SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
TECUMSEH PRODUCTS COMPANY
(Name of Issuer)
Class B Common Stock, $1.00 Par Value
(Title of Class of Securities)
878895 10 1
(CUSIP Number)
John W. Gelder, Miller, Canfield, Paddock and Stone, P.L.C.,
150 W. Jefferson, Suite 2500, Detroit, Michigan 48226,
(313) 496-7530
(Name, Address, and Telephone Number of Person Authorized to
Receive Notices and Communications)
March 28, 1995
(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 [ ]. (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting beneficial
ownership of more than five percent of the class of securities
described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all
exhibits, should be filed with the Commission. See Rule
13d-1(a) for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
CUSIP No. 878895 10 1
___________________________________________________________________________
(1) Names of Reporting Persons/S.S. or I.R.S. Identification Nos. of Above
Persons
John W. Gelder/S.S. No. ###-##-####
___________________________________________________________________________
(2) Check the Appropriate Row If a Member of a Group (See Instructions)
(a)
(b) X
___________________________________________________________________________
(3) SEC Use Only
___________________________________________________________________________
(4) Source of Funds (See Instructions) OO
___________________________________________________________________________
(5) Check 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: 100
Number of _______________________________________________________
Shares
Beneficially (8) Shared Voting Power: 2,459,346
Owned by _______________________________________________________
Each
Reporting (9) Sole Dispositive Power: 100
Person _______________________________________________________
with
(10) Shared Dispositive Power: 2,459,346
___________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
100
___________________________________________________________________________
(12) Check If the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
X
___________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11) 0.0%
___________________________________________________________________________
(14) Type of Reporting Person (See Instructions) IN
___________________________________________________________________________
<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Explanatory Notes:
1. Effective April 22, 1992, Tecumseh Products Company's
former single class of common stock was reclassified as Class B
Common Stock, $1.00 par value, and a new class, Class A Common
Stock, $1.00 par value, was authorized. The two classes are
substantially identical expect that the Class A Common Stock has
no voting rights on most matters. In accordance with Rule 13d-
1(d), this statement covers Class B Common Stock only.
2. This is the first amendment to this Schedule 13D filed
electronically. Accordingly, this amendment restates the entire
text of the Schedule 13D pursuant to Rule 13d-2(c).
Item 1. Security and Issuer.
Security - Class B Common Stock, $1.00 par
value ("Class B Stock")
Issuer - Tecumseh Products Company, a
Michigan corporation ("Tecumseh")
Principal
Executive Office - 100 East Patterson Street
Tecumseh, Michigan 49286
Item 2. Identity and Background.
(a) Name of person filing: John W. Gelder ("JWG")
(b) Business address:
150 West Jefferson, Suite 2500
Detroit, Michigan 48226
(c) Present principal occupation or employment and
name, principal business, and address of organization in
which such employment is carried out:
Senior Principal in the law firm of
Miller, Canfield, Paddock and Stone, P.L.C.
150 West Jefferson, Suite 2500
Detroit, Michigan 48226
(d) During the last five years, JWG has not been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) JWG has not, during the last five years, been a
party to a civil proceeding of a judicial or administrative
body of competent jurisdiction as a result of which JWG 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) JWG is a citizen of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
JWG purchased in the John W. Gelder P.C. Profit Sharing
Trust, of which Trust JWG is a Trustee and beneficiary, 100
shares of Class B Stock on September 29, 1989 at an aggregate
price, exclusive of transaction charges, of $13,975.00. Funds of
the Trust were used.
On April 13, 1989, JWG was elected one of five Trustees of
the Herrick Foundation, a Michigan nonprofit corporation and the
owner of 1,367,525 shares of Class B Stock. No funds or other
consideration were involved.
On April 13, 1989, JWG became one of four Trustees,
succeeding a deceased trustee, of trusts for the benefit of
Catherine R. Cobb ("CRC") and her descendants (the "CRC Trusts"),
which trusts at that time owned 341,100 shares of Class B Stock.
No funds or other consideration were involved.
On August 31, 1989, JWG became one of four Trustees,
succeeding a deceased trustee, of trusts for the benefit of
Margaret J. Mudgett ("MJM") and her descendants, which trusts at
that time owned 178,500 shares of Class B Stock. No funds or
other consideration were involved.
On December 29, 1989, JWG became one of four Trustees,
succeeding a deceased trustee, of trusts for the benefit of
Kenneth G. Herrick ("KGH") and his descendants (the "KGH
Trusts"), which trusts at that time owned 341,100 shares of Class
B Stock. No funds or other consideration were involved.
On January 9, 1990, the Probate Court for Lenawee County,
Michigan entered an order appointing JWG a successor trustee to a
deceased trustee of a trust under the Last Will and Testament of
Effa L. Sage for the benefit of MJM and her descendants (such
trust, together with the other trusts for the benefit of MJM and
her descendants referred to above, the "MJM Trusts"), which trust
at that time owned 47,208 shares of Class B Stock. No funds or
other consideration were involved.
