EXHIBIT 17
WAIVER AGREEMENT
Waiver Agreement, dated February 15, 1999, relating to the
Agreement and Plan of Merger dated as of November 22, 1998 as amended by
Amendment No. 1 thereto dated February 9, 1999 (the "Merger Agreement"), between
Xxxxxx General Corporation, a Delaware corporation (the "Company"), and River
Acquisition Corp., a Delaware corporation ("River").
WHEREAS, the Company and River have entered into the Merger
Agreement which contemplates the purchase by River of all of the outstanding
shares of common stock of the Company for a price of $61.00 per share in cash;
WHEREAS, GlobeGround GmbH, a German company ("GlobeGround"),
has offered to purchase all of the outstanding shares of common stock of the
Company for a price of $76.00 per share in cash; and
WHEREAS, the Company and GLGR Acquisition Corp., a Delaware
corporation ("GLGR") and a wholly-owned subsidiary of GlobeGround, propose to
enter into an Agreement and Plan of Merger (the "GlobeGround Merger Agreement"),
to be dated as of February 15, 1999, which contemplates the purchase by GLGR of
all of the outstanding shares of common stock of the Company for a price of
$76.00 per share in cash, subject to certain conditions.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and intending to be legally bound hereby and other good and
valuable consideration, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meaning provided therefor in the Merger
Agreement.
2. GlobeGround Merger Agreement. River agrees that
notwithstanding any provisions to the contrary contained in the Merger
Agreement, including without limitation the provisions of clauses (i) and (ii)
of Section 8.01(f) of the Merger Agreement, River shall not exercise and hereby
waives any and all rights it may have to terminate the Merger Agreement
resulting from or arising out of any or all of the following: (a) the execution
by the Company of the GlobeGround Merger Agreement; (b) any recommendation made
by the Company's Board of Directors (the "Board") or the Special Committee of
the Board (the "Special Committee") to the Company's stockholders or otherwise
in support or favor of the GlobeGround Merger Agreement or the transactions
contemplated thereby; (c) any withdrawal, modification or change by the Board or
the Special Committee of their recommendation so that the Board or the Special
Committee is not in favor of the Merger Agreement or the transactions
contemplated thereby in connection with the GlobeGround Merger Agreement; or (d)
any other actions taken by the Board or the Special Committee in support or
furtherance of the GlobeGround
Merger Agreement or the transactions contemplated thereby. In addition, River
hereby agrees that no action or actions taken by the Company, the Board or the
Special Committee in connection with or furtherance of the GlobeGround Merger
Agreement or the transactions contemplated thereby shall operate as or
constitute a breach of any of the terms, covenants, representations, warranties
or conditions of the Merger Agreement. The foregoing notwithstanding, effective
March 17, 1999 all rights which River may have had to terminate the Merger
Agreement and which were hereby waived, shall be reinstated and again shall be
in full force and effect if, and only if, as of such date, the GlobeGround
Merger Agreement has not been terminated, including, without limitation, the
right to receive a payment from the Company to reimburse River for Expenses as
provided in Section 8.05(b) of the Merger Agreement in connection with a
termination of the Merger Agreement by River pursuant to clauses (i) or (ii) of
Section 8.01(f) thereof. Nothing contained herein shall in any way limit or
restrict the Company's right or ability to at any time terminate the Merger
Agreement in accordance with Section 8.01(g) thereof. No waiver or amendment is
being given by River with respect to any transactions other than transactions
contemplated by the GlobeGround Merger Agreement, or with respect to any bidder
other than GlobeGround or GLGR, and nothing contained herein shall in any way
limit or restrict River's ability to terminate the Merger Agreement in
accordance with its terms except as specifically provided herein with respect to
the GlobeGround Merger Agreement or the transactions contemplated thereby.
3. Effectiveness. This Waiver Agreement shall not be
effective, and the provisions hereof shall be of no force or effect, unless and
until the Company enters into the GlobeGround Merger Agreement.
4. Counterparts. This Waiver Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
5. Governing Law. This Waiver Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware without
regard to the conflict of laws rules thereof.
IN WITNESS WHEREOF, the Company and River have caused this
Waiver Agreement to be executed by their respective officers thereunto duly
authorized on this 15th day of February 1999.
RIVER ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Chairman
XXXXXX GENERAL CORPORATION
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: President
