AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of
this 15th day of July, 2002, by and among E-Z-EM, Inc., a Delaware
corporation (the "Company"), the members of the Xxxxx Family set forth on
Exhibit A hereto (the "Xxxxx Family Members"), and the members and
affiliated entities of the Xxxxxx Family listed on Exhibit B hereto (the
"Xxxxxx Family Member").
WHEREAS, each Xxxxx Family Member owns the number of shares of
(i) Class A common stock, par value $0.10 per share (the "Class A Common
Stock"), of the Company and (ii) Class B common Stock, par value $0.10 per
share (the "Class B Common Stock") of the Company set forth opposite such
person's name on Exhibit A hereto (collectively, the "Xxxxx Shares"); and
WHEREAS, each Xxxxxx Family Member owns the number of shares of
(i) Class A Common Stock and (ii) Class B Common Stock set forth opposite
such individual's or entity's name on Exhibit B hereto (collectively, the
"Xxxxxx Shares" and together with the Xxxxx Shares, the "Subject Shares");
and
WHEREAS, the Board of Directors of the Company has approved a
proposal to reclassify the Class A Common Stock and the Class B Common
Stock into a single class of new common stock of the Company with each
share having one vote and without being subject to any supermajority
voting provisions (the "Proposal"); and
WHEREAS, the Xxxxx Family Members and Xxxxxx Family Members have
agreed to support the Proposal and take certain other actions described
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged and intending to be
legally bound, the Company, the Xxxxx Family Members and the Xxxxxx Family
Members agree to the following provisions:
1. Each of the Xxxxx Family Members and the Xxxxxx Family
Members agree to vote all of the Subject Shares that they beneficially own
in favor of the Proposal and against any other proposal that is
inconsistent with or contrary to the terms and conditions of the Proposal
at any stockholders meeting of the Company or in connection with any
consent solicitation relating to the Company.
2. From the date hereof until the earlier of the
consummation of the transactions contemplated by the Proposal or December
31, 2002, each of the Xxxxx Family Members and the Xxxxxx Family Members
agrees not to sell, dispose or otherwise transfer any of the Subject
Shares that they beneficially own on the date hereof, except for sales,
dispositions or other transfers by (a) the Xxxxx Family Members of up to
an aggregate of 50,000 shares of Class B Common Stock, and (b) the Xxxxxx
Family Members of up to an aggregate of 50,000 shares of Class B Common
Stock.
3. Each of the Xxxxx Family Members and the Xxxxxx Family
Members agree to provide irrevocable proxies in the form attached as
Exhibit C hereto to Messrs. Xxxxx X. Xxxx, Xxxx X. Xxxxxxxxx, and Xxxxxx
X. Xxxxx, and each of them, to vote the Subject Shares in the manner
provided in paragraph 1 above. Such proxies shall be delivered within five
days of the date hereof.
4. Xxxxxx Xxxxx hereby irrevocably withdraws the
shareholder proposal (the "Xxxxx Proposal") submitted to the Company on
May 28, 2002, for inclusion in the Company's proxy statement for its 2002
Annual Meeting of Stockholders (the "2002 Meeting"). Each of the Xxxxx
Family Members agrees not to submit any shareholder proposal to the
Company similar to the Xxxxx Proposal prior to July 15, 2004, and agrees
to vote all of the Subject Shares that they beneficially own against any
such shareholder proposal during such two-year period.
5. Xxxxx Xxxxxx hereby irrevocably withdraws the
shareholder proposal (the "Xxxxxx Proposal") submitted to the Company on
May 24, 2002, and resubmitted on June 18, 2002, for inclusion in the
Company's proxy statement for the 2002 Meeting. Each Xxxxxx Family Member
agrees not to submit any shareholder proposal similar to the Xxxxxx
Proposal to the Company prior to July 15, 2004, and agrees to vote all of
the Subject Shares that they beneficially own against any such shareholder
proposal during such two-year period.
