Execution Copy
January 14, 1998
MQ Acquisition Corporation
x/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx & Xx., Xxx.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Stockholder Agreement
Dear Sirs:
The undersigned (the "Stockholder") understands that MQ Acquisition
Corporation, a Delaware corporation ("Acquiror") and Mediq Incorporated, a
Delaware corporation (the "Company") are entering into an Agreement and Plan of
Merger, dated the date hereof, as the same may be amended from time to time (the
"Merger Agreement"), providing for, among other things, the merger of Acquiror
with and into the Company on the terms and conditions set forth therein (the
"Merger").
The Stockholder is a stockholder of the Company and is entering into this
letter agreement (the "Stockholder Agreement") to induce you to enter into the
Merger Agreement and to consummate the transactions contemplated thereby.
Capitalized terms used but not defined herein shall have the same meanings as in
the Merger Agreement.
The Stockholder confirms its agreement with you as follows:
1. The Stockholder represents, warrants and agrees that Schedule I annexed
hereto sets forth the Common Shares and Preferred Shares of which the
Stockholder or its affiliates (as defined under the Securities Exchange Act of
1934, as amended) are the record or beneficial owner and that the Stockholder
and its affiliates are on the date hereof the lawful owners of the number of
Shares set forth in Schedule I beside the name of the Stockholder or such other
person. Except as set forth in Schedule I, neither the Stockholder nor any of
its affiliates, own or hold any rights to acquire any additional shares of the
capital stock of the Company (by exercise of stock options or otherwise) or any
interest therein or any voting rights with respect to any additional Shares. The
Stockholder, together with other persons who are signatories to this Stockholder
Agreement or letter agreements with Acquiror containing substantially the same
terms and conditions as set forth herein, has sole voting power and sole power
to issue instructions with respect to the matters set forth herein, sole power
of disposition, sole power of conversion, sole power to demand appraisal rights
and sole power to engage in the actions set forth herein, in each case with
respect to the Shares set forth on Schedule I hereto beside the name of the
Stockholder or such other person.
2. The Stockholder agrees that it will not, will not permit any company,
trust or other person or entity controlled by the Stockholder to, and will not
permit any of its affiliates
to, contract to sell, sell or otherwise transfer or dispose of any Shares
or any interest therein or securities convertible therein to or any voting
rights with respect thereto, other than (i) pursuant to the Merger, (ii)
pursuant to the Option Agreement dated of even date herewith between Acquiror
and the undersigned (iii) with your prior written consent. The Stockholder
agrees that it shall not convert any Preferred Shares into Common Shares or take
any other action which diminishes the benefits of this Stockholder Agreement to
the Acquiror.
3. The Stockholder agrees to, and to cause any company, trust or other
person or entity controlled by the Stockholder to, cooperate fully with you in
connection with the Merger Agreement, the Option Agreement, this Stockholders
Agreement and the transactions contemplated thereby and hereby. The Stockholder
agrees that it will not, and will not permit any such company, trust or other
entity or person to, and will not authorize any of its affiliates to, directly
or indirectly (including through its officers, directors, employees or other
representatives) to solicit, initiate, encourage or facilitate, or furnish or
disclose non-public information in furtherance of, any inquiries or the making
of any proposal with respect to any recapitalization, merger, consolidation or
other business combination involving the Company, or the acquisition of any
capital stock or any material portion of the assets (except for acquisition of
assets in the ordinary course of business consistent with past practice and not
material in the aggregate to the Company) of the Company, or any combination of
the foregoing (a "Competing Transaction"), or negotiate, explore or otherwise
engage in discussions with any person (other than Acquiror and its affiliates,
or their respective directors, officers, employees, agents and representatives)
with respect to any Competing Transaction or enter into any agreement,
arrangement or understanding with respect to any Competing Transaction or agree
to or otherwise assist in the effectuation of any Competing Transaction;
provided, however, that nothing herein shall require the Stockholder to prevent
or restrict any director or trustee of the Stockholder who is a director or
officer of the Company from taking any action in his capacity as a director or
officer of the Company to the extent such director or officer would be permitted
to take such action under the Merger Agreement.
4. The Stockholder agrees that all of the Shares beneficially owned by the
Stockholder, or over which the Stockholder has voting power or control, directly
or indirectly (including any Shares beneficial ownership of which is acquired by
the Stockholder after the date hereof), at the record date for any meeting of
the Company's stockholders, however called, or in connection with any written
consent of the stockholders of the Company, shall be voted (or caused to be
voted) (i) in favor of the Merger, the execution and delivery by the Company of
the Merger Agreement and the approval of the terms thereof and each of the other
actions contemplated by the Merger Agreement, this Stockholder Agreement and the
Option Agreement and any actions required in furtherance hereof and thereof;
(ii) against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of the Company under the Merger Agreement or under this Stockholder
Agreement or the Option Agreement; and (iii) except as otherwise agreed to in
writing in advance by Acquiror, against the following actions (other than the
Merger and the transactions with you or your affiliates contemplated by the
Merger Agreement): (1) any extraordinary
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corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries; (2) any 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; (3) (a) subject to Section 7 hereof, any change in the
majority of the Board of Directors of the Company; (b) any material change in
the present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or Bylaws; (c) any other material change in the
Company's corporate structure or business; or (d) any other action, which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or materially adversely affect the contemplated economic
benefits to Acquiror of the Merger or the transactions contemplated by the
Merger Agreement, this Stockholder Agreement or the Option Agreement. The
Stockholder shall not enter into any agreement or understanding with any person
or entity to vote or give instructions in any manner inconsistent with clauses
(i), (ii) or (iii) of the preceding sentence.
