EXHIBIT 10.5
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PARENT SHAREHOLDERS' AGREEMENT
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AGREEMENT, dated as of July 13, 2000, among Triple S Plastics,
Inc., a Michigan corporation (the "COMPANY"), and each of the
individuals set forth on the signature pages hereto (collectively,
the "PARENT SHAREHOLDERS").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, Eimo Oyj, a company organized under the laws
of the Republic of Finland ("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 (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 Parent Shareholders is the owner of shares
of capital stock of Parent, as more particularly described herein; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, the Company has required that the Parent
Shareholders agree, and the Parent 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) "PARENT SHARES" shall mean, collectively, the Parent
Ordinary Shares and the Series K Shares, each as defined in the Merger
Agreement.
(c) "EXISTING SHARES" shall mean the Parent Shares held by
Parent 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 Parent Shareholder shall, at
any meeting of the holders of Parent Shares, however called, or in
connection with any written consent of the holders of Parent Shares,
vote (or cause to be voted) all Parent Shares then held of record or
Beneficially Owned by such Parent Shareholder, (i) in favor of the
Merger, the execution and delivery by Parent 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 Parent 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 Parent under the
Merger Agreement.
(b) NO INCONSISTENT ARRANGEMENTS. Each Parent 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 Parent Shareholder's Parent Shares, options, warrants or other
rights to receive Parent 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 Parent Shares, options,
warrants or other rights to receive Parent Shares, or any interest
therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to such Parent Shares, (iv) deposit
such Parent Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Parent 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, the Parent Shareholders shall be permitted to
transfer or consent to any transfer of Parent Shares to the extent
that the gross proceeds with respect to any such transfers do not
exceed, in the aggregate with respect to all Parent Shareholders, the
sum of $4,000,000.
(d) GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
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(i) Each Parent Shareholder hereby irrevocably grants
to, and appoints, the Company and A. Christian Schauer and Daniel B.
Canavan, or either of them, in their respective capacities as officers
of the Company, and any individual who shall hereafter succeed to any
such office of the Company, and each of them individually, such Parent
Shareholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Parent
Shareholder, to vote such Parent Shareholder's Parent Shares, or grant
a consent or approval in respect of such Parent Shares in favor of the
Transactions and against any Parent Acquisition Proposal.
(ii) Each Parent Shareholder represents that there are
no existing options, warrants, calls, pre-emptive rights (except as
described in the Merger Agreement), irrevocable proxies, subscriptions
or other rights, agreements, arrangements or commitments of any
character, relating to such Parent Shareholder's Parent Shares, and
any proxies heretofore given in respect of such Parent Shareholder's
Parent Shares which are revocable are hereby revoked.
(iii) Each Parent Shareholder understands and
acknowledges that the Company is entering into the Merger Agreement in
reliance upon such Parent Shareholder's execution and delivery of this
Agreement. Each Parent 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 Parent Shareholder under this Agreement. Each Parent 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 Parent Shareholder hereby ratifies
and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof.
(e) NO SOLICITATION. Each Parent Shareholder hereby
agrees, in his capacity as a shareholder of Parent, that neither such
Parent Shareholder nor any of his affiliates shall (and such Parent
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 provide any information
to, any corporation, partnership, person or other entity or group
(other than the Company, any of its affiliates or representatives)
concerning any Parent Acquisition Proposal. Each Parent Shareholder
will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
Parent Acquisition Proposal. Each Parent Shareholder will immediately
communicate to the Company the terms of any proposal, discussion,
negotiation or inquiry (and will disclose any written materials
received by the Parent 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
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such transaction. Any action taken by Parent, any Parent Shareholder
in his capacity as a member of the Board of Directors of Parent, or by
any other member of the Board of Directors of Parent in accordance
with Section 5.9 of the Merger Agreement shall be deemed not to
violate this SECTION 2(e).
