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EXHIBIT 4.2
FORM OF TENDER AGREEMENT
THIS TENDER AGREEMENT (this "Agreement") dated as of July 17, 2000 is
entered into by and among Xxxx X. Xxxxxxx Company, a Georgia corporation
("Parent"), JH Acquisition Corp., an Oregon corporation and wholly owned
subsidiary of Parent ("Buyer"), and [ NAME OF SECURITYHOLDER ], in his capacity
as a stockholder of the Company and a resident of the State of Oregon
("Securityholder"), with respect to certain equity securities owned by
Securityholder of Concentrex Incorporated, an Oregon corporation (the
"Company").
W I T N E S S E T H:
WHEREAS, Parent, Buyer and the Company have entered into an Agreement and
Plan of Merger (the "Merger Agreement") dated as of the date hereof pursuant to
which Buyer has agreed to make a cash tender offer described therein and
thereafter merge with and into the Company (the "Merger") in accordance with the
provisions of the Oregon Business Corporation Act;
WHEREAS, as of the date hereof, Securityholder beneficially owns and has
the power to vote certain shares of the common stock, no par value, of the
Company (the "Company Common Stock"); and
WHEREAS, in consideration of Buyer's and Parent's agreements herein and
in the Merger Agreement, Securityholder has agreed to cooperate with Buyer and
Parent with respect to the acquisition of the Company by Parent and Buyer upon
the terms and subject to the conditions set forth in the Merger Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Certain Covenants.
1.1 Lock-Up. Securityholder hereby covenants and agrees during
the term of this Agreement that (a) except as consented to in writing by Parent
in its sole discretion, Securityholder will not, directly or indirectly, sell,
transfer, assign, pledge, hypothecate or otherwise dispose of or limit its right
to vote in any manner any of the Securities (as hereinafter defined), or agree
to do any of the foregoing, and (b) Securityholder will not take any action
which would have the effect of preventing or disabling Securityholder from
performing its obligations under this Agreement.
1.2 No Solicitation. During the term of this Agreement, neither
Securityholder nor any person acting as an agent of Securityholder or otherwise
on Securityholder's behalf shall, directly or indirectly, solicit, encourage or
initiate negotiations with, or provide any information to (except as permitted
under the Merger Agreement), any corporation, partnership, person or other
entity or group (other than Parent or an affiliate or an associate of Parent)
concerning any sale, transfer, pledge or other disposition or conversion of the
Securities. Securityholder will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing. Securityholder will notify
Buyer immediately if any party contacts Securityholder following the date hereof
(other than Buyer or an affiliate or associate of Buyer) concerning any sale,
transfer, pledge or other disposition or conversion of the Securities.
1.3 Voting Agreement.
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(a) Securityholder has revoked or terminated any
proxies, voting agreements or similar arrangements previously
given or entered into with respect to the Securities and hereby
irrevocably appoints Buyer, expressly limited to the term of this
Agreement, as proxy for Securityholder to vote (or refrain from
voting) in any manner as Buyer, in its sole discretion, may see
fit, all of the Securities of Securityholder for Securityholder
and in Securityholder's name, place and stead, at any annual,
special or other meeting or action of the securityholders of the
Company, as applicable, or at any adjournment thereof or pursuant
to any consent of securityholders of the Company, in lieu of a
meeting or otherwise, with respect and limited to the following
matters: (i) the adoption and approval of the Merger Agreement,
(ii) any extraordinary corporate transaction (other than the
Merger), such as a merger, consolidation, business combination,
tender or exchange offer, reorganization, recapitalization,
liquidation or other change of control involving the Company or
any of its subsidiaries, including, but not limited to, any
Acquisition Proposal (as defined in the Merger Agreement), and
(iii) any sale or transfer of a material amount of the assets or
securities of the Company or any of its subsidiaries (other than
pursuant to the Merger). The parties acknowledge and agree that
neither Buyer, nor Buyer's successors, assigns, subsidiaries,
divisions, employees, officers, directors, shareholders, agents
and affiliates shall owe any duty to, whether in law or otherwise,
or incur any liability of any kind whatsoever, including without
limitation, with respect to any and all claims, losses, demands,
causes of action, costs, expenses (including reasonable attorney's
fees) and compensation of any kind or nature whatsoever to
Securityholder in connection with, as a result of or otherwise
relating to any vote (or refrain from voting) by Buyer of the
Securities subject to the irrevocable proxy hereby granted to
Buyer at any annual, special or other meeting or action or the
execution of any consent of the securityholders of the Company.
