EXHIBIT 10.2
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LOCK-UP AGREEMENT
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THIS LOCK-UP AGREEMENT ("AGREEMENT") is being executed and
delivered as of this 13th day of July, 2000 by and among A. CHRISTIAN
SCHAUER, VICTOR V. VALENTINE, JR. and DANIEL B. CANAVAN, individual
residents of the State of Michigan (individually, a "U.S. HOLDER" and,
collectively, the "U.S. HOLDERS") and JALO PAANANEN, ELMAR PAANANEN,
ANNAMARI JUKKO and TOPI PAANANEN, individual residents of the Republic
of Finland (individually a "FINLAND HOLDER" and collectively, the
"FINLAND HOLDERS") in favor and for the benefit of EIMO OYJ, a company
organized under the laws of the Republic of Finland ("PARENT"). (The
U.S. Holders and the Finland Holders are herein collectively referred
to as the "HOLDERS". Capitalized terms used but not separately defined
herein shall have the meanings assigned to them in the Merger
Agreement, as hereinafter defined.)
W I T N E S S E T H:
WHEREAS, each U.S. Holder is currently a shareholder and an
officer of TRIPLE S PLASTICS, INC., a Michigan corporation (the
"COMPANY");
WHEREAS, each Finland Holder is currently a shareholder of
Parent;
WHEREAS, the Company, Parent, and Spartan Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of Parent (the
"MERGER SUB") have entered into an Agreement and Plan of Merger, dated
as of even date herewith (the "MERGER AGREEMENT"), providing for the
acquisition by Parent of all of the issued and outstanding Shares of
the Company through the merger of Merger Sub with and into the
Company, upon such terms as are set forth in the Merger Agreement;
WHEREAS, Section 2.1 of the Merger Agreement contemplates that
each issued and outstanding Share shall be converted into the right to
receive the number of Parent Ordinary Shares equal to the Exchange
Ratio, which shall be delivered in the form of Parent ADSs represented
by Parent ADRs (such Parent ADRs, together with (i) any options,
warrants or other rights to acquire Parent ADSs, and (ii) any Parent
Ordinary Shares into which any Parent ADSs may thereafter be converted
pursuant to the Deposit Agreement, are hereinafter collectively
referred to as the "PARENT U.S. SHARES");
WHEREAS, pursuant to the Conversion Agreement, each Finland
Holder has agreed to convert or exchange its Series K Shares into
Parent Ordinary Shares (such Finland Holders' Parent Ordinary Shares
(whether issued upon conversion or already owned by such Finland
Holders), along with the Parent U.S. Shares, are hereinafter
collectively referred to as the "PARENT SHARES");
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has required that the U.S. Holders agree, and
the U.S. Holders have agreed, to enter into this Agreement; and
WHEREAS, as an inducement and a condition to the U.S. Holders
entering into this Agreement, the U.S. Holders have required that the
Finland Holders agree, and the Finland Holders 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. REPRESENTATIONS AND WARRANTIES. Each Holder represents and
warrants to Parent as follows:
(a) Holder has carefully read this Agreement and has
discussed with his counsel to the extent Holder felt necessary the
limitations imposed on Holder's ability to, directly or indirectly,
contract to sell, sell, grant any option for the sale of, assign,
exchange, transfer, convey, pledge, mortgage, hypothecate, encumber,
distribute or otherwise dispose of (any of the foregoing, except for
transfers to immediate family members who agree in writing to be bound
by the restrictions set forth in this Agreement (or trusts for the
benefit of family members, the trustees of which so agree),
hereinafter referred to as a "TRANSFER") the Parent Shares. Holder
fully understands the limitations this Agreement places upon Holder's
ability to Transfer the Parent Shares.
(b) Holder understands and acknowledges that the
representations, warranties and covenants set forth in this Agreement
and the Merger Agreement will be relied upon by Parent, and that they
are an inducement to Parent to enter into and perform the Merger
Agreement and to consummate the other transactions contemplated in the
Merger Agreement.
(c) Holder understands and agrees that the provisions of
this Agreement shall apply to any Parent Shares received by such
Holder following the Effective Time but during the term hereof as the
result of any exercise of stock options, warrants or other similar
rights to acquire Parent Shares, however received.
