SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS
FILED PURSUANT TO RULE 13d-2(a)
(AMENDMENT NO. 2)<1>
Triple S Plastics, Inc.
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(Name of Issuer)
Common Stock, no par value
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(Title of Class of Securities)
896926 10 2
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(Cusip Number)
David L. Stewart
1022 Essex Circle
Kalamazoo, Michigan 49008
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(941) 928-4710
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 13, 2000
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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 that 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 7 pages)
<[1]>
The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, SEE the NOTES).
<TABLE>
<CAPTION>
CUSIP NO. 896926 10 2 PAGE 2 OF 7 PAGES
13D
<S> <C>
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
DAVID L. STEWART
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 ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
NUMBER OF 7 SOLE VOTING POWER
SHARES 139,823 SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 10,000 SHARES
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 139,823 SHARES
PERSON 10 SHARED DISPOSITIVE POWER
WITH 10,000 SHARES
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
149,823 SHARES
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
EXCLUDES 6,000 SHARES HELD BY MR. STEWART AS CUSTODIAN FOR HIS GRANDCHILDREN.
MR. STEWART DISCLAIMS BENEFICIAL OWNERSHIP OF THOSE SHARES. /x/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.9%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
This Amendment No. 2 to Schedule 13D ("Amendment No. 2")
amends in its entirety the Statement on Schedule 13D filed on June 10,
2000 by and on behalf of David L. Stewart with respect to the shares
of common stock of Triple S Plastics, Inc., a Michigan corporation
(the "Company"), beneficially owned by David L. Stewart (the
"Reporting Person"). The shares of common stock, no par value (the
"Common Stock") owned by the Reporting Person have become subject to a
Shareholders Agreement, dated as of July 13, 2000 (the "Company
Shareholders Agreement"), entered into by the Reporting Person and
certain other principal shareholders of the Company (together with the
Reporting Person, the "Shareholders"), Eimo Oyj, a Finnish corporation
("Eimo"), Spartan Acquisition Corp., a wholly owned subsidiary of Eimo
("Merger Sub"), pursuant to which the Reporting Person and the other
Shareholders have agreed to vote their shares of Common Stock in favor
of the Agreement and Plan of Merger, dated as of July 13, 2000 (the
"Merger Agreement"), among the Company, Eimo and Merger Sub, which
provides for Merger Sub to merge with and into the Company. As a
result of entering into the Shareholders Agreement, the Reporting
Person may be deemed to have formed a "group" with each of the other
Shareholders for purposes of Section 13(d)(3) of the Securities Act of
1933 (the "1933 Act") and Rule 13d-5(b)(1) thereunder. The Reporting
Person expressly declares that the filing of this Amendment No. 2 shall
not be construed as an admission by the Reporting Person of the
formation of, or membership in, any such group.
Item 1. SECURITY AND ISSUER.
This statement relates to shares of Common Stock of the
Company. The principal executive offices of the Company are located
at 7950 Moorsbridge Road, Portage, Michigan 49024.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed by David L. Stewart.
Mr. Stewart has been retired for more than five years.
Prior to his retirement Mr. Stewart served as Chairman and Chief
Executive Officer of Triple S Plastics, Inc. The business address of
Mr. Stewart is 1022 Essex Circle, Kalamazoo, Michigan 49008.
During the last five years, the Reporting Person has not:
(i) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors); or (ii) been a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding 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.
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ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
A portion of the Common Stock owned by Mr. Stewart was acquired
prior to the initial public offering by the Company, additional Common
Stock was acquired through the exercise of options issued under the
Company's Outside Director Option Plan and the remainder was purchased
in the open market.
ITEM 4. PURPOSE OF TRANSACTION.
Eimo required the Shareholders to enter into the Company
Shareholders Agreement as a condition to Eimo's entering into the
Merger Agreement. In satisfaction of this condition and as an
inducement to Eimo's entering into the Merger Agreement, the
Shareholders agreed to enter into the Company Shareholders Agreement.