(b) Notwithstanding the foregoing grant to Buyer of the
irrevocable proxy, in the event Buyer elects not to exercise its
rights to vote the Securities pursuant to the irrevocable proxy,
Securityholder agrees to vote all of the Securities during the
term of this Agreement (i) if the issue on which Securityholder is
requested to vote is a proposal to approve the Merger,
Securityholder agrees to vote in favor of or give its consent to,
as applicable, such transaction or (ii) otherwise in the manner
directed by Buyer at any annual, special or other meeting or
action of securityholders of the Company, in lieu of a meeting or
otherwise with respect to any issue brought before the
securityholders of the Company.
1.4 Tender of Securities. Securityholder agrees to tender, and
not withdraw, the Securities owned by Securityholder to Buyer in the Initial
Offer (as defined in the Merger Agreement), and in any event no later than 10
business days following the commencement of the Initial Offer.
1.5 Public Announcement. Securityholder shall consult with
Parent before issuing any press releases or otherwise making any public
statements with respect to the transactions contemplated herein and shall not
issue any such press release or make any such public statement without the
approval of Buyer, except as may be required by law.
1.6 Stop Transfer Instruction. Promptly following the date
hereof, Securityholder and Buyer shall deliver joint written instructions to the
Company and to the Company's transfer agent stating that the Securities may not
be sold, transferred, pledged, assigned, hypothecated or otherwise disposed of
in any manner without the prior written consent of Buyer or except in accordance
with the terms and conditions of this Agreement.
2. Representation and Warranties.
2.1 Representations and Warranties of Buyer and Parent. Buyer
and Parent, hereby jointly and severally, represent and warrant to
Securityholder, as of
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the date hereof and as of the date Buyer purchases shares of Company Common
Stock pursuant to the Initial Offer, as follows:
(a) Authorization. Each of Buyer and Parent is a
corporation duly organized, validly existing and in good standing
under the laws of its state of incorporation. Each of Buyer and
Parent has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby. Each of Buyer and Parent has duly authorized,
executed and delivered this Agreement and this Agreement is a
legal, valid and binding agreement of Buyer, enforceable against
Buyer in accordance with its terms.
2.2 Representations and Warranties of Securityholder.
Securityholder hereby represents and warrants to Buyer and Parent, as of the
date hereof and as of the date Buyer purchases shares of Company Common Stock
pursuant to the Initial Offer, as follows:
(a) Ownership. Securityholder is the record
(individually or in joint ownership with his spouse) and
beneficial owner of, and has good and marketable title to, 307,884
shares of Company Common Stock (collectively, the "Securities"),
in each case free and clear of all liabilities, claims, liens,
options, proxies, charges, participations and encumbrances of any
kind or character whatsoever.
(b) Authorization. Securityholder has all requisite
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and has sole
voting power and sole power of disposition, with respect to all of
the Securities owned by Securityholder with no restrictions on its
voting rights or rights of disposition pertaining thereto.
Securityholder has duly authorized, executed and delivered this
Agreement and this Agreement is a legal, valid and binding
agreement of Securityholder, enforceable against Securityholder in
accordance with its terms.
(c) No Violation. Neither the execution and delivery of
this Agreement nor the consummation of the transactions
contemplated hereby will (a) require Securityholder to file or
register with, or obtain any material permit, authorization,
consent or approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal,
foreign or domestic, or any other entity, or (b) violate, or cause
a breach of or default under, any contract, agreement or
understanding, any statute or law, or any judgment, decree, order,
regulation or rule of any governmental agency, authority,
administrative or regulatory body, court or other tribunal,
foreign or domestic, or any other entity or any arbitration award
binding upon Securityholder. No proceedings are pending which, if
adversely determined, will have a material adverse effect on any
ability to vote or dispose of any of the Securities.
Securityholder has not previously assigned or sold any of the
Securities to any third party.
(d) Securityholder Has Adequate Information.
Securityholder is a sophisticated seller with respect to the
Securities and has adequate information concerning the business
and financial condition of the Company to make an informed
decision regarding the sale of the Securities and has
independently and without reliance upon Buyer or Parent and based
on such information as Securityholder has deemed appropriate, made
its own analysis and decision to enter into this Agreement.
Securityholder acknowledges that neither Buyer nor Parent has made
and neither make any representation or warranty, whether express
or implied, of any kind or character except as expressly set forth
in this Agreement. Securityholder acknowledges that the agreements
contained herein with respect to the Securities by Securityholder
are irrevocable, and that Securityholder shall have no recourse to
the Securities or Buyer or Parent, except with respect to breaches
of representations, warranties, covenants and agreements expressly
set forth in this Agreement.