On January 28, 1993, pursuant to an Exchange Agreement dated
January 11, 1993 (the "1993 Exchange Agreement"), the KGH Trusts
acquired 330,177 shares of Class B Stock in a privately
negotiated exchange transaction. The consideration used by the
KGH Trusts in making such acquisition was 341,100 shares of the
Class A Common Stock, $1.00 par value, of Tecumseh ("Class A
Stock").
On March 28, 1995, pursuant to an Exchange Agreement dated
March 8, 1995 (the "1995 KGH Exchange Agreement"), the KGH Trusts
acquired 216,836 shares of Class B Stock from the CRC Trusts in a
privately negotiated exchange transaction. The consideration
used by the KGH Trusts in making such acquisition was 216,836
shares of Class A Stock.
Item 4. Purpose of Transaction.
The purpose of the purchase of 100 shares of Class B Common
Stock made on September 29, 1989 was to acquire a beneficial
interest in securities of Tecumseh, of which JWG was elected a
Director on September 29, 1989.
The election of JWG as a Trustee of the Herrick Foundation
and of his selection as a successor trustee of the trusts herein
described was for the purpose of enabling him to serve in such
capacities.
The purpose of the acquisition pursuant to the 1993 Exchange
Agreement was to cause a greater portion of the assets of the KGH
Trusts to be invested in Class B Stock (which has full voting
rights) and (at that time) no portion of such assets to be
invested in Class A Stock (which has no voting rights in most
circumstances) through a tax-free exchange.
The purpose of the acquisition pursuant to the 1995 KGH
Exchange Agreement was to cause a greater portion of the assets
of the KGH Trusts to be invested in Class B Stock (which has full
voting rights) and a smaller portion of such assets to be
invested in Class A Stock (which has no voting rights in most
circumstances) through a tax-free exchange.
In his capacity as a trustee of the various trusts described
herein and/or as a member of the Board of Trustees of Herrick
Foundation, JWG expects from time to time to be presented with or
give consideration to proposals that one or more of such entities
acquire or dispose of securities of Tecumseh. JWG is also a
Director of Tecumseh and in his capacity as such may from time to
time be presented with or give consideration to proposals which
include actions similar to some or all of those enumerated in the
following sentence. Except as described in the preceding two
sentences, JWG currently has no plans or proposals which relate
to or would result in: (a) the acquisition by any person of
additional securities of Tecumseh or the disposition of
securities of Tecumseh; (b) an extraordinary corporate
transaction, such as a merger, reorganization, or liquidation,
involving Tecumseh or any of its subsidiaries; (c) a sale or
transfer of a material amount of assets of Tecumseh or any of its
subsidiaries; (d) any change in the present Board of Directors or
management of Tecumseh, including any plans or proposals to
change the number or term of Directors or to fill any existing
vacancies on the Board; (e) any material change in the present
capitalization or dividend policy of Tecumseh; (f) any other
material change in Tecumseh's business or corporate structure;
(g) changes in Tecumseh's charter, bylaws, or instruments
corresponding thereto or other actions which may impede the
acquisition of control of Tecumseh by any person; (h) causing a
class of securities of Tecumseh to be delisted from a national
securities exchange or to cease to be authorized to be quoted in
an inter-dealer quotation system of a registered national
securities association; (i) a class of equity securities of
Tecumseh becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Securities Exchange Act of
1934; or (j) any action similar to any of those enumerated above.
Notwithstanding the foregoing, JWG intends to remain free to take
such action, including the making of such proposals with respect
to Tecumseh or its securities, as JWG may from time to time deem
appropriate in light of circumstances which might arise from time
to time.
Item 5. Interest in Securities of the Issuer.
(a) JWG is the sole beneficial owner of 100 shares of
Class B Stock owned by the John W. Gelder P.C. Profit Sharing
Trust.
JWG is one of three trustees, the others being KGH and Todd
W. Herrick ("TWH"), of Herrick Foundation, a Michigan nonprofit
corporation, which is a "Private Foundation" as defined in the
Internal Revenue Code of 1986, as amended. Herrick Foundation
owns 1,367,525 shares, or approximately 25.0%, of the outstanding
Class B Stock.
JWG is one of three trustees, the others being KGH and
Comerica Bank, a Michigan banking corporation ("Comerica"), of
the KGH Trusts. The KGH Trusts own 888,113 shares, or
approximately 16.2%, of the outstanding Class B Stock.
JWG is one of four trustees, the others being MJM, her son
P. Michael Mudgett ("PMM"), and Comerica, of the MJM Trusts. The
MJM Trusts own 203,708 shares, or approximately 3.7%, of the
outstanding Class B Stock.
(b) JWG has the sole power to vote or direct the vote and
the sole power to dispose or to direct the disposition of 100
shares of Class B Stock. JWG has shared power to vote or direct
the vote and shared power to dispose or direct the disposition of
2,459,346 shares, or approximately 45.0%, of the outstanding
Class B Stock.
KGH is a citizen of the United States of America and has a
business address at 100 East Patterson Street, Tecumseh, Michigan
49286. KGH is Chairman of the Board of Directors of Tecumseh.
TWH is a citizen of the United States of America and has a
business address at 100 East Patterson Street, Tecumseh, Michigan
49286. TWH is the President and Chief Executive Officer of
Tecumseh.