The consummation of the Merger is subject to approval by the
Company's shareholders, Internal Revenue Code Section 368
reorganization tax treatment, the receipt of certain regulatory
approvals, including expiration of any applicable waiting period under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, and the
satisfaction or waiver of certain other conditions as more fully
described in the Merger Agreement.
The Shareholders currently own enough shares of outstanding
Common Stock to cause the Merger and the related transactions to be
approved at the Company shareholders meeting to be called for that
purpose, and pursuant to the Company Shareholders Agreement, the
Reporting Person and the other Shareholders have agreed to vote all of
the shares of Common Stock beneficially owned by them in favor of the
Merger, the adoption of the Merger Agreement and each of the other
transactions contemplated by the Merger Agreement at that meeting.
In addition, if the Reporting Person or any of the other Shareholders
acquires the right to vote any additional shares of Common Stock, the
Company Shareholders Agreement shall be applicable to such additional
shares. The Shareholders have also agreed, among other things, to
restrictions upon the transfer of their shares of Common Stock prior to
the termination of the Company Shareholders Agreement. The Company
Shareholders Agreement will terminate upon the earlier to occur of the
completion of the Merger or the termination of the Merger Agreement.
The Reporting Person and the other Shareholders are jointly and
severally obligated, prior to the record date for any Shareholder
action on the Merger, to hold, or if not held, to purchase or repurchase
such number of shares of Common Stock as will result in all of the
Shareholders together holding, in the aggregate, not less than 50.1%
of the total number of shares of Common Stock outstanding as of such
record date.
If the Merger is consummated as contemplated by the Merger
Agreement, (i) Merger Sub will be merged with and into the Company,
(ii) the Board of Directors of the Company will be replaced by the
Board of Directors of Merger Sub, (iii) the Articles of Incorporation
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of the Company will be replaced by the of Merger Sub, (iv) the
Company's Common Stock will cease to be authorized for listing on the
Nasdaq National Market and (v) the Company's Common Stock will become
eligible for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934, as amended. It is anticipated
that one of the directors of the Company will be a member of the Board
of Directors of the surviving corporation.
The preceding summary of certain provisions of the Company
Shareholders Agreement is not intended to be complete and is qualified
in its entirety by reference to the full text of such agreement, a
copy of which is incorporated by reference as Exhibit 2 hereto, and
which is incorporated herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The share ownership percentages described in this Schedule
13D are based on 3,763,549 shares of Common Stock being outstanding on
July 13, 2000. In the aggregate, the Shareholders own 2,023,757
outstanding shares of Common Stock and own options (exercisable within
60 days) to acquire an additional 608,667 shares of Common Stock.
(a) The aggregate number of shares and percentage of Common
Stock beneficially owned by the Reporting Person as of the date hereof
is as follows:
(1) Mr. Stewart beneficially owns 149,823 shares of
Common Stock, constituting approximately 3.9% of the
outstanding Common Stock. The amount beneficially
owned includes 10,000 shares held by Mr. Stewart's
wife.
(b) Immediately prior to the execution of the Company
Shareholders Agreement, the number of shares of Common Stock as to
which the Reporting Person had the sole power to vote or to direct the
vote, shared power to vote or to direct the vote, and sole or shared
power to dispose of or to direct the disposition of, was as follows:
(1) Mr. Stewart had sole power to vote and dispose of
139,823 shares of Common Stock.
(2) Mr. Stewart had shared power to vote and dispose
of 10,000 shares of Common Stock.
Subject to the following paragraph, pursuant to the Company
Shareholders Agreement and solely with respect to the approval of the
Merger and the Merger Agreement, the Reporting Person may be deemed to
share voting power with respect to an aggregate of 2,632,424 shares of
Common Stock, which shares constitute approximately 69.9% of the
3,763,549 shares of Common Stock outstanding on July 13, 2000.
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The Reporting Person hereby expressly disclaims beneficial
ownership over the shares of Common Stock reported herein but owned by
the other Shareholders (including the power to vote, to direct the
voting of, to dispose, or to direct the disposition of, any such
shares).
