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EXHIBIT 2
Form of Shareholder Tender Agreement between Purchaser and each
Tender Shareholder of the Company
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SHAREHOLDER TENDER AGREEMENT
BY AND BETWEEN
D-GT ACQUISITION, INCORPORATED
AND
DATED AS OF OCTOBER 20, 1995
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SHAREHOLDER TENDER AGREEMENT
SHAREHOLDER TENDER AGREEMENT, dated as of October 20, 1995 (this
"Agreement"), by and between D-GT ACQUISITION, INCORPORATED, a New York
corporation ("Purchaser"), and ________________________________________________
("Shareholder").
WHEREAS, the Shareholder is the owner of __ shares (the "Shares") of Common
Stock, $.05 par value per share (the "Common Stock"), of Xxxxxxx Technology
Incorporated, a New York corporation (the "Company"); and
WHEREAS, Diebold, Incorporated, an Ohio corporation ("Parent"), the
Purchaser and the Company, have entered into an Agreement and Plan of Merger,
dated as of the date hereof (as amended from time to time, the "Merger
Agreement"), which provides, among other things, that, upon the terms and
subject to the conditions therein, Purchaser will make a cash tender offer (the
"Offer") for all of the outstanding shares of Common Stock and will merge with
the Company (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent and Purchaser to enter
into the Merger Agreement, Purchaser has requested that the Shareholder agree,
and in order to induce Parent and Purchaser to enter into the Merger Agreement,
the Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
1. Representations and Warranties of the Shareholder. The Shareholder
represents and warrants to the Purchaser as follows:
(a) The Shareholder is the sole lawful, record and beneficial owner
of, and has good, valid and marketable title to, all the Shares, and there
exist no liens, claims, security interests, options, proxies, voting
agreements, charges or encumbrances of whatever nature ("Liens") affecting
the Shares.
(b) Upon transfer to the Purchaser by the Shareholder of the Shares
upon consummation of the Offer or the Merger (whichever is earlier),
Purchaser will have good, valid and marketable title to the Shares, free
and clear of all Liens.
(c) The Shares constitute all of the securities (as defined in Section
3(10) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which definition will apply for all purposes of this Agreement) of
the Company beneficially owned (as defined in Rule 13d-3 under the Exchange
Act, which meaning will apply for all purposes of this Agreement), directly
or indirectly, by the Shareholder (excluding any securities beneficially
owned by any of its affiliates or associates (as such terms are defined in
Rule 12b-2 under the Exchange Act, which definition will apply for all
purposes of this Agreement) as to which it does not have voting or
investment power).
(d) Except for the Shares, the Shareholder does not, directly or
indirectly, beneficially own or have any option, warrant or other right to
acquire any securities of the Company that are or may by their terms become
entitled to vote or any securities that are convertible or exchangeable
into or exercisable for any securities of the Company that are or may by
their terms become entitled to vote, nor is the Shareholder subject to any
contract, commitment, arrangement, understanding or relationship (whether
or not legally enforceable) that allows or obligates it to vote or acquire
any securities of the Company.
(e) The execution and delivery of this Agreement by the Shareholder
does not, and the performance by the Shareholder of its obligations
hereunder will not, constitute a violation of, conflict with, result in a
default (or an event which, with notice or lapse of time or both, would
result in a default) under, or result in the creation of any Lien on any
Shares under, (i) any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which Shareholder is a party or
by which the Shareholder is bound or (ii) any judgment, writ, decree, order
or ruling applicable to the Shareholder.
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(f) Neither the execution and delivery of this Agreement not the
performance by the Shareholder of its obligations hereunder will violate
any order, writ, injunction, judgment, law, decree, statute, rule or
regulation applicable to the Shareholder or require any consent,
authorization or approval of, filing with or notice to, any court,
administrative agency or other governmental body or authority, other than
any required notices or filings pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder (the "HSR Act") or the federal securities laws.
2. Representations and Warranties of Purchaser. Purchaser represents and
warrants to the Shareholder as follows:
(a) Purchaser is duly organized and validly existing and in good
standing under the laws of the State of New York, has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly and validly
executed and delivered by Purchaser and constitutes a legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, except that (i) the enforceability hereof may be
subject to applicable bankruptcy, insolvency or other similar laws, now or
hereinafter in effect, affecting creditors' rights generally, and (ii) the
availability of the remedy of specific performance or injunctive or other
forms of equitable relief may be subject to equitable defenses and would be
subject to the discretion of the court before which any proceeding therefor
may be brought.
(b) The execution and delivery of this Agreement by Purchaser does
not, and the performance by Purchaser of its obligations hereunder will
not, constitute a violation of, conflict with, or result in a default (or
an event which, with notice or lapse of time or both, would result in a
default) under, its certificate of incorporation or bylaws or any contract,
commitment, agreement, understanding, arrangement or restriction of any
kind to which Purchaser is a party or by which Purchaser is bound or any
judgment, writ, decree, order or ruling applicable to Purchaser.
