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TENDER AND OPTION AGREEMENT
among
THE PROCTER AND XXXXXX COMPANY,
XXXXXXX, INC.
and
THE STOCKHOLDERS LISTED ON SCHEDULE A
Dated as of August 26, 1999
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TENDER AND OPTION AGREEMENT
TENDER AND OPTION AGREEMENT, dated as of August 26, 1999 (this
"Agreement"), among The Procter and Xxxxxx Company, an Ohio corporation
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("Purchaser"), Xxxxxxx, Inc., a Minnesota corporation and a wholly owned
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subsidiary of Purchaser ("Merger Sub"), and each of the persons listed on
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Schedule A hereto (each a "Stockholder" and, collectively, the "Stockholders").
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RECITALS
WHEREAS, Purchaser, Merger Sub and Recovery Engineering, Inc., a
Minnesota corporation (the "Company"), have entered into an Agreement and Plan
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of Merger dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement") providing for, among other things, an
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Offer by Merger Sub for all of the issued and outstanding shares of common
stock, par value $0.01 per share, of the Company (the "Company Common Stock"),
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and, subsequent thereto, assuming the Offer is consummated on the terms set
forth in the Offer Documents and all the other conditions to the Merger are
satisfied or waived, the Merger of Merger Sub with and into the Company with the
Company as the surviving corporation in the Merger, pursuant to which the
Company will become a wholly owned subsidiary of Purchaser;
WHEREAS, each Stockholder is the beneficial owner of the shares of
Company Common Stock, Options, Warrants, and Rights set forth opposite such
Stockholder's name on Schedule A hereto (collectively referred to herein as the
"Securities" of such Stockholder; such Securities, as such Securities may be
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adjusted by stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other change or
transaction of or by the Company, together with shares of Company Common Stock
issuable upon the exercise of Options, Warrants, and shares of Company Common
Stock issuable upon the exercise of Rights being referred to herein as the
"Shares" of such Stockholder); and
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WHEREAS, as a condition to each of Purchaser and Merger Sub's
willingness to enter into the Merger Agreement, Purchaser and Merger Sub have
requested that the Stockholders enter into, and the Stockholders have agreed to
enter into, this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:
Section 1. Certain Definitions. Capitalized terms used but not otherwise
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defined herein have the meanings ascribed to such terms in the Merger Agreement.
Section 2. Representations and Warranties of the Stockholders. Each
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Stockholder, severally and not jointly, represents and warrants to Purchaser and
Merger Sub, as of the date hereof and as of the Closing (as defined below), as
follows:
(a) The Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of, and has good title to, all of the Securities set
forth opposite such Stockholder's name on Schedule A, free and clear of any
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pledge, hypothecation, claim, security interest, charge, encumbrance, voting
trust agreement, interest, option, lien, charge or similar restriction or
limitation, including any restriction on the right to vote, sell or otherwise
dispose of the Securities, other than those arising under the federal and state
securities laws (each, a "Lien"), except as set forth in this Agreement.
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(b) The Securities constitute all of the securities (as defined in
Section 3(a)(10) of the Exchange Act) of the Company beneficially owned,
directly or indirectly, by the Stockholder.
(c) Except for the Securities, 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, restriction or relationship (whether or
not legally enforceable), other than this Agreement, that provides for such
Stockholder to vote or acquire any securities of the Company. The Stockholder
holds exclusive power to vote the Company Common Stock set forth opposite its
name on Schedule A, if any, and has not granted a proxy to any other person to
vote any Company Common Stock (including those issuable upon exercise of the
Options, Warrants or Rights), subject to the limitations set forth in this
Agreement.