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(e) Buyer's Excluded Information. Securityholder
acknowledges and confirms that (a) Buyer or Parent may possess or
hereafter come into possession of certain non-public information
concerning the Securities and the Company which is not known to
Securityholder and which may be material to Securityholder's
decision to sell the Securities ("Buyer's Excluded Information"),
(b) Securityholder has requested not to receive Buyer's Excluded
Information and has determined to sell the Securities
notwithstanding its lack of knowledge of Buyer's Excluded
Information, and (c) Buyer and Parent shall have no liability or
obligation to Securityholder, in connection with, and
Securityholder hereby waives and releases Buyer and Parent from,
any claims which Securityholder or its successors and assigns may
have against Buyer or Parent (whether pursuant to applicable
securities laws or otherwise) with respect to, the non-disclosure
of Buyer's Excluded Information; provided, however, nothing
contained in this Section 2.2(e) shall limit Securityholder's
right to rely upon the express representations and warranties made
by Buyer and Parent in this Agreement, or Securityholder's
remedies in respect of breaches of any such representations and
warranties.
(f) No Setoff. Securityholder has no liability or
obligation related to or in connection with the Securities other
than the obligations to Buyer and Parent as set forth in this
Agreement. There are no legal or equitable defenses or
counterclaims that have been or may be asserted by or on behalf of
the Company, as applicable, to reduce the amount of the Securities
or affect the validity or enforceability of the Securities.
3. Survival of Representations and Warranties. The respective
representations and warranties of Securityholder, Parent and Buyer contained
herein or in any certificates or other documents delivered in connection
herewith shall not be deemed waived or otherwise affected by any investigation
made by the other party hereto, and each representation and warranty contained
herein shall survive the closing of the transactions contemplated hereby until
the expiration of the applicable statute of limitations, including extensions
thereof.
4. Specific Performance. Securityholder acknowledges that Buyer and
Parent will be irreparably harmed and that there will be no adequate remedy at
law for a violation of any of the covenants or agreements of Securityholder
which are contained in this Agreement. It is accordingly agreed that, in
addition to any other remedies which may be available to Buyer and Parent upon
the breach by Securityholder of such covenants and agreements, Buyer and Parent
shall have the right to obtain injunctive relief to restrain any breach or
threatened breach of such covenants or agreements or otherwise to obtain
specific performance of any of such covenants or agreements.
5. Miscellaneous.
5.1 Term. This agreement shall terminate upon the earlier of
(i) the termination of the Merger Agreement or (ii) the 30th day after the date
hereof if Parent has not commenced the Initial Offer.
5.2 Expenses. Each of the parties hereto shall pay its own
expenses incurred in connection with this Agreement. Each of the parties hereto
warrants and covenants to the others that it will bear all claims for brokerage
fees attributable to action taken by it.
5.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective representatives and permitted successors and assigns.
5.4 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
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5.5 Headings. 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. Time is of the essence with respect to all
provisions of this Agreement.
5.6 Assignment. This Agreement may not be transferred or
assigned by Securityholder but may be assigned by Buyer to any of its affiliates
or to any successor to its business and will be binding upon and inure to the
benefit of any such affiliate or successor.
5.7 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be an original, but both of which together
shall constitute one and the same Agreement.
5.8 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
(a) If to Parent
or Buyer: Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Xxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) If to
Securityholder: [ NAME OF SECURITYHOLDER ]
[ ADDRESS OF SECURITYHOLDER ]
Telecopy: [ TELECOPY NUMBER OF SECURITYHOLDER ]
with a copy to: Xxxxxx Xxxx LLP
1600 Pioneer Tower
000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
5.9 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
without regard to its principles of conflicts of laws.
5.10 Enforceability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
5.11 Further Assurances. From time to time at or after the date
Buyer purchases shares of Company Common Stock pursuant to the Initial Offer, at
Buyer's request and without further consideration, Securityholder shall execute
and deliver to Buyer such documents and take such action as Buyer may reasonably
request in order to consummate more effectively the transactions contemplated
hereby and to vest in Buyer good, valid and marketable title to the Securities,
including, but not
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limited to, using its best efforts to cause the appropriate transfer agent or
registrar to transfer of record the Securities.
IN WITNESS WHEREOF, Buyer, Parent and Securityholder have caused this
Agreement to be duly executed as of the day and year first above written.
JH ACQUISITION CORP.
By:
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Name:
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Title:
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XXXX X. XXXXXXX COMPANY
By:
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Name:
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Title:
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[ NAME OF SECURITYHOLDER ]
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