EXHIBIT (C)(3)
GUARANTEE
As an inducement to Vallen Corporation, a Texas corporation (the
"Company"), to enter into, and consummate the transactions contemplated by, the
Agreement and Plan of Merger, dated as of November 14, 1999 (the "Merger
Agreement"), by and among the Company, XXXXXXXXX P.P.S. NORTH AMERICA, INC., a
Texas corporation ("Parent"), and SHIELD ACQUISITION CORP., a Texas corporation
("Purchaser"), XXXXXXXXX N.V., a corporation organized under the laws of the
Netherlands ("Xxxxxxxxx"), hereby unconditionally, absolutely and irrevocably
guarantees to the Company and any third party beneficiaries under the Merger
Agreement (to the extent of their third party beneficiary rights thereunder) the
full and punctual payment and performance of all covenants, agreements,
obligations and liabilities of Parent, Purchaser and the Surviving Corporation
(as defined in the Merger Agreement) contained in the Merger Agreement or in
connection with the Offer, the Merger (as both are defined in the Merger
Agreement) and the other transactions contemplated by the Merger Agreement.
This is a guarantee of payment and performance and not collectibility.
Xxxxxxxxx is the primary obligor under this Guarantee. Xxxxxxxxx hereby waives
diligence, presentment, demand of performance, filing of any claim, any right to
require any proceeding for and against Parent, Purchaser or the Surviving
Corporation, protest, notice and all demands whatsoever in connection with the
performance of its obligations herein.
Xxxxxxxxx hereby represents and warrants that:
(a) Xxxxxxxxx is a corporation duly incorporated, validly existing and in
good standing under the laws of the Netherlands and has all corporate power and
authority to carry on its business as now being conducted and is duly qualified
to do business and is in good standing in each jurisdiction in which the nature
of its business or the ownership or leasing of its properties makes such
qualification necessary other than in such jurisdictions where the failure to be
so qualified would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect (as defined in the Merger Agreement) on
Xxxxxxxxx or a material adverse effect on the ability of Xxxxxxxxx to perform
its obligations hereunder or consummate the transactions contemplated hereby.
(b) Xxxxxxxxx has the requisite corporate power and authority to enter into
this Guarantee. The execution and delivery of this Guarantee by Xxxxxxxxx has
been duly authorized by the Supervisory Board of Xxxxxxxxx, and no other
corporate proceedings on the part of Xxxxxxxxx is necessary to authorize this
Guarantee or the performance by Xxxxxxxxx of its obligations hereunder.
(c) This Guarantee has been duly executed and delivered by Xxxxxxxxx and
constitutes a valid and binding obligation of Xxxxxxxxx, enforceable against
Xxxxxxxxx in accordance with its terms.
(d) The execution and delivery of the Guarantee by Xxxxxxxxx do not and the
performance of its obligations hereunder and compliance with the provisions
hereof will not (x) violate any of the provisions of the certificate or articles
of incorporation or by-laws (or similar
documents) of Xxxxxxxxx or any of its subsidiaries (as defined in the Merger
Agreement), in each case as amended to the date of this Guarantee, (y) subject
to the governmental filings and other matters referred to in Section 5.4 of the
Merger Agreement, violate, result in a breach of or default (with or without
notice or lapse of time, or both) under, or give rise to a material obligation,
a right of termination, cancellation or acceleration of any obligation or loss
of a material benefit under, or require the consent of any person under, any
indenture, or other agreement, permit, concession, franchise, license or other
instrument or undertaking to which Xxxxxxxxx or any of its subsidiaries is a
party or by which Xxxxxxxxx or any of its subsidiaries or any of their
respective assets is bound or affected, or (z) subject to the governmental
filings and other matters referred to in Section 5.4, violate any law, rule or
regulation applicable to Xxxxxxxxx, or any order, writ, judgment, injunction,
decree, determination or award applicable to Xxxxxxxxx currently in effect,
which, in the case of clauses (y) and (z) above, would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on Xxxxxxxxx
or its ability to perform under the Guarantee.
(e) No consent, approval, order or authorization of, or declaration,
registration or filing with, or notice to, any Governmental Entity (as defined
in the Merger Agreement) which has not been received or made is required by or
with respect to Xxxxxxxxx or any of its subsidiaries in connection with the
execution and delivery of this Guarantee by Xxxxxxxxx or the performance by
Xxxxxxxxx of its obligations hereunder, except for the governmental filings and
other matters referred to in Section 5.4 of the Merger Agreement.
Xxxxxxxxx agrees to perform the covenants set forth in Section 8.1 of the
Merger Agreement as if it were a party thereto. Xxxxxxxxx agrees that it shall
cooperate with Parent and Purchaser to fulfill their obligations under the HSR
Act (as defined in the Merger Agreement) with respect to the transactions
contemplated by the Merger Agreement.
Xxxxxxxxx agrees, in its capacity as sole shareholder of Parent, to cause
Parent in its capacity as sole shareholder of Purchaser to approve and adopt the
Merger, the Merger Agreement and the transactions contemplated thereby.
This Guarantee shall be governed by, and construed in accordance with, the
laws of the State of Texas, without reference to its conflict of laws
provisions, and the Xxxxxxxxx hereby (i) submits to the exclusive jurisdiction
of the state civil district court in and for Xxxxxx County in the State of Texas
(or, if such court lacks subject matter jurisdiction, any appropriate state or
federal court in Xxxxxx County in the State of Texas), for purposes of any
action arising from, relating to, or growing out of this Guarantee, (ii) agrees
that it shall not attempt to deny or defeat such jurisdiction by motion or other
request for leave from any such court, and (iii) agrees that it shall not bring
any such action other than in the state civil district court in and for Xxxxxx
County in the State of Texas (or if such court lacks subject matter
jurisdiction, any appropriate state or federal court in Xxxxxx County of the
State of Texas). Xxxxxxxxx acknowledges that service or delivery to CT
Corporation in Houston, Texas, whom Xxxxxxxxx hereby appoints as its agent for
service of process and agrees to engage, shall constitute good and sufficient
service. Such appointment by Xxxxxxxxx shall be solely for the purposes set
forth in this Guarantee and shall not be deemed an appointment for any other
purpose. Xxxxxxxxx'x agreement to be subject to service of process as provided
above shall be effective only for the purpose of the Company's
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enforcement of this agreement and no third party beneficiary rights shall arise
to any third party beneficiary for it to seek to use this agreement as
Xxxxxxxxx'x admission for any other matter that Xxxxxxxxx is doing business in
Texas or that Xxxxxxxxx is subject to service of process in Texas for any other
purpose. Nothing herein shall be construed to require Xxxxxxxxx to maintain any
assets in the United States.
IN WITNESS WHEREOF, Xxxxxxxxx has executed and delivered this Guarantee as
of the _____ day of __________, 1999.
XXXXXXXXX N.V.
By:
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Name:
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Title:
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In the presence of:
By:
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Name:
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Title:
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