EXHIBIT 2.2
SUPPORT AGREEMENT
This SUPPORT AGREEMENT, is entered into as of September 10, 2000, among X.
X. Xxxxxx Industries, S.A., a societe anonyme organized under the law of France
("Diamond"), Mountain Acquisition Corp., a Delaware corporation ("MAC"), and the
persons listed on Schedule A hereto (each a "Shareholder", and, collectively,
the "Shareholders"). Capitalized terms not otherwise defined herein have the
meanings set forth in the Merger Agreement (defined below).
WHEREAS, Mikasa, Inc., a Delaware corporation (the "Company"), the
Shareholders, Diamond and MAC have, simultaneously with the execution and
delivery of this Agreement, entered into an Agreement and Plan of Merger (as the
same may be amended or supplemented, the "Merger Agreement") providing for the
merger of MAC with and into the Company (the "Merger"), which Merger Agreement
and Merger have been recommended by the Special Committee of the Company's Board
of Directors;
WHEREAS, each Shareholder is the record and beneficial owner of the number
of shares of Common Stock, par value $.01 per share, of the Company (the
"Company Common Stock") set forth opposite such Shareholder's name on Schedule A
hereto and under the heading "Total Shares" (such shares of the Company Common
Stock, as such shares may be adjusted by stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by the Company, together
with shares of the Company Common Stock that may be acquired after the date
hereof by such Shareholder, including shares of the Company Common Stock
issuable upon the exercise of options to purchase the Company Common Stock (as
the same may be adjusted as aforesaid), being collectively referred to herein as
the "Shares"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Diamond and MAC have requested that the Shareholders enter into this
Agreement.
NOW, THEREFORE, to induce Diamond and MAC to enter into, and in
consideration of it entering into, the Merger Agreement, and in consideration of
the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties of the Shareholders. Each Shareholder
acting solely in its capacity as a holder of the shares and not as a director or
employee of the Company or in any other capacity, hereby, severally and not
jointly, represents and warrants to, and agrees with, Diamond and MAC as
follows:
(a) Authority. The Shareholder has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Shareholder. This Agreement has been duly executed and
delivered by the Shareholder and, assuming this Agreement constitutes a valid
and binding obligation of Diamond and MAC, constitutes a valid and binding
obligation of the Shareholder enforceable against the Shareholder in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws now or hereafter in
effect relating to creditors rights generally and general principles of equity
(regardless of whether enforcement is considered in a proceeding in law or
equity). Except for the expiration or termination of the waiting periods under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and filings with the Securities and Exchange Commission, neither the
execution, delivery or performance of this Agreement by the Shareholder nor the
consummation by the Shareholder of the transactions contemplated hereby will (i)
require any filing with, or permit, authorization, consent or approval of, any
federal, state, local, municipal or foreign or other government or subdivision,
branch, department or agency thereof or any governmental or quasi-governmental
authority of any nature, including any court or other tribunal (a "Governmental
Entity"), (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default under, or give rise to
any right of termination, amendment, cancellation or acceleration under, or
result in the creation of any lien, charge, security interest or other
encumbrance of any nature (a "Lien") upon any of the properties or assets of the
Shareholder under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, license, permit, concession, franchise, contract,
agreement or other instrument or obligation (a "Contract") to which the
Shareholder is a party or by which the Shareholder or any of the Shareholder's
properties or assets, including the Shareholder's Shares, may be bound or (iii)
violate any judgment, order, writ, preliminary or permanent injunction or decree
(an "Order") or any statute, law, ordinance, rule or regulation of any
Governmental Entity (a "Law") applicable to the Shareholder or any of the
Shareholder's properties or assets, including the Shareholder's Shares.
(b) The Shares. The Shareholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by such Shareholder, or by a nominee or custodian for the benefit of
such Shareholder, and the Shareholder has good and marketable title to such
Shares, free and clear of any Liens, proxies, voting trusts or agreements,
understandings or arrangements with respect to the ownership, transfer or voting
of the Shares, except for any such Liens or proxies arising hereunder. The
Shareholder owns of record or beneficially no shares of the Company Common Stock
other than such Shareholder's Shares and shares of the Company Common Stock
issuable upon the exercise of Company stock options, as set forth on Schedule A
hereto.
(c) Merger Agreement. The Shareholder understands and acknowledges that
Diamond and MAC are entering into the Merger Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder
covenants and agrees that it will timely perform all of its obligations under
the Merger Agreement.
