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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Schedule 13D**
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
DEFLECTA-SHIELD CORPORATION
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(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
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(Title of Class of Securities)
244764 10 6
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(CUSIP Number)
Charles S. Meyer
Three First National Plaza, Suite 5710
Chicago, Illinois 60602
(312) 236-7041
with a copy to:
John E. Lowe
Altheimer & Gray
10 South Wacker Drive
Chicago, Illinois 60606
(312) 715-4000
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
NOVEMBER 25, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(b)(3) or (4), check the following box. / /
Check the following box if a fee is being paid with the statement. / /
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
**The total number of shares of common stock reported as beneficially owned by
the Reporting Person herein is 954,687 which constitutes approximately 19.89% of
the total number of shares outstanding. All ownership percentages set forth
herein assume that there are 4,800,000 shares outstanding.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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1. Name of Reporting Person:
Charles S. Meyer
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2. Check the Appropriate Box if a Member of a Group:
(a)
(b) X
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3. SEC Use Only
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4. Source of Funds: OO
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5. Check box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(e) or 2(f):
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6. Citizenship or Place of Organization: Delaware
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Number of 7. Sole Voting Power: 0
Shares ------------------------------------------------------------------
Beneficially 8. Shared Voting Power: 1,909,374
Owned By -----------------------------------------------------------------
Each 9. Sole Dispositive Power: 954,687
Reporting -----------------------------------------------------------------
Person 10. Shared Dispositive Power: 0
With
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11. Aggregate Amount Beneficially Owned by Each
Reporting Person:
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954,687
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares: X
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13. Percent of Class Represented by Amount in Row (11): 19.89%
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14. Type of Reporting Person: IN
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This statement constitutes Amendment No.1 to the Statement on Schedule
13D (the "Schedule 13D") filed January 27, 1994 by Charles S. Meyer in
connection with the beneficial ownership of shares ("Shares") of Common
Stock, $.01 per share par value, of Deflecta-Shield Corporation (the
"Company"). Pursuant to Item 101(i)(2)(ii) of Regulation S-T, the entire
text of the Schedule 13D is hereby amended and restated as set forth below,
although exhibits previously filed on paper are not included herewith.
Item 1. SECURITIES AND ISSUER
This statement relates to the Common Stock, $.01 per share par value (the
"Stock"), of Deflecta-Shield Corporation, a Delaware corporation (the
"Company"). The principal executive offices of the Company are located at 1800
North Ninth Street, Indiananola, Iowa 50125.
Item 2. IDENTITY AND BACKGROUND
(a) Charles S. Meyer (the "Reporting Person" or the "Stockholder")
hereby files this Statement on Schedule 13D.
(b)-(c) The Reporting Person's business address is Three First National
Plaza, Suite 5710, Chicago, Illinois 60602 and his present principal
occupation, which is conducted at such address, is as a private investor.
(d) The Reporting Person has not, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) The Reporting Person has not, during the last five years, been a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction, where as a result of such proceeding, the Reporting 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 where such proceeding resulted in a finding of any violation with
respect to such laws.
(f) The Reporting Person is a citizen of the United States of America.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Prior to January 27, 1994, the Reporting Person was the sole stockholder
of CSM-Belmor, Inc., a Delaware ("CSM") corporation. On January 27, 1994,
CSM merged with and into the Company (the "Merger") pursuant to the Master
Plan and Agreement of Merger attached hereto as EXHIBIT A (the "Plan of
Merger"). Pursuant to the Merger, the Reporting Person received 1,217,187
shares of Stock (the "Merger Shares") upon conversion of the outstanding
capital stock of CSM. The Merger was consummated as a part of the
recapitalization of Belmor Manufacturing Limited Partnership ("Belmor")
described in the Form S-1 Registration Statement of the Company, File No.
33-71410, declared effective by the Securities and Exchange Commission on
January 21, 1994 (the "Registration Statement"). Pursuant to the
recapitalization, all non-corporate partners of Belmor exchanged their
partnership interests in Belmor for shares of Stock, pursuant to the Exchange
Agreement attached hereto as EXHIBIT B. As a result of the recapitalization,
the Company became the sucessor to Belmor. On January 28, 1994, as part of
the initial
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public offering of the Stock, the Reporting Person sold 262,500 of the Merger
Shares to the public pursuant to the Registration Statement, and as of the date
of this Schedule 13D, the Reporting Person owns 954,687 shares of Stock (the
"Subject Shares").
Item 4. PURPOSE OF TRANSACTION
The Subject Shares were acquired by the Reporting Person for investment
purposes.