3. ADJUSTMENTS; ADDITIONAL PARENT SHARES. In the event (i) of
any stock dividend, stock split, recapitalization, reclassification,
combination or exchange of shares of capital stock of Parent on, of,
or affecting the Parent Shares, or (ii) any Parent Shareholder shall
become the Beneficial Owner of any additional Parent 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 Parent Shares held by such Parent Shareholder immediately
following the effectiveness of the events described in clause (i) of
this SECTION 3 or such Parent Shareholder becoming the Beneficial
Owner of such additional Parent Shares, as described in clause (ii) of
this SECTION 3, as though they were Existing Shares hereunder.
4. REPRESENTATIONS AND WARRANTIES OF THE PARENT SHAREHOLDERS.
Each Parent Shareholder hereby represents and warrants to the Company
as follows:
(a) OWNERSHIP OF PARENT SHARES. Such Parent 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 Parent Shares owned of record or Beneficially Owned by such
Parent Shareholder. Such Parent 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 Parent Shareholder has
full power and authority to enter into and perform all of such Parent
Shareholder's obligations under this Agreement. The execution,
delivery and performance of this Agreement by such Parent Shareholder
will not violate any other agreement to which such Parent Shareholder
is a party including, without limitation, any voting agreement, proxy
arrangement, pledge agreement, shareholders agreement or voting trust.
This Agreement has been duly and validly executed and delivered by
such Parent Shareholder and constitutes the valid and binding
agreement of such Parent Shareholder, enforceable against such Parent
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 Parent Shareholder is a trustee whose consent is required
for the execution and delivery of this Agreement or the consummation
by such Parent Shareholder of the transactions contemplated hereby.
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(c) NO CONFLICTS. No filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is
necessary for the execution of this Agreement by such Parent
Shareholder and the consummation by such Parent Shareholder of the
transactions contemplated hereby and none of the execution and
delivery of this Agreement by such Parent Shareholder, the
consummation by such Parent Shareholder of the transactions
contemplated hereby or compliance by such Parent Shareholder with any
of the provisions hereof shall (A) if such Parent Shareholder is other
than a natural person, conflict with or result in any breach of any
organizational documents applicable to such Parent 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 Parent Shareholder is a party
or by which such Parent 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 Parent
Shareholder or any of its properties or assets.
(d) NO LIENS. Except as permitted by this Agreement, the
Existing Shares are now, and at all times during the term hereof will
be, held by such Parent Shareholder, or by a nominee or custodian for
the benefit of such Parent 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 Parent Shareholder.
5. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, including, without
limitation, if this Agreement or any of the provisions hereof are
found to be violative of, or inapplicable under, any Finnish or other
applicable law, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
6. STOP TRANSFER. The Parent Shareholders shall not request
that Parent register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Parent
Shares, unless such transfer is made in compliance with this
Agreement.
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7. TERMINATION. The covenants, agreements, representations and
proxy contained herein with respect to the Parent 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 Parent Shares and shall be binding upon
any person or entity to which legal or beneficial ownership of the
Parent Shares shall pass, whether by operation of law or otherwise,
including, without limitation, a Parent Shareholder's administrators
or successors. Notwithstanding any transfer of Parent 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 the
Company, provided that the Company may assign, in its sole discretion,
its rights and obligations hereunder to any direct or indirect wholly
owned subsidiary of the Company, but no such assignment shall relieve
the Company 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 Parent Shareholder, to such Parent Shareholder's
address set forth on SCHEDULE I hereto.
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
If to the Company:
Triple S Plastics, Inc.
14320 Portage Road
Vicksburg, MI 49097-0905
Attention: A. Christian Schauer
Telephone No.: 616-383-0770
Telecopy No.: 616-649-3427
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
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
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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]
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IN WITNESS WHEREOF, the Company and the Parent Shareholders have
caused this Agreement to be duly executed as of the day and year first
above written.
TRIPLE S PLASTICS, INC.
By: /s/ A. Christian Schauer
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Name: A. Christian Schauer
Title: Chief Executive Officer
PARENT SHAREHOLDERS:
/s/ Jalo Pannanen
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Jalo Pannanen
/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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