(c) There have been no transactions by the Reporting Person
in the Common Stock in the past 60 days.
(d) Information with respect to ownership and control of
shares of Common Stock by the Shareholders is set forth in the Company
Shareholders Agreement, including the number of shares and options
(exercisable within 60 days) owned by the Reporting Person and by each
of the other Shareholders. To the knowledge of the Reporting Person,
the right to receive dividends with respect to shares of Common Stock
and the power to direct the receipt of dividends from, or the proceeds
of the sale of, each of the shares of Common Stock held by the Reporting
Person and each of the other Shareholders are held by the Reporting
Person and each of the other Shareholders as reflected by the Company
Shareholders Agreement.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
To the best knowledge of the Reporting Person, except as
described in this Schedule 13D or in the Merger Agreement Company
Shareholders Agreement, or documents referred to herein or therein,
there are at present no contracts, arrangements, understandings or
relationships (legal or otherwise) between any Reporting Person and
any other person with respect to any securities of the Company. The
Reporting Person expressly disclaims the existence of any group for
purposes of Section 16 of the Securities and Exchange Act of 1934,
between or among the Reporting and any of the Shareholders or any
other person.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Agreement and Plan of Merger, dated July 13, 2000
among Eimo Oyj, Spartan Acquisition Corp., and
Triple S Plastics, Inc. (incorporated by reference
to Exhibit 2.1 of the Company's Current Report as
filed on Form 8-K, filed by the Company on
July 19, 2000.
Exhibit 2 Company Shareholders Agreement, dated as of July 13,
2000, between Eimo Oyj, Spartan Acquisition Corp.,
David L. Stewart and certain other shareholders of
Triple S Plastics, Inc.
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SIGNATURES
After reasonable inquiry and to the best of the undersigned's
knowledge and belief, the undersigned certifies that the information
set forth in this instrument is true, complete and correct.
Dated: July 24, 2000
----------------------------------
David L. Stewart
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EXHIBIT 2
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COMPANY SHAREHOLDERS' AGREEMENT
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AGREEMENT, dated as of July 13, 2000, among Eimo Oyj, a company
organized under the laws of the Republic of Finland ("Parent"),
Spartan Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent (the "MERGER SUB"), and each of the individuals
set forth on the signature pages hereto (collectively, the "COMPANY
SHAREHOLDERS").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, the Merger Sub and Triple S Plastics, Inc., a
Michigan corporation (the "COMPANY"), have entered into an Agreement
and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "MERGER AGREEMENT"), pursuant to which the Merger
Sub will be merged with and into the Company (the "MERGER");
WHEREAS, each of the Company Shareholders is the owner of shares
of capital stock of the Company, as more particularly described
herein; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has required that the Company Shareholders
agree, and the Company Shareholders have agreed, to enter into this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "BENEFICIALLY OWN," "BENEFICIALLY OWNED," BENEFICIAL
OWNER" 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 Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")), including pursuant to any agreement,
arrangement or understanding, whether or not in writing. 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 within the meaning of Section 13(d)(3) of the
Exchange Act.
(b) "COMMON STOCK" shall mean at any time the Common Stock,
no par value, of the Company.
(c) "EXISTING SHARES" means the Shares held by Company
Shareholders as of the date of this Agreement as set forth on SCHEDULE
I.
(d) "PERSON" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association,
trust, unincorporated organization or other entity.
(e) Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement.
2. AGREEMENTS.
(a) VOTING AGREEMENT. Each Company Shareholder shall, at
any meeting of the holders of Common Stock, however called, or in
connection with any written consent of the holders of Common Stock
(each, a "SHAREHOLDER ACTION"), vote (or cause to be voted) all Shares
then held of record or Beneficially Owned by such Company Shareholder,
(i) 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 thereof and hereof;
and (ii) against any Acquisition Proposal and against any action or
agreement that would impede, frustrate, prevent or nullify this
Agreement, or result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement.
