Exhibit 99(d)(2)
EXECUTION COPY
VOTING AND TENDER AGREEMENT
THIS VOTING AND TENDER AGREEMENT dated as of May 2, 2000 (this
"AGREEMENT") is by and among each of the persons listed on Schedule 1 (each a
"SHAREHOLDER" and collectively, the "SHAREHOLDERS"), AUTOMATIC DATA PROCESSING,
INC., a Delaware corporation ("PARENT"), and FIS ACQUISITION CORP., a New Jersey
corporation ("PURCHASER").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Purchaser and Xxxxxxxxxx Graphics International, Inc., a New Jersey
corporation (the "Company"), have entered into an Agreement and Plan of Merger
(the "Merger Agreement"), pursuant to which Purchaser has agreed, among other
things, to commence a cash tender offer (as such tender offer may hereafter be
amended from time to time, the "Offer") to purchase all of the shares of the
Company's Common Stock, no par value (the "Company Common Stock"), followed by
the merger of Purchaser with and into the Company (the "Merger");
WHEREAS, as of the date hereof, each Shareholder is the record
and beneficial owner of, and has the sole right to vote and dispose of, the
number of shares of Company Common Stock listed opposite such Shareholder's name
on Schedule I; and
WHEREAS, as a condition to the willingness of Parent and
Purchaser to enter into the Merger Agreement, each of Parent and Purchaser has
required that the Shareholders agree, and in order to induce Parent and
Purchaser to enter into the Merger Agreement, each Shareholder has agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises, representations, warranties, covenants and agreements contained
herein and in the Merger Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement. In
addition, for purposes of this Agreement:
"AFFILIATE" means, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified.
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to
any securities means having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all Affiliates of such Person and all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d) of the Exchange Act and
the rules promulgated thereunder.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"OWNED SHARES" means, with respect to any Shareholder, the
shares of Company Common Stock, whether Beneficially Owned or held of record, by
such Shareholder on the date hereof or which may hereafter be acquired by such
Shareholder, together with any other shares of Company Common Stock, except, in
the event of any replacement or subsequent tender offer, Owned Shares shall mean
the shares of Company Common Stock then Beneficially Owned or held of record by
such Shareholder.
"OPTIONS" means, with respect to any Shareholder, the options
to acquire shares of Company Common Stock now owned or which may hereafter be
acquired by such Shareholder.
"PERSON" means an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
"REPRESENTATIVE" means, with respect to any Person, such
Person's officers, directors, employees, agents and representatives (including
any investment banker, financial advisor, agent, representative or expert
retained by or acting on behalf of such Person or its subsidiaries).
"TRANSFER" means, with respect to a security, the sale,
transfer, pledge, hypothecation, encumbrance, assignment or disposition of such
security or the Beneficial Ownership thereof, the offer to make such a sale,
transfer or other disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing. As a
verb, "Transfer" shall have a correlative meaning.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
of the Shareholders hereby severally represents and warrants to Parent and
Purchaser, in each case as to himself only, as follows:
(a) TITLE. Such Shareholder is the Beneficial Owner or
holder of record of the Owned Shares and Options listed opposite such
Shareholder's name on Schedule 1. Such Owned Shares and Options are all the
securities of the Company either Beneficially Owned or owned of record by such
Shareholder as of the date hereof and such Shareholder owns no other rights or
interests exercisable for or convertible into any securities of the Company.
Such Owned Shares and Options are owned free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, agreement,
limitations on the Shareholder's voting rights, charges and other encumbrances
of any nature whatsoever except, with respect to the Options, the option plans
and agreements pursuant to which such Options were issued. Such Shareholder has
not appointed or granted any proxy, which appointment or grant is still
effective, with respect to the Owned Shares.
(b) AUTHORITY. Such Shareholder has all necessary power
and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution,
delivery and performance by such SHAREHOLDER of this Agreement and the
consummation by such Shareholder of the transactions contemplated hereunder have
been duly and validly authorized and no other proceedings on the
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part of such Shareholder is necessary to authorize the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby.
(c) EXECUTION. This Agreement has been duly and validly
executed and delivered by such Shareholder and constitutes a legal, valid and
binding agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms except (i) to the extent limited by applicable
bankruptcy, insolvency or similar laws affecting creditors rights and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(d) NO CONFLICT. None of the execution and delivery of
this Agreement by such Shareholder, the consummation by such Shareholder of the
transactions contemplated hereby or compliance by such Shareholder with any of
the provisions hereof shall (i) 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, loan agreement, bond, mortgage, indenture, license, contract,
commitment, lease, permit, franchise, arrangement, understanding, agreement or
other instrument or obligation of any kind to which such Shareholder is a party
or by which such Shareholder or any of his properties or assets (including the
Owned Shares and Options) may be bound, or (ii) violate any order, writ,
injunction, decree, judgment, law, statute, rule or regulation applicable to
such Shareholder or any of his properties or assets, excluding from the
foregoing such violations, breaches or defaults which would not, individually or
in the aggregate, have a material adverse effect on such Shareholder or which
would not materially impair the ability of such Shareholder to consummate the
transactions contemplated hereby.