The Reporting Person has certain demand and piggyback registration rights
with respect to registration of the Merger Shares under the Securities Act of
1933, as amended, and state securities laws. Those rights are set forth in the
Registration Rights Agreement dated January 27, 1994 among the Reporting Person,
Mark C. Mamolen, Gregory J. Pacer, William V. Glastris, Lowell A. Swarthout,
John A. Daniels, Michael G. Harrison and the Company. The Registration Rights
Agreement is attached hereto as EXHIBIT C.
The Reporting Person has entered into a Voting Agreement dated January
27, 1994 among the Reporting Person, the Company and Mark C. Mamolen (the
"Voting Agreement"), pursuant to which Mr. Mamolen and the Reporting Person
agree to vote for five persons as directors of the Company, two of whom are
to be designated by the Reporting Person, two of whom are to be designated by
Mr. Mamolen and one of whom is to be the individual who is then serving as
the Company's President and Chief Executive Officer. A copy of the Voting
Agreement is attached hereto as EXHIBIT D. Mr. Mamolen and the Reporting
Person own, in the aggregate, 1,909,374 shares of Stock, or 39.77% of the
shares of Stock outstanding as of November 25, 1997. The Reporting Person
disclaims any beneficial ownership of shares of Stock owned by Mr. Mamolen.
On November 25, 1997, the Stockholder and Lund International Holdings,
Inc. ("Parent") entered into a Stockholders' Agreement, pursuant to which the
Stockholder agreed to tender and sell to Zephros Acquisition Corporation, a
wholly-owned subsidiary of Parent ("Purchaser") all of his Shares pursuant to
and in accordance with the terms of the tender offer (the "Offer") to be made
pursuant to that certain Agreement and Plan of Merger dated November 25, 1997
among Parent, Purchaser and the Company (the "Merger Agreement").
Notwithstanding any term of the Offer to the contrary, in the Stockholder
Agreement, the Stockholder agreed not to withdraw any such Shares tendered
into the Offer pursuant thereto during the term of the Stockholder Agreement.
Notwithstanding anything in the Stockholder Agreement to the contrary, the
Stockholder Agreement provides that the foregoing shall not restrict the
Stockholder from taking actions in his capacity as a director, officer or
employee of the Company to the extent and in the circumstances permitted by
the Merger Agreement or as required by applicable law or by his fiduciary
duty as a director, officer or employee of the Company.
In the Stockholder Agreement, the Stockholder, solely in his capacity as a
stockholder and not as a director, officer or employee of the Company, agreed
that, until the Termination Date (as defined below), at any meeting of the
stockholders of the Company, however called, at which the following matters are
considered for a vote, the Stockholder will vote (or cause to be voted) his
Shares (a) in favor of the Merger, the execution and delivery by the Company of
the Merger Agreement and the approval of the terms thereof and each of the other
actions contemplated by the Merger Agreement and this Agreement and any actions
required in furtherance hereof and thereof; (b) against 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 under the Merger Agreement or this
Agreement; and (c) except as specifically requested or agreed to in writing by
Parent in advance, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company; (ii) a sale, lease or transfer of a material
amount of assets of the Company or reorganization, recapitalization, dissolution
or liquidation of the Company; and (iii)(A) any change in the majority of the
board of directors of the Company; (B) any change in the present capitalization
of the Company or any amendment of the Company's Certificate of Incorporation or
By-Laws; (C) any other material change in the Company's corporate structure or
business; or (D) any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or adversely
affect the Offer, the Merger or the transactions contemplated by the Merger
Agreement or the Stockholder Agreement. The Stockholder also agreed not to enter
into any agreement with or grant any proxy to any person or entity prior to the
Termination Date to vote or give instructions in any manner inconsistent with
clauses (i), (ii) or (iii) of the preceding sentence. It was agreed that the
foregoing will not limit or prohibit the Stockholder from entering into any
agreement simultaneously with or after termination of the Stockholder Agreement.
Also in the Stockholder Agreement, the Stockholder agreed that he would not
(directly or indirectly through advisors, agents or other intermediaries), (a)
solicit or initiate inquiries, proposals or offers from any Person (other than
Parent or any of its affiliates) relating to any Takeover Proposal or (b) in
connection with any of the foregoing, enter into or participate in any
discussions (knowingly) or negotiations or furnish to any other Person any
information with respect to the business, properties or assets of the Company or
any of its subsidiaries; provided, however, that the foregoing will not restrict
the Stockholder as a director, officer or employee of the Company from taking
actions in any such capacity to the extent and in the circumstances permitted by
the Merger Agreement or as required by applicable law or his fiduciary duties as
such director, officer or employee. If the Stockholder receives any inquiry or
proposal, in his capacity as a Stockholder and with respect to his Shares, then
the Stockholder promptly will inform Parent of the terms and conditions, if any,
of such inquiry or proposal and the identity of the person making it. The
Stockholder agreed to immediately cease and cause his advisors, agents and other
intermediaries to cease any and all existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any of the
foregoing.
