Exhibit (c)(1)
STOCK PURCHASE AGREEMENT
Henkel of America, Inc., a corporation organized under
the laws of the State of New York ("Buyer"), and each of the
selling stockholders listed on Schedule A hereto (each a
"Seller"), in consideration of, and subject to, the terms,
conditions, representations, warranties and covenants herein
contained, hereby agree as of the 23rd day of May, 1985 as
follows:
Section 1. Sale and Purchase. Each Seller agrees to
sell to Buyer, and Buyer agrees to purchase from each Seller, the
number of shares of common stock, no par value, of Loctite
Corporation, a corporation organized under the laws of the State
of Connecticut (the "Company"), set forth opposite the name of
such Seller on Schedule A hereto (collectively the "Shares"). The
purchase price for the Shares shall be $35 per Share in cash.
Section 2. Closing. On a date three business days
following satisfaction of the conditions set forth in Sections
5(b) and 6(b) hereof, or such later date as may be satisfactory
to the parties, (a) Sellers shall cause to be delivered to Buyer
certificates representing the Shares, registered in the name of
Buyer or its nominee, together with (i) evidence satisfactory to
Buyer as to the payment of any necessary stock transfer taxes,
and (ii) an opinion of Day, Xxxxx & Xxxxxx, counsel for the
Company, to the effect that the shares evidenced by such
certificates have been validly issued and are fully paid and
non-assessable, and (b) Buyer shall cause to be deposited into an
account designated on three days' notice by the Sellers New York
Clearing House Funds in the amount of the purchase price set
forth in Section 1 hereof.
Section 3. Representations and Warranties of Buyer.
Buyer represents and warrants to and for the benefit of Sellers
as follows:
(a) Buyer has all requisite corporate power to enter
into this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof.
(b) Neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated hereby in accordance with the terms hereof (i)
results or will result in a material breach of, or
constitutes or will constitute a material default under,
any agreement or other undertaking to which Buyer is a
party or by which Buyer may be bound, or (ii) results or
will result in a material violation of any order, writ,
injunction, decree or award of any court or governmental
authority to which Buyer may be subject, or (iii) results or
will result in a material violation of any Federal or state
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law, statute, ordinance, rule or regulation applicable to
Buyer.
Section 4. Representations and Warranties of Sellers.
Each of the Sellers represents and warrants to and for the
benefit of Buyer as follows:
(a) The authorized capital stock of the Company
consists of 12,000,000 shares of common stock, no par
value, of which 9,021,021 shares are issued and outstanding
and no shares are held in treasury.
(b) Such Seller owns the Shares indicated on Schedule
A hereto, free and clear of any liens, charges, claims or
encumbrances, and has all requisite authority to enter into
this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof.
The Shares have been validly issued, and are fully paid and
non-assessable.
(c) Neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated hereby in accordance with the terms hereof (i)
results or will result in a material breach of, or
constitutes or will constitute a material default under, any
agreement or other undertaking to which such Seller is a
party or by which such Seller may be bound, or (ii) results
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or will result in a material violation of any order, writ,
injunction, decree or award of any court or governmental
authority to which such Seller may be subject, or (iii)
results or will result in a material violation of any
Federal or state law, statute, ordinance, rule or
regulation applicable to such Seller.
(d) To the best of such Seller's knowledge, each of
the balance sheets (including any related notes and
schedules) included in the Company's Annual Report on Form
10-K for the fiscal year ended June 30, 1984 and Quarterly
Reports on Form 10-Q for the fiscal quarters ended
September 30, 1984, December 31, 1984 and March 31, 1985
(collectively, the "Company Reports") fairly presents the
consolidated financial position of the Company as of its
date, and the other financial statements (including any
related notes and schedules) included in the Company
Reports fairly present the consolidated results of
operations or other information included therein of the
Company for the periods or as of the dates therein set
forth, subject, where appropriate, to normal year-end
adjustments, in each case in accordance with generally
accepted accounting principles consistently applied
during the periods involved. To the best of such Seller's
knowledge, none of the Company Reports (i) contained,
as of its date, either any untrue statement of a material
fact or any projection, statement of intention or
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opinion that was without a reasonable basis or was not
made in good faith, or (ii) omitted, as of its date, any
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
To the best of such Seller's knowledge, since June 30,
1984, there has not been any material adverse change in the
financial condition, properties or businesses of the
Company and its subsidiaries taken as a whole.