2. PAYMENTS IN THE EVENT OF TRANSFER BY U.S. HOLDERS.
(a) Each U.S. Holder severally agrees that, from and after
the Effective Time, any Transfer by such U.S. Holder of Parent Shares
in excess of the following cumulative percentages of the number of
Parent Shares individually held immediately after the Effective Time
by such U.S. Holder prior to the respective corresponding
anniversaries of the Closing Date shall result in imposition on the
Transferring U.S. Holder of the payment obligation set forth in
SECTION 4 of this Agreement:
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Anniversary Cumulative Permitted Individual Percentage
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Before 1st 30%
Before 2nd 60%
After 2nd 100%
(b) Each U.S. Holder acknowledges and agrees that, as soon
as practicable following the Effective Time, Parent shall prepare and
attach to this Agreement SCHEDULE 2(b) hereto, which shall set forth
the number of Parent Shares held by each U.S. Holder immediately
following the Effective Time. Parent shall promptly provide each U.S.
Holder with a copy of SCHEDULE 2(b) hereto.
4. PAYMENTS IN THE EVENT OF TRANSFER BY FINLAND HOLDERS.
(a) Each Finland Holder severally agrees that, from and
after the Effective Time, any Transfer by such Finland Holder of
Parent Shares in excess of the following cumulative percentages of the
aggregate number of Parent Shares held immediately after the Effective
Time by all Finland Holders as a group prior to the respective
corresponding anniversaries of the Closing Date shall result in
imposition on the Transferring Finland Holder of the payment
obligation set forth in SECTION 4 of this Agreement:
Anniversary Cumulative Permitted Group Percentage
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Before 1st 30%
Before 2nd 60%
After 2nd 100%
(b) Each Finland Holder acknowledges and agrees that, as
soon as practicable following the Effective Time, Parent shall prepare
and attach to this Agreement SCHEDULE 3(b) hereto, which shall set
forth the number of Parent Shares held by each Finland Holder
immediately following the Effective Time. Parent shall promptly
provide each Finland Holder with a copy of SCHEDULE 3(b) hereto.
3. PAYMENTS IN THE EVENT OF NONCOMPLYING TRANSFERS.
(a) In the event that any Holder effects a Transfer of
Parent Shares in excess of the respective percentages described in
SECTION 2(a) or SECTION 3(a) of this Agreement for the relevant
period, Parent shall send written notification thereof to such Holder.
Such Holder shall thereafter have a period of thirty (30) calendar
days (the "CURE PERIOD") in which to reacquire a sufficient number of
Parent Shares in order to cure such breach.
(b) Any Holder that fails, by the expiration of the Cure
Period, to reacquire a sufficient number of Parent Shares in order to
cure such breach shall, within three Business Days thereafter, pay to
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Parent, as agent for distribution to all other Holders, by wire
transfer of immediately available funds, an amount equal to the
greater of (x) 25% of the gross proceeds received by such Holder with
respect to the Transfer of that number of Parent Shares that exceeded
the applicable cumulative percentage, or (y) one and one-half Euros
per Parent Share that exceeded the applicable cumulative percentage.
Upon receipt of such payments, Parent shall promptly distribute the
amount thereof to the other Holders pro rata in proportion to their
respective holdings of Parent Shares at the time of the Transfer
giving rise to the payment obligation.
5. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations
of each Holder set forth in this Agreement shall be construed as
independent of any other agreement or arrangement between a Holder, on
the one hand, and the Company or Parent, on the other; PROVIDED,
HOWEVER, from and to the extent (but only to the extent) any Finland
Holder is released by Parent from the resale limits of SECTION 3 of
this Agreement, each U.S. Holder will automatically be released from
the resale limits of SECTION 2 hereof, and from and to the extent (but
only to the extent) any U.S. Holder is released by Parent from the
resale limits of SECTION 2 of this Agreement, each Finland Holder will
be automatically released by Parent from the resale limits of SECTION
3 hereof, FURTHER PROVIDED, HOWEVER, that this automatic release shall
not apply to any individual waiver or waivers of notice granted in
good faith under SECTION 2(C) OR SECTION 3(c). The existence of any
claim or cause of action by a Holder against the Company or Parent
shall not constitute a defense to the enforcement of any of such
covenants or obligations against such Holder. Anything to the contrary
herein notwithstanding, (x) Parent may, at any time in its sole
discretion, release all (but not less than all) Holders from the
provisions of this Agreement, and (y) any U.S. Holder shall be fully
released from the provisions of this Agreement immediately upon any
termination of his employment with the Company for any reason other
than his termination by the Board of Directors of the Company (or at
its direction) "With Cause" or by the U.S. Holder voluntarily and not
"With Good Reason" (as such terms are defined in the U.S. Holder's
Employment Agreement).