6. The Xxxxx Family Members and the Xxxxxx Family Members
each agree to negotiate in good faith in an effort to enter into a
stockholders' agreement based upon a draft previously provided to each
stockholder by the law firm of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP. The
Xxxxx Family Members and the Xxxxxx Family Members agree to have an
initial meeting prior to October 1, 2002, and to continue such discussions
between October 16, 2002, and December 1, 2002.
7. Each party hereto agrees to take all further actions
necessary or appropriate to fully effectuate the transactions contemplated
hereby, including making all filings necessary under the Securities
Exchange Act of 1934, as amended.
8. The Company hereby approves the execution of this
Agreement, including, if applicable, for purposes of Section 203 of the
Delaware General Corporation Law.
9. No amendment of this Agreement will be effective unless
provided in writing signed by each of the parties hereto. It being
understood that any amendment of this Agreement by the Company must be
authorized and approved by the Special Committee of the Board of
Directors.
10. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF DELAWARE AND EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR
NEW CASTLE COUNTY FOR THE RESOLUTION OF ALL DISPUTES ARISING HEREUNDER
OTHER THAN THOSE ARISING UNDER PARAGRAPH 6 HEREOF.
11. This Agreement may be executed in one or more
counterparts, each of which may be executed separately, but all of which
together shall constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, or caused this Agreement to be executed by their duly
authorized representatives, as of the date first above written.
E-Z-EM, INC.
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President & Chief
Executive Officer
/s/ XXXXXX X. XXXXX
------------------------
Xxxxxx X. Xxxxx
/s/ XXXX X. XXXXX
------------------------
Xxxx X. Xxxxx
/s/ XXXXXX XXXXX XXXXXX
------------------------
Xxxxxx Xxxxx Xxxxxx
/s/ XXXXX X. XXXXXX
------------------------
Xxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXX
------------------------
Xxxxx X. Xxxxxx
/s/ XXXXXX X. XXXXXX
------------------------
Xxxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXX
------------------------
Xxxxx X. Xxxxxx
XXXXXX FAMILY LIMITED PARTNERSHIP
By: Xxxxxx Management Trust
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
/s/ XXXXXX X. XXXXX---------------------------------------------Xxxxxx X.
Xxxxx
/s/ XXXX X. XXXXX---------------------------------------------Xxxx X.
Xxxxx
/s/ XXXXXX XXXXX XXXXXX---------------------------------------------
Xxxxxx Xxxxx Xxxxxx
/s/ XXXXX X. XXXXXX---------------------------------------------Xxxxx X.
Xxxxxx
/s/ XXXXX X. XXXXXX---------------------------------------------Xxxxx X.
Xxxxxx
/s/ XXXXXX X. XXXXXX---------------------------------------------Xxxxxx X.
Xxxxxx
/s/ XXXXX X. XXXXXX---------------------------------------------Xxxxx X.
Xxxxxx
XXXXXX FAMILY LIMITED PARTNERSHIPBy: Xxxxxx Management Trust
By: /s/ XXXXXX X. XXXXXX -----------------------------------------
Name: Xxxxxx X. Xxxxxx Title: Co-Trustee
EXHIBIT A---------
XXXXX FAMILY MEMBERS --------------------
Class A Class B ------- ------- Xxxxxx X. Xxxxx 956,412 1,070,457 Xxxx X.
Xxxxx 159,887 188,044 Xxxxxx Xxxxx Xxxxxx 159,887 263,440
EXHIBIT B---------
XXXXXX FAMILY MEMBERS ---------------------
Class A Class B
Xxxxx X. Xxxxxx 156,750 216,548 Xxxxx X.
Xxxxxx 156,750 115,033 Xxxxxx X. Xxxxxx
156,750 177,346 Xxxxx X. Xxxxxx 200,000* 0
Xxxxxx Family Limited Partnership 620,806**
1,063,744
* Includes 108,000 shares in which Xxx. Xxxxxx holds a life estate
and Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx each hold a life
estate in 36,000 of such shares.
** The Xxxxxx Family Limited Partnership is jointly owned by Xxxxx
X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxx,
The Xxxx and Xxxxxx Xxxxxx Children's Trust and The Xxxxx Xxxxxx
Children's Trust.
EXHIBIT C
[OMITTED]
