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STOCKHOLDERS AGREEMENT
dated as of September 5, 1997
by and among
XXXXXX-FIELD HEALTH PRODUCTS, INC.,
BIL (FAR EAST HOLDINGS) LIMITED,
BIL SECURITIES (OFFSHORE) LTD.,
XXXXX XXXXXXXX
and
THE OTHER INDIVIDUALS AND ENTITIES LISTED
ON THE SIGNATURE PAGES HERETO
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TABLE OF CONTENTS
This Table of Contents is not part of the Stockholders
Agreement to which it is attached but is inserted for convenience only.
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ARTICLE I
DEFINITIONS
1.01 Definitions...................................................................................... 2
ARTICLE II
BOARD OF DIRECTORS
2.01 Composition of Board of Directors................................................................ 5
2.02 Resignations and Designations.................................................................... 6
ARTICLE III
TRANSFER OF SHARES
3.01 Restriction on Certain Transfers................................................................. 6
3.02 Legend ......................................................................................... 7
ARTICLE IV
STANDSTILL
4.01 Limitation on Acquisition of Equity Securities................................................... 8
4.02 Standstill....................................................................................... 8
ARTICLE V
COVENANTS OF THE STOCKHOLDERS IN CONNECTION WITH THE MERGER
5.01 Ownership of Target Shares; Approval of Merger
Agreement................................................................................ 9
5.02 No Solicitation.................................................................................. 10
5.03 Director Actions................................................................................. 10
ARTICLE VI
COVENANTS OF BIL ENTITIES IN CONNECTION WITH THE MERGER
6.01 Approval of Merger Agreement..................................................................... 10
6.02 Director Actions................................................................................. 11
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ARTICLE VII
COVENANTS OF XX. XXXXXXXX IN CONNECTION WITH THE MERGER
7.01 Approval of Merger Agreement..................................................................... 11
7.02 Director Actions................................................................................. 12
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
8.01 Authority........................................................................................ 12
8.02 No Conflicts..................................................................................... 12
8.03 Governmental Approvals and Filings............................................................... 13
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
9.01 Incorporation.................................................................................... 13
9.02 Authority........................................................................................ 13
9.03 No Conflicts..................................................................................... 13
9.04 Governmental Approvals and Filings............................................................... 14
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF THE BIL ENTITIES
10.01 Incorporation................................................................................... 14
10.02 Authority....................................................................................... 14
10.03 No Conflicts.................................................................................... 15
10.04 Governmental Approvals and Filings.............................................................. 15
ARTICLE XI
REPRESENTATIONS AND WARRANTIES OF XX. XXXXXXXX
11.01 Authority....................................................................................... 15
11.02 No Conflicts.................................................................................... 16
11.03 Governmental Approvals and Filings.............................................................. 16
ARTICLE XII
GENERAL PROVISIONS
12.01 Survival of Representations, Warranties,
Covenants and Agreements................................................................. 16
12.02 Termination..................................................................................... 17
12.03 Amendment and Waiver............................................................................ 17
12.04 Notices......................................................................................... 17
12.05 Irrevocable Appointment of Agent................................................................ 19
12.06 Entire Agreement................................................................................ 19
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12.07 No Third Party Beneficiary...................................................................... 20
12.08 No Assignment; Binding Effect................................................................... 20
12.09 Specific Performance; Legal Fees................................................................ 20
12.10 Headings........................................................................................ 20
12.11 Invalid Provisions.............................................................................. 20
12.12 Governing Law................................................................................... 21
12.13 Consent to Jurisdiction and Service of Process.................................................. 21
12.14 Counterparts.................................................................................... 21
SCHEDULES
Schedule I Target Shares Owned by the Stockholders
Schedule II Company Shares Owned by the BIL Entities
Schedule III Company Shares Owned by Xx. Xxxxxxxx
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This STOCKHOLDERS AGREEMENT dated as of September 5, 1997 is
made and entered into by and among Xxxxxx-Field Health Products, Inc., a
Delaware corporation (the "Company"), BIL (Far East Holdings) Limited, a Hong
Kong corporation ("BIL Far East"), BIL Securities (Offshore) Ltd., a New Zealand
corporation ("BIL Securities" and, together with BIL Far East, the "BIL
Entities"), Xxxxx Xxxxxxxx ("Xx. Xxxxxxxx") and each of the stockholders of
Xxxxx Enterprises, Inc., a Delaware corporation ("Target"), listed on the
signature pages hereto (the "Stockholders").
WHEREAS, the Company, GFHP Acquisition Corp., a Delaware
corporation wholly-owned by the Company ("Sub"), and Target have entered into an
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
which provides for the merger of Sub with and into Target and for Target to
become a wholly-owned subsidiary of the Company (the "Merger");
WHEREAS, at the Effective Time (as defined below) and in
accordance with the terms of the Merger Agreement, each share of common stock,
par value $2.50 per share, of Target (the "Target Common Stock") will be
converted into shares of common stock, par value $.025 per share, of the Company
(the "Company Common Stock"), all as more fully described in the Merger
Agreement;
WHEREAS, each Stockholder owns the number of shares of Target
Common Stock set forth opposite such Stockholder's name on Schedule I hereto,
each of the BIL Entities owns the number of shares of Company Common Stock and
other shares of capital stock of the Company set forth on Schedule II hereto and
Xx. Xxxxxxxx owns the number of shares of Company Common Stock set forth on
Schedule III hereto;
WHEREAS, simultaneously with the execution and delivery of
this Stockholders Agreement, the Stockholders and the Company are entering into
a registration rights agreement providing for the registration for sale, under
certain circumstances, of their shares of Company Common Stock (the
"Registration Rights Agreement"); and
WHEREAS, as a condition to the Company's willingness to
consummate the Merger and to the Stockholders' willingness to vote their shares
of Target Common Stock in favor of the Merger, the Stockholders, the Company,
the BIL Entities and Xx. Xxxxxxxx desire to establish in this Stockholders
Agreement certain terms and conditions concerning the acquisition and
disposition of securities of the Company by the Stockholders and the corporate
governance of the Company after the Effective Time;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Stockholders Agreement, and for other good and
valuable consideration, the
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receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. (a) Except as otherwise specifically
indicated, the following terms have the following meanings for all purposes of
this Stockholders Agreement:
"Affiliate" shall have the meaning assigned thereto in Rule
405, as presently promulgated under the Securities Act.