(d) This Agreement has been duly executed and delivered by the
Stockholder, and assuming the due authorization, execution and delivery thereof
by the other parties hereto, constitutes the legal, valid and binding obligation
of the Stockholder, enforceable against the Stockholder in accordance with its
terms, except as enforcement against the Stockholder may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to creditors
rights generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(e) Neither the execution and delivery of this Agreement nor the
performance by the Stockholder of the Stockholder's obligations hereunder will
conflict with, result in a violation or breach of, or constitute a default (or
an event that, with notice or lapse of time or both, would result in a default)
or give rise to any right of termination, amendment, cancellation, or
acceleration 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 the Stockholder is a party or by which the Stockholder is
bound or (ii) any injunction, judgment, writ, decree, order or ruling applicable
to the Stockholder, except for conflicts, violations, breaches, defaults,
terminations, amendments, cancellations, accelerations or Liens that would not
individually or in the aggregate be expected
to prevent or materially impair or delay the consummation by such Stockholder of
the transactions contemplated hereby.
(f) Neither the execution and delivery of this Agreement nor the
performance by the Stockholder of the Stockholder's obligations hereunder will
(i) violate any Law applicable to the Stockholder or require any order, consent,
authorization or approval of, filing or registration with, or declaration 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,
foreign antitrust or competition laws or the federal securities laws, or (ii) if
the Stockholder is not a natural person, conflict with or violate the articles
of incorporation or bylaws or equivalent organizational documents of such
Stockholder.
(g) No investment banker, broker, finder or other intermediary is, or
will be, entitled to a fee or commission from Merger Sub, Purchaser or the
Company in respect of this Agreement based on any arrangement or agreement made
by or on behalf of such Stockholder in this Agreement or otherwise in his or her
capacity as a stockholder of the Company.
(h) The Stockholder understands and acknowledges that Purchaser is
entering into, and causing Merger Sub to enter into, the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this Agreement.
(i) If the Stockholder is not a natural person, such Stockholder is a
corporation, partnership or other legal entity duly incorporated or organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization.
(j) If the Stockholder is not a natural person, (i) such Stockholder
has all necessary corporate or partnership power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereunder, and (ii) the execution and delivery of
this Agreement by such Stockholder and the consummation by such Stockholder of
the transactions contemplated hereunder have been duly and validly authorized by
all necessary corporate or other action and no other corporate or other
proceedings on the part of such Stockholder are necessary to authorize this
Agreement or to consummate the transactions contemplated hereunder.
Section 3. Representations and Warranties of Purchaser and Merger Sub.
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Purchaser and Merger Sub hereby make each of the representations and warranties
contained in Sections 5.1, 5.3 and 5.4 of the Merger Agreement, as if such
representations and warranties were set forth herein.
Section 4. Transfer of the Shares. During the term of this Agreement,
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except as otherwise expressly provided herein, each Stockholder agrees that such
Stockholder will not (a) tender into any tender or exchange offer or otherwise
sell,
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transfer, pledge, assign, hypothecate or otherwise dispose of (including by
operation of Law), or create any Lien on, any of the Shares, (b) 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, (c) enter into any contract, option or other arrangement (including
any profit sharing arrangement) or undertaking with respect to the direct or
indirect acquisition or sale, transfer, pledge, assignment, hypothecation or
other disposition of any interest in or the voting of any Shares or any other
securities of the Company, (d) exercise any rights (including, without
limitation, under Section 302A.473 of the Minnesota Business Corporation Act) to
demand appraisal of any Shares which may arise with respect to the Merger, or
(e) take any other action that would in any way restrict, limit or interfere
with the performance of such Stockholder's obligations hereunder or the
transactions contemplated hereby or which would otherwise diminish the benefits
of this Agreement to Purchaser or Merger Sub.
Section 5. Adjustments. (a) In the event (i) of any stock dividend,
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stock split, recapitalization, reclassification, combination or exchange of
shares of capital stock or other securities of the Company on, of or affecting
the Shares or the like or any other action that would have the effect of
changing a Stockholder's ownership of the Company's capital stock or other
securities or (ii) a Stockholder becomes the beneficial owner of any additional
Shares of or other securities of the Company, then the terms of this Agreement
will apply to the shares of capital stock and other securities of the Company
held by such Stockholder immediately following the effectiveness of the events
described in clause (i) or such Stockholder becoming the beneficial owner
thereof, as described in clause (ii), as though they were Shares hereunder.
(b) Each Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Purchaser and Merger Sub of the number of any new
Shares acquired by such Stockholder, if any, after the date hereof.
