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STOCKHOLDER TENDER AGREEMENT
by and between
HANWEST, INC.
and XXXXXXX X. XXXXXXX
Dated as of December 19, 1995
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STOCKHOLDER TENDER AGREEMENT
STOCKHOLDER TENDER AGREEMENT, dated as of December 19, 1995 (this
"Agreement"), by and between Hanwest, Inc., a Delaware corporation
("Purchaser"), and Xxxxxxx X. Xxxxxxx ("Stockholder").
WHEREAS, the Stockholder is the owner of 539,734 shares (the "Shares")
of Common Stock, $.01 par value per share (the "Common Stock"), of CIMCO, Inc.,
a Delaware corporation (the "Company"), including 4,394 Shares owned of record
by Stockholder for the benefit of his grandchildren and 10,257 Shares (the "ESOP
Shares") credited under the Company's Employee Stock Ownership Plan (the "ESOP")
to the account of Stockholder as of the date hereof, and holds stock options
(the "Options") to acquire an aggregate of 76,250 shares of Common Stock granted
pursuant to the Company's 1991 Incentive Stock Option Plan and the Company's
1988 Incentive Stock Option Plan; and
WHEREAS, M.A. Xxxxx Company, a Delaware corporation ("Parent"), the
Purchaser and the Company, have entered into an Agreement and Plan of Merger,
dated as of the date hereof (as amended from time to time, the "Merger
Agreement"), which provides, among other things, that, upon the terms and
subject to the conditions therein, Purchaser will make a cash tender offer (the
"Offer") for all of the outstanding shares of Common Stock and will merge with
the Company (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, Purchaser has requested that the Stockholder
agree, and in order to induce Parent and Purchaser to enter into the Merger
Agreement, the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder represents and warrants to the Purchaser as follows:
(a) The Stockholder is the sole record (except for the ESOP
Shares) and beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which meaning will apply
for all purposes of this Agreement) of, and has good title to, all of the
Shares, and there exist no liens, claims, security interests, options, proxies,
voting agreements, charges or encumbrances of whatever
nature ("Liens") affecting the Shares, subject, in the case of the ESOP Shares,
to the terms of the ESOP.
(b) Upon transfer to the Purchaser by the Stockholder of the
Shares upon consummation of the Offer or the Merger (whichever is earlier),
Purchaser will have good title to the Shares, free and clear of all Liens.
(c) Other than the Options, the Shares constitute all of the
securities (as defined in Section 3(10) of the Exchange Act, which definition
will apply for all purposes of this Agreement) of the Company beneficially
owned, directly or indirectly, by the Stockholder (excluding any securities
beneficially owned by any of his affiliates or associates (as such terms are
defined in Rule 12b-2 under the Exchange Act, which definition will apply for
all purposes of this Agreement) as to which he does not have voting or
investment power).
(d) Except for the Shares and the Options, the Stockholder does
not, directly or indirectly, beneficially own or have any option, warrant or
other right to acquire any securities of the Company that are or may by their
terms become entitled to vote or any securities that are convertible or
exchangeable into or exercisable for any securities of the Company that are or
may by their terms become entitled to vote, nor is the Stockholder subject to
any contract, commitment, arrangement, understanding or relationship (whether or
not legally enforceable) that allows or obligates him to vote or acquire any
securities of the Company.
(e) The execution and delivery of this Agreement by the
Stockholder does not, and the performance by the Stockholder of his obligations
hereunder will not, constitute a violation of, conflict with, result in a
default (or an event which, with notice or lapse of time or both, would result
in a default) under, or result in the creation of any Lien on any Shares under,
(i) any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which Stockholder is a party or by which the
Stockholder is bound or (ii) any judgment, writ, decree, order or ruling
applicable to the Stockholder.
(f) Neither the execution and delivery of this Agreement nor the
performance by the Stockholder of his obligations hereunder will (i) violate any
order, writ, injunction or judgment applicable to the Stockholder or (ii) to the
best knowledge of Stockholder, violate any law, decree, statute, rule or
regulation applicable to the Stockholder or require any consent, authorization
or approval of, filing with or notice to, any court, administrative agency or
other governmental body or authority, other than any required notices or filings
pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (the "HSR Act") or
the federal securities laws.
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2. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants to the Stockholder as follows:
(a) Purchaser is duly organized and validly existing and in good
standing under the laws of the State of Delaware, has the requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement. This
Agreement has been duly and validly executed and delivered by Purchaser and
constitutes the legal, valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms, except that (i) the
enforceability hereof may be subject to applicable bankruptcy, insolvency or
other similar laws, now or hereinafter in effect, affecting creditors' rights
generally, and (ii) the availability of the remedy of specific performance or
injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
(b) The execution and delivery of this Agreement by Purchaser
does not, and the performance by Purchaser of its obligations hereunder will
not, constitute a violation of, conflict with, or result in a default (or an
event which, with notice or lapse of time or both, would result in a default)
under, its certificate of incorporation or bylaws or any contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which
Purchaser is a party or by which Purchaser is bound or any judgment, writ,
decree, order or ruling applicable to Purchaser.
