Exhibit 99.(b)
AGREEMENT
AGREEMENT dated as of December 22, 1997, among OUTSOURCING SOLUTIONS
INC., a Delaware corporation ("Parent"), XXXXXXX ACQUISITION CORPORATION, a
Delaware corporation and a wholly owned subsidiary of Parent ("Sub"), and the
other parties signatory hereto (each a "Stockholder" and collectively, the
"Stockholders").
W I T N E S S E T H :
WHEREAS, contemporaneously herewith, Parent, Sub and The Union
Corporation, a Delaware corporation (the "Company"), have entered into a Share
Purchase Agreement and Plan of Merger (as such agreement may hereafter be
amended from time to time, the "Merger Agreement"; capitalized terms used and
not defined herein have the respective meanings ascribed to them in the Merger
Agreement), pursuant to which Parent shall cause Sub to make an offer to
purchase all of the issued and outstanding shares of Company Common Stock (the
"Offer") and Sub will be merged with and into the Company (the "Merger");
WHEREAS, in furtherance thereof, as soon as practicable (and not later
than five business days) after the execution and delivery of the Merger
Agreement, Sub shall commence the Offer; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholders agree, and the Stockholders
have each agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Company Common Stock" shall mean at any time the common stock,
$0.50 par value, of the Company.
(b) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other entity.
2. Tender of Shares.
(a) Each Stockholder hereby agrees to validly tender (and not to
withdraw) pursuant to and in accordance with the terms of the Offer (provided
that the Offer is not amended in a manner prohibited by the Merger Agreement),
in a timely manner for acceptance by Sub in the Offer, the number of shares of
Company Common Stock set forth opposite such Stockholder's name on Schedule I
hereto and the Rights (as defined in the Rights Agreement) associated with such
shares (the "Existing Shares" and, together with any shares of Company Common
Stock acquired by such Stockholder after the date hereof and prior to the
termination of this Agreement (and any Rights associated therewith) whether upon
the exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution or otherwise and acquired by such Stockholder solely in its
capacity as a stockholder, the "Shares"), owned by such Stockholder. Each
Stockholder hereby acknowledges and agrees that Parent's obligation to accept
for payment and pay for Company Common Stock in the Offer, including the Shares,
is subject to the terms and conditions of the Offer. Each Stockholder shall be
entitled to receive the highest price paid by Sub pursuant to the Offer.
(b) Each Stockholder hereby agrees to permit Parent and Sub to
publish and disclose in the Offer Documents and, if approval of the stockholders
of the Company is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC) its identity and ownership of
Company Common Stock and the nature of its commitments, arrangements and
understandings under this Agreement.
3. Provisions Concerning Company Common Stock. Each Stockholder
hereby agrees that during the period commencing on the date hereof and
continuing until the first to occur of (i) the Effective Time and (ii) the
termination of this Agreement pursuant to Section 8, at any meeting of the
holders of Company Common Stock, however called, or in connection with any
written consent of the holders of Company Common Stock, such Stockholder shall
vote (or cause to be voted) the Shares owned by such Stockholder whether issued,
heretofore owned or hereafter acquired, (i) in favor of the Merger and each of
the other actions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance thereof and hereof; (ii) against any action
or agreement that would result in a breach in any respect of any
2
covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or this Agreement; and (iii) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than the Merger and the transactions contemplated by the
Merger Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or
its subsidiaries; (B) a sale, lease or transfer of a material amount of
assets of the Company or its subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or its
subsidiaries; (C) (1) any change in a majority of the persons who constitute
the board of directors of the Company; (2) any change in the present
capitalization of the Company or any amendment of Company's Certificate of
Incorporation or By-laws; (3) any other material change in the Company's
corporate structure or business; or (4) any other action involving the
Company or its subsidiaries which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or materially adversely
affect the Share Purchase, the Merger and the transactions contemplated by
this Agreement and the Merger Agreement. No Stockholder shall enter into any
agreement or understanding with any Person or entity the effect of which
would be to violate the provisions and agreements contained in this Section 3.
4. Representations and Warranties of the Stockholders. Each
Stockholder, as to itself, hereby severally represents and warrants to Parent as
follows:
(a) Ownership of Shares. Such Stockholder is the record and
beneficial owner of the number of Shares set forth opposite such
Stockholder's name on Schedule I hereto. On the date hereof, the Existing
Shares set forth opposite such Stockholder's name on Schedule I hereto
constitute all of the Shares owned by such Stockholder on the date hereof.
