Exhibit (1)
STOCKHOLDER'S AGREEMENT
THIS STOCKHOLDER'S AGREEMENT is made and entered into as of this 20th
day of December 1999, among BRIDGEPORT HOLDINGS INC., a Delaware corporation
("PARENT"), BRIDGEPORT ACQUISITION CORPORATION, a Delaware corporation and a
wholly owned subsidiary of Parent ("PURCHASER"), and Xxxxx Xxxxxxx (the
"STOCKHOLDER").
WHEREAS the Stockholder desires that Micro Warehouse, Inc., a Delaware
corporation (the "COMPANY"), Parent and Purchaser enter into an Agreement and
Plan of Merger dated as of the date hereof (as the same may be amended or
supplemented, the "MERGER AGREEMENT") with respect to the merger of Purchaser
with and into the Company (the "MERGER"); and
WHEREAS the Stockholder is executing this Agreement as an inducement to
Parent to enter into and execute, and to cause Purchaser to enter into and
execute, the Merger Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Parent and Purchaser of the Merger Agreement and the mutual covenants,
conditions and agreements contained herein and therein, the parties agree as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Stockholder represents
and warrants to Parent and Purchaser as follows:
(a) The Stockholder is the record and beneficial owner of the
number of shares of Common Stock of the Company (the "COMPANY COMMON STOCK") set
forth opposite the Stockholder's name in SCHEDULE A hereto (as may be adjusted
from time to time pursuant to Section 5, the Stockholder's "SHARES"). Except for
the Stockholder's Shares and any other shares of Company Common Stock subject
hereto, the Stockholder is not the record or beneficial owner of any shares of
Company Common Stock.
(b) This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes the legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally. Neither the execution and delivery
of this Agreement nor the consummation by the Stockholder of the transactions
contemplated hereby will result in a violation of, or a default under, or
conflict with, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which the Stockholder is a party or
bound or to which the Stockholder's Shares are subject. To the best of the
Stockholder's knowledge, consummation by the Stockholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, decree, statute, law, rule
or regulation applicable to the Stockholder or the Stockholder's Shares.
(c) The Stockholder's Shares and the certificates representing
such Shares are now and at all times during the term hereof will be held by the
Stockholder, or by a nominee or custodian for the benefit of the Stockholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
(d) No broker, investment banker, financial adviser or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission from Parent, Purchaser or the Company in connection
with the transactions contemplated hereby based upon arrangements made by or on
behalf of the Stockholder in his individual capacity.
(e) The Stockholder understands and acknowledges that Parent
is entering into, and causing Purchaser to enter into, the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this Agreement.
SECTION 2. AGREEMENT TO TENDER OR SELL. The Stockholder hereby agrees
that he shall tender all of his Shares into the Offer (as defined in the Merger
Agreement) and that he shall not withdraw any Shares so tendered.
SECTION 3. COVENANTS. The Stockholder agrees with, and covenants to,
Parent and Purchaser as follows:
(a) The Stockholder shall not, except as contemplated by the
terms of this Agreement, (i) transfer (the term "TRANSFER" shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the
Stockholder's Shares or any interest therein, (ii) enter into any contract,
option or other agreement or understanding with respect to any transfer of any
or all of such Shares or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization or consent in or with respect to such
Shares except with respect to election of directors at the Company's annual
meeting, (iv) deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares or (v) subject to Section
8, take any other action that would in any way restrict, limit or interfere with
the performance of his obligations hereunder or the transactions contemplated
hereby.
(b) Subject to Section 8, the Stockholder shall not, nor shall
he permit any investment banker, attorney or other adviser or representative of
the Stockholder to, directly or indirectly, (i) solicit, initiate or encourage
the submission of, any Acquisition Proposal or (ii) participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Acquisition Proposal. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in the preceding sentence by an
investment banker, attorney or other adviser or representative of the
Stockholder shall be deemed to be a violation of this Section 3(b) by the
Stockholder.
SECTION 4. COMPETING TRANSACTIONS. Subject to Section 8, the
Stockholder hereby agrees to vote against or refrain from giving any consent in
favor of (i) any merger agreement or merger (other than the Merger Agreement and
the Merger), consolidation, combination, sale of substantial assets,
reorganization, joint venture, recapitalization, dissolution, liquidation or
winding up of or by the Company and (ii) any amendment of the Company's
Certificate of Incorporation or By-laws or other proposal or transaction
(including any consent solicitation to remove or elect any directors of the
Company) involving the Company or any of its subsidiaries which amendment or
other proposal or transaction would in any manner impede, frustrate, prevent or
nullify, or result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under or with respect to, the
Offer, the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement (each of the foregoing in clause (i) or
(ii) above, a "COMPETING Transaction").