MJM is a citizen of the United States of America and has a
residence address at P.O. Box 425, Higgins Lake, Michigan 48267.
MJM's principal occupation, so far as is known to JWG, is as a
housewife and parent.
PMM is a citizen of the United States of America and has a
business address at 1700 Union Bank Building, 530 "B" Street, San
Diego, California 92101. PMM's principal occupation, so far as
is known to JWG, is as a practicing lawyer in the firm of
Robbins, Keehn & Jones at the address set forth above.
Comerica is a Michigan banking corporation and has its
principal business office at 500 Woodward Avenue, Detroit,
Michigan 48226.
So far as is known to JWG, none of KGH, TWH, MJM, PMM, or
Comerica has during the last five years been convicted in a
criminal proceeding, nor has any of them 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.
JWG disclaims that he and any one or more of the above-named
persons constitute a "group" within the meaning of Section 13d(3)
of the Securities Exchange Act of 1934.
Pursuant to Rule 13d-4 promulgated under the Securities
Exchange Act of 1934, JWG hereby expressly declares that the
filing of this statement shall not be construed as an admission
that JWG is for the purposes of Section 13(d) or 13(g) of the
Securities Exchange Act of 1934 the beneficial owner of any
securities covered by this statement except the 100 shares of
Class B Stock referred to in the first paragraph of this Item 5
and hereby expressly disclaims any beneficial ownership of any
kind or character in, to, or with respect to all or any of the
balance of the shares of Class B Stock referred to in this
statement.
(c) Transactions effected during the past 60 days:
(1) On February 22, 1995, the MJM Trusts sold 2,000
shares of Class B Stock at $46.50 per share in brokerage
transactions on the open market.
(2) On March 6, 1995, pursuant to an exchange
agreement dated that date, the CRC Trusts (of which JWG was
at that time a Trustee) disposed of 10,968 shares of Class B
Stock in a privately negotiated exchange transaction with
TWH (who is the son of KGH, the nephew of CRC, and the
President and Chief Executive Officer of Tecumseh). The
consideration received by the CRC Trusts in such exchange
was one share of Class A Stock for each share of Class B
Stock.
(3) On March 28, 1995, pursuant to the 1995 KGH
Exchange Agreement described above, the KGH Trusts acquired,
and the CRC Trusts disposed of, 216,836 shares of Class B
Stock in a privately negotiated exchange transaction. The
consideration given by the KGH Trusts, and received by the
CRC Trusts, in such exchange was one share of Class A Stock
for each share of Class B Stock. Simultaneously with the
consummation of the exchange transaction, JWG and KGH
resigned from their positions as Trustees of the CRC Trusts,
and CRC resigned from her positions as a Trustee of the KGH
Trusts and a Trustee of Herrick Foundation.
(d) JWG's wife is a contingent beneficiary of the John W.
Gelder P.C. Profit Sharing Trust and therefore has a contingent
right to receive the dividends and the proceeds from the sale of
the shares of Class B Stock owned by said trust.
Herrick Foundation has the right to receive the dividends
and the proceeds from the sale of the shares of Class B Stock
owned by Herrick Foundation.
The respective beneficiaries of each of the KGH Trusts and
the MJM Trusts have such right to receive the dividends from or
the proceeds of the sale of the Class B Stock owned by each of
those Trusts respectively as the respective trustees of each of
those Trusts determine and decide in the exercise by them of
their respective discretion to distribute such dividends and such
proceeds to the respective beneficiaries of those Trusts.
Item 6. Contracts, Arrangements, Understandings, or
Relationships with Respect to Securities of the Issuer.
JWG has no contracts, arrangements, understandings, or
relationships (legal or otherwise) not hereinabove set forth with
any other person with respect to any securities of Tecumseh,
including but not limited to arrangements with respect to the
transfer or voting of any of the securities of Tecumseh, finders
fees, joint ventures, loan or option arrangements, puts or calls,
guaranties of profits, divisions of profits or loss, or the
giving or withholding of proxies.
Item 7. Material to Be Filed as Exhibits.
The following Exhibit was filed with Amendment No. 2 to this
statement:
Exhibit
No. Description
1 - Copy of Exchange Agreement
dated January 11, 1993
The following Exhibit is filed herewith:
Exhibit
No. Description
2 - Copy of Exchange Agreement
dated March 8, 1995
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.