(c) Neither the execution and delivery of this Agreement nor the
performance by Purchaser of its obligations hereunder will violate any
order, writ, injunction, judgment, law, decree, statute, rule or regulation
applicable to Purchaser or require any consent, authorization or approval
of, filing with, or notice to, any court, administrative agency or other
governmental body or authority, other than any required notices or filings
pursuant to the HSR Act or the federal securities laws.
3. Tender of Shares. The Shareholder will tender and sell (and not
withdraw) pursuant to and in accordance with the terms of the Offer all of the
Shares. Upon the purchase of all the Shares pursuant to the Offer in accordance
with this Section 3, this Agreement will terminate. In the event,
notwithstanding the provisions of the first sentence of this Section 3, any
Shares are for any reason withdrawn from the Offer or are not purchased pursuant
to the Offer, such Shares will remain subject to the terms of this Agreement.
The Shareholder acknowledges that Purchaser's obligation to accept for payment
and pay for the Shares in the Offer is subject to all the terms and conditions
of the Offer.
4. Transfer of the Shares. During the term of this Agreement, except as
otherwise provided herein, the Shareholder will not (a) offer to sell, sell,
pledge or otherwise dispose of or transfer any interest in or encumber with any
Lien any of the Shares, (b) acquire any shares of Common Stock or other
securities of the Company (otherwise than in connection with a transaction of
the type described in Section 7 and any such additional shares or securities
will be deemed Shares and included in the Shares subject to this Agreement), (c)
deposit the Shares into a voting trust, enter into a voting agreement or
arrangement with respect to the Shares or grant any proxy or power of attorney
with respect to the Shares, or (d) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect acquisition or
sale, assignment or other disposition of or transfer of any interest in or the
voting of any shares of Common Stock or any other securities of the Company.
5. Voting of Shares. The Shareholder, by this Agreement, does hereby
constitute and appoint Purchaser, or any nominee thereof, with full power of
substitution, during and for the term of this Agreement,
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as his true and lawful attorney and proxy for and in his, her or its name, place
and stead, to vote each of such Shares at any annual, special or adjourned
meeting of the stockholders of the Company (and this appointment will include
the right to sign its name (as stockholder) to any consent, certificate or other
document relating to the Company which the laws of the State of New York may
require or permit) (a) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the approval and adoption of the terms
thereof and hereof; (b) against any action or agreement that would result in a
breach in any respect of any covenant, agreement, representation or warranty of
the Company under the Merger Agreement; and (c) against the following actions
(other than the Merger and the and the other transactions contemplated by the
Merger Agreement): (i) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or its
subsidiaries; (ii) a sale, lease or transfer of a material amount of assets of
the Company or one of its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries; (iii) (A) any
change in a majority of the persons who constitute the board of directors of the
Company as of the date hereof; (B) any change in the present capitalization of
the Company or any amendment of the Company's Certificate of Incorporation or
By-Laws, as amended to date; (C) any other material change in the Company's
corporate structure or business; or (D) any other action which, in the case of
each of the matters referred to in clauses (iii)(A), (B), (C) and (D), is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or adversely affect the Merger and the other transactions contemplated
by this Agreement and the Merger Agreement. This proxy and power of attorney is
a proxy and power coupled with an interest, and the Shareholder declares that it
is irrevocable. The Shareholder hereby revokes all and any other proxies with
respect to the Shares that it may have heretofore made or granted.
6. Enforcement of the Agreement. The Shareholders acknowledge that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that Purchaser will be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which it is entitled at law or in equity, including without limitation
under Section 13 hereof.
7. Adjustments. The number and type of securities subject to this
Agreement will be appropriately adjusted in the event of any stock dividends,
stock splits, recapitalizations, combinations, exchanges of shares or the like
or any other action that would have the effect of changing the Shareholder's
ownership of the Company's capital stock or other securities.
8. Compliance with Merger Agreement. Shareholder shall comply with the
requirements of Section 6.13 of the Merger Agreement.
9. Termination. Except for Section 13 hereof which will only terminate as
and when provided therein, this Agreement will terminate on the date the Merger
Agreement is terminated in accordance with its terms.
10. Expenses. All fees and expenses incurred by either of the parties
hereto will be borne by the party incurring such fees and expenses.
11. Brokerage. Purchaser and the Shareholder represent and warrant to the
other that the negotiations relevant to this Agreement have been carried on by
Purchaser, on the one hand, and the Shareholder, on the other hand, directly
with the other, and that there are no claims for finder's fees or brokerage
commissions or other like payments in connection with this Agreement or the
transactions contemplated hereby. Purchaser, on the one hand, and the
Shareholder, on the other hand, will indemnify and hold harmless the other from
and against any and all claims or liabilities for finder's fees or brokerage
commissions or other like payments incurred by reason of action taken by it or
any of them, as the case may be.