2. Representations and Warranties of Diamond and MAC. Diamond and MAC
hereby jointly and severally represent and warrant to, and agree with, the
Shareholders as follows:
(a) Authority. Diamond and MAC each have the requisite organizational
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by Diamond and MAC and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary organizational
action on the part of Diamond and MAC. This Agreement has been duly executed and
delivered by Diamond and MAC and, assuming this Agreement constitutes a valid
and binding obligation of the Shareholders, constitutes a valid and binding
obligation of Diamond and MAC enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws now or hereafter in effect relating to
creditors rights generally and general principles of equity (regardless of
whether enforcement is considered in a proceeding in law or equity). Except for
the expiration or termination of the waiting periods under the HSR Act, and
filings with the Securities and Exchange Commission, neither the execution,
delivery or performance of this Agreement by Diamond or MAC nor the consummation
by Diamond or MAC of the transactions contemplated hereby will (i) require any
filing with, or permit, authorization, consent or approval of, any Governmental
Entity, (ii) result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default under, or give rise to any right
of termination, amendment, cancellation or acceleration under, or result in the
creation of any Lien, upon any of the properties or assets of Diamond or MAC
under, any of the terms, conditions or provisions of any Contract to which
Diamond or MAC is a party or by which Diamond or MAC or any of their respective
properties or assets may be bound or (iii) violate any Order or Law applicable
to Diamond or MAC or any of their respective properties or assets.
(b) Securities Act. The Shares will be acquired in compliance with, and
Diamond and MAC will not offer to sell or otherwise dispose of any Shares so
acquired by it in violation of the registration requirements of, the Securities
Act of 1933, as amended.
(c) Merger Agreement. Diamond and MAC each covenant and agree that it
will timely perform all of its obligations under the Merger Agreement.
3. Covenants of the Shareholders. Each Shareholder, severally and not
jointly, to the extent he has the capacity to vote, solely in his capacity as
holder of the Shares and not as a director or employee of the Company or in any
other capacity, agrees as follows:
(a) Such Shareholder shall not, except as contemplated by the terms of
this Agreement or the Merger Agreement, (i) sell, transfer, pledge, assign or
otherwise dispose of, or enter into any Contract, option or other arrangement
(including any profit sharing arrangement) or understanding with respect to the
sale, transfer, pledge, assignment or other disposition of his Shares to any
person other than Diamond, MAC or their designees, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney
or otherwise, with respect to his Shares or (iii) take any other action that
would in any way materially restrict, limit, interfere with or frustrate the
performance of his obligations hereunder or the transactions contemplated
hereby.
(b) At any meeting of shareholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
each Shareholder shall as requested by MAC (including, without limitation, by
cooperating with MAC with respect to the proxy granted to MAC pursuant to
Section 6 below), vote (or cause to be voted) such Shareholder's Shares in favor
of the Merger, the adoption by the Company of the Merger Agreement and the
approval of the other transactions contemplated by the Merger Agreement. At any
meeting of stockholders of the Company or at any adjournment thereof or in any
other circumstances upon which the vote, consent or other approval of
stockholders of the Company is sought, such Shareholder shall as requested by
MAC as provided above vote (or cause to be voted) such Shareholder's Shares
against (i) any Competing Transaction (as defined in the Merger Agreement) or
(ii) any amendment of the Company's Certificate of Incorporation or by-laws or
other proposal or transaction involving the Company or any of its subsidiaries,
which amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Merger Agreement, the Merger or any of the
other transactions contemplated by the Merger Agreement (collectively,
"Frustrating Transactions").
4. Notice of Acquisition of Additional Shares. Each Shareholder hereby
agrees, while this Agreement is in effect, to promptly notify MAC of the number
of any new shares of Company Common Stock acquired by such Shareholder, if any,
after the date hereof.
5. Grant of Proxy Coupled with an Interest; Appointment of Proxy.
(a) Each Shareholder hereby grants to, and appoints, Xxxx Xxxxxxxx, and
any other individual who shall hereafter be designated by MAC, such
Shareholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Shareholder, to vote such Shareholder's
Shares, or grant a consent or approval in respect of such Shares, at any meeting
of stockholders of the Company or at any adjournment thereof or in any other
circumstances upon which their vote, consent or other approval is sought, (i) in
favor of the Merger, the adoption by the Company of the Merger Agreement and the
approval of the other transactions contemplated by the Merger Agreement and (ii)
against any Competing Transaction or Frustrating Transaction.
