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Exhibit (C)(5)
SHARE TENDER AGREEMENT
This SHARE TENDER AGREEMENT (this "Agreement"), dated as of June 2,
1999, is made and entered into by and among THE GEON COMPANY, a Delaware
corporation (the "Parent"), TGC ACQUISITION CORPORATION, a Virginia corporation
(the "Sub"), and XXXX C.O. XXXXXX (the "Shareholder"), a shareholder of
X'XXXXXXXX CORPORATION, a Virginia corporation (the "Company").
WHEREAS, the Shareholder is the beneficial owner of 809,739 shares (the
"Shares") of Common Stock, $1.00 par value per share, of the Company (the
"Common Stock"), and holds options (the "Options") to acquire 11,000 shares of
Common Stock granted pursuant to the Company's 1995 Outside Directors Stock
Option Plan;
WHEREAS, the Parent, the Sub and the Company have entered into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides, among other things, that the Sub will commence a
tender offer for all of the Common Stock (the "Offer") at a price of $12.25 per
share net to the seller in cash (the "Offer Price") and thereafter, subject to
certain conditions, be merged with and into the Company; and
WHEREAS, as a condition to the willingness of the Parent and the Sub to
enter into the Merger Agreement, the Parent and the Sub have requested that the
Shareholder agree, and in order to induce the Parent and the Sub 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 agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The Shareholder
represents and warrants to the Parent and the Sub as follows:
(a) The Shareholder is the beneficial owner of, and has good and
marketable title to, all of the Shares, free and clear of any mortgage, pledge,
hypothecation, claim, security interest, charge, encumbrance, title defect,
title retention agreement, voting trust agreement, interest, option, call,
demand, subscription, lien, charge or similar restriction or limitation or any
other rights of others, including any restriction on the right to vote, sell or
otherwise dispose of the Shares (each, an "Encumbrance"), except as set forth in
this Agreement.
(b) Except for the Shares and the Options, 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 on any securities that are
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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, other than this Agreement, that allows or obligates him to vote or
acquire any shares of Common Stock or other securities of the Company. The
Shareholder holds exclusive power to vote the Shares and has not granted a proxy
to any Person to vote the Shares, except as provided in this Agreement.
(c) The Shareholder is competent to and has sufficient capacity to
execute and deliver this Agreement and to perform the Shareholder's obligations
hereunder. This Agreement has been duly executed and delivered by the
Shareholder and, assuming the due authorization, execution and delivery of this
Agreement by the Parent and the Sub, is a valid and binding obligation of the
Shareholder enforceable against the Shareholder in accordance with its terms,
except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally and (ii) laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
(d) Neither the execution and delivery of this Agreement by the
Shareholder nor the performance by the Shareholder of the Shareholder's
obligations hereunder will conflict with, result in a violation or breach of, or
constitute a default (or an event that, with notice or lapse of time or both,
would result in a default) or give rise to any right of termination, amendment,
cancellation or acceleration or result in the creation of any Encumbrance on any
of the Shares under (i) any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which the Shareholder is a party or by
which the Shareholder is bound or (ii) any injunction, judgment, writ, decree,
order or ruling applicable to the Shareholder.
3. REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE SUB. The Parent
and the Sub represent and warrant to the Shareholder as follows:
(a) Each of the Parent and the Sub is a corporation duly organized,
validly existing and in good standing under the laws of their respective states
of incorporation, has the requisite corporate power and authority to execute and
deliver this Agreement, to perform their respective obligations hereunder and to
consummate the transactions contemplated hereby, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement.
(b) This Agreement has been duly executed and delivered by the
Parent and the Sub and, assuming the due execution and delivery of this
Agreement by the Shareholder, is a valid and binding obligation of each of the
Parent and the Sub, enforceable against each of them in accordance with its
terms, except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally and (ii) laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
(c) Neither the execution and delivery of this Agreement nor the
performance by the Parent and the Sub of their respective obligations hereunder
will conflict with, result in a
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violation or breach of, or constitute a default (or an event that, with notice
or lapse of time or both, would result in a default) or give rise to any right
of termination, amendment, cancellation or acceleration under, (i) their
respective charter or by-laws, (ii) any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Parent or the
Sub is a party or by which the Parent or the Sub is bound or (iii) any
injunction, judgment, writ, decree, order or ruling applicable to the Parent or
the Sub.
(d) Neither the execution and delivery of this Agreement nor the
performance by the Parent and the Sub of their respective obligations hereunder
will violate any law, decree, statute, rule or regulation applicable to the
Parent or the Sub or require any order, consent, authorization or approval of,
filing or registration with, or declaration 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 federal or state
securities laws.
4. TRANSFER OF THE SHARES. During the term of this Agreement, except as
otherwise provided herein, the Shareholder will not (a) tender into any tender
or exchange offer (other than the Offer) or otherwise sell, transfer, pledge,
assign, hypothecate or otherwise dispose of, or encumber with any Encumbrance,
any of the Shares, (b) exercise any of the Options (except to the extent
permitted under Section 2.6 of the Merger 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, sale, transfer,
pledge, assignment, hypothecation or other disposition of any interest in or the
voting of any shares of Common Stock or any other securities of the Company.
