Execution Copy
January 14, 1998
MQ Acquisition Corporation
x/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx & Xx., Xxx.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Re: Stockholder Agreement
Dear Sirs:
The undersigned (the "Stockholder") understands that MQ
Acquisition Corporation, a Delaware corporation ("Acquiror") and Mediq
Incorporated, a Delaware corporation (the "Company") are entering into an
Agreement and Plan of Merger, dated the date hereof, as the same may be amended
from time to time (the "Merger Agreement"), providing for, among other things,
the merger of Acquiror with and into the Company on the terms and conditions set
forth therein (the "Merger").
The Stockholder is a stockholder of the Company and is
entering into this letter agreement (the "Stockholder Agreement") to induce you
to enter into the Merger Agreement and to consummate the transactions
contemplated thereby. Capitalized terms used but not defined herein shall have
the same meanings as in the Merger Agreement.
The Stockholder confirms its agreement with you as follows:
1. The Stockholder represents, warrants and agrees that
Schedule I annexed hereto sets forth the Common Shares and Preferred Shares of
which the Stockholder or its affiliates (as defined under the Securities
Exchange Act of 1934, as amended) are the record or beneficial owner and that
the Stockholder and its affiliates are on the date hereof the lawful owners of
the number of Shares set forth in Schedule I beside the name of the Stockholder
or such other person. Except as set forth in Schedule I, neither the Stockholder
nor any of its affiliates, own or hold any rights to acquire any additional
shares of the capital stock of the Company (by exercise of stock options or
otherwise) or any interest therein or any voting rights with respect to any
additional Shares. The Stockholder, together with other persons who are
signatories to this Stockholder Agreement or letter agreements with Acquiror
containing substantially the same terms and conditions as set forth herein, has
sole voting power and sole power to issue instructions with respect to the
matters set forth herein, sole power of disposition, sole power of conversion,
sole power to demand appraisal rights and sole power to engage in the actions
set forth herein, in each case with respect to the Shares set forth on Schedule
I hereto beside the name of the Stockholder or such other person.
2. The Stockholder agrees that it will not, will not permit
any company, trust or other person or entity controlled by the Stockholder to,
and will not permit any of its affiliates to, contract to sell, sell or
otherwise transfer or dispose of any Shares or any interest therein or
securities convertible therein to or any voting rights with respect thereto,
other than (i) pursuant to the Merger, (ii) pursuant to the Option Agreement
dated of even date herewith between Acquiror and the undersigned (iii) with your
prior written consent. The Stockholder agrees that it shall not convert any
Preferred Shares into Common Shares or take any other action which diminishes
the benefits of this Stockholder Agreement to the Acquiror.
3. The Stockholder agrees to, and to cause any company, trust
or other person or entity controlled by the Stockholder to, cooperate fully with
you in connection with the Merger Agreement, the Option Agreement, this
Stockholders Agreement and the transactions contemplated thereby and hereby. The
Stockholder agrees that it will not, and will not permit any such company, trust
or other entity or person to, and will not authorize any of its affiliates to,
directly or indirectly (including through its officers, directors, employees or
other representatives) to solicit, initiate, encourage or facilitate, or furnish
or disclose non-public information in furtherance of, any inquiries or the
making of any proposal with respect to any recapitalization, merger,
consolidation or other business combination involving the Company, or the
acquisition of any capital stock or any material portion of the assets (except
for acquisition of assets in the ordinary course of business consistent with
past practice and not material in the aggregate to the Company) of the Company,
or any combination of the foregoing (a "Competing Transaction"), or negotiate,
explore or otherwise engage in discussions with any person (other than Acquiror
and its affiliates, or their respective directors, officers, employees, agents
and representatives) with respect to any Competing Transaction or enter into any
agreement, arrangement or understanding with respect to any Competing
Transaction or agree to or otherwise assist in the effectuation of any Competing
Transaction; provided, however, that nothing herein shall require the
Stockholder to prevent or restrict any director or trustee of the Stockholder
who is a director or officer of the Company from taking any action in his
capacity as a director or officer of the Company to the extent such director or
officer would be permitted to take such action under the Merger Agreement.
4. The Stockholder agrees that all of the Shares beneficially
owned by the Stockholder, or over which the Stockholder has voting power or
control, directly or indirectly (including any Shares beneficial ownership of
which is acquired by the Stockholder after the date hereof), at the record date
for any meeting of the Company's stockholders, however called, or in connection
with any written consent of the stockholders of the Company, shall be voted (or
caused to be voted) (i) in favor of the Merger, the execution and delivery by
the Company of the Merger Agreement and the approval of the terms thereof and
each of the other actions contemplated by the Merger Agreement, this Stockholder
Agreement and the Option Agreement and any actions required in furtherance
hereof and thereof; (ii) against any action or agreement that would result in a
breach in any material respect of any covenant, representation or warranty or
any other obligation of the Company under the Merger Agreement or under this
Stockholder Agreement or the Option Agreement; and (iii) except as otherwise
agreed to in writing in advance by Acquiror, against the following actions
(other than the Merger and the transactions with you or your affiliates
contemplated by the Merger Agreement): (1) any extraordinary corporate
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transaction, such as a merger, consolidation or other business combination
involving the Company or its Subsidiaries; (2) any sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (3) (a) subject to Section 7 hereof, any change in the
majority of the Board of Directors of the Company; (b) any material change in
the present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or Bylaws; (c) any other material change in the
Company's corporate structure or business; or (d) any other action, which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage or materially adversely affect the contemplated economic
benefits to Acquiror of the Merger or the transactions contemplated by the
Merger Agreement, this Stockholder Agreement or the Option Agreement. The
Stockholder shall not enter into any agreement or understanding with any person
or entity to vote or give instructions in any manner inconsistent with clauses
(i), (ii) or (iii) of the preceding sentence.