(b) NO INCONSISTENT ARRANGEMENTS. Each Company Shareholder
hereby covenants and agrees that, except as contemplated or permitted
by this Agreement and the Merger Agreement, it shall not (i) transfer
(which term shall include, without limitation, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of
such Company Shareholder's Shares, options, warrants or other rights
to receive Shares, or any interest therein, (ii) enter into any
contract, option or other agreement or understanding with respect to
any transfer of any or all of such Shares, options, warrants or other
rights to receive Shares, or any interest therein, (iii) grant any
proxy, power-of-attorney or other authorization in or with respect to
such Shares, (iv) deposit such Shares into a voting trust or enter
into a voting agreement or arrangement with respect to such Shares or
(v) take any other action that would in any way restrict, limit or
interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement.
(c) PERMITTED TRANSFERS. Notwithstanding the provisions of
Section 2(b) hereof, each of the Company Shareholders shall be
permitted to transfer or consent to any transfer of Shares to the
extent that the gross proceeds with respect to any such transfers do
not exceed, in the aggregate with respect to each such Company
Shareholder, the sum of $1,000,000, PROVIDED, HOWEVER, that all of the
Company Shareholders shall be jointly and severally obligated, prior
to the record date for any Shareholder Action, to hold, or if not
held, to purchase or repurchase such number of Shares as shall result
in all of the Company Shareholders together holding, in each case, in
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the aggregate, not less than 50.1% of the total number of Shares
outstanding as of such record date.
(d) GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
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(i) Each Company Shareholder hereby irrevocably grants
to, and appoints, Parent and Jalo Paananen and Elmar Paananen, or
either of them, in their respective capacities as officers of Parent,
and any individual who shall hereafter succeed to any such office of
Parent, and each of them individually, such Company Shareholder's
proxy and attorney-in-fact (with full power of substitution), for and
in the name, place and stead of such Company Shareholder, to vote such
Company Shareholder's Shares, or grant a consent or approval in
respect of such Shares in favor of the Transactions and against any
Acquisition Proposal.
(ii) Each Company Shareholder represents that there are
no existing options, warrants, calls, pre-emptive rights, irrevocable
proxies, subscriptions or other rights, agreements, arrangements or
commitments of any character, relating to such Company Shareholder's
Shares, and any proxies heretofore given in respect of such Company
Shareholder's Shares which are revocable are hereby revoked, except
for those contained in the Irrevocable Proxy and Purchase Right
Agreement (the "EXISTING PROXY AGREEMENT") entered into between A.
Christian Schauer, Daniel B. Canavan and Victor V. Valentine, Jr.
(iii) Each Company Shareholder understands and
acknowledges that Parent is entering into the Merger Agreement in
reliance upon such Company Shareholder's execution and delivery of
this Agreement. Each Company Shareholder hereby affirms that the
irrevocable proxy set forth in this SECTION 2(d) is given in
connection with the execution of the Merger Agreement, and that such
irrevocable proxy is given to secure the performance of the duties of
such Company Shareholder under this Agreement. Each Company
Shareholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked,
except that such proxy will automatically be revoked upon termination
of this Agreement pursuant to SECTION 7 hereof. Each Company
Shareholder hereby ratifies and confirms all that such irrevocable
proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 450.1422 of the Michigan
Business Corporation Act.
(e) NO SOLICITATION. Each Company Shareholder hereby
agrees, in his capacity as a Company Shareholder of the Company, that
neither such Company Shareholder nor any of his affiliates shall (and
such Company Shareholder shall cause his representatives and agents,
including, but not limited to, investment bankers, attorneys and
accountants, not to), directly or indirectly, encourage, solicit,
participate in or initiate discussions or negotiations with, or
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provide any information to, any corporation, partnership, person or
other entity or group (other than Parent, any of its affiliates or
representatives) concerning any Acquisition Proposal. Each Company
Shareholder will immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with
respect to any Acquisition Proposal. Each Company Shareholder will
immediately communicate to Parent the terms of any proposal,
discussion, negotiation or inquiry (and will disclose any written
materials received by the Company Shareholder in connection with such
proposal, discussion, negotiation or inquiry) and the identity of the
party making such proposal or inquiry which it may receive in respect
of any such transaction. Any action taken by the Company, any Company
Shareholder in his capacity as a member of the Board of Directors of
the Company, or by any other member of the Board of Directors of the
Company in accordance with Section 5.8 of the Merger Agreement shall
be deemed not to violate this SECTION 2(e).