April 18, 1995
(Date)
/s/ John W. Gelder
(Signature)
John W. Gelder
(Name)
DEFS2\348735.2\040135-00037
Exhibit No. 2
Conformed Copy (without exhibits)
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the "Exchange Agreement") is made
executed, and delivered this 8th day of March, 1995 by and among
the Trust under agreement dated February 26, 1949 for the primary
benefit of Catherine R. Cobb and Thomas H. Cobb (the "1949 C/T Cobb
Trust"), the Trust under agreement dated February 24, 1956 for the
primary benefit of Catherine R. Cobb and Thomas H. Cobb (the "1956
C/T Cobb Trust"), the Trust under agreement dated February 26, 1949
for the primary benefit of Catherine R. Cobb and Richard W. Cobb
(the "1949 C/R Cobb Trust"), the Trust under agreement dated
February 24, 1956 for the primary benefit of Catherine R. Cobb and
Richard W. Cobb (the "1956 C/R Cobb Trust"; all of the
aforementioned trusts hereinafter being sometimes referred to
collectively as the "Cobb Trusts"), the Trust under agreement dated
February 26, 1949 for the primary benefit of Kenneth G. Herrick and
his descendants (the "1949 Herrick Trust"), Kenneth G. Herrick,
John W. Gelder, Catherine R. Cobb and Comerica Bank, as Custodian.
W I T N E S S E T H:
WHEREAS, each of the 1949 C/T Cobb Trust and the 1949 C/R Cobb
Trust (collectively, the "1949 Cobb Trusts") holds, among other
assets, 150,581 shares of Class B Common Stock, par value $1.00
("Class B Common Stock"), of Tecumseh Products Company (the
"Company"); and
WHEREAS, each of the 1956 C/T Cobb Trust and the 1956 C/R Cobb
Trust (collectively, the "1956 Cobb Trusts") holds, among other
assets, 4,500 shares of Class B Common Stock; and
WHEREAS, the 1949 Herrick Trust holds, among other assets,
653,565 shares of the Class A Common Stock, $1.00 par value ("Class
A Common Stock"), of the Company; and
WHEREAS, each of the 1949 Cobb Trusts desires to exchange
103,918 shares of Class B Common Stock owned by it for 103,918
shares of Class A Common Stock owned by the 1949 Herrick Trust; and
WHEREAS, each of the 1956 Cobb Trusts desires to exchange all
4,500 shares of Class B Common Stock owned by it for 4,500 shares
of Class A Common Stock owned by the 1949 Herrick Trust; and
WHEREAS, immediately prior to the above-described exchanges,
Kenneth G. Herrick and John W. Gelder, each of whom currently is a
Trustee of each of the Cobb Trusts, desire to resign as Trustees of
each of the Cobb Trusts, and Catherine R. Cobb, who currently is a
Trustee of the 1949 Herrick Trust, a Trustee of the Trust under
agreement dated February 24, 1956 for the primary benefit of
Kenneth G. Herrick and his descendants (said trust and the 1949
Herrick Trust, collectively, the "Herrick Trusts"), and a member of
the Board of Trustees (a "Trustee") of Herrick Foundation, a
Michigan non-profit corporation (the "Foundation"), desires to
resign as a Trustee of each of the Herrick Trusts and as a Trustee
of the Foundation; and
WHEREAS, the parties hereto acknowledge that the consummation
of the exchange transactions hereinabove described requires the
1949 Herrick Trust and the Company to make a certain filing with
the Federal Trade Commission and the U.S. Department of Justice
pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), and the subsequent expiration or
early termination of the waiting period prescribed by the HSR Act;
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter contained the parties hereto hereby agree as
follows:
1. Exchange of Shares. Subject to satisfaction of the
condition set forth herein, the Cobb Trusts and the 1949 Herrick
Trust agree to exchange shares as follows:
a. Each of the 1949 Cobb Trusts will exchange 103,918
shares of Class B Common Stock for 103,918 shares of the
Class A Common Stock of the 1949 Herrick Trust.
b. Each of the 1956 Cobb Trusts will exchange 4,500
shares of Class B Common Stock for 4,500 shares of the Class A
Common Stock of the 1949 Herrick Trust.
The above noted exchanges shall be consummated after the
satisfaction of the condition described in paragraph 5 hereof (the
"Condition") as provided in paragraph 6 hereof.
2. Appointment of Custodian. The Cobb Trusts and the 1949
Herrick Trust hereby appoint Custodian to serve in such capacity
hereunder, and Custodian hereby accepts such appointment, on the
terms and conditions hereinafter set forth.
3. Deposit of Shares and Other Documents.
(a) There are delivered to the Custodian by the Cobb
Trusts certificates, in negotiable form (and, subject to the
requirements of the Custodian, with signatures guaranteed by a
commercial bank or trust company having an office or correspondent
in the United States or by a member firm of a national securities
exchange or of the National Association of Securities Dealers,
Inc.) representing an aggregate 216,836 shares of Class B Common
Stock owned by the Cobb Trusts. Receipt of the certificates
representing such shares of Class B Common Stock is hereby
acknowledged by the Custodian.
(b) There are delivered to the Custodian by the 1949
Herrick Trust certificates in negotiable form (and, as required,
with signatures guaranteed as hereinabove described) representing
216,836 shares of Class A Common Stock owned by the 1949 Herrick
Trust. Receipt of the certificates representing such shares of
Class A Common Stock is hereby acknowledged by the Custodian.
