EXHIBIT (d)(4)
SUPPORT AGREEMENT
SUPPORT AGREEMENT (this "Agreement"), dated as of February 15,
2000, by and between Xxxxxxx Corporation, a Delaware corporation ("Parent"), and
Xxxx Xxxxxxxxxxx ("Seller").
WHEREAS, concurrently herewith, Parent, Alpha Acquisition I
Corp. (the "Purchaser"), a Delaware corporation and a subsidiary of Parent, and
American Precision Industries Inc. (the "Company"), a Delaware corporation, are
entering into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement", which term shall not include any amendment to such Agreement which
decreases the Offer Price or changes the form of consideration payable in the
Offer, unless Seller consents to the inclusion of such amendment in such term).
Capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement. Pursuant to the Merger Agreement, the Purchaser agrees
to make a tender offer (the "Offer") for all outstanding Shares of the Company,
at $19.25 per Share (the "Offer Price") net to the seller in cash, to be
followed by a merger (the "Merger") of the Purchaser with and into the Company;
WHEREAS, as of the date hereof, Seller beneficially owns
directly 22,072 Shares (the "Owned Shares"); and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement and make the Offer, Parent and the Purchaser have required that
Seller agree, and Seller hereby agrees (i) to tender pursuant to the Offer the
Owned Shares, together with any Shares acquired after the date hereof and prior
to the termination of the Offer, whether upon the exercise of options,
conversion of convertible securities or otherwise (collectively, the "Tender
Shares") on the terms and subject to the conditions provided for in this
Agreement and (ii) to enter into the other agreements set forth herein;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration given to each party hereto, the receipt of which
is hereby acknowledged, the parties agree as follows:
1. Agreement to Tender and to Vote.
-------------------------------
1.1 Tender. Seller hereby agrees to validly tender (or cause
------
the record owner of such shares to validly tender), pursuant to and in
accordance with the terms of the Offer, as soon as practicable after such
request but in no event later than the then scheduled expiration date of the
Offer, the Tender Shares by physical delivery of the certificates therefor, and
to not withdraw such Tender Shares, except following termination of the Offer
pursuant to its terms. Seller hereby permits Parent and the Purchaser to publish
and disclose in the Offer Documents and, if approval of the Company's
stockholders is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the Securities and Exchange Commission)
his identity and ownership of the Tender Shares and the nature of his
commitments, arrangements and understandings under this Agreement.
1.2 Voting. Seller hereby agrees that, during the time this
------
Agreement is in effect, at any meeting of the stockholders of the Company,
however called, Seller shall (a) vote the Tender Shares in favor of the Merger;
(b) vote the Tender Shares against any action or agreement that would result in
a breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement; and (c) vote the Tender
Shares against any action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that would impede, interfere with, delay,
postpone or attempt to discourage the Merger or the Offer, including, but not
limited to: (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries; (ii) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries or a reorganization, recapitalization or
liquidation of the Company and its subsidiaries; (iii) any change in the
management or board of directors of the Company, except as otherwise agreed to
in writing by the Purchaser; (iv) any material change in the present
capitalization or dividend policy of the Company; or (v) any other material
change in the Company's corporate structure or business.
1.3 Grant of Irrevocable Proxy; Appointment of Proxy.
------------------------------------------------
(i) Seller hereby irrevocably grants to, and appoints, Xxxxxxx
X. Xxxxxxxx and Xxxxxx X. Xxxxx, or either of them, in their respective
capacities as officers of Parent, and any individual who shall hereafter succeed
to any such office of Parent, and each of them individually, Seller's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of Seller, to vote the Tender Shares in favor of the Merger and other
transactions contemplated by the Merger Agreement, against any Acquisition
Transaction and otherwise as contemplated by Section 1.2.
(ii) Seller represents that any proxies heretofore given in
respect of the Tender Shares are not irrevocable, and that any such proxies are
hereby revoked.
(iii) Seller understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon Seller's execution and
delivery of this Agreement. Seller hereby affirms that the irrevocable proxy set
forth in this Section 1.3 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of Seller under this Agreement. Seller hereby further
affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Seller hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 212(e) of the Delaware General Corporation Law.