"beneficially owns" (or comparable variations thereof) has the
meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the
Company.
"Change of Control" means and shall be deemed to have occurred
if after the Effective Time individuals who qualify as Continuing Directors
shall have ceased for any reason to constitute at least a majority of the Board
of Directors.
"Continuing Director" means (i) any individual serving as a
member of the Board of Directors at the Effective Time (including the designee
of the Restricted Group pursuant to Section 2.01), for so long as such
individual is a member of the Board of Directors, and (ii) any individual who is
recommended or elected to serve as a member of the Board of Directors by at
least a majority of the Continuing Directors then in office, for so long as such
individual is a member of the Board of Directors.
"DGCL" means the General Corporation Law of the State of
Delaware.
"Effective Time" means the time at which the Merger becomes
effective under the DGCL.
"Equity Securities" means Voting Securities,
Convertible Securities and Rights to Purchase Voting Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
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"Liens" means any lien, claim, mortgage, encumbrance, pledge,
security interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership,
trust, other entity or group (within the meaning of Section 13(d)(3) of the
Exchange Act).
"Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives of such entity.
"Restricted Group" means (i) any Stockholder, (ii) any and all
Persons directly or indirectly controlled by or under common control with any
Stockholder, (iii) if such Stockholder is an individual, (a) any member of such
Stockholder's family (including any spouse, parent, sibling, child, grandchild
or other lineal descendant, including adoptive children), (b) the heirs,
executors, personal representatives and administrators of any of the foregoing
persons, (c) any trust established for the benefit of any of the foregoing
persons and (d) any charitable foundations established by any of the foregoing
persons, and (iv) any and all groups (within the meaning of Section 13(d)(3) of
the Exchange Act) of which any Stockholder or any Person directly or indirectly
controlling, controlled by or under common control with such Stockholder is a
member, other than any such group not acting for the purpose of acquiring,
holding or beneficially owning Equity Securities.
"Rule 144" means Rule 144 as presently promulgated under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which the Company or Target,
as the case may be, directly or indirectly through Subsidiaries or otherwise,
beneficially owns more than fifty percent (50%) of either the equity interest
in, or the Voting Power of, such Person.
"Voting Power" means, with respect to any Outstanding Voting
Securities, the highest number of votes that the holders of all such Outstanding
Voting Securities would be entitled to cast for the election of directors or on
any other matter (except to the extent such voting rights are dependent upon
events of default or bankruptcy), assuming, for purposes of this computation,
the conversion or exchange into Voting Securities of Convertible Securities
(whether presently convertible or exchangeable or not) and the exercise of
Rights to Purchase Voting Securities (whether presently exercisable or not), in
either case to the extent that any such action would increase the number of such
votes.
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"Voting Securities" means the Company Common Stock and any
other securities of the Company of any kind or class having power generally to
vote for the election of directors; "Convertible Securities" means securities of
the Company which are convertible or exchangeable (whether presently convertible
or exchangeable or not) into Voting Securities; "Rights to Purchase Voting
Securities" means options and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Voting
Securities; and "Outstanding Voting Securities" means at any time the then
issued and outstanding Voting Securities, Convertible Securities (which shall be
counted at the maximum number of Voting Securities for which they can be
converted or exchanged) and Rights to Purchase Voting Securities (which shall be
counted at the maximum number of Voting Securities for which they can be
exercised).
(b) In addition, the following terms are defined in
the Sections set forth below:
"Agent" -- Section 12.05
"Alternative Proposal" -- Section 5.02
"BIL Entities" -- Preamble
"BIL Far East" -- Preamble
"BIL Securities" -- Preamble
"Business Combination" -- Section 4.02
"Company" -- Preamble
"Company Common Stock" -- Preamble
"Company Stockholders' Meeting" -- Section 5.01(c)
"Dispose" or "Disposition" -- Section 3.01(a)
"Merger" -- Preamble
"Merger Agreement" -- Preamble
"Xx. Xxxxxxxx" -- Preamble
"Registration Rights Agreement" -- Preamble
"Requisite Stockholders" -- Section 12.05
"Xxxxxxxx Shares" -- Section 7.01(a)
"Sub" -- Preamble
"Target" -- Preamble
"Target Common Stock" -- Preamble
"Target Shares" -- Section 5.01(a)
"Target Stockholders' Meeting" -- Section 5.01(c)
(c) Unless the context of this Stockholders Agreement otherwise
requires, (i) words of any gender include each other gender; (ii) words using
the singular or plural number also include the plural or singular number,
respectively; (iii) the terms "hereof," "herein," "hereby" and derivative or
similar words refer to this entire Stockholders Agreement; and (iv) the terms
"Article" or "Section" refer to the specified Article or Section of this
Stockholders Agreement. Whenever this Stockholders Agreement refers to a number
of days, such number shall refer to calendar days unless business days are
specified.