(c) Each of John W. Gelder and Kenneth G. Herrick hereby
delivers to the Custodian, receipt of which is hereby acknowledged
by the Custodian, the resignation executed but undated by him as a
Trustee of each of the Cobb Trusts, such resignations to become
effective upon dating and delivery to the pertinent Cobb Trust
hereunder. Catherine R. Cobb hereby delivers to the Custodian,
receipt of which is hereby acknowledged by Custodian, the
resignations executed but undated by her as a Trustee of each of
the Herrick Trusts and as a Trustee of the Foundation, such
resignation as Trustee of the Herrick Trusts to become effective
upon dating and delivery to the Herrick Trusts and such resignation
as Trustee of the Foundation to become effective upon dating and
delivery to the Secretary of the Foundation, John W. Gelder. The
Cobb Trusts hereby deliver to the Custodian, receipt of which is
hereby acknowledged by the Custodian, that certain Herrick Release
Agreement (herein so called) and that certain Gelder Release
Agreement (herein so called), which Herrick Release Agreement and
Gelder Release Agreement are executed but undated by those persons
who shall remain as Trustees of some or all of the Cobb Trusts
after the delivery of the resignations of Kenneth G. Herrick and
John W. Gelder to the Cobb Trusts hereunder and by Catherine R.
Cobb. The Herrick Trusts hereby deliver to the Custodian, receipt
of which is hereby acknowledged by the Custodian, that certain Cobb
Release Agreement (herein so called), which Cobb Release Agreement
is executed but undated by those persons who shall remain as
Trustees of the Herrick Trusts after the delivery of the
resignation of Catherine R. Cobb to the Herrick Trusts hereunder
and by each of the adult children of Kenneth G. Herrick.
4. Representations and Warranties. (a) The Cobb Trusts,
jointly and severally, hereby represent and warrant to the
Custodian, the 1949 Herrick Trust, Kenneth G. Herrick, and John W.
Gelder that:
(i) Except for the satisfaction of the Condition, all
consents, approvals, authorizations, and orders necessary for
the execution and delivery by the Cobb Trusts of this Exchange
Agreement and for the consummation of the transactions
contemplated hereby have been obtained;
(ii) Each of the Cobb Trusts has full right, power and
authority to enter into this Exchange Agreement and to assign,
transfer and deliver to the 1949 Herrick Trust the shares of
Class B Common Stock to be exchanged by such Cobb Trust
hereunder;
(iii) The exchanges by the Cobb Trusts of Class B Common
Stock for Class A Common Stock contemplated hereby and the
compliance by the Cobb Trusts with all of the provisions of
this Exchange Agreement and the consummation of the
transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, or
any indenture, mortgage, deed of trust, loan agreement, or
other agreement or instrument to which the Cobb Trusts, or any
of them, is a party or by which the Cobb Trusts, or any of
them, is bound or to which any of the property or assets of
the Cobb Trusts, or any of them, is subject, nor will such
action result in any violation of any statute or any order,
rule, or regulation of any court or governmental agency or
body having jurisdiction over any of the Cobb Trusts or the
property of any of the Cobb Trusts;
(iv) Each of the Cobb Trusts has, and immediately prior
to the time of the satisfaction of the Condition will have,
good and valid title to the shares of Class B Common Stock to
be exchanged by it hereunder, free and clear of all liens,
encumbrances, equities, or claims, and, upon delivery of any
such shares of Class B Common Stock in accordance herewith to
the 1949 Herrick Trust, good and valid title to such shares of
Class B Common Stock, free and clear of all liens,
encumbrances, equities, or claims, will pass to the 1949
Herrick Trust.
(b) The 1949 Herrick Trust hereby represents and
warrants to the Custodian and the Cobb Trusts that:
(i) Except for the satisfaction of the Condition, all
consents, approvals, authorizations, and orders necessary for
the execution and delivery by the 1949 Herrick Trust of this
Exchange Agreement and for the consummation of the
transactions contemplated hereby have been obtained;
(ii) The 1949 Herrick Trust has full right, power and
authority to enter into this Exchange Agreement and to assign,
transfer and deliver to the Cobb Trusts the shares of Class A
Common Stock to be exchanged by the 1949 Herrick Trust
hereunder;
(iii) The exchanges by the 1949 Herrick Trust of Class A
Common Stock for Class B Common Stock contemplated hereby and
the compliance by the 1949 Herrick Trust with all of the
provisions of this Exchange Agreement and the consummation of
the transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, or
any indenture, mortgage, deed of trust, loan agreement, or
other agreement or instrument to which the 1949 Herrick Trust
is a party or by which it is bound or to which any of the
property or assets of the 1949 Herrick Trust is subject, nor
will such action result in any violation of any statute or any
order, rule, or regulation of any court or governmental agency
or body having jurisdiction over the 1949 Herrick Trust or its
property;
(iv) The 1949 Herrick Trust has, and immediately prior
to the time of the satisfaction of the Condition will have,
good and valid title to the shares of Class A Common Stock to
be exchanged hereunder, free and clear of all liens,
encumbrances, equities, or claims, and, upon delivery of any
such shares of Class A Common Stock in accordance herewith to
any of the Cobb Trusts, good and valid title to such shares of
Class A Common Stock, free and clear of all liens,
encumbrances, equities, or claims, will pass to such Cobb
Trust.