3. ADJUSTMENTS; ADDITIONAL SHARES. In the event (i) of any
stock dividend, stock split, recapitalization, reclassification,
combination or exchange of shares of capital stock of the Company on,
of, or affecting the Shares, or (ii) any Company Shareholder shall
become the Beneficial Owner of any additional Shares or other
securities entitling the holder thereof to vote or give consent with
respect to any matter, then the terms of this Agreement shall apply to
the Shares held by such Company Shareholder immediately following the
effectiveness of the events described in clause (i) of this SECTION 3
or such Company Shareholder becoming the Beneficial Owner of such
additional Shares, as described in clause (ii) of this SECTION 3, as
though they were Existing Shares hereunder.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHAREHOLDERS.
Each Company Shareholder hereby represents and warrants to Parent and
Merger Sub as follows:
(a) OWNERSHIP OF SHARES. Such Company Shareholder is the
record and Beneficial Owner of the Existing Shares, as set forth on
SCHEDULE I. On the date hereof, the Existing Shares constitute all of
the Shares owned of record or Beneficially Owned by such Company
Shareholder. Such Company Shareholder has sole voting power and sole
power to issue instructions with respect to the matters set forth in
SECTION 2 hereof, sole power of disposition 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, with no limitations,
qualifications or restrictions on such rights, subject to applicable
securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Such Company Shareholder has
full power and authority to enter into and perform all of such Company
Shareholder's obligations under this Agreement. The execution,
delivery and performance of this Agreement by such Company Shareholder
will not violate any other agreement to which such Company Shareholder
is a party including, without limitation, any voting agreement, proxy
4
arrangement, pledge agreement, Company Shareholders agreement or
voting trust. This Agreement has been duly and validly executed and
delivered by such Company Shareholder and constitutes the valid and
binding agreement of such Company Shareholder, enforceable against
such Company Shareholder in accordance with its terms. There is no
beneficiary or holder of a voting trust certificate or other interest
of any trust of which such Company Shareholder is a trustee whose
consent is required for the execution and delivery of this Agreement
or the consummation by such Company Shareholder of the transactions
contemplated hereby.
(c) NO CONFLICTS. Except for filings under the Exchange Act, no
filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution of this Agreement
by such Company Shareholder and the consummation by such Company
Shareholder of the transactions contemplated hereby and none of the
execution and delivery of this Agreement by such Company Shareholder,
the consummation by such Company Shareholder of the transactions
contemplated hereby or compliance by such Company Shareholder with any
of the provisions hereof shall (A) if such Company Shareholder is
other than a natural person, conflict with or result in any breach of
any organizational documents applicable to such Company Shareholder,
(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, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which such Company Shareholder is a party
or by which such Company Shareholder or any of its properties or
assets may be bound, or (C) violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to
such Company Shareholder or any of its properties or assets.
(d) NO LIENS. Except as permitted by this Agreement, and except
as provided for in the Existing Proxy Agreement, the Existing Shares
and the certificates representing such Existing Shares are now, and at
all times during the term hereof will be, held by such Company
Shareholder, or by a nominee or custodian for the benefit of such
Company Shareholder, free and clear of all Liens, except for any Liens
hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission in connection
with the transactions contemplated hereby based upon arrangements made
by or on behalf of such Company Shareholder.
5. FURTHER ASSURANCES. From time to time, at the 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
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and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
6. STOP TRANSFER. The Company Shareholders shall not request
that the Company register the transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any of the
Shares, unless such transfer is made in compliance with this
Agreement.
