest therein of the holders of said trust
certificates and then require the respective holders to exchange such trust
certificates for their respective shares of Stock and other securities.
9. Voting Trust Agreement on File. The Voting Trustee shall file a
copy of this Agreement in the registered office of the Corporation in the State
of Wisconsin, which copy shall be open to the inspection of any stockholder of
Jason or any beneficiary of the trust created under this Agreement, daily during
business hours.
10. Notice. All calls for surrender or presentation of Voting Trust
Certificates and all other notices to be given hereunder shall be in writing and
be deemed given when properly delivered or deposited in the United States mail,
proper postage prepaid, addressed to the registered holders of the Voting Trust
Certificates at their respective addresses as shown in the register books of the
Voting Trustee and to Voting Trustee at:
-3-
<PAGE> 15
--------------------------------
--------------------------------
--------------------------------
or at such other addresses as the Voting Trustee shall designate in
writing given to each Voting Trust Certificate holder.
11. Severability. If, for any reason, any provision or part of any
provision hereof shall be or become invalid or inoperative, the validity and
effect of the other provisions hereof shall not be affected thereby.
12. Amendment. This Agreement may be amended or modified only by an
agreement signed by the parties hereto.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Wisconsin.
--------------------------------
Disabled Shareholder
--------------------------------
Voting Trustee
--------------------------------
Disabled Shareholder's Spouse
--------------------------------
Voting Trustee's Spouse
-4-
<PAGE> 16
EXHIBIT A
Number ______
JASON INCORPORATED
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
VOTING TRUST CERTIFICATE FOR
_____________ SHARES OF $.10 PAR VALUE CLASS A
VOTING COMMON STOCK
This is to certify that upon termination of the Voting Trust
Agreement dated _____________, ___ and upon the conditions hereinafter set
forth, ___________________ will be entitled, upon surrender hereof to the Voting
Trustee duly endorsed, to receive a certificate or certificates for
________________________ fully paid and nonassessable shares of $.10 par value
Class A Voting Common Stock, of Jason Incorporated ("Jason"), a Delaware
corporation. Until termination of the Voting Trust Agreement __________________
is entitled to all benefits and interests and is subject to all of the terms
specified in such Agreement (which is on file with Jason), including, but not
limited to, the right to receive payments equal to the distribution or
dividends, if any, received by the undersigned Voting Trustee upon a like number
of shares of Class A Voting Common Stock of Jason. Until the termination of the
Voting Trust Agreement, the Voting Trustee shall possess and be entitled to
exercise all rights of every kind and nature pertaining to the Class A Voting
Common Stock owned by _______________________, including the right to vote such
stock at any meeting in which the same are entitled to vote, it being expressly
understood and agreed that no voting right pertaining to said stock and no right
to take part in or consent to any corporate or stockholders' action or to do or
perform any other act pertaining to ownership of such stock passes by or under
or belongs to this Voting Trust Certificate or the owner hereof or his
successors or assigns or by or under any agreement, express or implied, except
to the extent expressly provided in said Voting Trust Agreement.
This Voting Trust Certificate is transferable only on the books of
the Voting Trustee by the registered holder hereof either in person or by
attorney, duly authorized in writing, upon surrender hereof, properly endorsed,
and in accordance with the rules established by the Voting Trustee for that
purpose.
Until so surrendered, the Voting Trustee and all other persons
dealing with Voting Trust Certificates may treat the registered holder as the
owner hereof for all purposes whatsoever, any notice to the contrary
notwithstanding, and every holder hereof, by accepting this Voting Trust
Certificate, assents to and agrees to be bound by all of the terms of this
Voting Trust Certificate and of said Voting Trust Agreement.
Dated this __________ day of ___________________, 19__.
VOTING TRUSTEE:
________________________________
<PAGE> 1
SECOND AMENDMENT AGREEMENT
THIS AGREEMENT is entered into this 23rd day of January, 1987 by and
among JASON INCORPORATED, a Delaware corporation (the "Corporation"), VINCENT
L. MARTIN ("Martin"), JANET D. MARTIN ("Martin's Spouse"), MARK TRAIN
("Train") and ANNE V. TRAIN ("Train's Spouse").