(c) Neither the execution and delivery of this Agreement nor the
performance by Purchaser of its obligations hereunder will violate any order,
writ, injunction, judgment, law, decree, statute, rule or regulation applicable
to Purchaser or require any consent, authorization or approval of, filing with,
or notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the HSR Act or
the federal securities laws.
3. TENDER OF SHARES. The Stockholder will tender and sell (and not
withdraw) pursuant to and in accordance with the terms of the Offer all of the
Shares. Upon the purchase of all the Shares pursuant to the Offer in accordance
with this Section 3, this Agreement will terminate. In the event,
notwithstanding the provisions of the first sentence of this Section 3, any
Shares are for any reason withdrawn from the Offer or are not purchased pursuant
to the Offer, such Shares will remain subject to the terms of this Agreement.
The Stockholder acknowledges that Purchaser's obligation to accept for payment
and pay for the Shares in the Offer is subject to all the terms and conditions
of the Offer.
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4. TRANSFER OF THE SHARES. During the term of this Agreement,
except as otherwise provided herein, the Stockholder will not (a) offer to sell,
sell, pledge or otherwise dispose of or transfer any interest in or encumber
with any Lien any of the Shares, (b) acquire any shares of Common Stock or other
securities of the Company (otherwise than in connection with a transaction of
the type described in Section 7 and any such additional shares or securities
will be deemed Shares and included in the Shares subject to this Agreement),
including, without limitation, by exercising any of the Options, (c) deposit the
Shares into a voting trust, enter into a voting agreement or arrangement with
respect to the Shares or grant any proxy or power of attorney with respect to
the Shares, or (d) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect acquisition or sale,
assignment or other disposition of or transfer of any interest in or the voting
of any shares of Common Stock or any other securities of the Company.
5. VOTING OF SHARES. The Stockholder, by this Agreement, does
hereby constitute and appoint Purchaser, or any nominee thereof, with full power
of substitution, during and for the term of this Agreement, as his true and
lawful attorney and proxy for and in his name, place and xxxxx, to vote each of
such Shares at any annual, special or adjourned meeting of the stockholders of
the Company (and this appointment will include the right to sign his name (as
stockholder) to any consent, certificate or other document relating to the
Company which the laws of the State of Delaware may require or permit) (a) in
favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval and adoption of the terms thereof and hereof; (b)
against any action or agreement that would result in a breach in any respect of
any covenant, agreement, representation or warranty of the Company under the
Merger Agreement; and (c) against the following actions (other than the Merger
and the other transactions contemplated by the Merger Agreement): (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or its subsidiaries; (ii) a sale,
lease or transfer of a material amount of assets of the Company or one of its
subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or its subsidiaries; (iii) (A) any change in a majority of the
persons who constitute the board of directors of the Company as of the date
hereof; (B) any change in the present capitalization of the Company or any
amendment of the Company's Certificate of Incorporation or By-Laws, as amended
to date; (C) any other material change in the Company's corporate structure or
business; or (D) any other action which, in the case of each of the matters
referred to in clauses (iii)(A), (B), (C) and (D), is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, or adversely
affect the Merger and the other transactions contemplated by this Agreement and
the Merger Agreement. This proxy and power of attorney is a proxy and power
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coupled with an interest, and the Stockholder declares that it is irrevocable.
The Stockholder hereby revokes all and any other proxies with respect to the
Shares that he may have heretofore made or granted.
6. ENFORCEMENT OF THE AGREEMENT. The Stockholder acknowledges that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that Purchaser will be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which it is entitled at law or in equity, including without limitation
under Section 12 hereof.
7. ADJUSTMENTS. The number and type of securities subject to this
Agreement will be appropriately adjusted in the event of any stock dividends,
stock splits, recapitalizations, combinations, exchanges of shares or the like
or any other action that would have the effect of changing the Stockholder's
ownership of the Company's capital stock or other securities.
8. COMPLIANCE WITH MERGER AGREEMENT. Stockholder shall comply with
the requirements of Section 6.12 of the Merger Agreement.
9. TERMINATION. Except for Section 12 hereof which will only
terminate as and when provided therein, this Agreement will terminate on the
earlier of (a) the date the Merger Agreement is terminated in accordance with
its terms, (b) the purchase of all the Shares pursuant to the Offer in
accordance with Section 3, and (c) March 31, 1996.
10. EXPENSES. All fees and expenses incurred by either of the
parties hereto will be borne by the party incurring such fees and expenses.