5. The Stockholder hereby grants to, and appoints, Acquiror
and its officers, and any other designee of Acquiror, each of them individually,
the Stockholder's irrevocable proxy and attorney-in-fact (with full power of
substitution) to vote (as indicated in paragraph 4 above) the Shares listed on
Schedule I hereto beside the name of the Stockholder, and any Shares beneficial
ownership of which is acquired by the Stockholder after the date hereof, at a
duly called meeting of the Company's stockholders (and, in the event the
Stockholder has breached its obligations under this Stockholder Agreement or the
Option Agreement or the Company breaches its obligation under the Merger
Agreement to call and hold or otherwise fails to hold the Special Meeting, by
duly executed written consent of stockholders). The Stockholder intends this
proxy to be irrevocable, subject to Section 16 hereof, and coupled with an
interest and will take such further action and execute such other instruments as
may be necessary to effectuate the intent of this proxy and hereby revokes any
proxy previously granted by the Stockholder with respect to the Stockholder's
Shares. The Stockholder agrees that if requested by Acquiror, the Stockholder
will not attend or vote any Shares beneficially owned by the Stockholder at any
annual or special meeting of stockholders or execute any written consent of
stockholders.
6. The Stockholder has the legal capacity, power and authority
to enter into and perform all of such Stockholder's obligations under this
Stockholder Agreement. The execution, delivery and performance of this
Stockholder Agreement by such Stockholder will not violate any other agreement
to which such Stockholder is a party including, without limitation, any trust
agreement, voting agreement, stockholders agreement or voting trust. This
Stockholder Agreement has been duly and validly executed and delivered by the
Stockholder, and is enforceable against the Stockholder in accordance with its
terms. There is no beneficiary or holder of any interest of the Stockholder or
any trust of which the Stockholder is a trustee whose consent is required for
the execution and delivery of this Stockholder Agreement or the consummation of
the transactions contemplated hereby. If the Stockholder is married and the
Stockholder's Shares constitute community property, this letter agreement has
been duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder's spouse, enforceable against such spouse
in accordance with its terms.
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7. Except for filings under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and with the Securities and Exchange
Commission if applicable, no filing with, and no permit, authorization, consent
or approval of, any state or federal public body or authority is necessary for
the execution of this Stockholder Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby.
8. The Stockholder's Shares (as listed on Schedule I) and the
certificates representing such Shares are now and at all times during the term
hereof will be held by the Stockholder, or by a nominee or custodian for the
benefit of the Stockholder, free and clear of all liens, claims, security
interests, rights of first refusal or offer, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances or proxies arising hereunder.
9. No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by the Stockholder.
10. The Stockholder agrees that damages are an inadequate
remedy for the breach by the Stockholder of any term or condition of this
Stockholder Agreement and that Acquiror shall be entitled, without limitation of
other available rights or remedies, to specific performance, a temporary
restraining order and preliminary and permanent injunctive relief in order to
enforce the Stockholder's agreements herein.
11. The Stockholder agrees that this Stockholder Agreement and
the obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Stockholder's heirs, guardians, administrators or successors.
12. 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 action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Stockholder Agreement.
13. This Stockholder Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
14. This Stockholder Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
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15. Whenever possible, each provision or portion of any
provision of this Stockholder Agreement will be interpreted in such manner as to
be effective and valid under applicable law but if any provision or portion of
any provision of this Stockholder Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Stockholder Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein. Each party hereto irrevocably
and unconditionally consents and submits to the exclusive jurisdiction of the
courts of the State of Delaware and of the United States of America located in
the State of Delaware for any actions, suits or proceedings arising out of or
relating to this agreement and the transactions contemplated hereby, and further
agrees that service of any process, summons, notice or document by U.S.
registered or certified mail to the Stockholder at Xxxxx Xxxxxx & Heckscher LLP,
Xxx Xxxxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxxx or
Xxxxxxxxx X. Xxxxxx, or to Acquiror c/o Xxxxxxxxx, Xxxxxx & Xxxxxxxx & Co.,
Inc., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention: Xxxxx Xxxxxxxxx,
shall be effective service of process for any action, suit or proceeding brought
against such party in such court (and such address shall be also used for
notices under this Stockholder Agreement). Each party hereto hereby irrevocably
and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Stockholder Agreement or the transactions
contemplated hereby, in the courts of the State of Delaware located in
Wilmington, Delaware or the United States of America located in Wilmington,
Delaware, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
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16. This Stockholder Agreement may be terminated at the option
of any party at any time after the Termination Date (as defined in the Option
Agreement). Please confirm that the foregoing correctly states the understanding
between us by signing and returning to me a counterpart hereof, whereupon this
will become a legal and binding obligation.
Very truly yours,
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Confirmed on the date
first above written.
MQ ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Schedule I
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Name and Address Company Company
of Stockholder Preferred Shares Common Shares
Xxxxxx Xxxxxx 458,757 459,007
0000 Xxxxx Xxxx
Xxxxx, XX 00000