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Prior to the Termination Date, the Stockholder agreed that he will not
directly or indirectly: (a) except pursuant to the terms of the Offer and the
Merger Agreement, and to Parent pursuant to the Stockholder Agreement, offer
for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract, option or
other binding agreement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, or other
disposition of, or exercise any discretionary powers to distribute, any or
all of the Shares owned by him or any interest therein; (b) except as
contemplated by the Stockholder Agreement, grant any proxies or powers of
attorney with respect to any such Shares, deposit any such Shares into a
voting trust or enter into a voting agreement with respect to any such
Shares; or (c) take any action that would make any representation or warranty
of the Stockholder contained in the Stockholder Agreement untrue or incorrect
in any material respect or have the effect of preventing or disabling the
Stockholder from performing its obligations under the Stockholder Agreement.
Anything to the contrary in the Stockholder Agreement notwithstanding, the
Stockholder may sell, dispose of and/or transfer all or any portion of his
Shares for tax, securities or estate planning purposes, for charitable
donation purposes or to any Section 501(c)(3) organization as long as the
purchaser or transferee of such Stockholder Shares under this subsection
agrees to be bound by the provisions of and becomes a party to the
Stockholder Agreement.
The Stockholder Agreement provides that if (a) the Merger Agreement is
terminated in accordance with Section 8.1(f)(ii) or Section 8.1(h) of the
Merger Agreement, (b) within three months after the Merger Agreement is
terminated, a contract or agreement relating to a Third Party Business
Combination, as defined below, is entered into and (c) the Stockholder
receives, within twelve months after the Merger Agreement is terminated, from
any person (other than Parent, Purchaser or any of their affiliates) any cash
or non-cash consideration in an amount per share greater than $16.00 (the
"Third Party Consideration") in respect of any sale or disposition of all or
any portion of his Shares in connection with and as part of a Third Party
Business Combination, then the Stockholder within two (2) Business Days of
receipt thereof shall pay to Parent or its designee an aggregate amount equal
to fifty percent (50%) of (A) the excess of the Third Party Consideration
over $16.00 multiplied by (B) the number of Shares with respect to which such
Third Party Consideration was received; provided that, (x) if the
consideration received by the Stockholder shall be securities listed on a
national securities exchange or traded on the NASDAQ National Market
("NASDAQ"), the per share value of such consideration shall be equal to the
closing price per share listed on such national securities exchange or NASDAQ
National Market on the date such transaction is consummated, (y) if the
consideration received by the Stockholder shall be in a form other than such
listed securities, the per share value shall be determined as of the date
such transaction is consummated in good faith by Parent or its designee and
the Stockholder or his designee or if the Parent and its designee and the
Stockholder and his designee cannot reach agreement, by a nationally
recognized investment banking firm reasonably acceptable to the parties and
(z) the Stockholder will pay Parent or its designee in kind and on a pro rata
basis (i.e., if the Third Party Consideration includes cash, listed
securities and/or other consideration, Parent or its designee will receive
its pro rata portion of each such item). The term "Third Party Business
Combination" means the occurrence of any of the following events: (i) the
Company or any subsidiaries whose assets constitute all or substantially all
of the business or assets of the Company is acquired by merger or otherwise
by any person or group, other than Parent or any affiliate thereof (a "Third
Party"); (ii) the sale to a Third Party of all or substantially all of the
business or assets of the Company and its subsidiaries, taken as a whole; and
(iii) the Company, or both the Stockholder and Mark C. Mamolen enter into a
merger or other agreement with a Third Party which contemplates, in a single
transaction or series of related transactions, the acquisition of all or
substantially all of the Shares owned by both the Stockholder and Mr. Mamolen.
All obligations of the Stockholders under the Stockholder Agreements except
for the obligations in the immediately preceding paragraph (which obligations
will only survive for the period set forth therein), will terminate upon the
first to occur of (a) the acceptance for payment of Shares of the Stockholder in
the Offer, (b) the Effective Time of the Merger and (c) the time the Merger
Agreement is terminated in accordance with its terms (such earlier time being
the "Termination Date").
The Stockholder Agreement is attached hereto as Exhibit F.
Except as described herein, The Reporting Person does not have any plans or
proposals that relate to or would result in any of the actions specified in
clauses (a) through (j) of Item 4 of Schedule 13D.
Item 5. INTERESTS IN SECURITIES OF THE ISSUER.
The following information is provided in response to Item 5 of the Schedule
13D and is based on a total of 4,800,000 shares of Stock outstanding as of
November 14, 1997 as reported in the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1994
(a) The Reporting Person beneficially owns 1,909,374 shares of Stock,
constituting approximately 39.78% of the shares of Stock outstanding as of
November 25, 1997. Such figures are inclusive of 954,687 shares of Stock
held by Mark C. Mamolen, the beneficial ownership of which is disclaimed by
the Reporting Person.