5. The Stockholder hereby grants to, and appoints, Acquiror and its
officers, and any other designee of Acquiror, each of them individually, the
Stockholder's irrevocable proxy and attorney-in-fact (with full power of
substitution) to vote (as indicated in paragraph 4 above) the Shares listed on
Schedule I hereto beside the name of the Stockholder, and any Shares beneficial
ownership of which is acquired by the Stockholder after the date hereof, at a
duly called meeting of the Company's stockholders (and, in the event the
Stockholder has breached its obligations under this Stockholder Agreement or the
Option Agreement or the Company breaches its obligation under the Merger
Agreement to call and hold or otherwise fails to hold the Special Meeting, by
duly executed written consent of stockholders). The Stockholder intends this
proxy to be irrevocable, subject to Section 16 hereof, and coupled with an
interest and will take such further action and execute such other instruments as
may be necessary to effectuate the intent of this proxy and hereby revokes any
proxy previously granted by the Stockholder with respect to the Stockholder's
Shares. The Stockholder agrees that if requested by Acquiror, the Stockholder
will not attend or vote any Shares beneficially owned by the Stockholder at any
annual or special meeting of stockholders or execute any written consent of
stockholders.
6. The Stockholder has the legal capacity, power and authority to enter
into and perform all of such Stockholder's obligations under this Stockholder
Agreement. The execution, delivery and performance of this Stockholder Agreement
by such Stockholder will not violate any other agreement to which such
Stockholder is a party including, without limitation, any trust agreement,
voting agreement, stockholders agreement or voting trust. This Stockholder
Agreement has been duly and validly executed and delivered by the Stockholder,
and is enforceable against the Stockholder in accordance with its terms. There
is no beneficiary or holder of any interest of the Stockholder or any trust of
which the Stockholder is a trustee whose consent is required for the execution
and delivery of this Stockholder Agreement or the consummation of the
transactions contemplated hereby. If the Stockholder is married and the
Stockholder's Shares constitute community property, this letter agreement has
been duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder's spouse, enforceable against such spouse
in accordance with its terms.
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7. Except for filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and with the Securities and Exchange Commission if
applicable, 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 Stockholder Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby.
8. The Stockholder's Shares (as listed on Schedule I) and the certificates
representing such Shares are now and at all times during the term hereof will be
held by the Stockholder, or by a nominee or custodian for the benefit of the
Stockholder, free and clear of all liens, claims, security interests, rights of
first refusal or offer, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
9. No broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by the Stockholder.
10. The Stockholder agrees that damages are an inadequate remedy for the
breach by the Stockholder of any term or condition of this Stockholder Agreement
and that Acquiror shall be entitled, without limitation of other available
rights or remedies, to specific performance, a temporary restraining order and
preliminary and permanent injunctive relief in order to enforce the
Stockholder's agreements herein.
11. The Stockholder agrees that this Stockholder Agreement and the
obligations hereunder shall attach to 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.
12. From time to time, at the other party's request and without further
consideration, each party hereto shall execute and deliver such additional
documents and take all such further action as may be necessary or desirable to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Stockholder Agreement.
13. This Stockholder Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
14. This Stockholder Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
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15. Whenever possible, each provision or portion of any provision of this
Stockholder 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 Stockholder 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 Stockholder 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. Each party hereto irrevocably and unconditionally
consents and submits to the exclusive jurisdiction of the courts of the State of
Delaware and of the United States of America located in the State of Delaware
for any actions, suits or proceedings arising out of or relating to this
agreement and the transactions contemplated hereby, and further agrees that
service of any process, summons, notice or document by U.S. registered or
certified mail to the Stockholder at Xxxxx Xxxxxx & Heckscher LLP, Xxx Xxxxxxx
Xxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxxx or Xxxxxxxxx X.
Xxxxxx, or to Acquiror c/o Xxxxxxxxx, Xxxxxx & Xxxxxxxx & Co., Inc., 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention: Xxxxx Xxxxxxxxx, shall be
effective service of process for any action, suit or proceeding brought against
such party in such court (and such address shall be also used for notices under
this Stockholder Agreement). Each party hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Stockholder Agreement or the transactions
contemplated hereby, in the courts of the State of Delaware located in
Wilmington, Delaware or the United States of America located in Wilmington,
Delaware, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
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16. This Stockholder Agreement may be terminated at the option of any party
at any time after the Termination Date (as defined in the Option Agreement).
Please confirm that the foregoing correctly states the understanding between us
by signing and returning to me a counterpart hereof, whereupon this will become
a legal and binding obligation.
Very truly yours,
T/D XXXXXXX X. XXXXX DATED
NOVEMBER 18, 1983
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, Trustee
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx, Trustee
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Xxxx X. Xxxxxxx, Trustee
PNC BANK, as Trustee
By:
-----------------------------
Name:
Title:
Confirmed on the date
first above written.
MQ ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Schedule I
Name and Address Company Company
of Stockholder Preferred Shares Common Shares
T/D XXXXXXX X. XXXXX DATED NOVEMBER 18, 3,570,969 3,570,969
1983, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx,
Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxxx and
PNC Bank, Trustees
c/o Xxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
