-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, UleJWIBruZMJpsfd9VFEAtcKVzRkryD+cWOI4ktn63S6GQ0BIeKIEc5OQVLG+bYe iCm+k3niBtjIWjh64nye4Q== 0000950009-95-000175.txt : 19950419 0000950009-95-000175.hdr.sgml : 19950419 ACCESSION NUMBER: 0000950009-95-000175 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19950418 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TECUMSEH PRODUCTS CO CENTRAL INDEX KEY: 0000096831 STANDARD INDUSTRIAL CLASSIFICATION: AIR COND & WARM AIR HEATING EQUIP & COMM & INDL REFRIG EQUIP [3585] IRS NUMBER: 381093240 STATE OF INCORPORATION: MI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-10317 FILM NUMBER: 95529445 BUSINESS ADDRESS: STREET 1: 100 E PATTERSON ST CITY: TECUMSEH STATE: MI ZIP: 49286 BUSINESS PHONE: 5174238411 MAIL ADDRESS: STREET 1: 100 EAST PATTERSON STREET CITY: TECUMSEH STATE: MI ZIP: 49286 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GELDER JOHN W CENTRAL INDEX KEY: 0000904524 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 150 W JEFFERSON STREET 2: SUITE 2500 CITY: DETROIT STATE: MI ZIP: 48226 BUSINESS PHONE: 3134967530 MAIL ADDRESS: STREET 1: 150 W JEFFERSON STREET 2: SUITE 2500 CITY: DETROIT STATE: MI ZIP: 48226 SC 13D/A 1 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). 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 ___________________________________________________________________________ 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 EX-2 2 EXCHANGE AGREEMENT TO SC 13D/A 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. 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 -----END PRIVACY-ENHANCED MESSAGE-----