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EXHIBIT 99.2
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of September 16, 1997 (the
"Agreement"), between MALCOLM GLAZER ("Glazer"), MALCOLM I. GLAZER FAMILY
LIMITED PARTNERSHIP (the "Partnership" and collectively with Glazer, the
"Glazers") and SPECIALTY EQUIPMENT COMPANIES, INC. a Delaware corporation
("Company").
WITNESSETH
WHEREAS, the Board of Directors (the "Board") of the Company has
determined that it is in the best interests of the Company and its stockholders
to commence a stock repurchase plan pursuant to which the Company repurchases
shares of the Company's Common Stock, par value $.01 per share ("Common
Stock"), having an aggregate fair market value (as determined based upon the
prevailing market price on the Nasdaq National Market for a share of Common
Stock at the time of repurchase) of $10,000,000 for $10,000,000 (the
"Repurchase Plan");
WHEREAS, the Glazers own beneficially and of record 40.83% (the "Applicable
Percentage") of the outstanding shares of Common Stock, such amount having been
calculated in accordance with Rule 13d-3 pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and
WHEREAS, Glazer and his sons, Avram and Kevin Glazer, serve on the Board of
Directors of the Company;
WHEREAS, the Company desires to make certain of the repurchases pursuant to
the Repurchase Plan through open market purchases in compliance with Rule
10b-18 under the Exchange Act; and
WHEREAS, the Company and the Glazers agree that the Glazers' participation in
any open market purchases by the Company could have unintended adverse effects
on the Company, the Repurchase Plan and the Glazers; and
WHEREAS, the Glazers desire to sell shares of Common Stock in the Repurchase
Plan in an amount which would equal the Applicable Percentage of the aggregate
number of shares of Common Stock to be repurchased by the Company pursuant to
the Repurchase Plan (the "Aggregate Shares") and the Company desires to
repurchase from the Glazers such number of shares and that the purchase price
for the shares to be sold by the Glazers to the Company shall be the average
price paid by the Company for shares purchased by the Company from shareholders
other than the Glazers pursuant to the Repurchase Plan.
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AGREEMENT
NOW THEREFORE, in connection of the foregoing recitals and the mutual
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
Glazers and the Company agree as follows:
1. Sale and Purchase of Shares.
Subject to the terms and conditions of this Agreement, the Glazers shall
sell to Company and Company shall purchase from Glazers, the Applicable
Percentage of the Aggregate Shares pursuant to and in accordance with the terms
hereof. In no event may the Aggregate Shares in any event exceed a number of
shares equal to $10,000,000 divided by the average purchase price paid per
share of Common Stock paid by the Company pursuant hereto and in connection
with other purchases pursuant to the Repurchase Plan. The obligations of the
Glazers hereunder are joint and several in all respects.
2. Closings.
(a) Time and Dates. The transfer of the shares of Common Stock hereunder
and payments therefore will be made at weekly closings (the "Closings") to be
held at 10 A.M. Chicago time on Tuesday of each week commencing on September
22, 1997, at the offices of Lazard Freres, or at such other time or location as
Glazer and Company shall mutually agree. The time and date of such payment and
delivery are referred to in this Agreement as the "Closing Dates". Each such
Closing shall relate to the Applicable Number of shares of Common Stock, as
determined in accordance with Section 2(b) hereof, with the purchase price for
such shares being equal to the Applicable Aggregate Price as determined in
accordance with Section 2(b) hereof.
(b) Notices. On or before 1 p.m. Chicago time on the Monday immediately
preceding each Closing, the Company shall deliver to the Glazers a notice
specifying: (i) the number of shares purchased by the Company pursuant to the
Repurchase Plan and not made pursuant to this Agreement in the immediately
preceding calendar week ("Purchased Shares"), (ii) the average price per share
paid for such shares by the Company (the "Average Price"), (iii) Applicable
Number of shares of Common Stock and (iv) the Applicable Aggregate Price for
such shares. The "Applicable Number" shall be equal to the Applicable
Percentage of a fraction (i) the numerator of which is equal to the number of
Purchased Shares during the applicable calendar week and (ii) the denominator
of which is equal to 0.5917. The Applicable Aggregate Price shall equal the
product of the Applicable Number for such calendar week times the Average Price
for such calendar week.