RECITAL
The parties desire to amend that certain Stock Purchase Agreement
dated December 30, 1985 as amended by the certain Amendment Agreement dated
February 28, 1986 (the "Stock Purchase Agreement").
AGREEMENTS
In consideration of the premises and mutual agreements contained in
the Stock Purchase Agreement and herein, IT IS AGREED:
1. Paragraph 3 of the Stock Purchase Agreement is hereby amended to
add the following provision:
(e) Notwithstanding the provisions of this section 3, in the
event that the Shareholders die simultaneously or within ten days of each other,
either Personal Representative may, by notice in writing to the Corporation,
elect not to sell the Stock to the Corporation in accordance with this section
3. In the event of such election, such Personal Representative or successor to
the Stock, as the case may be, shall have an option to sell all of the Stock
(including any rights of a deceased Shareholder's spouse in such Stock) to the
Corporation at any time after the date of death at the Purchase Price and upon
the Terms and Conditions. The option to sell by such Personal Representative or
successor shall be exercised by written notice to the Corporation, which notice
shall specify the date as of which the option is being exercised.
2. Paragraph 7(a) of the Stock Purchase Agreement is hereby amended
to add the following sentence: "In the event of purchases pursuant to paragraph
3(e), the date as of which a Personal Representative or successor to the Stock
exercises the option described in paragraph 3(e) shall be the Purchase Event."
3. Paragraph 9 (b) of the Stock Purchase Agreement is hereby amended
to add the following sentence: "In the event of purchases under paragraph 3(e)
hereof, the date of Closing shall be within 40 days after the delivery of the
notice exercising the option described in paragraph 3(e).
4. Except as set forth in this Amendment Agreement, all of the terms
of the Stock Purchase Agreement shall remain in full force and effect. Defined
terms herein shall have the same meaning as such terms in the Stock Purchase
Agreement.
<PAGE> 2
JASON INCORPORATED
BY /s/ Vincent L. Martin
-----------------------------
Vincent L. Martin, President
Attest:
/s/ Mark Train
----------------------------
Mark Train, Secretary
/s/ Vincent L. Martin
----------------------------
Vincent L. Martin
/s/ Janet D. Martin
----------------------------
Janet D. Martin
/s/ Mark Train
----------------------------
Mark Train
/s/ Anne V. Train
----------------------------
Anne V. Train
-2-
<PAGE> 1
Exhibit 4
JOINT FILING AGREEMENT
This will confirm the agreement by and among all of the
undersigned that the Schedule 13D filed on or about this date with respect to
the beneficial ownership of the undersigned of Jason Incorporated is being, and
any and all amendments to such Schedule may be, filed on behalf of each of the
undersigned. This Agreement may be executed in two or more counterparts, each of
which will be deemed an original, but all of which together shall constitute one
and the same instrument.
Dated: February 4, 2000
CALENDAR HOLDINGS, INC.
By: /s/ Howard D. Unger
------------------------------------
Name: Howard D. Unger
Title: President
CALENDAR ACQUISITION CORP.
By: /s/ Howard D. Unger
------------------------------------
Name: Howard D. Unger
Title: President
SAW MILL CAPITAL FUND II, L.P.
By: Saw Mill Investments II LLC
Its: General Partner
By: /s/ Howard D. Unger
------------------------------------
Name: Howard D. Unger
Title:
Saw Mill Investments II LLC
By: /s/ Howard D. Unger
------------------------------------
Name: Howard D. Unger
Title: President
/s/ Howard D. Unger
-----------------------------------------
Howard D. Unger
/s/ Vincent L. Martin
-----------------------------------------
Vincent L. Martin
<PAGE> 2
/s/ Mark Train
-----------------------------------------
Mark Train
/s/ Janet L. Martin
-----------------------------------------
Janet D. Martin
THE MARTIN FAMILY FOUNDATION
By: /s/ Vincent L. Martin
------------------------------------
Name: Vincent L. Martin
Title: Trustee