(b) The Reporting Person has the sole power to vote or direct the vote
and the sole power to dispose or direct the disposition of 954,687 shares of
Stock, constituting approximately 19.89% of the shares of Stock outstanding
as of November 25, 1997. Pursuant to the Voting Agreement, the Reporting
Person has agreed to vote these shares in elections for the Board of
Directors of the Company in the same
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manner as Mark C. Mamolen votes 954,687 shares of Stock held of record by Mr.
Mamolen. Mr. Mamolen's business address is 155 W. Burton Place, Chicago,
Illinois 60610 and his present principal occupation at such address is as a
private investor. To the knowledge of the Reporting Person, Mr. Mamolen has
not during the last five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) and has not been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction, where as a result of such proceeding, Mr. Mamolen 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 where such proceeding resulted in a finding of any
violation with respect to such laws. Mr. Mamolen is a citizen of the United
States of America. The Reporting Person disclaims beneficial ownership in the
954,687 shares of Stock held of record by Mr. Mamolen.
(c) Neither the Reporting Person nor Mr. Mamolen have effected any
transactions in shares of Stock during the preceding sixty-day period.
(d)-(e) Not applicable.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
Except as set forth in Item 4 above, the Reporting Person does not have any
contract, arrangement, understanding or relationship (legal or otherwise) with
any person with respect to any securities of the Company, including but not
limited to transfer or voting of any of the securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profit or loss, or the giving or withholding of proxies.
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Item 7. MATERIAL TO BE FILED AS EXHIBITS.
* Exhibit A Master Plan and Agreement of Merger dated as of November 5,
1993, among the Company, CSM-Belmor, Inc., MCM Holdings,
Inc., Mark's Carl Street, Inc., the Reporting Person and
Mark C. Mamolen.
* Exhibit B Exchange Agreement dated as of January 18, 1994 among the
Company, Gregory J. Pacer, William V. Glastris, Lowell A.
Swarthout, John A. Daniels and Michael G. Harrison.
* Exhibit C Registration Rights Agreement dated January 27, 1994 among
the Reporting Person, Mark C. Mamolen, Gregory J. Pacer,
William V. Glastris, Lowell A. Swarthout, John A. Daniels,
Michael G. Harrison and the Company.
* Exhibit D Voting Agreement dated January 27, 1994 among the Company,
the Reporting Person and Mark C. Mamolen.
* Exhibit E Power of Attorney appointing S. Michael Peck, John E. Lowe
and James R. Cruger as attorneys-in-fact for the Reporting
Person.
Exhibit F Stockholder Agreement dated November 25, 1997 between Lund
International Holdings, Inc. and the Reporting Person.
* previously filed.
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: November 26, 1997
/s/ S. MICHAEL PECK
S. Michael Peck, as Attorney-in-Fact for
Charles S. Meyer
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Exhibit 99.1
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as of November 25,
1997, by and among Lund International Holdings, Inc., a Delaware corporation
("Parent"), and Charles S. Meyer (hereinafter referred to as "Stockholder").
W I T N E S S E T H:
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WHEREAS, concurrently herewith, Parent, Zephyros Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Purchaser"), and Deflecta-Shield Corporation, a Delaware corporation (the
"Company"), will enter into an Agreement and Plan of Merger of even date
herewith (the "Merger Agreement"; capitalized terms used but not defined herein
shall have the meanings set forth in the Merger Agreement), pursuant to which
(and subject to the terms and conditions specified therein) Purchaser will make
a cash tender offer (as defined in the Merger Agreement, the "Offer") for all
outstanding shares of Common Stock, par value $.01 per share, of the Company
("Company Common Stock") and, following consummation of the Offer, Purchaser
will be merged with and into the Company, with the Company continuing as the
surviving corporation and as a wholly-owned subsidiary of Parent (the "Merger"),
whereby each share of Company Common Stock issued and outstanding immediately
prior to the Effective Time of the Merger will be converted into the right to
receive the Merger Consideration, other than (i) shares of Company Common Stock
owned, directly or indirectly, by the Company or any subsidiary of the Company
or by Parent, Purchaser or any other affiliate of Parent and (ii) Dissenting
Shares; and
WHEREAS, Stockholder is a stockholder of the Company and, as a
condition to Parent and Purchaser entering into the Merger Agreement, Parent
requires that Stockholder enter into, and Stockholder has agreed to enter into,
this Agreement with Parent.