Section 5. Conditions to Obligations of Buyer. The
obligation of Buyer to consummate the transactions contemplated
by this Agreement shall be subject to the fulfillment of the
following conditions:
(a) The representations and warranties contained in
Section 4 hereof shall be true and correct on and as of the
date of closing with the same effect as though made on and
as of the date of closing, and each Seller shall have
complied with all agreements and conditions contained
herein required to be complied with by such Seller on or
before the date of closing, and Buyer shall have received a
certificate, dated as of the date of the closing, signed by
Xxxxxx X. Xxxxxxx to such effect.
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(b) There shall have been filed all reports and
satisfied all requests for additional information pursuant
to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "H-S-R Act"), and the rules
thereunder, and the applicable waiting periods shall have
expired.
Section 6. Conditions to Obligations of Each Seller.
The obligation of each Seller to consummate the transactions
contemplated by this Agreement shall be subject to the
fulfillment of the following conditions:
(a) The representations and warranties contained in
Section 3 hereof shall be true and correct on and as of the
date of closing with the same effect as though made on and
as of the date of closing, and Buyer shall have complied
with all agreements and conditions contained herein
required to be complied with by Buyer on or before the date
of closing and Sellers shall have received a certificate,
dated the date of closing, signed by an authorized officer
of Buyer to such effect.
(b) There shall have been filed all reports and
satisfied all requests for additional information pursuant
to the H-S-R Act, and the rules thereunder, and the
applicable waiting periods shall have expired.
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Section 7. Further Assurances; Right of First Refusal.
(a) Buyer and each Seller agree to cooperate fully
with each other in connection with any steps to be taken to
consummate the transactions contemplated hereby in
accordance with the terms hereof. Without limiting the
generality of the foregoing, Buyer and each Seller agree to
use its best efforts to satisfy those conditions set forth
in Section 5 and 6 hereof that are to be satisfied by it.
(b) Each Seller hereby grants to Buyer a right of
first refusal with respect to all shares of common stock,
no par value, of the Company (other than Shares) now owned
by such Seller, on the following terms and conditions:
(i) Any Seller proposing to sell or otherwise
dispose of any such shares prior to May 23, 1998 shall
deliver written notice ("Seller's Notice") of the
proposed disposition (including the identity of the
transferee, evidence reasonably satisfactory to Henkel
that the proposed transaction is being conducted on an
arms' length basis, all of the material terms thereof
and the Seller's address for purpose of Xxxxxx'x
Notice, as hereinafter defined) to Henkel, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (with copy to Xxxx
Xxxxxxxxx, Esq., Cleary, Gottlieb, Xxxxx & Xxxxxxxx, 0
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx).
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(ii) For a period of 30 days after receipt of
Seller's Notice, Henkel shall have the option,
exercisable by written notice ("Xxxxxx'x Notice")
delivered to such Seller, to purchase from such Seller
any or all of the shares proposed to be disposed of by
such Seller, for a cash consideration per share equal
to the fair market value of the consideration
reflected in Seller's Notice. Any such purchase shall
be consummated within 30 days of delivery of Xxxxxx'x
Notice.
(iii) If Henkel fails to exercise such option (or
shall exercise such option as to less than all such
shares), such Seller shall be permitted until the
sixtieth day following receipt by Henkel of Seller's
Notice, to dispose of any such shares as to which
Henkel did not exercise its option, but only on the
terms and to the transferee reflected in Seller's
Notice. Any such shares not so disposed of shall again
be subjected to the provisions of this Section.
(iv) Each Seller agrees to cause the certificates
representing shares subject to the right of first
refusal stamped at the closing with a legend
satisfactory to Henkel reflecting the existence of
this right of first refusal.