5. Condition. The obligations of the Cobb Trusts and the
1949 Herrick Trust to exchange shares of Class A Common Stock for
shares of Class B Common Stock hereunder are subject to the
expiration or early termination of the waiting period prescribed by
the HSR Act. The 1949 Herrick Trust, by its counsel, Miller,
Canfield, Paddock and Stone, P.L.C. shall give written notice of
the satisfaction of the Condition to the Custodian, and the
Custodian shall be entitled to rely upon such notice.
6. Delivery by Custodian. Upon the satisfaction of the
Condition, the Custodian shall:
(a) First, date and deliver to Kenneth G. Herrick the
executed Herrick Release Agreement, date and deliver to John
W. Gelder the executed Gelder Release Agreement, and date and
deliver to Catherine R. Cobb the executed Cobb Release
Agreement; and
(b) Simultaneously with consummation of delivery of the
items noted in subparagraph 6(a) above, date and deliver the
resignations of Kenneth G. Herrick and John W. Gelder as
Trustees of each of the Cobb Trusts to Comerica Bank, in its
capacity as Corporate Trustee of each of the Cobb Trusts, date
and deliver the resignation of Catherine R. Cobb as Trustee of
the Herrick Trusts to Comerica Bank, in its capacity as
Corporate Trustee of each of the Herrick Trusts, and date and
deliver the resignation of Catherine R. Cobb as Trustee of the
Foundation to the Secretary of the Foundation; and
(c) Thereafter, deliver the certificates representing
the shares of Class A Common Stock delivered to it hereunder
by the 1949 Herrick Trust to the transfer agent for the
Company, for issuance of new certificates legended in
accordance with paragraph 10(c) hereof and subsequent delivery
to Comerica Bank, as Corporate Trustee of the Cobb Trusts; and
(d) Deliver the certificates representing the shares of
Class B Common Stock delivered to it hereunder by the Cobb
Trusts to the transfer agent of the Company, for the issuance
of new certificates legended in accordance with
paragraph 10(c) hereof and subsequent delivery to Comerica
Bank, as Corporate Trustee of the 1949 Herrick Trust.
Notwithstanding anything to the contrary in this Exchange
Agreement, the effective delivery by the Custodian of each item in
subparagraphs 6(a)-(d) immediately above is predicated on the
effective delivery of all such items, and no single transfer,
delivery, or exchange thereunder shall be effective until all such
transfers, deliveries, and exchanges by the Custodian are completed
as herein provided. The Custodian shall certify to the Cobb Trusts
and the 1949 Herrick Trusts the date on which all such transfers,
deliveries, and exchanges by the Custodian have been completed
(such certified date being hereinafter referred to as the
"Consummation Date").
7. Section 16(b) Liability. The Cobb Trusts jointly and
severally agree that, if any of the Cobb Trusts sells any shares of
Class A Common Stock prior to the end of the six month period
immediately following the Consummation Date and any such sale is
matched with any other transaction in the capital stock of the
Company to create a right in the Company to recover any "profits"
under Section 16(b) of the Securities Exchange Act of 1934, as
amended ("Section 16(b)"), from any person or persons, the Cobb
Trusts, jointly and severally, shall be responsible for the payment
of the entire amount of such profits to the Company and will
indemnify and hold harmless completely the 1949 Herrick Trust,
Kenneth G. Herrick, and any other person who is determined to be
liable for such payment. If the Cobb Trusts fail to make any such
payment of profits to the Company when and as demanded, the Cobb
Trusts jointly and severally shall indemnify and hold the 1949
Herrick Trust, Kenneth G. Herrick, and any such other person
harmless against and in respect of any and all claims, suits,
actions, proceedings (formal or informal), investigations,
judgments, deficiencies, damages, settlements, liabilities, and
legal and other expenses, including attorneys' fees, as and when
incurred, arising out of or incidental to any actual or threatened
claim or allegation that any such profits are recoverable from any
such person. The 1949 Herrick Trust hereby agrees that, if the
1949 Herrick Trust sells any shares of Class B Common Stock prior
to the end of the six month period immediately following the
Consummation Date and any such sale is matched with any other
transaction in the capital stock of the Company to create a right
in the Company to recover any "profits" under Section 16(b) from
any person or persons, the 1949 Herrick Trust shall be responsible
for the payment of the entire amount of such profits to the Company
and will indemnify and hold harmless completely the Cobb Trusts and
any other person who is determined to be liable for such payment.
If the 1949 Herrick Trust fails to make any such payment of profits
to the Company when and as demanded, the 1949 Herrick Trust shall
indemnify and hold the Cobb Trusts and any such other person
harmless against and in respect of any and all claims, suits,
actions, proceedings (formal or informal), investigations,
judgments, deficiencies, damages, settlements, liabilities, and
legal and other expenses, including attorneys' fees, as and when
incurred, arising out of or incidental to any actual or threatened
claim or allegation that any such profits are recoverable from such
person or persons. The Cobb Trusts and the 1949 Herrick Trust
further hereby agree and acknowledge that the provisions of this
paragraph 7 shall be enforceable by any person who is determined or
alleged to be liable for any such payment who is not a signatory to
this Exchange Agreement as a third party beneficiary of the
covenants and agreements contained in this paragraph.