12. Fee. If (a) Purchaser or the Company terminates the Merger Agreement
pursuant to Article IX thereof (other than Sections 9.01(d) (i) or 9.01(f)
thereof) and (b) on or after the date hereof and not later than two years from
the date of such termination, (i) the Board of Directors of the Company approves
or recommends any proposal or offer (an "Acquisition Proposal") concerning any
merger, sale or assets, sale of shares of capital stock or similar transaction
involving the Company other than from Purchaser, or (ii) the
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Company enters into an agreement with respect to a merger, acquisition,
consolidation, recapitalization, liquidation, dissolution or similar transaction
involving, or any purchase of all or a substantial portion of the assets or
equity securities of, the Company, or (iii) Shareholder disposes of any or all
of its Shares to any person not an affiliate or an associate of Purchaser or to
the Company or any affiliate thereof (or realizes cash proceeds in respect of
such Shares as a result of a distribution to the Shareholder by the Company
following the sale of a material amount of the Company's assets) in connection
with a transaction proposed, described or set forth in such Acquisition Proposal
or agreement or the Company issues an extraordinary dividend or other
distribution in accordance with such Acquisition Proposal or agreement (each, a
"Subsequent Transaction") at a per share price or with equivalent per share
proceeds, as the case may be (the "Subsequent Price"), with a value in excess of
$7.75 (the "Offer Price"), then the Shareholder will promptly pay to Purchaser
an amount equal to the product of (x) the excess of the Subsequent Price over
the Offer Price and (y) the number of Shares disposed of or otherwise
participating in the Subsequent Transaction. In the event of any stock
dividends, stock splits, recapitalizations, combinations, exchanges of shares or
the like or any other action that would have the effect of changing the
Shareholder's ownership of the Company's capital stock or other securities, the
Offer Price will be appropriately adjusted for the purpose of this Section 12.
13. Miscellaneous.
(a) All representations and warranties contained herein will survive the
termination hereof.
(b) Any provision of this Agreement may be waived at any time by the party
that is entitled to the benefits thereof. No such waiver, amendment or
supplement will be effective unless in a writing which makes express reference
to this Section 13(b) and is signed by the party or parties sought to be bound
thereby. Any waiver by any party of a breach of any provision of this Agreement
will not operate as or be construed to be a waiver of any other breach of such
provision or of any breach of any other provision of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement or one
or more sections hereof will not be considered a waiver or deprive that party of
the right thereafter to insist upon strict adherence to that term or any other
term of this Agreement.
(c) This Agreement contains the entire agreement among Purchaser and the
Shareholder with respect to the subject matter hereof, and supersedes all prior
agreements among Purchaser and the Shareholder with respect to such matters.
This Agreement may not be amended, changed, supplemented, waived or otherwise
modified, except upon the delivery of a written agreement executed by the
parties hereto.
(d) This Agreement will be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and performed in that
state.
(e) The descriptive headings contained herein are for convenience and
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
(f) All notices and other communications hereunder will be in writing and
will be given (and will be deemed to have been duly given upon receipt) by
delivery in person, by telecopy, or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
If to the Shareholder to:
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If to the Purchaser to:
If By Mail
Diebold, Incorporated
000 Xxxxxxxx Xx. X.X.
X.X. Xxx 0000
Xxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Executive Vice President and Chief Financial Officer
If By Personal Delivery:
Diebold, Incorporated
0000 Xxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Executive Vice President and Chief Financial Officer
with copies to:
If By Mail
Diebold, Incorporated
000 Xxxxxxxx Xx. X.X.
X.X. Xxx 0000
Xxxxxx, Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Vice President and General Counsel
and
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx
If by Personal Delivery:
Diebold, Incorporated
0000 Xxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Vice President and General Counsel
and
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(g) This Agreement may be executed in any number of counterparts, each of
which will be deemed to be an original, but all of which together will
constitute one agreement.
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(h) This Agreement is binding upon and is solely for the benefit of the
parties hereto and their respective successors, legal representatives and
assigns. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement will be assigned by any of the parties hereto without the
prior written consent of the other parties, except that Purchaser will have the
right to assign to Purchaser or any other direct or indirect wholly owned
subsidiary of Parent any and all rights and obligations of Purchaser under this
Agreement, including the right to purchase Shares tendered by the Shareholder
pursuant to the terms hereof and the Offer, provided that any such assignment
will not relieve Purchaser from any of its obligations hereunder.
(i) If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other terms
and provisions of this Agreement will nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party hereto.
Upon any such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto will negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated by this Agreement are consummated to the extent possible.
(j) The Shareholder hereby irrevocably and unconditionally (i) consents to
submit to the jurisdiction of the courts of the State of New York and of the
federal courts located in the City of New York for any disputes arising out of
or relating to this Agreement, (ii) waives any objection to the laying of venue
of any action, suit or proceeding arising out of this Agreement in any such
court, and (iii) waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(k) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity will be cumulative and
not alternative, and the exercise of any thereof by either party will not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the date first above written.
D-GT ACQUISITION, INCORPORATED
By:
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Name:
Title:
SHAREHOLDER
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