NOW, THEREFORE, in consideration of the representations and warranties
and covenants set forth herein and in the Merger Agreement, Parent and
Stockholder, intending to be legally bound hereby each agree as follows:
1. Representations and Warranties of the Stockholder. Stockholder
hereby represents and warrants to Parent as follows:
1.1 Validity of Agreement. Stockholder has the legal capacity to
enter into and perform all of Stockholder's obligations under this Agreement.
This Agreement has been duly executed and delivered by Stockholder and
constitutes a valid and binding obligation of Stockholder enforceable against
Stockholder in accordance with its terms,
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except that (a) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought and (c) no representation is made with respect to the
enforceability, validity or binding effect of the third sentence of Section 4.1
under applicable provisions of the Exchange Act. If Stockholder is married, and
his Stockholder Shares (as hereinafter defined) constitute community property,
this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, Stockholder's spouse, enforceable
against such person in accordance with its terms (subject to the exceptions set
forth in the immediately preceding sentence).
1.2 Consents and Approvals; No Violations. The execution, delivery
and performance of this Agreement by Stockholder shall not (a) result in a
violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which Stockholder
is a party or by which Stockholder or any of his properties or assets is
bound or affected or (b) violate any order, writ, injunction, decree or
judgment, specifically applicable by its terms to Stockholder or any of his
properties or assets. No consent, approval, order or authorization of, or
registration, declaration or filing with, or notice to, any state, federal or
foreign public body or authority is required by or with respect to
Stockholder in connection with the execution and delivery of this Agreement
by Stockholder or the consummation by Stockholder of any of the transactions
contemplated by this Agreement, except for filings pursuant to the Exchange
Act and except as may be required by the Merger. Without implication that the
following consent is required by that certain Voting Agreement, dated January
27, 1994, by and between Stockholder and Mark C. Mamolen (the
"Co-Stockholder"), Stockholder hereby (i) consents, if such consent is
required by the Voting Agreement, to Co-Stockholder entering into and
performing a stockholder agreement with Parent, of even date herewith (the
"Co-Stockholder Agreement"), substantially identical to this Agreement and
(ii) acknowledges and agrees that this Agreement and the Co-Stockholder
Agreement supersede the Voting Agreement with respect to the matters set
forth herein and in the Co-Stockholder Agreement. The parties hereto
acknowledge that Co-Stockholder is a third party beneficiary of the foregoing.
1.3 Ownership of Shares. (a) Stockholder is the record and/or
beneficial owner of that number of shares of Company Common Stock set forth
opposite Stockholder's name on Annex 1 attached hereto (such shares hereinafter
referred to as the "Existing Shares," and together with any shares of Company
Common Stock acquired of record or beneficially by Stockholder in any capacity
after the date hereof and prior to the termination hereof, whether upon exercise
of options, conversion of convertible securities, purchase, exchange or
otherwise, referred to as the "Stockholder Shares"). Notwithstanding the
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foregoing, neither the Existing Shares nor the Stockholder Shares include any
shares of Company Common Stock owned of record by Co-Stockholder.
(b) Except for shares of Company Common Stock owned by the
Co-Stockholder subject to the Voting Agreement, on the date hereof, the
Existing Shares constitute all of the outstanding shares of Company Common
Stock owned of record and/or beneficially by Stockholder.
(c) Except as provided by the Voting Agreement, Stockholder has
sole power of disposition with respect to all of the Existing Shares owned
by him and sole voting power with respect to the matters set forth in
Section 3.1 hereof and sole power to demand dissenter's or appraisal
rights, in each case with respect to all of the Existing Shares owned by
him with no restrictions on such rights, subject to any restrictions
imposed by applicable federal securities laws, Delaware law and the terms
of this Agreement.
(d) Except as provided by the Voting Agreement, Stockholder will
have sole power of disposition with respect to shares of Company Common
Stock other than Existing Shares, if any, which become beneficially owned
by Stockholder and will have sole voting power with respect to the matters
set forth in Section 3.1 hereof and sole power to demand dissenter's or
appraisal rights, in each case with respect to all such shares, if any,
which become beneficially owned by Stockholder with no restrictions on such
rights, subject to any restrictions imposed by applicable federal
securities laws and the terms of this Agreement.
1.4 No Encumbrances. The Existing Shares and the certificates
representing such shares are now, and the Stockholder Shares and the
certificates representing such shares at all times during the term hereof will
be, held by Stockholder, free and clear of all claims, liens, charges, security
interests, proxies, voting trusts or agreements, understandings or arrangements
and any other encumbrances of any kind or nature whatsoever, except as otherwise
provided in this Agreement and except as set forth in the Voting Agreement.
Certificates representing the Existing Shares contain legends reflecting the
Voting Agreement and the restrictions on transfer of Existing Shares under the
Securities Act.