Except as set forth on Schedule I, such Stockholder has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Sections 2 and 3 hereof, sole power of disposition, sole power of conversion,
sole power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Existing Shares set forth opposite such Stockholder's name on Schedule I
hereto, with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this Agreement. Other
than this Agreement and the Merger Agreement, there is no option, warrant,
right, call, proxy, agreement, commitment
3
or understanding of any nature whatsoever, fixed or contingent, that directly
or indirectly (i) calls for the sale, pledge or other transfer or disposition
of any of the Existing Shares, any interest therein or any rights with
respect thereto, or related to the voting, disposition or control of the
Existing Shares, or (ii) obligates such Shareholder to grant, offer or enter
into any of the foregoing.
(b) Power; Binding Agreement. Except as set forth on Schedule I,
such Stockholder has the legal capacity, power and authority to enter into and
perform all of such Stockholder's obligations under this Agreement. The
execution, delivery and performance of this Agreement by such Stockholder will
not violate any other agreement to which such Stockholder is a party including,
without limitation, any voting agreement, stockholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency and other similar laws
affecting creditors' rights generally or by general principles of equity. There
is no beneficiary or holder of a voting trust certificate or other interest of
any trust of which such Stockholder is trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by such Stockholder
of the transactions contemplated hereby.
(c) No Conflicts. Except for (i) filings and approvals under the
HSR Act or the Antitrust Laws, if applicable, (A) no filing with, and no
permit, authorization, consent or approval of, any state or federal public
body or authority is necessary for the execution of this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby and (B) none of the execution and delivery of this
Agreement by such Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder with any
of the provisions hereof shall (1) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Stockholder is a party or by which such
Stockholder may be
4
bound, or (2) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Stockholder.
(d) No Encumbrances. Such Stockholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by such Stockholder, or by a nominee or custodian for the benefit of
such 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. The transfer by such Stockholder of its Shares to Sub in the
Offer shall pass to and unconditionally vest in Sub good and valid title to all
Shares, free and clear of all claims, liens, restrictions, security interests,
pledges, limitations and encumbrances whatsoever.
(e) Reliance by Parent. Such Stockholder understands and
acknowledges that Parent is entering into, and causing Sub to enter into, the
Merger Agreement in reliance upon such Stockholder's execution and delivery of
this Agreement.
5. Covenants of the Stockholders. Each Stockholder covenants and
agrees as follows:
(a) Restriction on Transfer, Proxies and Non-Interference. Beginning
on the date hereof and ending on the date this Agreement shall terminate
pursuant to Section 8 hereof, such Stockholder shall not (i) except as
contemplated by the Offer, directly or indirectly, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of such Stockholder's Shares or
any interest therein; (ii) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any action
that would make any representation or warranty of such Stockholder contained
herein untrue or incorrect or have the effect of preventing or disabling such
Stockholder from performing such Stockholder's obligations under this Agreement.
5
(b) Waiver of Appraisal Rights. Such Stockholder hereby irrevocably
waives any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
(c) Stop Transfer; Changes in Shares. Such Stockholder agrees with,
and covenants to, Parent that such Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares, unless
such transfer is made in compliance with the Offer and this Agreement. In the
event of a stock dividend or distribution, or any change in the Company Common
Stock by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Shares" shall be deemed to refer to
and include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be changed or
exchanged and the Purchase Price shall be approximately adjusted. Such
Stockholder shall be entitled to receive any cash dividend paid by the Company
during the term of this Agreement until its Shares are purchased in the Offer.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to
the contrary, the covenants and agreements set forth herein shall not prevent
any Stockholder from taking any action, subject to the applicable provisions of
the Merger Agreement, while acting in his capacity as a director of the Company.
7. Miscellaneous.
(a) Further Assurances. From time to time, at the other party's
request and without further consideration, each of the parties hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
(b) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understanding, both
written and oral, between the parties with respect to the subject matter hereof.
(c) Certain Events. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to
6
such 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, such
Stockholder's heirs, guardians, administrators or successors. Notwithstanding
any transfer of Shares, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
(d) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party provided
that Parent may assign, at its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly-owned subsidiary of Parent, although
no such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations and provided further that, in the
event of a Stockholder's death or incapacity, such Stockholder's rights
hereunder shall inure to his heirs, guardians, administrators or successors.
(e) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties.
(f) 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 received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to a Stockholder: At the address set forth on Schedule I hereto
copy to: Zimet, Haines, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
7
If to Parent or Sub:
Outsourcing Solutions Inc.
000 Xxxxx Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
copy to: White & Case
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(h) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(i) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party
8
shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(k) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(l) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(m) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York or any court of the State of New York located in the City
of New York in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph (m) and
shall not be deemed to be a general submission to the jurisdiction of said
Courts or in the States of Delaware or New York other than for such purposes.
EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH
ANY SUCH ACTION, SUIT OR PROCEEDING.
