EXECUTION COPY
COMPANY STOCKHOLDER AGREEMENT dated as of May 29, 2001,
between CHRISTIAN DALLOZ, a societe anonyme duly incorporated and
legally existing under the laws of the Republic of France
("Parent"), and BACOU SA, a societe anonyme duly incorporated and
legally existing under the laws of the Republic of France (the
"Stockholder").
WHEREAS Xxxxxx, Xxxxxx U. S. Sub, Inc., a Delaware corporation
("Sub"), and BACOU USA, INC., a Delaware corporation (the "Company"), propose to
enter into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement"; capitalized terms
used but not defined herein shall have the meanings set forth in the Merger
Agreement);
WHEREAS the Stockholder owns the number of shares of Company Common
Stock set forth opposite its name on Schedule A hereto (such shares of Company
Common Stock, together with any other shares of capital stock of the Company
acquired by the Stockholder after the date hereof and during the term of this
Agreement, being collectively referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that the Stockholder enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of The Stockholder. The
Stockholder hereby represents and warrants to Parent as of the date hereof as
follows:
(a) Authority; Execution and Delivery; Enforceability. The Stockholder
has all requisite power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. The Stockholder has duly
executed and delivered this Agreement, and this Agreement constitutes the legal,
valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms. Assuming approval of the transactions
contemplated by this Agreement by the Board of Directors of the Company, the
execution and delivery by the Stockholder of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, materially conflict with, or result in any material
violation of, or
2
material default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancelation or acceleration of any
obligation or to loss of a material benefit under, or result in the creation of
any material Lien upon any of the properties or assets of the Stockholder under,
any provision of any material contract to which the Stockholder is a party or by
which any properties or assets of the Stockholder are bound or, subject to the
filings and other matters referred to in the next sentence, any provision of any
judgment or law applicable to the Stockholder or the properties or assets of the
Stockholder. No consent of, or registration, declaration or filing with, any
Governmental Entity is required to be obtained or made by or with respect to the
Stockholder in connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby, other
than such reports under Sections 13(d) and 16 of the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated
hereby.
(b) The Subject Shares. The Stockholder is the record and beneficial
owner of, or is the trustee of a trust that is the record holder of, and whose
beneficiaries are the beneficial owners of, and has good and marketable title
to, the Subject Shares, free and clear of any Liens. The Stockholder does not
own, of record or beneficially, any shares of capital stock of the Company other
than the Subject Shares. The Stockholder has the sole right to vote the Subject
Shares, and none of the Subject Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of the Subject
Shares, except as contemplated by this Agreement.
SECTION 2. Representations and Warranties of Parent. Parent hereby
represents and warrants to the Stockholder as follows: Parent has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
Parent of this Agreement and consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of Parent.
Parent has duly executed and delivered this Agreement, and this Agreement
constitutes the legal, valid and binding obligation of Parent, enforceable
against Parent in accordance with its terms.
3
SECTION 3. Covenants of The Stockholder. The Stockholder covenants and
agrees as follows:
(a) (i) At any meeting of the stockholders of the Company called to
seek the Company Stockholder Approval or in any other circumstances upon which a
vote, consent or other approval (including by written consent) with respect to
the Merger Agreement, the Merger or any other Transaction is sought, the
Stockholder shall, including by executing a written consent solicitation if
requested by Parent, vote (or cause to be voted) the Subject Shares in favor of
granting the Company Stockholder Approval.
(ii) The Stockholder hereby irrevocably grants to, and appoints,
Parent, and any individual designated in writing by Parent, and each of them
individually, as the Stockholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Stockholder, to
vote the Subject Shares, or grant a consent or approval in respect of the
Subject Shares in a manner consistent with this Section 3. The Stockholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon the Stockholder's execution and delivery of this Agreement. The
Stockholder hereby affirms that the irrevocable proxy set forth in this Section
3(a) 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 the
Stockholder under this Agreement. The Stockholder hereby further affirms that
the irrevocable proxy is coupled with an interest and may under no circumstances
be revoked. The Stockholder 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 DGCL. The irrevocable proxy granted
hereunder shall automatically terminate upon the termination of this Agreement
in accordance with Section 4.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote (or cause
to be voted) the Subject Shares against (i) any merger agreement or merger
(other than the Merger Agreement and the Merger), consolidation, combination,
sale of substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company, (ii) any Company Takeover
Proposal and (iii) any amendment of the Company Charter or the Company By-laws
or other proposal or transaction involving the Company or any Company
Subsidiary,
4
which amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify any provision of the Merger Agreement, the Merger
or any other Transaction or change in any manner the voting rights of any class
of Company Common Stock. The Stockholder shall not commit or agree to take any
action inconsistent with the foregoing.