1.5 Brokers and Intermediaries. No broker, investment banker,
financial adviser 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
Stockholder. It is agreed and acknowledged that the Company has retained
Wasserstein, Perrella & Co. in connection with the Offer and the Merger and the
transactions contemplated by the Merger Agreement.
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1.6 Reliance. Stockholder understands and acknowledges that Parent
and Purchaser are entering into the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement with Parent.
2. Representations and Warranties of Parent. Parent hereby
represents and warrants to Stockholder as follows:
2.1 Organization; Authorization; Validity of Agreement. Parent is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution and
delivery of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Parent and no other corporate proceedings on the
part of Parent are necessary to authorize this Agreement or any of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Parent and constitutes a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms, except that (a) such
enforcement may be subject to applicable bankruptcy, insolvency or other similar
laws, now or hereafter in effect, affecting creditors' rights generally, and (b)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
2.2 Consents and Approvals; No Violations. The execution, delivery
and performance of this Agreement by Parent shall not (a) conflict with or
result in any breach of the certificate of incorporation or by-laws of Parent,
(b) result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent is a party or by which
Parent or any of its properties or assets is bound or affected or (c) violate
any order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Parent or any of Parent's properties or assets. Except as
provided in the Merger Agreement, no consent, approval, order or authorization
of, or registration, declaration or filing with, or notice to, any state,
federal or foreign public body or authority is required by or with respect to
Parent in connection with the execution and delivery of this Agreement by Parent
or the consummation by Parent of any of the transactions contemplated by this
Agreement.
2.3 Broker and Intermediaries. No broker, finder, investment banker
or other Person or entity, other than Piper Jaffray & Co., is entitled in
connection with the transactions contemplated by the Merger Agreement to any
broker's commission, finder's fee, investment banker's fee or similar payment in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of Parent or Purchaser.
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2.4 Reliance. Parent understands and acknowledges that Stockholder
is entering into this Agreement in reliance upon Parent's execution and delivery
of this Agreement with Stockholder and upon Parent's and Purchaser's execution
of the Merger Agreement.
3. Agreement to Vote. Stockholder, solely in his capacity as a
stockholder and not as a director, officer or employee of the Company, hereby
agrees that, until the Termination Date (as defined in Section 9), at any
meeting of the stockholders of the Company, however called at which the
following matters are considered for a vote, Stockholder shall vote (or cause to
be voted) the Stockholder Shares (a) in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Merger Agreement and
this Agreement and any actions required in furtherance hereof and thereof; (b)
against 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
under the Merger Agreement or this Agreement; and (c) except as specifically
requested or agreed to in writing by Parent in advance, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company; (ii) a sale,
lease or transfer of a material amount of assets of the Company or
reorganization, recapitalization, dissolution or liquidation of the Company; and
(iii)(A) any change in the majority of the board of directors of the Company;
(B) any change in the present capitalization of the Company or any amendment of
the Company's Certificate of Incorporation or By-Laws; (C) any other material
change in the Company's corporate structure or business; or (D) any other action
which is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, discourage or adversely affect the Offer, the Merger or the
transactions contemplated by the Merger Agreement or this Agreement.
Stockholder shall not enter into any agreement with or grant any proxy to any
person or entity prior to the Termination Date to vote or give instructions in
any manner inconsistent with clauses (i), (ii) or (iii) of the preceding
sentence. The foregoing shall not limit or prohibit Stockholder from entering
into any agreement simultaneously with or after termination of this Agreement.
4. Certain Covenants of the Stockholder. Except in accordance with
the terms of this Agreement, Stockholder hereby agrees as follows:
4.1 Tender of Stockholder Shares. Stockholder agrees to tender and
sell to Purchaser all of the Stockholder Shares pursuant to and in accordance
with the terms of the Offer. Stockholder agrees that he shall deliver to the
depositary for the Offer, no later than the fifth Business Day (as defined
below) following the commencement of the Offer pursuant to Section 1.1 of the
Merger Agreement, a letter of transmittal together with any and all certificates
representing the Stockholder Shares owned by him (or such documentation as
required by the terms of the Offer with respect to lost stock certificates).
Notwithstanding
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any term of the Offer to the contrary, Stockholder agrees not to withdraw any
Stockholder Shares tendered into the Offer pursuant to this Section 4.1 during
the term of this Agreement. Stockholder hereby acknowledges and agrees that
Purchaser's obligation to accept for payment the Stockholder Shares in the Offer
is subject to the terms and conditions of the Offer. Stockholder hereby permits
Parent and Purchaser to publish and disclose in the Offer Documents (including,
without limitation, all documents and schedules filed with the SEC), the
identity of the Stockholder (subject, however, to the prior approval of
Stockholder which approval shall not be unreasonably withheld or delayed) and
the nature of his commitments, arrangements and understandings under this
Agreement. Notwithstanding anything in this Agreement to the contrary, the
foregoing shall not restrict a Stockholder from taking actions in his capacity
as a director, officer or employee of the Company to the extent and in the
circumstances permitted by the Merger Agreement or as required by applicable law
or by his fiduciary duty as a director, officer or employee of the Company. For
purposes of this Agreement, "Business Day" shall mean a day on which banks are
not required or authorized to be closed in the City of New York.