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ARTICLE II
BOARD OF DIRECTORS
2.01 Composition of Board of Directors. (a) Effective at the
Effective Time, there shall be at least one vacancy on the Board of Directors
either by (i) an increase in the Board of Directors in accordance with the terms
of the Company's Certificate of Incorporation and Bylaws or (ii) director
resignations. Effective at the Effective Time, the Board of Directors shall
elect one designee of the Restricted Group to fill one vacancy on the Board of
Directors created in accordance with the preceding sentence, to serve from the
Effective Time until the end of his or her term.
(b) Thereafter, and subject to the next succeeding sentence,
the Board of Directors shall, at each meeting of stockholders of the Company at
which the term of any director designated by the Restricted Group expires,
nominate for election as a director of the Company, in accordance with the
Company's procedures for nomination of directors as provided for in its Bylaws,
a designee of the Restricted Group to stand for election for a succeeding term,
and shall vote all management proxies in favor of such nominee, except for such
proxies that specifically indicate to the contrary. Notwithstanding the
foregoing, the Stockholders shall cease to have the right to designate, or cause
the nomination or election of, any member of the Board of Directors from and
after such date as the Restricted Group beneficially owns Outstanding Voting
Securities representing less than 5% of the Voting Power of all Outstanding
Voting Securities. The obligation of the Board of Directors hereunder to
nominate for election as a director an individual designated by the Restricted
Group shall be subject to the foregoing limitation.
(c) Until such time as the Restricted Group beneficially owns
Outstanding Voting Securities representing less than 5% of the Voting Power of
all Outstanding Voting Securities, if any director designated by the Restricted
Group in accordance with this Section 2.01 shall decline or be unable to serve
for any other reason, the Board of Directors shall promptly upon the request of
the Restricted Group nominate or elect, as the case may be, a qualified person
recommended by the Restricted Group to replace such designee; provided that the
Restricted Group shall have such right only if and to the extent consistent with
the foregoing provisions of this Section 2.01.
(d) Until such time as the Restricted Group beneficially owns
Outstanding Voting Securities representing less than 5% of the Voting Power of
all Outstanding Voting Securities, at each meeting of stockholders of the
Company, the Restricted Group shall vote the Voting Securities held by the
Restricted Group (x) for the nominees recommended by the Board of Directors
(provided such nominees include the nominee referred to in paragraphs (a) and
(b) above), (y) on all other proposals of the
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Board of Directors, as the Restricted Group determines in its sole discretion,
and (z) on all proposals of any other stockholder of the Company, in accordance
with the recommendation of the Board of Directors. Notwithstanding the
foregoing, (i) to the extent that any member of the Restricted Group holds or is
empowered to vote or to effect the voting of Voting Securities in a fiduciary or
comparable capacity and, in the exercise of such duties, such member of the
Restricted Group determines that it is not appropriate to vote such Voting
Securities in accordance with the recommendation of the Board of Directors as
contemplated by clause (z) above, then such member of the Restricted Group may
vote such Voting Securities in such manner as he or she determines is
appropriate, and (ii) the provisions of this paragraph (d) shall terminate and
be of no further force or effect at such time as the members of the Restricted
Group notify the Company in writing that they irrevocably waive their right
under Article II to nominate a director and they cause their designee on the
Board of Directors to resign.
(e) The Restricted Group shall promptly provide to the
Company, as the Company may from time to time reasonably request, information
regarding any designee of the Restricted Group for the Board of Directors, for
inclusion in any form, report, schedule, registration statement, definitive
proxy statement or other documents required to be filed by the Company with the
Securities and Exchange Commission.
2.02 Resignations and Designations. At such time as the
Restricted Group no longer has the right to designate a director in accordance
with this Article II, the Restricted Group will cause the director designated by
the Restricted Group to resign from the Board of Directors.
ARTICLE III
TRANSFER OF SHARES
3.01 Restriction on Certain Transfers. Until such time as the
Restricted Group beneficially owns Outstanding Voting Securities representing
less than 5% of the Voting Power of all Outstanding Voting Securities, no member
of the Restricted Group shall, directly or indirectly, assign, sell, pledge,
hypothecate or otherwise transfer or dispose of ("Dispose" or a "Disposition")
any Equity Securities beneficially owned by such member of the Restricted Group,
except (A) a Disposition to a member of the Restricted Group who simultaneously
with such Disposition agrees in a written instrument in form and substance
satisfactory to the Company to be bound by the provisions of this Stockholders
Agreement as though an original signatory hereto, (B) a Disposition through a
bona fide underwritten public offering registered under the Securities Act
effected in accordance with the provisions of the Registration Rights
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Agreement, (C) a Disposition in a "brokers' transaction" pursuant to Rule
144(f), provided that, until such time as the Restricted Group beneficially owns
Outstanding Voting Securities representing less than 5% of the Voting Power of
all Outstanding Voting Securities, any sales pursuant to this clause (C) shall
be subject to the volume limitations set forth in Rule 144(e) (regardless of
whether such volume limitations are applicable to such sale), (D) pursuant to a
merger or consolidation of the Company or a recapitalization of any Equity
Securities, (E) pursuant to a self-tender or exchange offer by the Company or a
third party tender offer recommended by the Board of Directors, (F) a
Disposition by way of gift to any tax-exempt charitable organization or
educational institution, (G) a Disposition to a Person who is eligible to file a
statement on Schedule 13G promulgated by the Securities and Exchange Commission
with respect to its holdings of Equity Securities pursuant to Rule 13d-1(b)(1)
promulgated under the Exchange Act, or (H) to a Person who, after giving effect
to such Disposition, would beneficially own less than 5% of the Voting Power of
all Outstanding Voting Securities (determined pursuant to the provisions of
Regulation 13D under the Exchange Act, except that a Person shall be deemed to
be the beneficial owner of a security if that Person has the right to acquire
beneficial ownership of such security without regard to the 60-day provision in
Rule 13d-3(d)(1)(i)).