5. ADJUSTMENTS. In the event of (a) any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Shares or the
like or any other action that would have the effect of changing the
Shareholder's ownership of the Common Stock or other securities of the Company
or (b) the Shareholder becoming the beneficial owner of any additional shares of
Common Stock or other securities of the Company, then the terms of this
Agreement will apply to the shares of capital stock held by the Shareholder
immediately following the effectiveness of the relevant event, as though they
were Shares hereunder. The Shareholder hereby agrees, while this Agreement is in
effect, to promptly notify the Parent of the number of any new shares of Common
Stock or other securities of the Company acquired by the Shareholder, if any,
after the date hereof.
6. TENDER OF THE SHARES. Subject to the terms and conditions of the
Merger Agreement and provided that this Agreement is not terminated in
accordance with Section 9, the Shareholder will validly tender (and not
withdraw), or cause the record owner of such shares to validly tender (and not
withdraw), and sell pursuant to and in accordance with the terms of the Offer
all of the Shares beneficially owned by the Shareholder. The Shareholder hereby
agrees and acknowledges that the Sub'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. Upon the purchase of all of the Shares by the Sub pursuant to the Offer,
this Agreement will terminate in accordance with Section 9.
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7. VOTING OF THE SHARES. The Shareholder hereby agrees, so long as this
Agreement remains in effect, to vote all of the Shares (a) in favor of the
approval and adoption of the Merger Agreement and the approval of the
transactions contemplated thereby and (b) against any action or agreement that
would result in a breach of any representation, warranty, covenant or agreement
of the Company contained in the Merger Agreement or would impede, interfere
with, delay or prevent the consummation of the Merger or the purchase of shares
of Common Stock pursuant to the Offer; provided, however, that the provisions of
this Section 7 will not prevent the Shareholder, acting in his capacity as a
director of the Company, to exercise his fiduciary duties, including with
respect to the matters set forth in Article 4.7 of the Merger Agreement.
8. NO SOLICITATION. The Shareholder will not, directly or indirectly,
through any agent, financial advisor, attorney, accountant or other
representative or otherwise, (a) solicit, initiate or take any other action to
facilitate any inquiries or the making of any proposal which constitutes an
Acquisition Proposal, (b) participate in any discussions or negotiations
regarding any Acquisition Proposal, (c) in connection with an Acquisition
Proposal, disclose any nonpublic information relating to the Company or afford
access to the properties, books or records of the Company to any person or (d)
otherwise cooperate in any way with, assist, participate in, facilitate or
encourage any effort or attempt by any other Person to make an Acquisition
Proposal; provided, however, that the provisions of this Section 8 will not
prevent the Shareholder, acting in his capacity as a director of the Company, to
exercise his fiduciary duties, including with respect to the matters set forth
in Article 4.7 of the Merger Agreement.
9. TERMINATION. This Agreement will automatically, without any notice
to or action by any party, terminate (a) upon the earlier to occur of (i) the
purchase of all the Shares pursuant to the Offer in accordance with Section 6 or
(ii) the date the Merger Agreement is terminated in accordance with its terms or
(b) by the mutual written consent of the Shareholder and the Parent.
10. EXPENSES. Except as otherwise expressly provided in this Agreement
or the Merger Agreement, all costs and expenses incurred by any of the parties
hereto in connection with this Agreement, the Merger Agreement and the
transactions contemplated hereby and thereby will be borne by the party
incurring such costs and expenses.
11. PUBLICITY. The Parent, the Sub and the Shareholder shall consult
with each other before issuing any press release or otherwise making any public
statement with respect to this Agreement and the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement before such consultation, except as may be required by applicable law
or stock exchange rules.
12. ENFORCEMENT OF THE AGREEMENT. The Shareholder acknowledges and
agrees 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. Accordingly, the Parent and the Sub
will be entitled to an injunction, restraining order or other equitable remedy
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 the Parent or
the Sub is entitled at law or in equity.
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13. MISCELLANEOUS.
(a) The Shareholder hereby waives any rights of appraisal or rights
to dissent from the Merger that the Shareholder may have under applicable law.
(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 will be
effective unless in writing and 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 constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements among the parties 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 Commonwealth of Virginia, notwithstanding any conflict of
law provision to the contrary.
(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, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered in
accordance with Section 7.5 of the Merger Agreement, addressed, in the case of
the Parent or the Sub, to the address of the Parent set forth in Section 7.5 of
the Merger Agreement and, in the case of the Shareholder, to the address set
forth on the signature page of this Agreement.
(g) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original but all of which shall together
constitute but one and the same agreement.
(h) This Agreement is binding upon and is solely for the benefit of
the parties hereto and their respective successors, legal representatives and
permitted assigns. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned by any of the parties hereto
without the prior written consent of the other parties.
(i) If any term or provision of this Agreement is determined to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and
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provisions of this Agreement will nevertheless remain in full force and effect
and shall in no way be affected, impaired or invalidated. 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) 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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written above.
THE GEON COMPANY
THE GEON COMPANY
BY: /s/ Xxxxxxx X. Xxxxxx
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NAME: Xxxxxxx X. Xxxxxx
TITLE: Vice President, General Counsel and Secretary
TGC ACQUISITION CORPORATION
BY: /s/ Xxxxxx X. Xxxxxxxxx
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NAME: Xxxxxx X. Xxxxxxxxx
TITLE: Chairman, President and Chief Executive Officer
XXXX C. O. XXXXXX
/s/ Xxxx C.O. Xxxxxx
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ADDRESS: 00000 Xxxx Xxxx
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Xxxxxxxxxx, XX 00000
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