8. The Custodian. The Custodian shall be entitled to act
and rely upon any statement, request, notice, or instruction
respecting this Exchange Agreement given to it by the Trustees of
the Cobb Trusts, John W. Gelder, Kenneth G. Herrick, and the
Trustees of the 1949 Herrick Trust. It is understood and agreed by
all parties hereto that the Custodian assumes no responsibility or
liability to any person hereunder other than to deal with the
shares of Class A Common Stock, the shares of Class B Common Stock,
and the other documents deposited pursuant to paragraph 3 hereof,
all in accordance with the provisions of this Exchange Agreement.
The Cobb Trusts and the 1949 Herrick Trust shall indemnify and hold
the Custodian harmless against and in respect of any and all
claims, suits, actions, proceedings (formal or informal),
investigations, judgments, deficiencies, damages, settlements,
liabilities, and legal and other expenses (including legal fees and
expenses of attorneys chosen by the Custodian), as and when
incurred, arising out of or based upon any act, omission, alleged
act, or alleged omission by the Custodian or any other cause in any
case in connection with the acceptance of its appointment as
Custodian under this Exchange Agreement or the performance or
nonperformance by the Custodian of any of its duties under this
Exchange Agreement, except any resulting from the bad faith or
gross negligence of the Custodian. The Custodian may rely on any
notice, advice, direction, or other document or signature believed
by it to be genuine, may assume that any person purporting to give
it notice, advice, direction, or other document has been duly
authorized to do so, and may rely upon the advice of any counsel
retained by it.
9. Irrevocability. This Exchange Agreement is irrevocable
and not subject to termination, modification, or amendment by the
Cobb Trusts, Kenneth G. Herrick, John W. Gelder, Catherine R. Cobb,
or the 1949 Herrick Trust or by operation of law, whether by the
death or incapacity of any trustee of the Cobb Trusts or the 1949
Herrick Trust or by the termination of any of the Cobb Trusts or
the 1949 Herrick Trust, or by the occurrence of any other event,
except in a writing signed by all of the parties hereto. If any
such trustee should die or become incapacitated or if any such
trust should be terminated or if any other such event should occur
before the delivery of the Class A Common Stock to the Cobb Trusts
and of the Class B Common Stock to the 1949 Herrick Trust
hereunder, such shares nevertheless shall be delivered to the Cobb
Trusts on behalf of the 1949 Herrick Trust (in the case of the
shares of Class A Common Stock) and to the 1949 Herrick Trust on
behalf of the Cobb Trusts (in the case of the shares of Class B
Common Stock) in accordance with the terms and conditions hereof,
and actions taken by the Custodian hereunder shall be as valid as
if such death, incapacity, termination, or other event had not
occurred, regardless of whether or not the Custodian shall have
received notice of such death, incapacity, termination, or other
event.
10. Certain Securities Law Considerations. (a) The 1949
Herrick Trust hereby represents and warrants to the Cobb Trusts as
follows: (i) each of the decisions of the 1949 Herrick Trust to
acquire shares of Class B Common Stock from the Cobb Trusts and to
dispose of shares of Class A Common Stock in exchange therefor has
been made by the independent Corporate Trustee of the 1949 Herrick
Trust, in consultation with Kenneth G. Herrick and such other
persons as said Corporate Trustee deemed appropriate; (ii) said
Corporate Trustee is experienced in evaluating the merits and risks
of transactions in securities and fully capable of evaluating the
merits and risks of the acquisitions of Class A Common Stock and
disposition of Class B Common Stock by the 1949 Herrick Trust
contemplated by this Exchange Agreement; (iii) Kenneth G. Herrick
has access, and prior to making the decisions described above said
Corporate Trustee has been given access, to all such information
concerning the Company, the Class A Common Stock, and the Class B
Common Stock (hereinafter "Company Information") as either of then
deemed necessary or appropriate for purposes of making such
decisions on an informed basis; and (iv) the 1949 Herrick Trust is
acquiring the shares of Class B Common Stock to be acquired by it
hereunder for its own account, for investment, and without any view
to distribution of any such shares.
(b) The Cobb Trusts hereby represent and warrant to the 1949
Herrick Trust as follows: (i) each of the decisions of the Cobb
Trusts to acquire shares of Class A Common Stock from the 1949
Herrick Trust and to dispose of shares of Class B Common Stock in
exchange therefor, has been made by the independent Corporate
Trustee of the Cobb Trusts, in consultation with Thomas H. Cobb,
Richard W. Cobb, and such other persons (not including Kenneth G.