3.02 Legend. Any Disposition of Equity Securities by any
member of the Restricted Group also shall be subject to the terms and conditions
of this Section 3.02. Each certificate representing Equity Securities
beneficially owned by any member of the Restricted Group shall be imprinted with
a legend in the following form until such time (subject to the provisions of the
final sentence of this Section 3.02) as all restrictions on the Disposition of
such Equity Securities hereunder are terminated:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS THEY ARE REGISTERED
OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. SUCH SHARES MAY
ONLY BE TRANSFERRED PURSUANT TO THE PROVISIONS OF ARTICLE III OF A
CERTAIN STOCKHOLDERS AGREEMENT DATED AS OF SEPTEMBER 5, 1997, BY AND
AMONG XXXXXX-FIELD HEALTH PRODUCTS, INC., BIL (FAR EAST HOLDINGS)
LIMITED, BIL SECURITIES (OFFSHORE) LTD., XXXXX XXXXXXXX AND THE OTHER
INDIVIDUALS AND ENTITIES LISTED ON THE SIGNATURE PAGES THERETO, COPIES
OF WHICH AGREEMENT ARE ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY."
The Company shall not (i) give effect on its books to an attempted Disposition
of any Equity Securities which shall have been Disposed of in violation of any
provision of this Stockholders Agreement, or (ii) treat any transferee who
obtains any Equity Securities in violation of any provision of this Stockholders
Agreement as the owner of such Equity Securities or
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accord any transferee thereof the right to vote or to receive dividends in
respect of such Equity Securities. The Company will issue new certificates not
imprinted with the foregoing legend to any holder of Equity Securities not
subject to the restrictions on Disposition contained in this Stockholders
Agreement; provided that the Company may require an opinion of counsel
reasonably satisfactory to it to the effect that no legend is required under the
Securities Act or applicable state securities or blue sky laws.
ARTICLE IV
STANDSTILL
4.01 Limitation on Acquisition of Equity Securities. Following
the Effective Time and until the Restricted Group beneficially owns Outstanding
Voting Securities representing less than 5% of the Voting Power of all
Outstanding Voting Securities, no member of the Restricted Group shall, directly
or indirectly, purchase or acquire, or make any offer to or agree to purchase or
acquire, beneficial ownership of any Equity Securities, except (i) the
acquisition of Company Common Stock pursuant to the Merger Agreement, (ii) by
way of stock dividends, stock splits or other distributions or offerings made
available to holders of Equity Securities generally, (iii) in connection with a
Disposition permitted by Section 3.01(A) or (iv) pursuant to plans established
by the Company for members of the Board of Directors, officers and other
employees.
4.02 Standstill. Following the Effective Time and thereafter
until such time as the Restricted Group beneficially owns Outstanding Voting
Securities representing less than 5% of the Voting Power of all Outstanding
Voting Securities, no member of the Restricted Group will, and they will not
assist or encourage others (including by providing financing) to, directly or
indirectly (i) acquire or agree, offer, seek or propose (whether publicly or
otherwise) to acquire ownership (including but not limited to beneficial
ownership) of any substantial portion of the assets or Equity Securities of the
Company, whether by means of a negotiated purchase of assets, tender or exchange
offer, merger or other business combination, recapitalization, restructuring or
other extraordinary transaction (a "Business Combination"), (ii) engage in any
"solicitation" of "proxies" (as such terms are used in the proxy rules
promulgated under the Exchange Act, but disregarding clause (iv) of Rule
14a-1(1)(2) and including any exempt solicitation pursuant to Rule 14a-2(b)(1)
or (2)), or form, join or in any way participate in a "group" (as defined under
the Exchange Act), other than a group consisting solely of members of the
Restricted Group, with respect to any Equity Securities, (iii) subject to the
obligation of the designee of the Restricted Group on the Board of Directors to
exercise his or her fiduciary
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duties as a director, otherwise seek or propose to acquire control of the Board
of Directors, (iv) take any action that could reasonably be expected to force
the Company to make a public announcement regarding any of the types of matters
referred to in clause (i), (ii) or (iii) above, or (v) enter into any
discussions, negotiations, agreements, arrangements or understandings with any
third party with respect to any of the foregoing. No member of the Restricted
Group will request the Company or any of its Representatives to amend or waive
any provision of this paragraph (including this sentence) or Section 4.01 during
such period. If at any time during such period a member of the Restricted Group
is approached by any third party concerning its participation in any of the
types of matters referred to in clause (i), (ii) or (iii) above, such member
will promptly inform the Company of the nature of such contact and the parties
thereto.
