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Exhibit (c)(5)
TENDER AGREEMENT
This TENDER AGREEMENT dated as of October 6, 1999 (this "Agreement") is
by and among XXXXXXX CORPORATION, a corporation organized under the laws of New
York ("Parent"), PSC ACQUISITION CORP., a Maine corporation and a wholly-owned
subsidiary of Parent ("Purchaser"), and the undersigned individual (the
"Stockholder").
R E C I T A L S :
WHEREAS, simultaneously with the execution of this Agreement, Parent,
Purchaser and Penobscot Corporation, a Maine corporation (the "Company"), have
entered into an Agreement and Plan of Merger (as amended from time to time, the
"Merger Agreement"), pursuant to which Parent has agreed, among other things, to
cause Purchaser to commence a cash tender offer (as such tender offer may
hereafter be amended from time to time, the "Offer") to purchase any and all
shares of common stock, par value $1.00 per share, of the Company (the "Company
Common Stock"); and
WHEREAS, as an inducement and a condition to its entering into the
Merger Agreement and incurring the obligations set forth therein, including the
Offer and the Merger, Parent has required that the Stockholder enter into this
Agreement.
P R O V I S I O N S :
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. For purposes of this Agreement, with respect to the Stockholder,
"Affiliate" shall not include the Company and the Persons that directly, or
indirectly through one or more intermediaries, are controlled by the Company.
"Encumbrances" shall mean any and all liens, charges, security
interests, options, claims, mortgages, pledges, proxies, voting trusts or
agreements, obligations, understandings or arrangements or other restrictions of
any nature whatsoever.
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"Owned Shares" means, with respect to the Stockholder, the
shares of Company Common Stock described in Section 2(c), together with any
other shares of Company Common Stock acquired by the Stockholder after the date
hereof.
"Person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust, estate,
unincorporated organization or other entity.
"Representative" means, with respect to any Person, such
Person's agents and representatives (including any investment banker, financial
advisor, agent, representative or expert retained by or acting on behalf of such
Person).
"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 TENDERING STOCKHOLDERS. The
Stockholder hereby represents and warrants to Parent and Purchaser as follows:
(a) This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes his or her valid and binding
agreement, enforceable against him 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.
(b) The Stockholder is the record or beneficial owner, has
sole voting power, sole power of disposition and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to his or her
Owned Shares, subject to applicable securities laws and the terms of this
Agreement.
(c) Upon the consummation of the Offer, Purchaser will acquire
good and marketable title to the Stockholder's Owned Shares, free and clear of
all Encumbrances, except for any Encumbrance arising under the Securities Act of
1933, as amended, or any applicable state securities laws. As of the date
hereof, the Stockholder owns the number of shares of Company Common Stock set
forth under the Stockholder's signature at the end of this Agreement. Effective
with the execution of this Agreement, the Stockholder hereby waive any rights
which he may have with respect to any other stockholder's Owned Shares under the
Stockholders' Agreement dated November 18, 1987.
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3. REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER. Parent and
Purchaser hereby represent and warrant, jointly and severally, to the
Stockholders as follows:
(a) Each of Parent and Purchaser is a corporation duly
organized and validly existing under the laws of its jurisdiction of
incorporation, and each of them is in good standing under the laws of its
jurisdiction of incorporation. Parent and Purchaser have the corporate power and
authority to execute and deliver this Agreement and perform their respective
obligations hereunder. The execution and delivery by Parent and Purchaser of
this Agreement and the performance by Parent and Purchaser of their respective
obligations hereunder have been duly and validly authorized by the respective
Boards of Directors of Parent and Purchaser and no other corporate proceedings
on the part of Parent or Purchaser are necessary to authorize the execution,
delivery or performance of this Agreement by Parent and Purchaser or the
consummation of the transactions contemplated hereby by Parent and Purchaser.
(b) This Agreement has been duly and validly executed and
delivered by Parent and Purchaser and constitutes a valid and binding agreement
of each of Parent and Purchaser, enforceable against each of them 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.