Herrick, or John W. Gelder) as said Corporate Trustee deemed
appropriate; (ii) said Corporate Trustee is experienced in
evaluating the merits and risks of transactions in securities and
fully capable of evaluating the merits and risks of the
acquisitions of Class A Common Stock and dispositions of Class B
Common Stock by the Cobb Trusts contemplated by this Exchange
Agreement; (iii) prior to making the decisions described above,
said Corporate Trustee, Thomas H. Cobb, and Richard W. Cobb have
been given access to all such Company Information as each deemed
necessary or appropriate for purposes of making such decisions on
an informed basis; and (iv) each of the Cobb Trusts is acquiring
the shares of Class A Common Stock to be acquired by it hereunder
for its own account, for investment, and without any view to
distribution of any such shares.
(c) The 1949 Herrick Trust and each of the Cobb Trusts hereby
acknowledges and agrees that: (i) the shares of Class B Common
Stock or Class A Common Stock (as the case may be) to be acquired
by such party pursuant to this Exchange Agreement have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), and accordingly may not be sold or otherwise
further transferred without prior registration under the Securities
Act, except in a transaction exempt from the registration
requirements of the Securities Act as evidenced by the opinion of
counsel for the Company or other legal counsel satisfactory to the
Company; and (ii) the certificates evidencing the shares of Class B
Common Stock or Class A Common Stock (as the case may be) to be
acquired by such party pursuant to this Exchange Agreement shall be
legended to reflect the foregoing transfer restrictions as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE FURTHER TRANSFERRED EXCEPT IN A
TRANSACTION REGISTERED UNDER THE SECURITIES ACT OR EXEMPT
THEREFROM.
11. Fees and Expenses. Each party hereto shall bear and be
solely responsible for the fees and expenses of its own counsel, as
well as all other costs and expenses incurred by such party in
connection with the negotiation and preparation of this Exchange
Agreement and the consummation of the transactions contemplated
hereby, except that the legal fees and expenses, filing fee, and
other costs associated with the preparation and filing by the 1949
Herrick Trust of the form required to be filed by it under the HSR
Act shall be borne solely by the 1949 Herrick Trust, and any
expenses incurred by Comerica Bank in performing its duties as
Custodian hereunder shall be borne one-half by the 1949 Herrick
Trust and one-half by the Cobb Trusts.
<PAGE>
IN WITNESS WHEREOF, the parties have executed and delivered
this Exchange Agreement this 8th day of March, 1995.
TRUST UNDER AGREEMENT DATED
FEBRUARY 26, 1949 FOR THE PRIMARY
BENEFIT OF CATHERINE R. COBB AND
THOMAS H. COBB
By /s/ Thomas H. Cobb
Thomas H. Cobb, Trustee
By /s/ Kenneth G. Herrick
Kenneth G. Herrick, Trustee
By /s/ John W. Gelder
John W. Gelder, Trustee
By COMERICA BANK, Trustee
By /s/ Antonio Forcellini
Title Vice President and
Senior Trust Officer
TRUST UNDER AGREEMENT DATED
FEBRUARY 24, 1956 FOR THE PRIMARY
BENEFIT OF CATHERINE R. COBB AND
THOMAS H. COBB
By /s/ Thomas H. Cobb
Thomas H. Cobb, Trustee
By /s/ Kenneth G. Herrick
Kenneth G. Herrick, Trustee
By /s/ John W. Gelder
John W. Gelder, Trustee
By COMERICA BANK, Trustee
By /s/ Antonio Forcellini
Title Vice President and
Senior Trust Officer
TRUST UNDER AGREEMENT DATED
FEBRUARY 26, 1949 FOR THE PRIMARY
BENEFIT OF CATHERINE R. COBB AND
RICHARD W. COBB
By /s/ Richard W. Cobb
Richard W. Cobb, Trustee
By /s/ Kenneth G. Herrick
Kenneth G. Herrick, Trustee
By /s/ John W. Gelder
John W. Gelder, Trustee
By COMERICA BANK, Trustee
By /s/ Antonio Forcellini
Title Vice President and
Senior Trust Officer
TRUST UNDER AGREEMENT DATED
FEBRUARY 24, 1956 FOR THE PRIMARY
BENEFIT OF CATHERINE R. COBB AND
RICHARD W. COBB
By /s/ Richard W. Cobb
Richard W. Cobb, Trustee
By /s/ Kenneth G. Herrick
Kenneth G. Herrick, Trustee
By /s/ John W. Gelder
John W. Gelder, Trustee
By COMERICA BANK, Trustee
By /s/ Antonio Forcellini
Title Vice President and
Senior Trust Officer
TRUST UNDER AGREEMENT DATED
FEBRUARY 26, 1949 FOR THE BENEFIT
OF KENNETH G. HERRICK AND HIS
DESCENDANTS
By /s/ John W. Gelder
John W. Gelder, Trustee
By /s/ Kenneth G. Herrick
Kenneth G. Herrick, Trustee
By COMERICA BANK, Trustee
By /s/ Antonio Forcellini
Title Vice President and
Senior Trust Officer
/s/ Kenneth G. Herrick
Kenneth G. Herrick
/s/ John W. Gelder
John W. Gelder
/s/ Catherine R. Cobb
Catherine R. Cobb
COMERICA BANK, as Custodian
By /s/ Antonio Forcellini
Title Vice President and
Senior Trust Officer