ARTICLE V
COVENANTS OF THE STOCKHOLDERS IN CONNECTION WITH THE MERGER
5.01 Ownership of Target Shares; Approval of Merger Agreement.
(a) Each Stockholder represents and warrants to the Company that such
Stockholder owns, beneficially and of record, as of the date hereof, the number
of shares of Target Common Stock listed on Schedule I hereto (collectively, the
"Target Shares"), subject to no rights of others and free and clear of all
Liens. Such Stockholder's right to vote or Dispose of the Target Shares
beneficially owned by such Stockholder is not subject to any voting trust,
voting agreement, voting arrangement or proxy and such Stockholder has not
entered into any contract, option or other arrangement or undertaking with
respect thereto.
(b) Until the Effective Time, no Stockholder will Dispose of
any of the Target Shares owned by such Stockholder or any interest therein,
exercise any right of conversion with respect to any such Target Shares, deposit
any of such Target Shares into a voting trust or enter into a voting agreement
or arrangement or grant any proxy with respect thereto or enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect Disposition of any of the Target Shares.
(c) Each Stockholder will, with respect to those Target Shares
that such Stockholder either owns of record on the record date for voting at any
annual or special meeting of Target stockholders to be held for the purpose of
voting on the adoption of the Merger Agreement or for granting any written
consent in connection with the solicitation of written consents in lieu of such
a meeting (collectively, the "Target Stockholders' Meeting") or with respect to
which such Stockholder otherwise controls the vote, vote or cause to be voted
such shares (or execute written consents with respect to such shares) (i) in
favor of the
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adoption of the Merger Agreement and the approval of the Merger and the other
transactions contemplated by the Merger Agreement, (ii) against any Alternative
Proposal (as defined in Section 5.02) and (iii) in favor of any other matter
necessary for the consummation of the transactions contemplated by the Merger
Agreement, including without limitation at the Target Stockholders' Meeting.
5.02 No Solicitation. Prior to the Effective Time, and subject
to Section 5.03, each Stockholder shall not, and each Stockholder shall use best
efforts to cause such Stockholder's Affiliates and Representatives not to,
initiate, solicit or encourage, directly or indirectly, any inquiries or the
making or implementation of any proposal or offer (including, without
limitation, any proposal or offer to the stockholders of Target) with respect to
a merger, consolidation or other business combination including Target or any of
its Subsidiaries or any acquisition or similar transaction (including, without
limitation, a tender or exchange offer) involving the purchase of all or any
significant portion of the assets of Target and its Subsidiaries taken as a
whole or any outstanding shares of the capital stock of Target or any Subsidiary
of Target (any such proposal or offer being hereinafter referred to as an
"Alternative Proposal"), or engage in any negotiations concerning, or provide
any confidential information or data to, or have any discussions or enter into
any agreements, arrangements or understandings, whether written or oral, with,
any Person relating to an Alternative Proposal (excluding the transactions
contemplated by the Merger Agreement), or otherwise facilitate any effort or
attempt to make or implement an Alternative Proposal. The Stockholders will
promptly notify the Company if any such inquiries, proposals or offers are
received by, any such information is requested from, or any such negotiations or
discussions are sought to be initiated or continued with, such Stockholder or
any of such Persons.
5.03 Director Actions. Notwithstanding any other provision of
this Stockholders Agreement to the contrary, the covenants and agreements set
forth herein shall not prevent any member of the Restricted Group, or any
designees of the members of the Restricted Group, who serve on Target's Board of
Directors from taking any action, subject to the applicable provisions of the
Merger Agreement, while acting in such member's or designee's capacity as a
director of Target in accordance with his or her fiduciary duties.
ARTICLE VI
COVENANTS OF BIL ENTITIES IN CONNECTION WITH THE MERGER
6.01 Approval of Merger Agreement. (a) Each of the
BIL Entities represents and warrants to the Stockholders that it
owns, beneficially and of record, as of the date hereof, the
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number of shares of each class of capital stock of the Company listed on
Schedule II hereto (collectively, the "Company Shares").
(b) Until the Effective Time, none of the BIL Entities will
Dispose of any of the Company Shares or any interest therein, deposit any of the
Company Shares into a voting trust or enter into a voting agreement or
arrangement or grant any proxy with respect thereto or enter into any contract,
option or other arrangement or undertaking with respect to the direct or
indirect Disposition of any of the Company Shares.
(c) Each of the BIL Entities will, with respect to those
Company Shares that such BIL Entity either owns of record on the record date for
voting at any annual or special meeting of Company stockholders to be held for
the purpose of voting on the adoption of the Merger Agreement or for granting
any written consent in connection with the solicitation of written consents in
lieu of such a meeting (collectively, the "Company Stockholders' Meeting") or
with respect to which such BIL Entity otherwise controls the vote, vote or cause
to be voted such shares (or execute written consents with respect to such
shares) (i) in favor of the adoption of the Merger Agreement and the approval of
the Merger and the other transactions contemplated by the Merger Agreement, and
(ii) in favor of any other matter necessary for the consummation of the
transactions contemplated by the Merger Agreement, including without limitation
at the Company Stockholders' Meeting.
6.02 Director Actions. Notwithstanding any other provision of
this Stockholders Agreement to the contrary, the covenants and agreements set
forth herein shall not prevent any designees of either of the BIL Entities who
serve on the Company's Board of Directors from taking any action, subject to the
applicable provisions of the Merger Agreement, while acting in such designees'
capacity as a director of the Company in accordance with their fiduciary duties.
ARTICLE VII
COVENANTS OF XX. XXXXXXXX IN CONNECTION WITH THE MERGER
7.01 Approval of Merger Agreement. (a) Xx. Xxxxxxxx represents
and warrants to the Stockholders that he owns, beneficially and of record, as of
the date hereof, the number of shares of each class of capital stock of the
Company listed on Schedule III hereto (collectively, the "Xxxxxxxx Shares").