4.2 No Solicitation. Prior to the Termination Date, Stockholder
shall not (directly or indirectly through advisors, agents or other
intermediaries), (a) solicit or initiate inquiries, proposals or offers from any
Person (other than Parent or any of its affiliates) relating to any Takeover
Proposal or (b) in connection with any of the foregoing, enter into or
participate in any discussions (knowingly) or negotiations or furnish to any
other Person any information with respect to the business, properties or assets
of the Company or any of its Subsidiaries; provided, however, that the foregoing
shall not restrict Stockholder as a director, officer or employee of the Company
from taking actions in any such capacity to the extent and in the circumstances
permitted by the Merger Agreement or as required by applicable law or his
fiduciary duties as such director, officer or employee. If Stockholder receives
any inquiry or proposal, in his capacity as a Stockholder and with respect to
the Stockholder Shares, then Stockholder promptly shall inform Parent of the
terms and conditions, if any, of such inquiry or proposal and the identity of
the person making it. Stockholder immediately will cease and cause his
advisors, agents and other intermediaries to cease any and all existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing.
4.3 Restriction on Transfer, Proxies and Non-Interference;
Restriction on Withdrawal. Prior to the Termination Date, Stockholder shall not
directly or indirectly: (a) except pursuant to the terms of the Offer and the
Merger Agreement, and to Parent pursuant to this Agreement, offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
enforce or permit the execution of the provisions of any redemption agreement
with the Company or enter into any contract, option or other binding agreement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, or other disposition of, or exercise any
discretionary powers to distribute, any or all of the Stockholder Shares owned
by him or any interest therein; (b) except as contemplated hereby, grant any
proxies or powers of attorney with respect to any
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Stockholder Shares, deposit any Stockholder Shares into a voting trust or enter
into a voting agreement with respect to any Stockholder Shares; or (c) take any
action that would make any representation or warranty of Stockholder contained
herein untrue or incorrect in any material respect or have the effect of
preventing or disabling Stockholder from performing its obligations under this
Agreement. Anything to the contrary in this Agreement notwithstanding,
Stockholder may sell, dispose of and/or transfer all or any portion of the
Stockholder Shares for tax, securities or estate planning purposes, for
charitable donation purposes or to any Section 501(c)(3) organization as long as
the purchaser or transferee of such Stockholder Shares under this subsection
agrees to be bound by the provisions of and becomes a party to this Agreement.
4.4 Waiver of Appraisal and Dissenter's Rights. Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger that
Stockholder may have.
5. Third Party Business Combination.
If (a) the Merger Agreement is terminated in accordance with Section
8.1(f)(ii) or Section 8.1(h) of the Merger Agreement, (b) within three months
after the Merger Agreement is terminated, a contract or agreement relating to a
Third Party Business Combination, as defined below, is entered into and (c)
Stockholder receives, within twelve months after the Merger Agreement is
terminated, from any Person (other than Parent, Purchaser or any of their
affiliates) any cash or non-cash consideration in an amount per share greater
than $16.00 (the "Third Party Consideration") in respect of any sale or
disposition of all or any portion of the Stockholder Shares in connection with
and as part of a Third Party Business Combination, then Stockholder within two
(2) Business Days of receipt thereof shall pay to Parent or its designee an
aggregate amount equal to fifty percent (50%) of (A) the excess of the Third
Party Consideration over $16.00 multiplied by (B) the number of Stockholder
Shares with respect to which such Third Party Consideration was received;
provided that, (x) if the consideration received by Stockholder shall be
securities listed on a national securities exchange or traded on the NASDAQ
National Market ("NASDAQ"), the per share value of such consideration shall be
equal to the closing price per share listed on such national securities exchange
or NASDAQ National Market on the date such transaction is consummated, (y) if
the consideration received by Stockholder shall be in a form other than such
listed securities, the per share value shall be determined as of the date such
transaction is consummated in good faith by Parent or its designee and the
Stockholder or his designee or if the Parent and its designee and Stockholder
and his designee cannot reach agreement, by a nationally recognized investment
banking firm reasonably acceptable to the parties and (z) Stockholder will pay
Parent or its designee in kind and on a pro rata basis (i.e., if the Third Party
Consideration includes cash, listed securities and/or other consideration,
Parent or its designee will receive its pro rata portion of each such item).