11. BROKERAGE. Purchaser and the Stockholder represent and warrant
to the other that the negotiations relevant to this Agreement have been carried
on by Purchaser, on the one hand, and the Stockholder, on the other hand,
directly with the other, and that there are no claims for finder's fees or
brokerage commissions or other like payments in connection with this Agreement
or the transactions contemplated hereby. Purchaser, on the one hand, and the
Stockholder, on the other hand, will indemnify and hold harmless the other from
and against any and all claims or liabilities for finder's fees or brokerage
commissions or other like payments incurred by reason of action taken by him, it
or any of them, as the case may be.
12. FEE. If (a) Parent and Purchaser or the Company terminates the
Merger Agreement pursuant to Section 9.01(c), (d)
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or (e) thereof and (b) on or after the date hereof and not later than one year
from the date of such termination, (i) the Board of Directors of the Company
approves or recommends any proposal or offer (an "Acquisition Proposal")
concerning any merger, sale of assets, sale of shares of capital stock or
similar transaction involving the Company other than from Purchaser, or (ii) the
Company enters into an agreement with respect to a merger, acquisition,
consolidation, recapitalization, liquidation, dissolution or similar transaction
involving, or any purchase of all or a substantial portion of the assets or
equity securities of, the Company, or (iii) Stockholder disposes of any or all
of his Shares to any person not an affiliate or an associate of Purchaser or to
the Company or any affiliate thereof (or realizes cash proceeds in respect of
such Shares as a result of a distribution to the Stockholder by the Company
following the sale of a material amount of the Company's assets) in connection
with a transaction proposed, described or set forth in such Acquisition Proposal
or agreement or pursuant to such acquisition or (iv) the Company undergoes a
recapitalization, dissolution, liquidation or similar transaction proposed,
described or set forth in such Acquisition Proposal or agreement or the Company
issues an extraordinary dividend or other distribution in accordance with such
Acquisition Proposal or agreement (each, a "Subsequent Transaction") at a per
share price or with equivalent per share proceeds, as the case may be (the
"Subsequent Price"), with a value in excess of $10.50 (the "Offer Price"), then
the Stockholder will promptly pay to Purchaser an amount equal to one-half of
the product of (x) the excess of the Subsequent Price over the Offer Price and
(y) the number of Shares disposed of or otherwise participating in the
Subsequent Transaction. In the event of any stock dividends, stock splits,
recapitalizations, combinations, exchanges of shares or the like or any other
action that would have the effect of changing the Stockholder's ownership of the
Company's capital stock or other securities, the Offer Price will be
appropriately adjusted for the purpose of this Section 12.
13. MISCELLANEOUS.
(a) All representations and warranties contained herein will
survive for one year after the termination hereof.
(b) Any provision of this Agreement may be waived at any time by
the party that is entitled to the benefits thereof. No such waiver, amendment
or supplement will be effective unless in a writing and is signed by the party
or parties sought to be bound thereby. Any waiver by any party of a breach of
any provision of this Agreement will not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement or one or more sections hereof will not
be considered a waiver or deprive that party of the right thereafter
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to insist upon strict adherence to that term or any other term of this
Agreement.
(c) This Agreement contains the entire agreement among Purchaser
and the Stockholder with respect to the subject matter hereof, and supersedes
all prior agreements among Purchaser and the Stockholder with respect to such
matters. This Agreement may not be amended, changed, supplemented, waived or
otherwise modified, except upon the delivery of a written agreement executed by
the parties hereto.
(d) This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and performed in that state.
(e) The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
(f) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the Stockholder to:
Xx. Xxxxxxx X. Xxxxxxx
c/o Cimco, Inc.
000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Telecopier: (000) 000-0000
With a copy to:
O'Melveny & Xxxxx
Suite 1700
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopier:(000) 000-0000
If to the Purchaser to:
Hanwest, Inc.
c/o M.A. Xxxxx Company
Xxxxx 00-0000
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
Telecopier: (000) 000-0000
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with copies to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(g) This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one agreement.
(h) This Agreement is binding upon and is solely for the benefit
of the parties hereto and their respective successors, legal representatives and
assigns. Neither this Agreement nor any of the rights, interests or obligations
under this Agreement will be assigned by any of the parties hereto without the
prior written consent of the other parties, except that Purchaser will have the
right to assign to Purchaser or any other direct or indirect wholly owned
subsidiary of Parent any and all rights and obligations of Purchaser under this
Agreement, including the right to purchase Shares tendered by the Stockholder
pursuant to the terms hereof and the Offer, provided that any such assignment
will not relieve Purchaser from any of its obligations hereunder.
(i) If any term or other provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party hereto. Upon any such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
will negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated by this Agreement are consummated to
the extent possible.
(j) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative, and the exercise of any thereof by either party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written.
HANWEST, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
Stockholder
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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