(b) Until the Effective Time, Xx. Xxxxxxxx will not deposit
any of the Xxxxxxxx Shares into a voting trust or enter into a voting agreement
or arrangement or grant any proxy with respect thereto.
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(c) Xx. Xxxxxxxx will, with respect to those Xxxxxxxx Shares
that Xx. Xxxxxxxx either owns of record on the record date for voting at the
Company Stockholders' Meeting or with respect to which Xx. Xxxxxxxx otherwise
controls the vote, vote or cause to be voted such shares (or execute written
consents with respect to such shares) (i) in favor of the adoption of the Merger
Agreement and the approval of the Merger and the other transactions contemplated
by the Merger Agreement, and (ii) in favor of any other matter necessary for the
consummation of the transactions contemplated by the Merger Agreement, including
without limitation at the Company Stockholders' Meeting.
7.02 Director Actions. Notwithstanding any other provision of
this Stockholders Agreement to the contrary, the covenants and agreements set
forth herein shall not prevent Xx. Xxxxxxxx from taking any action, subject to
the applicable provisions of the Merger Agreement, while acting in his capacity
as a director of the Company in accordance with his fiduciary duties.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to the Company
as follows:
8.01 Authority. This Stockholders Agreement has been duly and
validly executed and delivered by each Stockholder and constitutes a legal,
valid and binding obligation of such Stockholder enforceable against such
Stockholder in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
8.02 No Conflicts. The execution and delivery by each
Stockholder of this Stockholders Agreement do not, and the performance by each
Stockholder of such Stockholder's obligations under this Stockholders Agreement
and the consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to such
Stockholder or any of such Stockholder's properties or assets; or
(b) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require such Stockholder to obtain any consent, approval or action
of, make any filing with
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or give any notice to any Person as a result or under the terms of, or (iv)
result in the creation or imposition of any Lien upon any of such Stockholder's
properties or assets under, any contract, agreement, plan, permit or license to
which such Stockholder is a party.
8.03 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of any Stockholder is required in connection with the execution,
delivery and performance of this Stockholders Agreement or the consummation of
the transactions contemplated hereby, other than filings under the Exchange Act
in connection with such Stockholder's acquisition of Equity Securities and the
other transactions contemplated by this Stockholders Agreement and the Merger
Agreement.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Stockholders
as follows:
9.01 Incorporation. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware. The Company has the requisite corporate power and authority to
execute and deliver this Stockholders Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
9.02 Authority. The execution and delivery by the Company of
this Stockholders Agreement, and the performance by the Company of its
obligations hereunder, have been duly and validly authorized by the Board of
Directors of the Company, no other corporate action on the part of the Company
or its stockholders being necessary. This Stockholders Agreement has been duly
and validly executed and delivered by the Company and constitutes a legal, valid
and binding obligation of the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
9.03 No Conflicts. The execution and delivery by the Company
of this Stockholders Agreement do not, and the performance by the Company of its
obligations under this Stockholders Agreement and the consummation of the
transactions contemplated hereby will not:
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(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the certificate of incorporation or
bylaws of the Company;
(b) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to the Company
or any of its properties or asset; or
(c) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require the Company to obtain any consent, approval or action of,
make any filing with or give any notice to any Person as a result or under the
terms of or (iv) result in the creation or imposition of any Lien upon the
Company or any of its properties or assets under, any contract, agreement, plan,
permit or license to which the Company is a party.
9.04 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of the Company is required in connection with the execution,
delivery and performance of this Stockholders Agreement or the consummation of
the transactions contemplated hereby, other than filings under the Exchange Act
in connection with the Stockholders' voting agreement contained in this
Stockholders Agreement and the other transactions contemplated by this
Stockholders Agreement and the Merger Agreement.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF THE BIL ENTITIES
Each of the BIL Entities hereby represents and warrants to the
Stockholders as follows:
10.01 Incorporation. Each of the BIL Entities is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation. Each of the BIL Entities has the requisite
corporate power and authority to execute and deliver this Stockholders
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby.
10.02 Authority. The execution and delivery by each of the BIL
Entities of this Stockholders Agreement, and the performance by each of the BIL
Entities of its obligations hereunder, have been duly and validly authorized by
all necessary corporate actions on the part of such BIL Entity, no other
corporate action on the part of such BIL Entity or its stockholders being
necessary. This Stockholders Agreement has been duly and validly executed and
delivered by each of the BIL
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Entities and constitutes a legal, valid and binding obligation of each of the
BIL Entities in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
10.03 No Conflicts. The execution and delivery by each of the
BIL Entities of this Stockholders Agreement do not, and the performance by each
of the BIL Entities of its obligations under this Stockholders Agreement and the
consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the corporate charter documents of such
BIL Entity;
(b) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to such BIL
Entity or any of its properties or asset; or
(c) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require such BIL Entity to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of or (iv) result in the creation or imposition of any Lien upon such
BIL Entity or any of its properties or assets under, any contract, agreement,
plan, permit or license to which such BIL Entity is a party.