Section 6. Tender of Shares of Company Common Stock. Each Stockholder
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hereby agrees that such Stockholder will validly tender (or cause the record
owner of such shares to validly tender) and sell (and not withdraw, except in
the event the Purchase Option is exercised, in which case such withdrawal shall
be for the limited purpose of consummating the Purchase Option) pursuant to and
in accordance with the terms of the Offer not later than the fifth business day
after commencement of the Offer (or the earlier of the expiration date of the
Offer and the fifth business day after such shares of Company Common Stock are
acquired by such Stockholder if the Stockholder acquires shares of Company
Common Stock after the date hereof), or, if the Stockholder has not received the
Offer Documents by such time, within two business days following receipt of such
documents, all of the then outstanding shares of Company Common Stock
beneficially owned by such Stockholder (including the shares of Company Common
Stock outstanding as of the date hereof and shares of Company Common Stock
issued following the exercise (if any) of the Options, Warrants, and Rights, in
each case as set forth on Schedule A hereto opposite such Stockholder's name).
Upon the purchase by Purchaser or Merger Sub of all of such then outstanding
shares of Company Common Stock beneficially owned by such Stockholder pursuant
to the Offer in accordance with this Section 6, this Agreement will terminate as
it relates to such Stockholder. In the event, notwithstanding the provisions of
the first sentence of this Section 6, any shares of Company Common Stock
beneficially owned by a Stockholder are for any reason withdrawn from the Offer
or are not purchased pursuant to the Offer, such shares of Company Common Stock
will remain subject to the terms of this Agreement. Each Stockholder
acknowledges that Purchaser's obligation to accept for payment and pay for the
shares of Company Common Stock tendered in the Offer is subject to all the terms
and conditions of the Offer.
Section 7. Voting Agreement. Each Stockholder, by this Agreement, does
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hereby (a) agree to appear (or not appear, if requested by Purchaser or Merger
Sub) at any annual, special, postponed or adjourned meeting of the stockholders
of the Company or otherwise cause the shares of Company Common Stock such
Stockholder beneficially owns to be counted as present (or absent, if requested
by Purchaser or Merger Sub) thereat for purposes of establishing a quorum and to
vote or consent, and (b) constitute and appoint Purchaser and Merger Sub, 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 all the shares of Company Common Stock such Stockholder
beneficially owns at the time of such vote, at any annual, special, postponed or
adjourned meeting of the stockholders of the Company (and this appointment will
include the right to sign his or its name (as stockholder) to any consent,
certificate or other document relating to the Company that the laws of the State
of Minnesota may require or permit), in the case of both (a) and (b) above, (x)
in favor of approval and adoption of the Merger Agreement and approval and
adoption of the Merger and the other transactions contemplated thereby and (y)
against (1) any Acquisition Proposal (other than the Merger and the other
transactions contemplated thereby), (2) 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 (3) any other action that
is intended, or could be expected, to impede, interfere with, delay, postpone,
or adversely affect the Offer, the Merger and the other transactions
contemplated by this Agreement, the Merger Agreement and the Ancillary
Documents. This proxy and power of attorney is a proxy and power coupled with an
interest, and each Stockholder declares that it is irrevocable until this
Agreement shall terminate in accordance with its terms. Each Stockholder hereby
revokes all and any other proxies with respect to the Shares that such
Stockholder may have heretofore made or granted. For shares of Company Common
Stock as to which a Stockholder is the beneficial but not the record owner, such
Stockholder shall use his or its best efforts to cause any record owner of such
Shares to grant to Purchaser a proxy to the same effect as that contained
herein. Each Stockholder hereby agrees to permit Purchaser and Merger Sub to
publish and disclose in the Offer Documents and the Proxy Statement and related
filings under the securities laws such Stockholder's identity
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and ownership of Shares and the nature of his or its commitments, arrangements
and understandings under this Agreement.