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(v) Transfers on death of a Seller and transfers
among Sellers shall not constitute dispositions within
the meaning of this Section 7(b) provided that each
transferee deliver written acknowledgment to Henkel
that such transferee is bound by the terms and
provisions of this Section 7(b) with, respect to all
shares so transferred.
Section 8. Miscellaneous. This Agreement constitutes
the entire agreement between the parties with respect to the
purchase by Buyer and the sale by Sellers of the Shares, and
supersedes all previous written, oral or implied understandings
between them with respect to such matters. This Agreement may not
be modified or amended except by an instrument in writing signed
by the party against whom enforcement of any such modification or
amendment is sought. All agreements, covenants, representations
and warranties contained herein, or in any certificate or other
document delivered pursuant hereto, shall survive the execution
and delivery of this Agreement, the sale and delivery to Buyer of
the Shares and any investigation at any time made by Buyer or on
Buyer's behalf. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York. This
Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one and the same instrument. This Agreement
shall terminate in all respects if the closing has
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not occurred on or before May 23, 1986, provided that each party
shall retain any rights arising out of a breach prior to such
termination.
IN WITNESS WHEREOF, the undersigned parties hereto
have duly executed this Agreement as of the date first above
written.
HENKEL OF AMERICA, INC.
/s/ Xxxxxx Xxxxxx
-----------------------------------
By Xxxxxx Xxxxxx, Chairman
SELLERS LISTED ON SCHEDULE A HERETO
[other than Xxxxxx X.X. Xxxxxx]
/s/ Xxxxxxx X. XxXxxx
-----------------------------------
By Xxxxxxx X. XxXxxx
Attorney-in-Fact
XXXXXX X.X. XXXXXX
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
By Xxxxxx X. Xxxxxxxx
Attorney-in-Fact
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SCHEDULE A
Individuals Number of Shares
Xxxxxx X. Xxxxxxx 431,843
Xxxxx X. Xxxxxxx 297,101
Xxxxx X. Xxxxxxx 36,800
Xxxxxx X.X. Xxxxxx 428,105
Xxxxxxxxx X. Xxxxxxx 53,992
Xxxxxxxx X. Xxxxxxx 4,624
J. Xxxxx Xxxxxxx 5,492
Xxxxx X. Xxxxxxx 32,937
Custodial
Xxxxxxxxx X. Xxxxxxx, Custodian
for Xxxxxx Xxxxxxx Xxxxxxx 2,003
Xxxxxxxxx X. Xxxxxxx, Custodian
for Xxxxxx Xxxx Xxxxxxx 827
Xxxxx X. Xxxxxxx, Custodian
for Xxxxxxxxxxx Xxxxx Xxxxxxx 4,148
Xxxxx X. Xxxxxxx, Custodian
for Xxxxxxxxx Xxxxx Xxxxxxx 3,894
Xxxxx X. Xxxxxxx, Custodian
for Xxxxxx Xxxxxx Fusscas 3,894
Trusts
Xxxxxx X. Xxxxxxx Trust under
Agreement dated 7/14/56 334,584
Xxxxxx X. Xxxxxxx Trust under
Agreement dated 7/14/56 117,274
Xxxxxx X. Xxxxxxx Trust under Will 130,236
Xxxx X. Xxxxxx Trust under
Agreement dated 9/28/64 53,184
Xxxxx X. Xxxxxxx Trust under
Agreement dated 1/14/71 for benefit
of Xxxxxxxxx X. Xxxxxxx 11,538
Xxxxx X. Xxxxxxx Trust under
Agreement dated 1/14/71 for benefit
of Xxxxx X. Xxxxxxx 12,452
Xxxxxx X. Xxxxxxx Trust under
Agreement dated 1/9/74 for benefit
of Xxxxxxxxxxx Xxxxx Xxxxxxx 1,179
SCHEDULE A - page 2
Trusts (continued) Number of Shares
Xxxxxx X. Xxxxxxx Trust under
Agreement dated 1/9/74 for benefit
of Xxxxxx Xxxxxx Fusscas 1,179
Xxxxxx X. Xxxxxxx Trust under
Agreement dated 1/9/74 for benefit
of Xxxxxxxxx Xxxxx Xxxxxxx 1,179
Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx Trusts under Agreement
dated 5/14/79 for benefit of
Fusscas grandchildren 5,083
Xxxxx X. Xxxxxxx Trust under
Agreement dated 8/10/79 for
benefit of great-grandchildren
(Xxxxxxxxxxx Xxxxx Xxxxxxx,
Xxxxxx Xxxxxx Fusscas and
Xxxxxxxxx Xxxxx Xxxxxxx) 3,297
Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx Trust under Agreement
dated 8/8/84 for benefit of
Xxxxxx Xxxx Xxxxxxx 3,739
Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx Trust under Agreement
dated 8/8/84 for benefit of
Xxxxxx Xxxxxxx Xxxxxxx 2,754
Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx Trust under Agreement
dated 11/6/84 for benefit of
Xxxxxxxxx Xxxxx Xxxxxxx 354
Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx Trust under Agreement
dated 11/6/84 for benefit of
Xxxxxx Xxxxxx Fusscas 354
Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx Trust under Agreement
dated 11/6/84 for benefit of
Xxxxxxxxxxx Xxxxx Xxxxxxx 354
SCHEDULE A - page 3
Corporations Number of Shares
Management I, Limited 36,016
Management II, Limited 115,444
Foundation
The Xxxxxx X. Xxxxxxx Foundation
Incorporated 122,390
---------
Total shares 2,258,250
Exhibit 3
AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment is made as of the 11th day of October,
1985, among Xxxxxx Corporation, as assignee of Xxxxxx of America,
Inc., and each of the selling stockholders listed on Schedule A
to the Stock Purchase Agreement dated as of May 23, 1985 (the
"Agreement")
Whereas, the parties continue to believe that the sale
and purchase contemplated by the Agreement will be completed;
Whereas, the parties to the Agreement have heretofore
complied with the Agreement;
Now, therefore, in consideration of the foregoing and
the mutual promises contained herein, the parties hereto agree as
follows:
1. The last sentence of Section 1 of the Agreement is
hereby amended to read as follows: "The purchase price for the
Shares shall be $35 per Share plus (i) an amount equal to 1/365
of 5% thereof for each day occurring after September 17, 1985,
but before the day of the closing contemplated in Section 2
hereof and (ii) an amount equal to the last dividend paid per
Share prior to the day of the closing times a fraction, the
numerator of which is the number of days after the day such last
dividend was payable through the day of the closing and the
denominator of which is the number of days after such last
dividend was payable through the day of payment of the dividend
next payable after the day of the closing. The portion of the
purchase price for the Shares described in clause (i) of the
preceding sentence hereof shall be paid in installments on the
18th day of each month prior to the day of the closing and on the
day of the closing by depositing into an account designated by
Sellers New York Clearing House Funds in the amount of such
installments."
2. Section 2 of the Agreement is hereby amended by
adding the following at the end of it: "If the closing
contemplated in this Section 2 has not occurred on or before
December 18, 1985 because of the existence of an injunction
against the sale and purchase contemplated in Section 1 hereof,
then on December 18, 1985 (i) Sellers shall deposit into an
account designated by Buyers New York Clearing House Funds equal
to one quarter of the installments of the purchase price
theretofore paid to Seller on October 18, 1985 and November 18,
1985 pursuant to Section 1 of this Agreement as amended, with the
result that Sellers shall have retained an aggregate amount equal
to 1/365 of 2.5% times the number of Shares for each day
occurring after September 17, 1985 but before December 18, 1985;
and (ii) Buyer and a representative or representatives of Sellers
shall meet at a mutually convenient location in the United States
to discuss appropriate further steps to be taken in light of such
injunction."
3. All representations, warranties and the other
covenants and agreements of the parties hereto in the Agreement
are hereby confirmed to the same extent as if made on the date
hereof.
HENKEL CORPORATION
By
--------------------------------
Its
SELLERS LISTED ON SCHEDULE A TO
AGREEMENT [other than Xxxxxx X.
X. Xxxxxx]
By
--------------------------------
XXXXXX X. X. XXXXXX
By
--------------------------------
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