(n) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(o) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
9
8. Termination. This Agreement shall terminate upon the termination
of the Merger Agreement pursuant to Section 8.1 and no party shall have any
rights or obligations hereunder and this Agreement shall become null and void
and have no effect.
10
IN WITNESS WHEREOF, Parent, Sub and the Stock-holders have caused this
Agreement to be duly executed as of the day and year first above written.
OUTSOURCING SOLUTIONS INC.
By /s/ XXXXX X. XXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXX ACQUISITION CORPORATION
By /s/ XXXXX X. XXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
STOCKHOLDERS:
/s/ XXXXXX X. XXXXXX
-----------------------------------
XXXXXX X. XXXXXX
XXX MLC TRUST
By /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
XXXXXX X. XXXXXX AND XXXXX X.
XXXXXX, TRUSTEE, THE MLC
TRUST U/A 10/20/92
By /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee
/s/ XXXXXX X. XXXX
------------------------------------
XXXXXX X. XXXX
/s/ XXXXXXX X. XXXXXX
------------------------------------
XXXXXXX X. XXXXXX
/s/ XXXXXX X. XXXX
------------------------------------
XXXXXX X. XXXX
BEAUFORT IRREVOCABLE TRUST
NUMBER ONE
By /s/ XXXXXX X. XXXX
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Co-Trustee
/s/ XXXXXXX X. XXXX
------------------------------------
XXXXXXX X. XXXX
XXXXXX X. XXXX XXXXX PLAN
By /s/ XXXXXX X. XXXX
--------------------------------
Name: Xxxxxx X. Xxxx
/s/ XXXXXX X. XXXXXXXX
------------------------------------
XXXXXX X. XXXXXXXX
MR. AND XXX. XXXXXX XXXXXXXX, JT
By /s/ XXXXXX X. XXXXXXXX XXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx
Title: Trustees
TSI MONEY PURCHASE PENSION
PLAN FBO XXXXXX XXXXXXXX
By /s/ XXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
/s/ XXXXX X. XXXXXX III
------------------------------------
XXXXX X. XXXXXX III
/s/ MR. AND MRS. XXXXX XXXXXX III
------------------------------------
MR. AND MRS. XXXXX XXXXXX III
/s/ XXXXXXX X. SILVER
------------------------------------
XXXXXXX X. SILVER
/s/ MRS. H. SILVER
------------------------------------
MRS. H. SILVER
/s/ XXXXXXXX X. XXXX
------------------------------------
XXXXXXXX X. XXXX
/s/ XXXXXXX XXXXXX
------------------------------------
XXXXXXX XXXXXX
/s/ XXXXXXX XXXXXX
------------------------------------
XXXXXXX XXXXXX
/s/ XXXXXXX X. XXXXXX
------------------------------------
XXXXXXX X. XXXXXX
/s/ XXXXXX X. XXXXXXXX
------------------------------------
XXXXXX X. XXXXXXXX
/s/ XXXXX X. XxXXXXXXX
------------------------------------
XXXXX X. XxXXXXXXX
SCHEDULE I
Table of stock Ownership of Executive Officers and Directors
Name Shares
---- ------
--------------------------------------------------------------------------------
Xxxxxx X. Xxxx -0-
--------------------------------------------------------------------------------
XXX MLC Trust 5,800
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx,
Trustee, The MLC Trust U/A 10/20/92 109,476
--------------------------------------------------------------------------------
Xxxxxx X. Xxxx 10,000
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 60,000
--------------------------------------------------------------------------------
Xxxxxx X. Xxxx 12,790
--------------------------------------------------------------------------------
Beaufort Irrevocable Trust 900
Number One
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxx 2,000
--------------------------------------------------------------------------------
Xxxxxx X. Xxxx Xxxxx Plan 1,000
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx -0-
--------------------------------------------------------------------------------
Mr. and Xxx. Xxxxxx Xxxxxxxx, JT 2,400
--------------------------------------------------------------------------------
TSI Money Purchase Pension Plan 1,650
FBO Xxxxxx Xxxxxxxx
--------------------------------------------------------------------------------
Xxxxx X. Xxxxxx III -0-
--------------------------------------------------------------------------------
Mr. and Mrs. Xxxxx Xxxxxx III 5,700
--------------------------------------------------------------------------------
Xxxxxxx X. Silver 13,000
--------------------------------------------------------------------------------
Mrs. H. Silver 1,000
--------------------------------------------------------------------------------
Xxxxxxxx X. Xxxx 4,500
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxx 1,000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxx 7,000
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx -0-
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx -0-
--------------------------------------------------------------------------------
Xxxxx X. XxXxxxxxx -0-
--------------------------------------------------------------------------------