Section 8. No Solicitation. Each Stockholder agrees that neither such
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Stockholder nor any of such Stockholder's officers, directors, employees,
trustees, representatives, agents or affiliates (including, without limitation,
any investment banker, attorney or accountant retained by any of them) will
directly or indirectly initiate, solicit or encourage (including by way of
furnishing non-public information or assistance), or take any other action to
facilitate, any inquiries or the making or submission of any Acquisition
Proposal, or enter into or maintain or continue discussions or negotiate with
any person or entity in furtherance of such inquiries or to obtain or induce any
person to make or submit an Acquisition Proposal or agree to or endorse any
Acquisition Proposal or assist or participate in, facilitate or encourage, any
effort or attempt by any other person or entity to do or seek any of the
foregoing or authorize or permit any of its officers, directors, employees,
trustees or any of its affiliates or any investment banker, financial advisor,
attorney, accountant or other representative or agent retained by any of them to
take any such action. Each Stockholder shall promptly advise Purchaser in
writing of the receipt of request for information or any inquiries or proposals
relating to an Acquisition Proposal.
Section 9. Grant of Purchase Option. The Stockholder hereby grants to
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Purchaser and Merger Sub an irrevocable option (the "Purchase Option") to
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purchase for cash at a price (the "Exercise Price") set forth below, in a manner
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set forth below, any or all of the Shares (and including Shares acquired after
the date hereof by such Stockholder) beneficially owned by the Stockholder. The
Exercise Price for shares of Company Common Stock shall be equal to the Merger
Consideration. The Exercise Price as it relates to the Options and Warrants
shall be an amount in cash equal to the excess, if any, of the Merger
Consideration over the per share exercise price of such Option or Warrant,
without interest. To the extent that the per share exercise or conversion price
of any Option or Warrant exceeds the Merger Consideration, such Option or
Warrant shall be canceled and the Stockholder shall not receive or be entitled
to receive any consideration from Purchaser, Merger Sub or the Company relating
thereto. The Rights associated with any shares of Company Common Stock
transferred pursuant to this Agreement will be transferred with such shares of
Company Common Stock without payment of any additional consideration therefor.
In the event of any stock dividends, stock splits, recapitalizations,
combinations, exchanges of shares or the like, the Exercise Price will be
appropriately adjusted for the purpose of this Section 9. The amount payable
pursuant to this Section 9 shall be subject to all applicable withholding taxes.
Section 10. Exercise of Purchase Option.
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(a) Subject to the conditions set forth in Section 12 hereof, the
Purchase Option may be exercised by Purchaser or Merger Sub, in whole or in
part, at any time or from time to time after the occurrence of any Trigger Event
(as defined below). Each Stockholder shall notify Purchaser promptly in writing
of
the occurrence of any Trigger Event, it being understood that the giving of
such notice by the Stockholder is not a condition to the right of Purchaser or
Merger Sub to exercise the Purchase Option. In the event Purchaser or Merger Sub
wishes to exercise the Purchase Option, Purchaser shall deliver to each
Stockholder a written notice (an "Exercise Notice") specifying the total number
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of Shares it wishes to purchase from such Stockholder. Each closing of a
purchase of Shares (a "Closing") will occur at a place, on a date and at a time
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designated by Purchaser or Merger Sub in an Exercise Notice delivered at least
two business days prior to the date of the Closing.
(b) A "Trigger Event" means any one of the following: (i) the Merger
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Agreement becomes terminable under circumstances that entitle Purchaser or
Merger Sub to receive the Termination Fee under Section 9.3 of the Merger
Agreement (regardless of whether the Merger Agreement is actually terminated and
whether such Termination Fee is then actually paid) or (ii) the Offer is
consummated but, due to the failure of the Stockholder to validly tender and not
withdraw all of the then outstanding shares of Company Common Stock beneficially
owned by such Stockholder, the Purchaser has not accepted for payment or paid
for all of such shares of Company Common Stock.
(c) If requested by Purchaser and Merger Sub in the Exercise Notice,
such Stockholder shall exercise and/or convert all Options and Warrants (to the
extent exercisable and convertible) and other rights (including conversion or
exchange rights), other than Options and Warrants with exercise or conversion
prices above the Merger Consideration, beneficially owned by such Stockholder,
and shall, if directed by Purchaser and Merger Sub, tender the shares of Company
Common Stock acquired pursuant to such exercise or conversion into the Offer or
sell such shares of Company Common Stock to Purchaser or Merger Sub as provided
in this Agreement.