SECTION 5. CERTAIN EVENTS. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Stockholder's Shares and shall
be binding upon any person or entity to which legal or beneficial ownership of
such Shares shall pass, whether by operation of law or otherwise, including
without limitation the Stockholder's heirs, guardians, administrators or
successors. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of the
Company affecting the Company Common Stock, or the acquisition of additional
shares of Company Common Stock or other securities or rights of the Company by
any Stockholder, the number of Shares listed on Schedule A beside the name of
the Stockholder shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of Company Common
Stock or other securities or rights of the Company issued to or acquired by the
Stockholder.
SECTION 6. STOP TRANSFER. [Intentionally Omitted].
SECTION 7. VOIDABILITY. If prior to the execution hereof, the Board of
Directors of the Company shall not have duly and validly authorized and approved
by all necessary corporate action the acquisition of Company Common Stock by
Parent and Purchaser and the other transactions contemplated by this Agreement
and the Merger Agreement, so that by the execution and delivery hereof Parent or
Purchaser would become, or could reasonably be expected to become, an
"Interested Stockholder" with whom the Company would be prevented for any period
pursuant to Section 203 of the Corporation Law from engaging in any "Affiliated
transaction" (as such terms are defined in Section 203 of the Corporation Law),
then this Agreement shall be void and unenforceable until such time as such
authorization and approval shall have been duly and validly obtained.
SECTION 8. STOCKHOLDER CAPACITY. The Stockholder does not make any
agreement or understanding in his capacity as director or officer of the
Company. The Stockholder signs solely in his capacity as the record holder and
beneficial owner of the Stockholder's Shares and nothing herein shall limit or
affect or be affected by any actions taken by the Stockholder in his
capacity as an officer or director of the Company to the extent specifically
permitted by the Merger Agreement.
SECTION 9. FURTHER ASSURANCES. The Stockholder shall, upon request of
Parent or Purchaser execute and deliver any additional documents and take such
further actions as may reasonably be deemed by Parent or Purchaser to be
necessary or desirable to carry out the provisions hereof.
SECTION 10. TERMINATION. This Agreement, and all rights and obligations
of the parties hereunder, shall terminate upon the earlier of (a) the date upon
which the Merger Agreement is terminated in accordance with its terms or (b) the
date that Parent, Purchaser or the Company shall have purchased and paid for the
Shares of the Stockholder pursuant to Section 2; PROVIDED, HOWEVER, that the
termination of this Agreement shall not relieve any party of liability for
breach of this Agreement prior to termination.
SECTION 11. PUBLIC ANNOUNCEMENTS. The Stockholder will consult with
Parent before issuing, and provide Parent with the opportunity to review and
comment upon, any press release or other public statements with respect to the
transactions contemplated by this Agreement and the Merger Agreement, and shall
not issue any such press release or make any such public statement prior to such
consultation, except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange.
SECTION 12. MISCELLANEOUS.
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms in the
Merger Agreement.
(b) All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice): (i) if to Parent or
Purchaser, to the address set forth in Section 8.03 of the Merger Agreement; and
(ii) if to the Stockholder, to the address set forth on Schedule A hereto, or
such other address as may be specified in writing by the Stockholder.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
Parent, Purchaser and the Stockholder and delivered to Parent, Purchaser and the
Stockholder.
(e) This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except by laws of descent. Any assignment in
violation of the foregoing shall be void.
(h) If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any event, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in any way be affected, impaired or invalidated, and shall be
enforced to the fullest extent permitted by law.
(i) The Stockholder agrees that irreparable damage would occur
and that Parent and Purchaser would not have any adequate remedy at law 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 Parent and Purchaser shall be entitled to an injunction
or injunctions to prevent breaches by the Stockholder of this Agreement and to
enforce specifically the terms and provisions of this Agreement. Each of the
parties hereto (i) consents to submit to the personal jurisdiction of the courts
specified in Section 8.13 of the Merger Agreement, and (ii) agrees that such
party will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court. The prevailing party in any
judicial action shall be entitled to receive from the other party reimbursement
for the prevailing party's reasonable attorneys' fees and disbursements, and
court costs.
(j) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in writing and
signed by such party.
IN WITNESS WHEREOF, Parent, Purchaser and the Stockholder have caused
this Agreement to be duly executed and delivered as of the date first written
above.
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Stockholder
BRIDGEPORT HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
BRIDGEPORT ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
SCHEDULE A
Xxxxx Xxxxxxx 2,800,962