1.4 No Inconsistent Arrangements. Seller hereby covenants and
----------------------------
agrees that, except as contemplated by this Agreement and the Merger Agreement,
he shall not (i) except to Parent or the Purchaser, transfer (which term shall
include, without limitation, any sale, gift, pledge or other disposition), or
consent to any transfer of, any or all of the Tender Shares or any interest
therein, (ii) except with Parent, enter into any contract, option or other
agreement or understanding with respect to any transfer of any or all of the
Tender Shares or any interest therein, (iii) grant any proxy, power-of-attorney
or other authorization in or with respect to the Tender Shares, (iv) deposit any
Tender Shares into a voting trust or enter into a voting agreement
-2-
or arrangement with respect to the Tender Shares or (v) take any other action
that would in any way restrict, limit or interfere with the performance of his
obligations hereunder or the transactions contemplated hereby or by the Merger
Agreement or which would make any representation or warranty of Seller hereunder
untrue or incorrect.
1.5 No Solicitation. Seller hereby agrees that he shall not,
---------------
and shall not permit or authorize any of his affiliates, representatives or
agents to, directly or indirectly, encourage, solicit, explore, participate in
or initiate discussions or negotiations with, or provide or disclose any
information to, any corporation, partnership, person or other entity or group
(other than Parent, the Purchaser or any of their affiliates or representatives)
concerning any Acquisition Transaction or enter into any agreement, arrangement
or understanding requiring the Company to abandon, terminate or fail to
consummate the Merger or any other transactions contemplated by the Merger
Agreement. Seller will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
Acquisition Transaction. From and after the execution of this Agreement, Seller
shall immediately advise Parent in writing of the receipt, directly or
indirectly, of any inquiries, discussions, negotiations or proposals relating to
an Acquisition Transaction, identify the offeror and furnish to Parent a copy of
any such proposal or inquiry, if it is in writing, or a written summary of any
oral proposal or inquiry relating to an Acquisition Transaction. Seller shall
promptly advise Parent in writing of any development relating to such proposal,
including the results of any discussions or negotiations with respect thereto.
Any action taken by the Company or any member of the Board of Directors of the
Company including, if applicable, any representative of Seller acting in such
capacity, in accordance with the proviso to the second sentence of Section
6.10(a) of the Merger Agreement shall be deemed not to violate this Section 1.5
1.6 Reasonable Best Efforts. Subject to the terms and
-----------------------
conditions of this Agreement, Seller hereby agrees to use all reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement and the Merger Agreement. Seller shall promptly consult with
Parent and provide any necessary information and material with respect to all
filings made by Seller with any Governmental Entity in connection with this
Agreement and the Merger Agreement and the transactions contemplated hereby and
thereby.
1.7 Waiver of Appraisal Rights. Seller hereby waives any
--------------------------
rights of appraisal or rights to dissent from the Merger that he may have.
2. Expiration. This Agreement and the parties' obligations
----------
hereunder shall terminate on the earliest of (i) the payment for the Owned
Shares pursuant to the Offer or (ii) the 90th day after the termination of the
Merger Agreement or (iii) 30 days after termination of the Merger Agreement
pursuant to Section 8.1(e) of the Merger Agreement.
3. Representation and Warranties. Seller hereby represents
-----------------------------
and warrants to Parent as follows:
(a) Title. Seller has good and valid title to the Owned
-----
Shares, free and clear of any lien, pledge, charge, encumbrance or
claim of whatever nature and,
-3-
upon the purchase of the Tender Shares by Parent or the Purchaser,
Seller will deliver good and valid title to the Tender Shares, free
and clear of any lien, charge, encumbrance or claim of whatever
nature.
(b) Ownership of Shares. On the date hereof, the Owned
-------------------
Shares are owned of record or beneficially by Seller and, on the date
hereof, the Owned Shares constitute all of the Shares owned of record
or beneficially by Seller. Seller has sole voting power and sole power
of disposition with respect to all of the Owned Shares, with no
restrictions, subject to applicable federal securities laws, on
Seller's rights of disposition pertaining thereto.