(d) In the event that, within 12 months of the exercise of the
Purchase Option, Purchaser sells, to a third party which is not an affiliate of
Purchaser, Shares acquired by means of exercise of the Purchase Option
("Exercise Shares") for an aggregate consideration (the "Aggregate
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Consideration") greater than the aggregate Exercise Price (the "Aggregate
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Exercise Price") paid for such Shares, Purchaser agrees to pay to the
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Stockholders an amount equal to the excess of the Aggregate Consideration over
the Aggregate Exercise Price. Each Stockholder shall be entitled to the
proportion of such excess equal to proportion of the total number of Exercise
Shares which were acquired from such Stockholder. In addition, in the event
that, within 12 months of the exercise of the Purchase Option, Purchaser shall
consummate a merger agreement with the Company, or shall purchase Shares
pursuant to a tender offer for all Shares, at a price per share (taking into
account any stock dividends, stock splits, recapitalizations, combinations,
exchanges of shares or the like or any other action that would have the effect
of changing Purchaser's ownership of the Company's
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capital stock or other securities) in excess of the Exercise Price, Purchaser
agrees to pay each Stockholder such excess for each Exercise Share purchased
from such Stockholder.
Section 11. Termination. This Agreement will terminate (a) pursuant to
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Section 6 or (b) upon the earliest of: (i) the Effective Time; (ii) termination
of the Merger Agreement in accordance with its terms other than upon, during the
continuance of, or after, a Trigger Event or an event which could lead to a
Trigger Event; or (iii) 120 days following any termination of the Merger
Agreement upon, during the continuance of or after a Trigger Event (or if, at
the expiration of such 120 day period the Purchase Option cannot be exercised by
reason of any applicable judgment, decree, order, injunction, law or regulation,
10 business days after such impediment to exercise has been removed or has
become final and not subject to appeal). Upon the giving by Purchaser or Merger
Sub to the Stockholder of the Exercise Notice and the tender of the aggregate
Exercise Price, Purchaser or Merger Sub, as the case may be, will be deemed to
be the holder of record of the Shares transferable upon such exercise,
notwithstanding that the stock transfer books of the Company are then closed or
that certificates representing such Shares have not been actually delivered to
Purchaser. Notwithstanding the termination of this Agreement, Purchaser will be
entitled to purchase the Shares subject to the Purchase Option if it has
exercised the Purchase Option in accordance with the terms hereof prior to the
termination of this Agreement and the termination of this Agreement will not
affect any rights hereunder which by their terms do not terminate or expire
prior to or as of such termination.
Section 12. Conditions To Closing. The obligation of each Stockholder to
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sell such Stockholder's Shares to Purchaser or Merger Sub hereunder is subject
to the conditions that (i) all waiting periods, if any, under the HSR Act,
applicable to the sale of the Shares or the acquisition of the Shares by
Purchaser or Merger Sub, as the case may be, hereunder have expired or have been
terminated; (ii) all consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any court, administrative agency or
other Governmental Entity, if any, required in connection with the sale of the
Shares or the acquisition of the Shares by Purchaser or Merger Sub hereunder
have been obtained or made; and (iii) no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such sale or acquisition is in effect.
Section 13. Closing. At any Closing with respect to Shares beneficially
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owned by a Stockholder, (a) such Stockholder will deliver to Purchaser, Merger
Sub or their respective designee a certificate or certificates in definitive
form representing the number of the Shares designated by Purchaser or Merger
Sub, as the case may be, in its Exercise Notice, such certificate to be
registered in the name of Purchaser, Merger Sub or their respective designee and
(b) Purchaser or Merger Sub, as the case may be, will deliver to the Stockholder
the aggregate Exercise Price for the Shares so designated and being purchased by
wire transfer of immediately available funds.
Section 14. Survival of Representations and Warranties. All
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representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive for twelve months after the termination
hereof. The covenants and agreements made herein will survive in accordance with
their respective terms.
Section 15. Expenses. Except as otherwise provided in the Merger
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Agreement, all costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such expenses.