7. TERMINATION. The covenants, agreements, representations and
proxy contained herein with respect to the Shares shall terminate upon
the earlier to occur of (i) the Effective Time, or (ii) the
termination of the Merger Agreement in accordance with its terms.
8. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement 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.
(b) BINDING AGREEMENT. This Agreement and the obligations
hereunder shall attach to the Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of the Shares
shall pass, whether by operation of law or otherwise, including,
without limitation, a Company Shareholder's administrators or
successors. Notwithstanding any transfer of Shares, the transferor
shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(c) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of
Parent and Merger Sub, provided that Parent or Merger Sub may assign,
in its sole discretion, its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of Parent, but no such
assignment shall relieve Parent or the Merger Sub of its obligations
hereunder if such assignee does not perform such obligations.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(e) 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 given) by hand
delivery or telecopy (with a confirmation copy sent for next day
delivery via courier service, such as Federal Express), 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:
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If to a Company Shareholder, to such Company Shareholder's
address set forth on SCHEDULE I hereto.
Copy to:
Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
Attention: John F. Adams, Esq.
Telephone No.: 312-258-5541
Telecopy No.: 312-258-5700
If to Parent or Merger Sub:
Eimo Oyj
Norokatv 5
FIN-15101 Lahti
FINLAND
Attention: Elmar Paananen
Telephone No.: 011-358-3850-5430
Telecopy No.: 011-3583-850-5405
Copy to:
Smith, Gambrell & Russell, LLP
Promenade II, Suite 3100
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: John D. Saunders
Telephone No.: (404) 815-3682
Telecopy No.: (404) 685-6982
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.
(f) 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.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or
agreements contained in this Agreement will cause the other party to
sustain damages for which it would not have an adequate remedy at law
for money damages, and therefore in the event of any such breach the
aggrieved party shall be entitled to the remedy of specific
7
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the
exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such right, power or
remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder,
and any custom or practice of the parties at variance with the terms
hereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such
compliance.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by,
any person or entity who or which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware,
without giving effect to the principles of conflicts of law thereof;
PROVIDED, however, that the laws of the respective jurisdictions of
incorporation of each of the parties shall govern the relative rights,
obligations, powers, duties and other internal affairs of such party
and its board of directors.
(l) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR
PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT.
(m) 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.
(n) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all
of which, taken together, shall constitute one and the same Agreement.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
8
IN WITNESS WHEREOF, Parent, Merger Sub and the Shareholders have
caused this Agreement to be duly executed as of the day and year first
above written.
EIMO OYJ
By: /s/ Elmar Paananen
----------------------------------
Name: Elmar Paananen
Title: Executive Vice Chairman
SPARTAN ACQUISITION CORP.
By: /s/ Elmar Paananen
----------------------------------
Name: Elmar Paananen
Title: President and Secretary
SHAREHOLDERS:
/s/ A. Christian Schauer
-------------------------------------
A. Christian Schauer
/s/ Victor V. Valentine, Jr.
-------------------------------------
Victor V. Valentine, Jr.
/s/ Daniel B. Canavan
-------------------------------------
Daniel B. Canavan
/s/ David L. Stewart
-------------------------------------
David L. Stewart
9
<TABLE>
<CAPTION>
SCHEDULE I
----------
Number and Address of Number of Existing Options Exercisable
Company Shareholder Shares Owned within 60 Days
--------------------- ------------------ -------------------
<S> <C> <C>
A. Christian Schauer 38,000 499,667
5512 Bobwhite
Kalamazoo, Michigan 49009
Victor V. Valentine, Jr. 945,066 43,000
7688 S. 38th Street
Scotts, Michigan 49088
Daniel B. Canavan 913,868 43,000
5530 Blue Spruce
Kalamazoo, Michigan 49009
David L. Stewart 126,823 23,000
1022 Essex Circle
Kalamazoo, Michigan 49008
</TABLE>