10.04 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of either BIL Entity is required in connection with the execution,
delivery and performance of this Stockholders Agreement or the consummation of
the transactions contemplated hereby, other than filings under the Exchange Act
in connection with the BIL Entities' voting agreement contained in this
Stockholders Agreement and the other transactions contemplated by this
Stockholders Agreement and the Merger Agreement.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES OF XX. XXXXXXXX
Xx. Xxxxxxxx hereby represents and warrants to the
Stockholders as follows:
11.01 Authority. This Stockholders Agreement has been duly and
validly executed and delivered by Xx. Xxxxxxxx and
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20
constitutes a legal, valid and binding obligation of Xx. Xxxxxxxx enforceable
against Xx. Xxxxxxxx in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
11.02 No Conflicts. The execution and delivery by Xx. Xxxxxxxx
of this Stockholders Agreement do not, and the performance by Xx. Xxxxxxxx of
his obligations under this Stockholders Agreement and the consummation of the
transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any
term or provision of any law, statute, rule or regulation or any order, judgment
or decree of any Governmental or Regulatory Authority applicable to Xx. Xxxxxxxx
or any of his properties or assets; or
(b) (i) conflict with or result in a violation or breach of,
(ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require Xx. Xxxxxxxx to obtain any consent, approval or action of,
make any filing with or give any notice to any Person as a result or under the
terms of, or (iv) result in the creation or imposition of any Lien upon any of
Xx. Xxxxxxxx'x properties or assets under, any contract, agreement, plan, permit
or license to which Xx. Xxxxxxxx is a party.
11.03 Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of Xx. Xxxxxxxx is required in connection with the execution,
delivery and performance of this Stockholders Agreement or the consummation of
the transactions contemplated hereby, other than filings under the Exchange Act
in connection with Xx. Xxxxxxxx'x voting agreement contained in this
Stockholders Agreement and the other transactions contemplated by this
Stockholders Agreement and the Merger Agreement.
ARTICLE XII
GENERAL PROVISIONS
12.01 Survival of Representations, Warranties, Covenants and
Agreements. Notwithstanding any right of any party (whether or not exercised) to
investigate the accuracy of the representations and warranties of the other
party contained in this Stockholders Agreement, each party hereto has the right
to rely fully upon the representations and warranties of the others contained in
this Stockholders Agreement. Except as provided in Section 12.02, the
representations, warranties, covenants and
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agreements of each party hereto contained in this Stockholders Agreement will
survive until the termination of this Stockholders Agreement.
12.02 Termination. This Stockholders Agreement and all rights
and obligations of the parties hereunder, including, without limitation, the
provisions of Section 5.01 and Section 5.02, shall automatically terminate, and
shall cease to be of any further force and effect, upon the earlier to occur of
(i) the termination of the Merger Agreement in accordance with its terms, (ii)
the mutual written agreement of the Stockholders and the Company, (iii) such
time following the Effective Time as the Restricted Group beneficially owns
Voting Securities representing less than 5% of the Voting Power of all
Outstanding Voting Securities and (iv) a Change of Control. Notwithstanding the
termination of this Stockholders Agreement, nothing contained herein shall
relieve any party hereto from liability for breach of any of such party's
representations, warranties, covenants or agreements contained in this
Stockholders Agreement.
12.03 Amendment and Waiver. (a) This Stockholders Agreement
may be amended, supplemented or modified only by a written instrument duly
executed by or on behalf of each party hereto.
(b) Any term or condition of this Stockholders Agreement may
be waived at any time by the party that is entitled to the benefit thereof, but
no such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Stockholders Agreement, in any one
or more instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Stockholders Agreement on any future
occasion. All remedies, either under this Stockholders Agreement or by law or
otherwise afforded, will be cumulative and not alternative.
12.04 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to any Stockholder, to:
c/o Fuqua Capital Corporation
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: J. Xxx Xxxxx
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22
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. X'Xxxxxxx, Esq.
If to either of the BIL Entities, to:
BIL (Far East Holdings) Limited
c/o Brierley Investments Limited
00 Xxxxxxxxx, 0xx Xxxxx
Xxxxxx XX 0X 0XX
Xxxxxx Xxxxxxx
Facsimile No.: 011-44-171-369-9112
Attn: Xxxxxx X. Xxxxx, Chairman
with a copy to:
Brierley Investments Limited
00-00 Xxxxxxxx Xxxxxx
Xxxxx 0, Xxxxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxx Xxxxxxx
Facsimile: 000-000-000-0000
Attn: Xxxx Xxxxxx, Corporate Secretary
If to the Company, to:
Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
If to Xx. Xxxxxxxx, to:
Xx. Xxxxx Xxxxxxxx
Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
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with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
12.05 Irrevocable Appointment of Agent. By the execution and
delivery of this Stockholders Agreement, including counterparts hereof, each
Stockholder hereby irrevocably constitutes and appoints J. Xxx Xxxxx as the true
and lawful agent and attorney-in-fact of each such Stockholder (such individual,
or such other individual as Stockholders who own a majority of the aggregate
Equity Securities then owned by all the Stockholders (the "Requisite
Stockholders") shall designate in writing to the Company from time to time, is
herein referred to as the "Agent"), to do or refrain from doing all such further
acts and things, and to execute all such documents, as the Agent shall deem
necessary or appropriate in connection with this Stockholders Agreement. Unless
there is no existing person that has been designated to act as Agent by the
Requisite Stockholders, all rights of the Stockholders under this Stockholders
Agreement (including without limitation the right to designate a director
pursuant to Section 2.01) shall be exercised by the Stockholders only through or
by the Agent in his or her capacity as agent of the Stockholders hereunder, and
the Company shall not be required to take directions from any other Stockholder
for so long as such Agent continues to serve and has not otherwise been removed
as Agent pursuant to notice to the Company from the Requisite Stockholders. If
at any time no Person is serving as Agent, the Company shall not be required to
take action except upon the direction of the Requisite Stockholders.