(c) Payment of Purchase Price. The purchase price shall be paid to the
Glazers at each Closing with immediately available funds, by a wire transfer
(to an account specified in writing to the Company by the Glazer's not less
than forty-eight hours prior to any Closing)
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or by a check (naming Glazer, or such other person as specified in writing to
the Company by the Glazers not less than forty-eight hours prior to any
Closing, as the payee) representing good funds. At each Closing, the Glazers
shall deliver to Company stock certificates representing the shares sold
pursuant to the terms of this Agreement duly endorsed for transfer or
accompanied by any necessary or applicable stock powers executed in blank.
(d) Closing Certificate. At each Closing, the Glazers shall deliver a
certificate specifying that one or both of them are the sole and exclusive
record and beneficial owners of the shares of Common Stock to be sold (the
"Glazer Shares"), that the seller of the Glazer Shares has good and marketable
title to such shares, and the absolute right, power and capacity to sell,
assign, transfer and deliver such shares to the Company free and clear of, and
the Glazer Shares are free and clear of, any liens, encumbrances, pledges,
security interests, restrictive agreements, transfer restrictions (other than
pursuant to applicable federal and state securities laws), voting trust
arrangements or claims of any nature whatsoever.
3. Glazers Representations. The Glazers hereby jointly and severally
represent and warrant to Company as follows:
(a) Authority. Glazer has full capacity, right, power and authority,
without the consent of any other person, to execute and deliver this Agreement
and to carry out the transactions contemplated hereby. The Partnership has
taken all requisite partnership action and has the authority to execute and
deliver this Agreement and to carry out the transactions contemplated hereby.
(b) Ownership of Shares by Glazer. The Glazers are the record and
beneficial owner of 7,925,532.14 shares of Common Stock including shares that
can be acquired through the exercise of a warrant to purchase shares of Common
Stock (the "Warrant"), they (individually or collectively) have good and
marketable title to all shares to be sold pursuant to this Agreement ("Such
Shares"), and the absolute right, power and capacity to sell, assign, transfer
and deliver all Such Shares to the Company free and clear of, and Such Shares
are free and clear of, any liens, encumbrances, pledges, security interests,
restrictive agreements, transfer restrictions (other than pursuant to
applicable federal and state securities laws), voting trust arrangements or
claims of any nature whatsoever.
(c) Validity. This Agreement has been duly executed and delivered by the
Glazers and is the lawful, valid and legally binding obligation of the Glazers,
enforceable in accordance with its terms, except to the extent limited by
bankruptcy, solvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general equitable principles.
(d) No Conflicts. Neither the execution and delivery of this Agreement nor
the Glazers' performance of their obligations hereunder will conflict with, or
result in a breach or violation of, any provision of the Partnership's
Partnership Agreement, any contract,
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agreement or order to which the Glazers (or either of them) is a party or by
which the Glazers (or either of them) may be bound or any law applicable to the
Glazers (or either of them).
(e) Terms of the Repurchase Plan. The Glazers acknowledge that on signing
this Agreement the Company intends to notify the Nasdaq National Market; issue
a press release announcing the intended number or value of shares it intends to
purchase and describing to the extent it believes is necessary, appropriate or
desirable the details contained in this Agreement with Glazer; and that the
open market purchases are subject to and will be administered in accordance
with Rule 10b-18 under the Exchange Act. The Glazers have reviewed with
counsel Rule 10b-18 and are fully familiar with its terms and the impact which
it may have upon the Company's pursuit of the Repurchase Plan. The Glazers
further acknowledge the Company has no obligation under this Agreement to make
any open market purchases of its stock under the Repurchase Plan.
4. Company Representation The Company hereby represents and warrants to
the Glazers as follows:
(a) Authority. The Company has taken all requisite corporate action and has
the authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby.
(b) Validity. This Agreement has been duly executed and delivered by the
Company and is the lawful, valid and legally binding obligation of Company,
enforceable in accordance with its terms, except to the extent limited by
bankruptcy, solvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general equitable principles.
(c) No Conflicts. Neither the execution and delivery of this Agreement nor
the Company's performance of its obligations hereunder will conflict with, or
result in a breach or violation of, any provision of the Company's Certificate
of Incorporation or By-laws, any contract, agreement or order to which the
Company is a party or by which the Company may be bound or any law applicable
to the Company.
5. Glazer Covenants. The Glazers, jointly and severally, hereby covenant
and agree as follows:
(a) Limitations on Other Sales by the Glazers.