(e) NO CONSENTS OR APPROVALS. The execution and delivery
of this Agreement by such Shareholder does not, and the performance of this
Agreement by such Shareholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any court or
arbitrator or any governmental body, agency or official except for applicable
requirements, if any, of the Exchange Act, and except where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or delay the performance by such
Shareholder of his obligations under this Agreement.
3. TENDER OF SHARES. Each Shareholder agrees that he shall
tender (or cause the Record Holder (as defined below) to tender), pursuant to
and in accordance with the terms of the Offer (or any replacement or subsequent
tender offer by Parent or any of its Subsidiaries for all of the shares of
Company Common Stock at a price per share in cash equal to at least $22 made
prior to the termination of this Agreement), all Owned Shares.
4. VOTING OF OWNED SHARES. During the period commencing on
the date hereof and continuing until the earlier of (x) the consummation of the
Offer and (y) the termination of this Agreement in accordance with Section 10
each of the Shareholders hereby agrees as follows:
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(a) to appear, or cause the holder of record on any
applicable record date with respect to any Owned Shares of such
Shareholder (the "RECORD HOLDER") to appear, for the purpose of
obtaining a quorum at any annual or special meeting of shareholders of
the Company and at any adjournment thereof at which matters relating
to the Merger, Merger Agreement or any transaction contemplated
thereby are considered; and
(b) at any meeting of the shareholders of the Company,
however called, and in any action by consent of the shareholders of
the Company, to vote, or cause to be voted by the Record Holder, the
Owned Shares of such Shareholder: in favor of the Merger, the Merger
Agreement (as amended from time to time) and the transactions
contemplated by the Merger Agreement and against any proposal for any
extraordinary corporate transaction, such as a recapitalization,
dissolution, liquidation, or sale of assets of the Company or any
merger, consolidation or other business combination (other than the
Merger) between the Company and any Person (other than Parent or a
Subsidiary of Parent) or any other action or agreement that is
intended or which reasonably could be expected to (x) result in a
breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement, (y)
result in any of the conditions to the Company's obligations under the
Merger Agreement not being fulfilled or (z) impede, interfere with,
delay, postpone or materially adversely affect the Merger and the
transactions contemplated by the Merger Agreement.
5. ACKNOWLEDGMENT. Each Shareholder acknowledges receipt and
review of a copy of the Merger Agreement.
6. NO INCONSISTENT AGREEMENT. Each Shareholder hereby
covenants and agrees that, except as contemplated by this Agreement, such
Shareholder shall not enter into any agreement, arrangement or understanding
with, or grant a proxy or power of attorney to, any Person with respect to the
Owned Shares which would prevent such Shareholder from complying with
obligations under this Agreement.
7. RESTRICTIONS ON TRANSFER, OTHER PROXIES; NO SOLICITATION.
(a) Each Shareholder hereby covenants and agrees that, until this Agreement is
terminated in accordance with Section 10, such Shareholder shall not, directly
or indirectly: (i) except as provided in Sections 3 and 10 hereof, Transfer to
any Person any or all Owned Shares and shall not cause any security interests,
liens, claims, pledges, charges, encumbrances, options, rights of first
refusals, agreements, or limitations on such Shareholder's voting rights, to
attach to the Owned Shares to be tendered to Purchaser pursuant to Section 3
hereof or to the Options or any Owned Shares issuable thereunder; or (ii) grant
any proxies or powers of attorney, deposit any Owned Shares into a voting trust
or enter into a voting agreement, understanding or arrangement with respect to
such Owned Shares.
(b) From the date hereof until the consummation of the
Offer or the termination of this Agreement in accordance with its terms, each
Shareholder (i) shall immediately terminate any discussions with, any third
party concerning an Acquisition Proposal and (ii) shall not, and shall not
permit any of his Representatives to, directly or indirectly, (A) encourage,
solicit or initiate any Acquisition Proposal, (B) participate in negotiations
with, or
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provide any information to, or otherwise take any other action to
assist or facilitate any Person or group (other than Parent or Purchaser or any
affiliate or associate of Parent or Purchaser) concerning any Acquisition
Proposal, (C) enter into an agreement with any person, other than Parent,
providing for a possible Acquisition Proposal, or (D) make or authorize any
statement, recommendation or solicitation in support of any possible Acquisition
Proposal by any Person, other than by Parent. Notwithstanding the above, such
Shareholder may take any actions in the Shareholder's capacity as a director,
officer or employee of the Company permitted under the Merger Agreement.
8. STOP TRANSFER. No Shareholder shall request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Owned Shares, unless such
transfer is made in compliance with this Agreement.
9. FURTHER ASSURANCES. 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 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.