Section 16. Counterparts. This Agreement may be executed in two or more
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counterparts, all of which shall be considered the same agreement.
Section 17. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Minnesota, without regard
to principles of conflicts of laws thereof.
Section 18. Notices. All notices and other communications hereunder shall
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be in writing and shall be deemed given if delivered by hand, mailed by
registered or certified mail (return receipt requested) or sent by prepaid
overnight courier (with proof of service) or confirmed to facsimile to the
parties as follows (or at such other addresses for a party as shall be specified
by like notice) and shall be deemed given on the date on which so hand-
delivered, or sent by confirmed telecopier and on the day after it has been so
mailed or sent by courier:
To Purchaser or Merger Sub:
The Procter and Xxxxxx Company
One Procter and Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Treasurer
Fax: 000-000-0000
with a copy (which shall not constitute notice) to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx XxxxxXxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx (P.C.)
Fax: 000-000-0000
If to a Stockholder, at the address set forth on Schedule A hereto or to
such other address as any party may have furnished to the other parties in
writing in accordance herewith.
Section 19. Miscellaneous.
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(a) This Agreement shall not, nor shall any of the rights or interests
hereunder, be assigned by any party hereto or assignable by operation of law or
otherwise without the prior written consent of the other parties hereto;
provided, however, that Purchaser may assign its rights hereunder to an
affiliate, but nothing shall relieve the assignor from its obligations
hereunder. Subject to the preceding sentence, this Agreement shall be binding
upon and shall inure to the benefit to the parties hereto and their respective
successors and assigns.
(b) The headings contained in this Agreement are for reference
purposes and shall not affect in any way the meaning or interpretation of this
Agreement. In this Agreement, unless the context otherwise requires, words
describing the singular number shall include the plural and vice versa, and
words denoting any gender shall include all genders and words denoting natural
persons shall include corporations and partnerships and vice versa. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be understood to be followed by the words "without limitation."
(c) 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.
Section 20. Severability. Any term or provision of this Agreement which
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is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or unenforceability of any of the terms or
provisions of this Agreement 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.
Section 21. Enforcement of Agreement; Waiver of Jury Trial. (a) The
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parties hereto agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with its
specific terms or was otherwise breached. It is accordingly agreed that the
parties shall 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, this being in addition to any other remedy to which they are entitled
at law or in equity.
(b) Each of the parties irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any and all rights to
trial by jury in connection with any litigation arising out of or relating to
this Agreement.
Section 22. Waiver, Etc. Any provision of this Agreement may be waived at
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any time by the party that is entitled to the benefits thereof. No such
waiver, amendment or supplement will be effective unless in writing and 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 to insist
upon strict adherence to that term or any other term of this Agreement.
Section 23. Amendment. This Agreement may not be amended, except by an
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instrument in writing signed on behalf of each of the parties.
Section 24. Further Assurances. (a) Each party hereto will execute and
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deliver all other documents and instruments and take all other actions that may
be reasonably necessary in order to consummate the transactions provided for by
such exercise.
(b) Each of the Stockholders will execute and deliver all
documents and instruments and take all other actions that may be reasonably
necessary to permit the Purchaser to exercise all rights granted to the
Purchaser by such Stockholder and obtain all benefits contemplated under this
Agreement with respect to the rights granted by such Stockholder.
Section 25. Publicity. A Stockholder shall not issue any press release or
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otherwise make any public statements with respect to this Agreement or the
Merger Agreement or the other transactions contemplated hereby or thereby
without the consent of Purchaser and Merger Sub; provided, however, that a
Stockholder may, without the prior consent of Purchaser and Merger Sub, issue a
press release or otherwise make such public statement as may be required by Law
if it has used all reasonable efforts to consult with Purchaser and Merger Sub
and to obtain Purchaser and Merger Sub's consent but has been unable to do so in
a timely manner.
Section 26. Stockholder Capacity. No person executing this Agreement
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makes any agreement or understanding herein in such Stockholder's capacity as a
director or officer of the Company. Each Stockholder signs solely in such
Stockholder's capacity as the beneficial owner of such Stockholder's Shares and
nothing herein shall limit or affect any actions taken by a Stockholder in such
Stockholder's capacity as an officer or director of the Company to the extent
specifically permitted by the Merger Agreement.