(c) None of the execution and delivery of this Agreement by
Parent or Purchaser, the consummation by Parent or Purchaser of the transactions
contemplated hereby or compliance by Parent or Purchaser with any of the
provisions hereof shall (i) conflict with or result in any breach of the
Certificate of Incorporation or By-Laws of Parent or Purchaser, or (ii) 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, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent or Purchaser is a party or
by which Parent or Purchaser or any of their respective properties or assets may
be bound, (iii) require on the part of Parent or the Purchaser any filing with,
or permit, authorization, consent or approval of, any Governmental Entity, or
(iv) violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to Parent or Purchaser or any of their respective
properties or assets.
4. TENDER OF SHARES. The Stockholder shall tender or cause the record
owner thereof to tender into, pursuant to and in accordance with the terms of
the Offer, any and all of its Owned Shares. The parties agree that each
Stockholder will, for all Owned Shares tendered by it in the Offer and accepted
for payment and purchase by Purchaser, receive a price for each of its Owned
Shares equal to $11.75, or such higher per share consideration paid to other
stockholders who have tendered shares of Company Common
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Stock into the Offer which have been accepted for payment and purchased by
Purchaser in the Offer (the "Offer Price"), but not any additional amounts paid
or payable to holders of Company Common Stock that do not participate in the
Offer by reason of rights of appraisal, rights of dissent or otherwise. The
Stockholder agrees not to withdraw any of its Owned Shares unless the Offer is
terminated or has expired without Purchaser having accepted for payment all of
the Shares tendered in the Offer.
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5. RESTRICTIONS ON TRANSFER, OTHER PROXIES; NO SOLICITATION.
(a) Except as provided in Section 4 hereof, the Stockholder
shall not, until the termination of this Agreement, pursuant to Section 9,
directly or indirectly: (i) Transfer to any Person any or all of his or her
Owned Shares; or (ii) grant any proxies or powers of attorney, deposit any of
his Owned Shares into a voting trust or enter into a voting agreement,
understanding or arrangement with respect to such Owned Shares.
(b) Each Stockholder hereby agrees, solely in his capacity as
a stockholder of the Company, that from and after the date hereof until the
earlier of the termination of the Merger Agreement and the Effective Time, he
shall not, and such Stockholder shall cause his respective Affiliates not to,
directly or indirectly, (i) initiate, solicit or encourage (including by way of
furnishing non-public information) any inquiries or the making of any proposal
that constitutes or is reasonably likely to lead to an Acquisition Proposal or
(ii) engage in any negotiations or discussions with, or furnish any information
or data, to, any third party relating to an Acquisition Proposal. The
Stockholder will promptly inform Parent of the terms of any proposal,
discussion, negotiation or inquiry which the Stockholder may receive in respect
of any Acquisition Proposal. Any action taken by the Company or any member of
the Board of Directors of the Company in his or its capacity as such to the
extent permitted and in accordance with the terms of Section 5.4(b) of the
Merger Agreement shall be deemed not to violate this Section 5(b).
6. STOP TRANSFER AND LEGEND. The Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of its Owned Shares, unless such
transfer is made in compliance with this Agreement.
7. 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 appropriate to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
8. WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that her or she may
have.
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9. TERMINATION. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate only upon the termination of the Merger
Agreement in accordance with its terms. All representations and warranties
herein shall survive any termination of this Agreement.
10. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements; understandings, representations and warranties, both written and
oral, between the parties with respect to the subject matter hereof, including,
without limitation, a certain non-binding letter dated August 31, 1999 of Parent
to Company proposing terms for the transactions contemplated by the Merger
Agreement and this Agreement.
(b) The Stockholder agrees that this Agreement and the
respective rights and obligations of the Stockholder hereunder shall attach to
all Owned Shares.
(c) Except as provided below, all costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expenses. In the event any legal proceeding
is commenced by any party to this Agreement to enforce or recover damages for
any breach of the provisions hereof, the prevailing party in such legal
proceeding will be entitled to recover in such legal proceeding from the losing
party such prevailing party's costs and expenses incurred in connection with
such legal proceeding, including reasonable attorneys' fees. The provisions of
this Section 10(c) will survive the Closing hereunder.
(d) 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 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 Purchaser may assign
their rights and obligations hereunder to any assignee of Purchaser's rights and
obligations under the Merger Agreement. 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.