The Glazers each covenant and agree that from the date hereof until the End
Date (as defined below), neither the Glazers, nor any other member of the
Glazer Group (as defined below) shall, directly or indirectly, sell, offer,
contract to sell, make any short sale, pledge or otherwise dispose of any
shares of Common Stock or any securities convertible into or exchangeable for,
Common Stock or any options, warrants or rights to purchase or acquire
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Common Stock (collectively a "Sale Transaction") other then pursuant to this
Agreement without first providing the Company with (i) ten (10) days' prior
written notice, (ii) a certificate (the "Certificate") in which the Glazers and
any other member of the Glazer Group which is a party to the proposed Sale
Transaction represent and warrant to the Company that (A) such Sale Transaction
(1) is in compliance with all applicable federal or state securities laws,
including without limitation Rule 10b-18 under the Exchange Act and (2) will
not result in the Company's continued consummation of the Repurchase Plan (on
terms described to the Glazers by the Company contemporaneous with the
provision of such representation) being in violation of Regulation M or Rule
10b-18 under the Exchange Act and (B) that such representations and warranties
have been made after consultation with counsel reasonably believed by the
Glazers to be expert in federal securities law and (iii) an indemnification
agreement, in form and substance acceptable to the Glazers, the Company and
their respective counsels, pursuant to which the Glazers indemnify the Company
against any losses which the Company may suffer as a result of the falsity or
incorrectness of any representation or warranty made by the Glazers in the
Certificate.
For the purposes of this Agreement the term "End Date" shall mean the
earliest of the following: (i) the date on which the Company has repurchased
shares pursuant to the Repurchase Plan (whether pursuant hereto or otherwise)
for aggregate consideration of $10,000,000, (ii) the date on which the
Repurchase Date is terminated by the Company's Board (or any committee of the
Board with valid authority) by resolution validly adopted (provided that if the
Board passes a resolution terminating the Repurchase Plan at a later date, the
date of such termination (and not the date the resolution is passed) shall be
the applicable date) and (iii) the 46th Nasdaq National Market trading day
after the Company makes its first purchase pursuant to the Repurchase Plan.
The Company will provide the Glazers with prompt notice of the occurrence of
the End Date.
For the purposes of this Agreement the term "Glazer Group" shall mean the
Glazers and any corporations, persons, partnerships, trusts or other entities
in which the Glazers or their affiliates (as defined under Rule 12b-2 under the
Exchange Act) own 50% or more of the equity securities that are entitled to
vote in the election of directors or persons holding similar positions.
(b) Schedule 13D Amendment. Promptly following signing this Agreement
Glazer shall file with the Securities and Exchange Commission an amended
Schedule 13D to reflect the terms hereof.
6. Governing Law; Jurisdiction and Venue. This Agreement shall be governed
by the laws of the State of Delaware applicable in the case of contracts made
and to be performed in that state, without giving effect to any conflict of law
principles thereunder. The Glazers and the Company irrevocably agree that any
legal action or proceeding again him or it, as the case may be, with respect to
this Agreement and any transactions contemplated hereby shall be brought in the
courts of the State of Delaware, or of the United State of America for the
District of Delaware, and by execution and delivery of this
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Agreement, the Glazers and the Company irrevocably submit to the jurisdiction
of such courts.
7. Miscellaneous.
(a) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors and
assigns, provided, however, that neither this Agreement, nor any right
hereunder, may be assigned by any party without the consent of the other party
hereto.
(b) Entire Agreement; Amendment. This Agreement, including the recitals
hereto, and the other instruments referred to herein embody the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersede all prior agreements with respect thereto. This Agreement may be
amended, and any provision hereof waived, but only in a writing signed by the
party against whom such amendment or waiver is sought to be enforced.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one and the same
instrument.
(d) Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or enforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement, or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
(e) Captions. The captions herein are inserted for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
(f) Termination. The obligations of the parties hereunder shall terminate
on the End Date; provided however, that (i) the termination shall in no way
effect the validity of any purchase and sale of Common Stock pursuant hereto
prior to such termination and (ii) (1) all representations and warranties made
hereunder and in any certificate delivered in connection herewith and (2) all
indemnity rights and obligations provided in connection with Section 5(a)
hereof shall survive such termination.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first above written.
COMPANY:
SPECIALTY EQUIPMENT COMPANIES, INC.
By: /s/ Donald K. McKay
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Its Executive Vice President
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GLAZERS: /s/ Malcolm Glazer
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Malcolm Glazer
MALCOLM I. GLAZER FAMILY
LIMITED PARTNERSHIP
By: /s/ Malcolm Glazer
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Its Trustee
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