Section 27. Lien. (a) Xxxxx X. Xxxxxxxx ("Xxxxxxxx") represents that the
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shares of Company Common Stock set forth opposite his name on Schedule A are
subject to Liens as described in Schedule X. Xxxxxxxx agrees that (i) by 5:00
p.m. on August 27, 1999, 80% of such shares of Company Common Stock will no
longer be subject to such Lien or any other Lien and (ii) by 5:00 p.m. on
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September 1, 1999, no such shares will be subject to such Lien or any other
Lien. Xxxxxxxx agrees that he will not permit the holder of such Lien to obtain
any rights in the shares of Company Common Stock, including by foreclosure, and
will take all actions necessary or advisable to prevent such holder from
obtaining such rights.
(b) Xxxxxxx X. Xxxxxx, Xx. and WEC, Inc., jointly and severally
represent that the shares of Company Common Stock set forth opposite their
respective names on Schedule A are subject to Liens as described in Schedule X.
Xxxxxx and WEC, Inc. agree that (i) by 5:00 p.m. on August 27, 1999, 80% of such
shares (in the aggregate) will no longer be subject to such Lien or any other
Lien and (ii) by 5:00 p.m. on September 1, 1999, no such shares will be subject
to such Lien or any other Lien. Xxxxxx and WEC, Inc. agree that he will not
permit the holder of such Lien to obtain any rights in the shares of Company
Common Stock, including by foreclosure, and will take all actions necessary or
advisable to prevent such holder from obtaining such rights.
Section 27. Enforcement of Agreement. The parties hereto agree that
------------------------
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. It is accordingly agreed that the parties shall 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, this being in
addition to any other remedy to which they are entitled at law or in equity.
IN WITNESS WHEREOF, each of the Purchaser and Merger Sub has caused this
Agreement to be signed by its officer or director thereunto duly authorized and
each Stockholder has signed this Agreement, all as of the date first written
above.
THE PROCTER & XXXXXX COMPANY
/s/ Xxxxxxxx X. Xxxxx
By:____________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Treasurer
XXXXXXX, INC.
/s/ Xxxxxxxx X. Xxxxx
By:____________________________________
Name: Xxxxxxxx X. Xxxxx
Title:
WEC, INC.
/s/ Xxxxxxx X. Xxxxxx, Xx.
By:____________________________________
Name: Xxxxxxx X. Xxxxxx, Xx.
Title:
/s/ Xxxxxxx X. Xxxxxx, Xx.
_______________________________________
Xxxxxxx X. Xxxxxx, Xx.
/s/ Xxxxx X. Xxxxxxxx
_______________________________________
Xxxxx X. Xxxxxxxx
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SCHEDULE A
Stockholder Address Number of Number of Number of Number of
Shares Options Warrants Rights
WEC, Inc. (formerly 0000 Xxxxxxxx Xxx. 596,100 -0- -0- 596,100
known as Xxxxxx Xxxxxxxxxxx, XX 00000
Engineering, Inc.)
Xxxxxxx X. Xxxxxx, Xx. 0000 Xxxxxxxx Xxx. 58,050 8,000 -0- 58,050
Xxxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx 0000 Xxxxx 00xx Xxx. 408,500 371,500 -0- 408,500
Xxxxxxxxxxx, XX 00000
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SCHEDULE B
1. The shares of Common Stock owned by WEC, Inc. are subject to a lien in
favor of Firstar Bank of Minnesota, N.A. ( "Firstar Bank") in connection
with a Credit Agreement between WEC, Inc. and the Bank.
2. The shares of Common Stock owned by Xxxxxxx X. Xxxxxx, Xx. are subject to a
lien in favor of Bank Windsor ("Windsor Bank") in connection with a loan
from the Bank to Xx. Xxxxxx.
3. The shares of Common Stock owned by Xxxxx X. Xxxxxxxx are held in margin
accounts at certain brokers from whom Xx. Xxxxxxxx has obtained margin
loans.