6. SPECIFIC PERFORMANCE. Each Holder agrees that in the event
of any breach or threatened breach by such Holder of any covenant,
obligation or other provision contained in this Agreement, Parent
shall be entitled (in addition to any other remedy that may be
available to Parent) to (a) a decree or order of specific performance
or mandamus to enforce the observance and performance of such
covenant, obligation or other provision and (b) an injunction
restraining such breach or threatened breach.
7. TERMINATION IN THE EVENT OF A CHANGE IN CONTROL.
(a) In the event of a Change in Control of Parent, this
Agreement shall automatically terminate and cease to be of any force
or effect.
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(b) For purposes of this Section, a "Change in Control of
Parent" shall be deemed to have occurred if:
(1) the Board of Directors or the shareholders of Parent
shall approve (i) any consolidation or merger involving Parent
pursuant to which the holders of Parent Shares immediately prior
to such merger or consolidation do not have more than sixty
percent (60%) of the combined voting power of the capital stock
of Parent or such surviving or parent entity immediately after
the consolidation or merger, or (ii) any sale, lease, exchange or
other transfer of all or substantially all of the assets of
Parent (determined on a consolidated basis) in one transaction or
a series of related transactions, other than a transfer to a
wholly-owned subsidiary of Parent;
(2) the Board of Directors or shareholders of Parent shall
adopt any plan or proposal for the liquidation or dissolution of
Parent;
(3) any "person" or "group" of persons (as such terms are
determined pursuant to Sections 13(d)(3) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")
and the rules and regulations promulgated thereunder), (other
than the Finland Holders and their controlled Affiliates), either
alone or in conjunction with their Affiliates, becomes the
beneficial owner, directly or indirectly, of voting securities of
Parent representing, or securities convertible into, or
exchangeable for, securities representing, more than twenty-five
percent (25%) of the combined voting power of Parent's then
outstanding Capital Stock; or
(4) any "person" or "group" of persons, as such terms are
determined pursuant to Sections 13(d)(3) and 14(d)(2) of the
Exchange Act and the rules and regulations promulgated
thereunder, (other than the Finland Holders and their controlled
Affiliates), either alone or in conjunction with their
Affiliates, acquires the right or power to nominate and/or
control, directly or indirectly, whether through the ownership of
Capital Stock of Parent, by contract or otherwise, a majority of
the members of Parent's Board of Directors.
(5) Parent shall issue, during the term hereof, in a single
transaction or a series of transactions, more than 20,000,000 new
Parent Shares in the aggregate; PROVIDED, HOWEVER, that new
Parent Shares issued (i) in the Merger, and (ii) in satisfaction
of options or other rights to purchase Parent Shares granted
pursuant to the terms of any current or future Parent stock
option or other benefit plan, shall not be included in the
computation of such aggregate limit.
(c) For purposes of this Section: "AFFILIATES" shall mean
affiliates as defined in Rule 405 promulgated under the Exchange
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Act, "CAPITAL STOCK" shall mean shares of capital stock issued by
Parent, or equivalent interests in any other successor Person,
the holders of which are ordinarily, in the absence of
contingencies, entitled to vote generally for the election of
directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency. "EXCHANGE ACT" shall mean the
Securities Exchange Act of 1934, as amended.
8. INDEMNIFICATION. Without in any way limiting any of the
rights or remedies otherwise available to Parent, each Holder shall
hold harmless and indemnify the Parent from and against, and shall
compensate and reimburse the Parent for, any loss, damage, injury,
decline in value, lost opportunity, liability, exposure, claim,
demand, settlement, judgment, award, fine, penalty, tax fee, charge,
cost or expense of any nature (whether or not relating to a third
party claim) which is directly or indirectly suffered or incurred at
any time by the Parent, or to which the Parent otherwise become
subject, and that arises from any inaccuracy in or breach of any
representation or warranty of such Holder contained in this Agreement.
9. OTHER AGREEMENTS. Nothing in this Agreement shall limit any
of the rights or remedies of Parent under the Merger Agreement or this
Agreement.
10. NOTICES. Any notice or other communication required or
permitted to be delivered to a Holder or Parent under this Agreement
shall be in writing and shall be deemed properly delivered, given and
received when delivered (by hand, by registered mail, by courier or
express delivery service or by facsimile) to the address or facsimile
telephone number set forth beneath the name of such party below (or to
such other address or facsimile telephone number as such party shall
have specified in a written notice given to the other party hereto):
if to Parent to: Eimo Oyj
Norokatu 5
FIN-15101 Lahti
FINLAND
Attention: Elmar Paananen
Facsimile: 011-358-3-850-5405
with a copy, in each case, to:
Smith, Gambrell & Russell, LLP
1230 Peachtree Street, NW
Suite 3100, Promenade II
Atlanta, Georgia 30309-3592
Attention: John D. Saunders
Facsimile: (404) 685-6982
if to a Holder, at the address and via the facsimile
telephone number for such Holder set forth on Schedule 10 hereto.