(e) 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.
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(f) All notices (which term shall include any other
communications) required or permitted to be given under this Agreement or in
connection with the matters contemplated by this Agreement shall be in writing
and shall be deemed to have been duly given to the intended party (i) when
personally delivered, or (ii) upon receipt if sent by reputable overnight
courier service. Any party to this Agreement may notify any other party of any
changes to the address or any of the other details specified in this paragraph,
provided that such notification shall only be effective on the date specified in
such notice or three (3) business days after the notice is given, whichever is
later. All notices required to be given under this Agreement shall be sent to
the party using the addresses specified below:
If to Parent or Purchaser:
Xxxxxxx Corporation
00 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, President
with a copy to:
Xxxxx, Oviatt, Gilman, Xxxxxxx & Xxxxxx, LLP
000 Xxxxxxxxxx Xxxxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Xx., Esq.
If to the Stockholder:
To the address indicated at the foot of this Agreement
with a copy to:
Xxxxxx, Xxxx & Xxxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, III, Esq.
and
Xxxxxx & Xxxxxxxx, LLC
00 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(g) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent
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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, provided the commercial objective of this
Agreement is not frustrated.
(h) Each of the parties hereto acknowledges and agrees that in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached, each
non-breaching party would be irreparably and immediately harmed and could not be
made whole by monetary damages. Accordingly, it is agreed that the parties
hereto (i) shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement and to compel specific performance of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity, and (ii) will waive, in any proceeding for specific performance, the
defense of adequacy of a remedy at law. Each of the parties further agrees to
waive any requirement for the securing or posting of any bond or other security
in connection with any proceeding for specific performance.
(i) 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.
(j) This Agreement shall be governed and construed in
accordance with the Maine Business Corporations Act (the "MBCA"), where
applicable, and otherwise with the laws of the State of New York without giving
effect to the principles of conflicts of law thereof or of any other
jurisdiction.
(k) 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. This Agreement may be executed by
facsimile signatures and such signature shall be deemed binding for all purposes
hereof, without delivery of an original signature being thereafter required.
(l) Any legal action or proceeding with respect to this
Agreement or any matters arising out of or in connection with this Agreement or
otherwise, and any action for enforcement of any judgment in respect thereof
shall be brought exclusively in the courts of the State of New York or of the
United States of America for the Western District of New York or the state or
federal courts located in the State of Maine, to the
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extent the proceeding involves an interpretation or enforcement of the MBCA,
and, by execution and delivery of this Agreement, each of the Tendering
Stockholder, Parent and Purchaser each hereby accept for themselves and in
respect of their respective property, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts and appellate courts thereof.
Each of the Stockholder, Parent and Purchaser irrevocably consents to service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, or by recognized international express carrier or delivery service, to
any Stockholder at the address referred to in Section 11(f).
(m) Each of the Stockholder, Parent and Purchaser each hereby
irrevocably waives any objection which he or she may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement or otherwise brought in the courts
referred to above and hereby further irrevocably waives and agrees, to the
extent permitted by applicable law, not to plead or claim in any such court, by
way of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (i) any claim that he or she is not
personally subject to the jurisdiction of the above-named courts, (ii) that he
or she or his or her property is exempt or immune from jurisdiction of any such
court or from any legal process commenced in such courts (whether through
service of notice, attachment before judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise), (iii) that the proceeding in any
such court is brought in an inconvenient forum, (iv) that the venue of such
proceeding is improper or (v) that this Agreement, or the subject matter hereof,
may not be enforced in or by such court. Nothing herein shall affect the right
of any party hereto to serve process in any other manner permitted by law.
IN WITNESS WHEREOF, Parent, Purchaser and the Stockholders have caused
this Agreement to be duly executed as of the day and year first above written.
PARENT: XXXXXXX CORPORATION
By:
Name: Xxxxx X. Xxxxxxx
Title: President
PURCHASER: PSC ACQUISITION CORP.
By:
Name: Xxxxx X. Xxxxxxx
Title: President
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STOCKHOLDER:
Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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Printed Name
00 Xxxx Xxxxx Xx.
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Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
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City, State and Zip Code
8,530
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Number of Shares Owned
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