(c) Power; Binding Agreement. Seller has the legal capacity,
------------------------
power and authority to enter into and perform all of his obligations
under this Agreement. The execution, delivery and performance of this
Agreement by Seller will not violate any other agreement to which
Seller is a party including, without limitation, any voting agreement,
stockholders agreement or voting trust. This Agreement has been duly
and validly executed and delivered by Seller and constitutes a valid
and binding agreement of Seller, enforceable against Seller in
accordance with its terms.
(d) No Conflicts. Other than in connection with or in
------------
compliance with the provisions of the Exchange Act and the HSR Act, no
authorization, consent or approval of, or filing with, any court or
any public body or authority is necessary for the consummation by
Seller of the transactions contemplated by this Agreement. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not
constitute a breach, violation or default (or any event which, with
notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required
by, or result in a right of termination or acceleration under, or
result in the creation of any lien, encumbrance, pledge, charge or
claim upon any of the properties or assets of Seller under, any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument to which Seller is a party or by which his properties
or assets are bound.
(e) No Finder's Fees. No broker, investment banker,
----------------
financial advisor or other person is entitled to any broker's,
finder's, financial adviser's or other similar fee or commission in
connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Seller.
(f) Information. Seller understands and acknowledges that
-----------
Parent and the Purchaser have been conducting a due diligence
investigation of the Company and may have information which is
material regarding the Company and its financial performance and
prospects and which is not publicly disclosed. Seller agrees that he
shall not take any action against Parent or the Purchaser in respect
of such information .
-4-
4. Additional Shares. Seller hereby agrees, while this
-----------------
Agreement is in effect, to promptly notify Parent of the number of any new
Shares acquired by Seller, after the date hereof.
5. Further Assurances. From time to time, at the Parent's
------------------
request and without further consideration, Seller shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
6. Miscellaneous.
-------------
6.1 Survival. The representations and warranties made herein
--------
shall terminate upon Seller's sale of the Tender Shares to the Purchaser in the
Offer, other than Seller's representations and warranties in Section 3 which
shall survive the sale of the Tender Shares and the termination of this
Agreement following such sale.
6.2 Entire Agreement; Assignment. This Agreement (i)
----------------------------
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and (ii) shall not be assigned by operation of law or otherwise, provided that
Parent may assign its rights and obligations hereunder to any direct or indirect
wholly owned subsidiary of Parent, but no such assignment shall relieve Parent
of its obligations hereunder if such assignee does not perform such obligations.
6.3 Amendments. This Agreement may not be modified, amended,
----------
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
6.4 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given by hand
delivery, telegram, telex or telecopy or by any courier service, such as Federal
Express, providing proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses:
If to Seller:
Xxxx Xxxxxxxxxxx
000 Xxxxxxxxxx Xxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to Parent:
Xxxxxxx Corporation
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
-5-
copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6.5 Governing Law; Jurisdiction. This 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. Each of Seller, Parent and the Purchaser
irrevocably submits to the exclusive jurisdiction of any Delaware state or
federal court sitting in the State of Delaware in any action arising out of or
relating to this Agreement, hereby irrevocably agrees that all claims in respect
of such action may be heard and determined in such Delaware state or federal
court, and hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding.
6.6 Specific Performance. Each of Parent and Seller recognizes
--------------------
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other to sustain damages for which it would not
have an adequate remedy at law, and therefore each of Parent and Seller agrees
that in the event of any such breach the other shall be entitled to the remedy
of specific performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
6.7 Counterparts. This Agreement may be executed in
------------
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
6.8 Descriptive Headings. The descriptive headings used herein
--------------------
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
6.9 Severability. Whenever possible, each provision or portion
------------
of any provision of this 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 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 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.
-6-
* * *
IN WITNESS WHEREOF, Parent and Seller have caused this
Agreement to be duly executed as of the day and year first above written.
XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President - Corporate Development
By: /s/ Xxxx Xxxxxxxxxxx
----------------------
Name: XXXX XXXXXXXXXXX
-7-