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11. SEVERABILITY. If any provision of this Agreement or any
part of any such provision is held under any circumstances to be
invalid or unenforceable in any jurisdiction, then (a) such provision
or part thereof shall, with respect to such circumstances and in such
jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the
invalidity or unenforceability of such provisions or part thereof
under such circumstances and in such jurisdiction shall not affect the
validity or enforceability of such provision or part thereof under any
other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall
not affect the validity or enforceability of the remainder of such
provision or the validity or enforceability of any other provision of
this Agreement. Each provision of this Agreement is separable from
every other provision of this Agreement, and each part of each
provision of this Agreement is separable from every other part of such
provision.
12. GOVERNING LAW. This Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the
State of Delaware (without giving effect to principles of conflicts of
laws).
13. WAIVER. No failure on the part of any party hereto to
exercise any power, right, privilege or remedy under this Agreement,
and no delay on the part of any party hereto in exercising any power,
right, privilege or remedy under this Agreement, shall operate as a
waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, rights, privilege or remedy shall
preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. No party hereto shall be deemed to have
waived any claim arising out of this Agreement, or any power, right,
privilege or remedy under this Agreement, unless the waiver of such
claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of such party
; any such waiver shall not be applicable or have any effect other
than in the specific instance in which it is given.
14. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of
this Agreement, and shall not be referred to in connection with the
construction or interpretation of this Agreement.
15. FURTHER ASSURANCES. Each Holder shall execute and/or cause
to be delivered to Parent such instruments and other documents and
shall take such other actions as Parent may reasonably request to
effectuate the intent and purposes of this Agreement.
16. ENTIRE AGREEMENT. This Agreement and the Merger Agreement
set forth the entire understanding of Parent and each Holder relating
to the subject matter hereof and thereof and supersede all other prior
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agreements and understandings between Parent and each Holder relating
to the subject matter hereof and thereof.
17. AMENDMENTS. This Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument
duly executed and delivered on behalf of Parent and all Holders.
18. ASSIGNMENT. This Agreement and all obligations of each
Holder hereunder are personal to such Holder and may not be
transferred or delegated by such Holder at any time. Parent may
assign its rights under this Agreement only with the consent of all of
the Holders in the event of a merger or other business combination
transaction and then only to its successor.
19. BINDING NATURE. Subject to SECTION 19, this Agreement will
inure to the benefit of Parent and its successors and assigns and will
be binding upon each Holder and his representatives, executors,
administrators, estate, heirs, successors and assigns.
20. ATTORNEYS' FEES AND EXPENSES. If any legal action or other
legal proceeding relating to the enforcement of any provision of this
Agreement is brought against a Holder, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and
disbursements (in addition to any other relief to which the prevailing
party may be entitled).
21. SURVIVAL. Each of the representations, warranties,
covenants and obligations contained in this Agreement shall survive
the consummation of the Merger.
22. CONSTRUCTION. Each of the parties has agreed to the use of
the particular language of the provisions of this Agreement and all
attached exhibits, and any questions of doubtful interpretation shall
not be resolved solely by any rule or interpretation against the
draftsman, but rather in accordance with the fair meaning thereof.
23. EXPENSES. Each Holder shall bear its own expenses incurred
with respect to this Agreement and the transactions contemplated
hereby.
24. COUNTERPARTS. This Agreement may be executed simultaneously
in two (2) or more counterparts, each of which shall be deemed an
original and all of which together shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
EIMO OYJ:
By: /s/ Elmar Paananen
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Name: Elmar Paananen
Title: Executive Vice Chairman
U.S. HOLDERS:
/s/ A. Christian Schauer
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A. Christian Schauer
/s/ Victor V. Valentine, Jr.
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Victor V. Valentine, Jr.
/s/ Daniel B. Canavan
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Daniel B. Canavan
FINLAND HOLDERS:
/s/ Jalo Paananen
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Jalo Paananen
/s/ Elmar Paananen
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Elmar Paananen
/s/ Annamari Jukko
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Annamari Jukko
/s/ Topi Paananen
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Topi Paananen
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