10. TERMINATION. This Agreement, and all rights and
obligations of the parties hereunder, shall terminate upon the earlier of (a)
the date upon which Parent shall have purchased and paid for all of the Owned
Shares of such Shareholder in accordance with the Offer (or any subsequent or
replacement tender offer by Parent or any of its Subsidiaries) and (b) the date
upon which the Merger Agreement is terminated in accordance with its terms;
PROVIDED, HOWEVER, that if the Merger Agreement is terminated pursuant to any of
Sections 8.01(d), (e) or (f) of the Merger Agreement and at the time of such
termination the Termination Fee either is or may become payable pursuant to
Section 8.03(b) of the Merger Agreement, this Agreement shall only terminate on
the date which is nine months after the date of termination of the Merger
Agreement; and PROVIDED, FURTHER, that during any such nine month period,
neither the limitation on Transfers contained in Section 7(a) nor any other
provision of this Agreement shall prohibit or limit any Transfer of any Owned
Shares by any Shareholder (i) in open market transactions pursuant to Rule 144
under the Securities Act or (ii) pursuant to an underwritten public offering
effectuated in a manner so as to result in a wide-spread distribution of the
subject shares.
11. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
(b) COSTS AND EXPENSES. All costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expenses.
(c) ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties and their
respective successors, personal
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or legal representatives, executors, administrators, heirs, distributees,
devisees, legatees and permitted assigns, but neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by either party
(whether by operation of law or otherwise) without the prior written consent of
the other party; PROVIDED, that Parent and Purchaser may assign their respective
rights and obligations hereunder to any direct or indirect wholly-owned
subsidiary of Parent which is an assignee of such parties' rights and
obligations under the Merger Agreement, but no such assignment shall relieve
Parent or Purchaser, as the case may be, of its obligations hereunder. Nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other Person any rights, benefits or remedies of any nature whatsoever under or
by reason of this Agreement.
(d) AMENDMENTS. This Agreement may not be amended,
changed, supplemented, or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by each of the parties
hereto. The parties may waive compliance by the other parties hereto with any
representation, agreement or condition otherwise required to be complied with by
such other party hereunder, but any such waiver shall be effective only if in
writing executed by the waiving party.
(e) NOTICE. All notices and other communications
hereunder shall be in writing and shall be deemed given upon (i) transmitter's
confirmation of a receipt of a facsimile transmission, (ii) confirmed delivery
by a standard overnight carrier or when delivered by hand or (iii) the
expiration of five business days after the day when mailed by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to Parent or Purchaser: Automatic Data Processing, Inc.
0 XXX Xxxxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Copy to: Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopier Number: (000) 000-0000
If to the Shareholders: C/x Xxxxxxxxxx Graphics International,
Inc.
Xxxxxxx X. Xxxxxxxxxx, Inc.
000 Xxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
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Copy to: Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: 212-225-3999
Copy to: Xxxxxxx, Del Deo, Dolan, Griffinger &
Xxxxxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile: 000-000-0000
or to such other address or facsimile number as the Person to whom notice is
given shall have previously furnished to the others in writing in the manner set
forth above.
(f) SEVERABILITY. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without affecting the validity or enforceability of the
remaining provisions hereof. Any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement, each
non-breaching party would be irreparably and immediately harmed and could not be
made whole by monetary damages. It is accordingly agreed that the parties hereto
(a) will waive, in any action for specific performance, the defense of adequacy
of a remedy at law and (b) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to compel specific performance
of this Agreement.
(h) REMEDIES. 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 shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party. 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.
(i) DIRECTORS' FIDUCIARY DUTIES. Notwithstanding
anything herein to the contrary, nothing set forth herein shall in any way
restrict any director, officer or employee in the exercise of his fiduciary or
other duties as a director, officer or employee of the Company.
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(j) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of New Jersey without giving
effect to the principles of conflicts of law thereof.
(k) JURISDICTION. Each party to this Agreement hereby
irrevocably agrees that any legal action proceeding arising out of or relating
to this Agreement or any agreements or transactions contemplated hereby shall be
brought in the courts of the State of New Jersey and hereby expressly submits to
the personal jurisdiction and venue of such courts for the purposes thereof and
expressly waives any claim of improper venue and any claim that such courts are
an inconvenient forum.
(l) HEADINGS; INTERPRETATION. 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.
"Include," "includes," and "including" shall be deemed to be followed by
"without limitation" whether or not they are in fact followed by such words or
words of like import.
(m) 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 instrument.
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IN WITNESS WHEREOF, Parent, Purchaser and each Shareholder
have caused this Agreement to be duly executed as of the day and year first
above written.
AUTOMATIC DATA PROCESSING, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Corporate Vice President
FIS ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Corporate Vice President
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxxx
/s/ Xxxxxx Xxxx
-------------------------------
Xxxxxx Xxxx
/s/ Xxxxxxx Xxxx
-------------------------------
Xxxxxxx Xxxx
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SCHEDULE 1
Number of Owned Shares
over which Shareholder
Number of has Investment or Voting
Owned Shares Number of Power (not included
Name of Shareholder (Beneficially or of record)(1) Options owned in prior columns)
------------------- ------------------------------ ------------- ------------------------
Xxxxxxx X. Xxxxxxxxxx 2,032,928 -
Xxxxx X. Xxxxxxxxxx 130,898
Xxxxxx Xxxx 228,198 15,000
Xxxxxxx Xxxx 165,803 5,000
------- -----
2,557,827 20,000
------------
(1) Other than Owned Shares issuable upon exercise of Options listed in the next
column.
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