(c) Other than as contemplated by this Agreement, the Stockholder
shall not (i) sell, transfer, pledge, assign or otherwise dispose of (including
by gift) (collectively, "Transfer"), or enter into any contract, option or other
arrangement (including any profit sharing arrangement) with respect to the
Transfer of, any Subject Shares to any person other than pursuant to the Merger
or (ii) enter into any voting arrangement, whether by proxy, voting agreement or
otherwise, with respect to any Subject Shares and shall not commit or agree to
take any of the foregoing actions.
(d) The Stockholder shall not, nor shall it authorize or permit any
officer, director or employee of, or any investment banker, attorney or other
adviser or representative of, the Stockholder to, (i) directly or indirectly
solicit, initiate or encourage the submission of, any Company Takeover Proposal,
(ii) enter into any agreement with respect to any Company Takeover Proposal or
(iii) directly or indirectly participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Company Takeover
Proposal. The Stockholder promptly shall advise Parent orally and in writing of
any Company Takeover Proposal or inquiry made to the Stockholder with respect to
or that could reasonably be expected to lead to any Company Takeover Proposal,
the identity of the person making any such Company Takeover Proposal or inquiry
and the material terms of any such Company Takeover Proposal or inquiry.
(e) The Stockholder shall use its best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the other parties in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
Merger and the other transactions contemplated by the Merger Agreement. Neither
Parent nor the Stockholder shall issue any press release or make any other
public statement with respect to the Merger or any other transaction
contemplated by the Merger Agreement other than in accordance with the Master
Agreement, except as may be required by applicable law, court process or by
5
obligations pursuant to any listing agreement with any national securities
exchange.
(f) The Stockholder hereby consents to and approves the actions taken
by the Company Board in approving the Merger and the other transactions
contemplated by the Merger Agreement. The Stockholder hereby waives, and agrees
not to exercise or assent, any appraisal rights under Section 262 in connection
with the Merger.
SECTION 4. Termination. This Agreement shall terminate upon the
earliest of (a) the Effective Time, (b) the termination of the Merger Agreement
in accordance with its terms and (c) the Outside Date, other than with respect
to the liability of any party for breach hereof prior to such termination.
SECTION 5. Additional Matters. The Stockholder shall, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Parent may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
SECTION 6. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or sent by overnight
courier (providing proof of delivery) to Parent in accordance with Section 9.02
of the Merger Agreement and to the Stockholder at its address set forth on
Schedule A hereto (or at such other address for a party as shall be specified by
like notice).
(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule or law, or public
policy, all other
6
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement. This
Agreement shall become effective against Parent when one or more counterparts
have been signed by Parent and delivered to the Stockholder. This Agreement
shall become effective against the Stockholder when one or more counterparts
have been executed by the Stockholder and delivered to Parent. Each party need
not sign the same counterpart.
(f) Entire Agreement; No Third-Party Beneficiaries. This Agreement (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(g) Governing Law. 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 law
thereof.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by Parent without the prior written
consent of the Stockholder or by the Stockholder without the prior written
consent of Parent, and any purported assignment without such consent shall be
void. Subject to the preceding sentences, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
(i) Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise
7
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any Delaware state
court or any Federal court located in the State of Delaware, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any Delaware state court or any Federal court located
in the State of Delaware in the event any dispute arises out of this Agreement
or any Transaction, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(iii) agrees that it will not bring any action relating to this Agreement or any
Transaction in any court other than a Delaware state court or any Federal court
sitting in the State of Delaware and (iv) waives any right to trial by jury with
respect to any claim or proceeding related to or arising out of this Agreement
or any transaction contemplated hereby.
(j) Stockholder Capacity. The Stockholder signs solely in its capacity
as the record holder and beneficial owner of the Subject Shares and nothing
herein shall limit or affect any actions taken by the Stockholder or any of its
officers and dirctors in its or their capacity as an officer or director of the
Company and no such action shall be deemed a breach of this Agreement.
8
IN WITNESS WHEREOF, each party has duly executed this Agreement, all
as of the date first written above.
CHRISTIAN DALLOZ,
by
----------------------
Name:
Title:
BACOU SA,
by
----------------------
Name:
Title:
9
SCHEDULE A
Number of Shares of
Name and Address Company
of Stockholder Common Stock Owned
Bacou SA 12,612,600
Z1 Xxxxx Xxxx XX
00, xxx xx xx Xxxxxx(xxxxx)X.X. 00000
95943 Roissy CDG Cedex
FRANCE
10
Schedule 5.01(a)(v)
Between the date of the Agreement and the Effective Time, Parent, the
Company and each of Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxx Xxxxxxx and Xxxxxx Xxxxxx
(the "Executives") will enter into agreements which shall provide that at the
Effective Time, all existing employment agreements between the Executives and
the Company shall be terminated and new employment agreements shall be executed
between Parent and each Executive, in each case on the terms attached to this
Schedule 5.01(a)(v).