12.06 Entire Agreement. This Stockholders Agreement
supersedes all prior discussions and agreements among the parties
hereto with respect to the subject matter hereof, and contains,
together with the Registration Rights Agreement, the sole and
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entire agreement among the parties hereto with respect to the subject matter
hereof.
12.07 No Third Party Beneficiary. The terms and provisions of
this Stockholders Agreement are intended solely for the benefit of each party
hereto, and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person.
12.08 No Assignment; Binding Effect. Neither this Stockholders
Agreement nor any right, interest or obligation hereunder may be assigned by any
parties hereto without the prior written consent of the other party hereto and
any attempt to do so will be void. Subject to the preceding sentence, this
Stockholders Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and assigns
and legal representatives.
12.09 Specific Performance; Legal Fees. The parties
acknowledge that money damages are not an adequate remedy for violations of any
provision of this Stockholders Agreement and that any party may, in such party's
sole discretion, apply to a court of competent jurisdiction for specific
performance for injunctive or such other relief as such court may deem just and
proper in order to enforce any such provision or prevent any violation hereof
and, to the extent permitted by applicable law, each party waives any objection
to the imposition of such relief. The parties hereto agree that, in the event
that any party to this Stockholders Agreement shall bring any legal action or
proceeding to enforce or to seek damages or other relief arising from an alleged
breach of any term or provision of this Stockholders Agreement by any other
party, the prevailing party in any such action or proceeding shall be entitled
to an award of, and the other party to such action or proceeding shall pay, the
reasonable fees and expenses of legal counsel to the prevailing party.
12.10 Headings. The headings used in this Stockholders
Agreement have been inserted for convenience of reference only and do not define
or limit the provisions hereof.
12.11 Invalid Provisions. If any provision of this
Stockholders Agreement is held to be illegal, invalid or unenforceable under any
present or future law, and if the rights or obligations of any party hereto
under this Stockholders Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Stockholders
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof and (iii) the
remaining provisions of this Stockholders Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
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12.12 Governing Law. Except to the extent that the DGCL is
mandatorily applicable to the rights and obligations of the parties, this
Stockholders Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to a contract executed and performed in
such State, without giving effect to the conflicts of laws principles thereof.
12.13 Consent to Jurisdiction and Service of Process. Each
party hereby irrevocably submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York or any court of the
State of New York located in the Borough of Manhattan in the City of New York in
any action, suit or proceeding arising in connection with this Stockholders
Agreement, agrees that any such action, suit or proceeding shall be brought only
in such court (and waives any objection based on forum non conveniens or any
other objection to venue therein to the extent permitted by law), and agrees to
delivery of service of process by any of the methods by which notices may be
given pursuant to Section 12.04, with such service being deemed given as
provided in such Section; provided, however, that such consent to jurisdiction
is solely for the purpose referred to in this Section 12.13 and shall not be
deemed to be a general submission to the jurisdiction of said courts or in the
State of New York other than for such purpose. Nothing herein shall affect the
right of any party to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the other in any other
jurisdiction.
12.14 Counterparts. This Stockholders Agreement may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has signed this
Stockholders Agreement, or caused this Stockholders Agreement to be signed by
its officer thereunto duly authorized, as of the date first above written.
XXXXXX-FIELD HEALTH PRODUCTS, INC.
By: ___________________________
Name:
Title:
BIL (FAR EAST HOLDINGS) LIMITED
By: ___________________________
Name:
Title:
BIL SECURITIES (OFFSHORE) LTD.
By: ___________________________
Name:
Title:
-----------------------------------
XXXXX XXXXXXXX
-----------------------------------
X. X. XXXXX
-----------------------------------
J. XXX XXXXX
XXXXX HOLDINGS - I, L.P.
By: XXXXX HOLDINGS, INC., its
General Partner
By: ______________________
Name: J. Xxx Xxxxx
Title: President
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THE XXXXXXXX XXXXXXX XXXXX TRUST
By: ___________________________
Name: X. X. Xxxxx
Title: Trustee
THE XXXXXX XXXXXX XXXXX TRUST
By: ___________________________
Name: X. X. Xxxxx
Title: Trustee
THE X. X. XXXXX FOUNDATION, INC.
By: ___________________________
Name: X. X. Xxxxx
Title: Chairman, President
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SCHEDULE I
Target Shares Owned by the Stockholders
Stockholder Number
----------- ------
X. X. Xxxxx 372,232
J. Xxx Xxxxx 310,142
Xxxxx Holdings - I, L.P. 366,000
The Xxxxxxxx Xxxxxxx Xxxxx Trust 160,843
The Xxxxxx Xxxxxx Xxxxx Trust 160,842
The X. X. Xxxxx Foundation, Inc. 69,698
29
SCHEDULE II
Company Shares Owned by the BIL Entities
BIL Far East
Class Number
----- ------
Common Stock 2,118,696
Series B Cumulative Convertible
Preferred Stock 3,527
BIL Securities
Common Stock 1,942,882
Series B Cumulative Convertible
Preferred Stock 2,573
Series C Cumulative Convertible
Preferred Stock 1,000
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SCHEDULE III
Company Shares Owned by Xx. Xxxxxxxx
Class Number
Common Stock(1) 1,262,384
--------
(1) Includes 332,271 shares currently issuable upon the exercise of stock
options issued pursuant to the Company's Incentive Program and 5,500 shares
owned by Xx. Xxxxxxxx'x wife as to which shares Xx. Xxxxxxxx disclaims any
beneficial interest.