The term "Third Party Business Combination" means the occurrence of any of the
following events: (i) the Company or any Subsidiaries whose assets constitute
all or substantially all of
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the business or assets of the Company is acquired by merger or otherwise by any
person or group, other than Parent or any affiliate thereof (a "Third Party");
(ii) the sale to a Third Party of all or substantially all of the business or
assets of the Company and its Subsidiaries, taken as a whole; and (iii) the
Company, or Stockholder and Co-Stockholder enter into a merger or other
agreement with a Third Party which contemplates, in a single transaction or
series of related transactions, the acquisition of all or substantially all of
the Stockholder Shares and the Shares owned by the Co-Stockholder.
6. Further Assurances. From time to time, at any other party's
reasonable request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further action
as may be necessary to consummate and make effective the transactions
contemplated by this Agreement.
7. Certain Events. Stockholder agrees, to the extent permitted by
applicable law, that this Agreement and the obligations hereunder shall attach
to all Stockholder Shares and shall be binding upon any person or entity to
which legal or beneficial ownership of such Stockholder Shares shall pass,
whether by operation of law or otherwise.
8. Stop Transfer. Except in connection with transfers permitted
under Section 4.3, Stockholder agrees with, and covenants to Parent that it
shall not request that the Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of the
Stockholder Shares.
9. Termination. All obligations of Stockholder under this
Agreement, except for the obligations under Section 5 above (which obligations
will only survive for the period set forth therein), shall terminate upon the
first to occur of (a) the acceptance for payment of Stockholder Shares in the
Offer, (b) the Effective Time of the Merger and (c) the time the Merger
Agreement is terminated in accordance with its terms (such earlier time being
the "Termination Date").
10. Miscellaneous.
10.1 Entire Agreement; Assignment. This Agreement (a) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof and (b)
shall not be assigned by operation of law or otherwise without the prior written
consent of the other parties, provided that Parent may assign, in its sole
discretion, its rights and obligations hereunder to any affiliate of Parent, but
no such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
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10.2 Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
10.3 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 received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
(a) if to Parent, to
Lund International Holdings, Inc.
911 Lund Boulevard
Anoka, Minnesota 55303
Telephone: (612) 576-4200
Telecopy: (612) 576-4297
Attention: William J. McMahon
with a copy to
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
Telephone: (212) 603-2000
Telecopy: (212) 603-2001
Attention: Leonard Gubar, Esq.
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(b) if to the Stockholder, to
Charles S. Meyer
Three First National Plaza, #5710
Chicago, IL 60602
Telephone: (312) 236-7041
Telecopy: (312) 236-0720
Attention:
with a copy to:
Barack Ferrazzano Kirschbaum
Perlman & Nagelberg
333 West Wacker Drive
Suite 2700
Chicago, Illinois 60606
Telephone: (312) 984-3100
Telecopy: (312) 984-3150
Attention: David Selmer, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
10.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
10.5 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement.
10.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
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10.7 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
10.8 Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
10.9 Definitions. For purposes of this Agreement:
(a) "beneficially own" or "beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act). Except as otherwise
referred to herein, without duplicative counting of the same securities by the
same holder, securities beneficially owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would constitute a
"group" as described in Section 13(d)(3) of the Exchange Act.
(b) "Person" shall mean an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or other entity.
(c) In the event of a stock dividend or distribution, or any change
in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Stockholder Shares" shall be deemed to refer to and include the Stockholder
Shares as well as all such stock dividends and distributions and any shares into
which or for which any or all of the Stockholder Shares may be changed or
exchanged.
10.10 Stockholder Capacity. Notwithstanding anything in this
Agreement to the contrary, if and to the extent that Stockholder is or becomes
during the term hereof a director, officer or employee of the Company,
Stockholder makes no agreement or understanding herein in his or her capacity as
such director, officer or employee, and the agreements set forth herein shall in
no way restrict any director, officer or employee of the Company in the exercise
of his or her fiduciary duties as such director, officer or employee of the
Company. Stockholder has executed this Agreement solely in his capacity as the
record and/or beneficial holder of Stockholder Shares. To the extent that the
Company or its directors, officers, or agents are permitted to engage in
discussions or negotiations with
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respect to any Takeover Proposal (or any inquiry or proposal with respect
thereto) pursuant to the Merger Agreement, Stockholder, in his capacity as such,
also shall be entitled, notwithstanding anything to the contrary contained in
this Agreement, to participate in such discussions and negotiations, including
without limitation, with respect to Existing Shares and the Stockholder Shares
and the related matters subject to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
LUND INTERNATIONAL HOLDINGS, INC.
By:
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Name:
Title:
---------------------------------
Charles S. Meyer
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