(b) Each Shareholder represents that any proxies heretofore given in
respect of such Shareholder's Shares are not irrevocable, and that all such
proxies, if any, are hereby revoked.
(c) Each Shareholder hereby affirms that the proxy set forth in this
Section 5 is coupled with an interest and is irrevocable until the termination
of this Section 5 in accordance with Section 13 hereof. Each Shareholder hereby
further affirms that the proxy is given in connection with the execution of the
Merger Agreement, and that this proxy is given to secure the performance of the
duties of such Shareholder under this Agreement.
6. Further Assurances. Each Shareholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as Diamond
or MAC may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement and to vest the power to vote such
Shareholder's Shares as contemplated by Section 3. Diamond and MAC each agree to
use reasonable efforts to take, or cause to be taken, all actions necessary to
comply promptly with all legal requirements that may be imposed with respect to
the transactions contemplated by this Agreement and the Merger Agreement
(including legal requirements of the HSR Act).
7. Competing Transaction Fee.
(a) Each Shareholder agrees, severally and not jointly, that in the
event the Company or such Shareholder consummates or participates in a Competing
Transaction (including, without limitation, by means of a tender offer) or
enters into definitive agreements related to a Competing Transaction at any time
during the twelve month period after the termination of the Merger Agreement (i)
pursuant to Sections 9.01(d)(ii) or 9.01(g) of the Merger Agreement or (ii)
pursuant to Sections 9.01(c), 9.01(d)(i) or 9.01(f)(i) of the Merger Agreement
(provided that in the case of this clause (ii), a proposal relating to any
Competing Transaction has been made to the Company or a Shareholder at or prior
to the time of the termination by Diamond and MAC of the Merger Agreement
pursuant to Sections 9.01(c), 9.01(d)(i) or 9.01(f)(i) thereof), such
Shareholder shall pay to Diamond an amount in cash equal to the Competing
Transaction Fee simultaneously with the closing of a Competing Transaction that
was consummated or participated in within such twelve month period following the
termination of the Merger Agreement or with respect to which a definitive
agreement was entered into as described above within such twelve month period
following the termination of the Merger Agreement.
(b) For purposes hereof, the "Competing Transaction Fee" shall mean,
with respect to each Shareholder, the product of (x) .50, multiplied by (y) (1)
the total number of Shares owned by such Shareholder as of the time of
termination of the Merger Agreement minus (2) the number of Shares (if any) that
such Shareholder rolls over in, or otherwise retains following, the Competing
Transaction (provided that if the number of Shares to be rolled over or
otherwise retained by such Shareholder in the Competing Transaction is greater
than the number of Shares to be rolled over by such Shareholder in the Merger,
the number of Shares for purposes of this clause (2) shall be the number of
Shares to be rolled over by such Shareholder in the Merger), multiplied by (z)
the excess, if any, of (1) the highest price per share of Company Common Stock
(whether paid to a Shareholder or any other holder of Company Common Stock) paid
in such Competing Transaction over (2) $16.50.
For purposes of clarity, if the Company or any Shareholder enters into any
agreement or understanding relating to any Competing Transaction prior to the
date which is twelve months after the termination of the Merger Agreement as
provided in paragraph (a) above and such Competing Transaction is consummated at
anytime thereafter, the Competing Transaction Fee will be payable upon
consummation of such Competing Transaction regardless of whether such Competing
Transaction is consummated prior to or after the date which is twelve months
after the termination of the Merger Agreement as provided in paragraph (a)
above. Notwithstanding anything in this Agreement to the contrary, no amount
shall be payable by a Shareholder pursuant to this Section 7 unless and until a
Competing Transaction is consummated as described in paragraph (a) above.
8. Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and assigns. Notwithstanding
the foregoing, Diamond and MAC shall each have the right to assign its rights,
interests and obligations hereunder to any of its affiliates at its sole option
and without the prior written consent of the other parties hereto; provided that
no such assignment shall relieve Diamond or MAC of its respective obligations
hereunder. Notwithstanding anything contained in this Agreement to the contrary,
nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto or their respective heirs, successors,
executors, administrators and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
9. General Provisions.
(a) Payments. All payments required to be made to any party to this
Agreement shall be made by Wire Transfer to an account designated by the
recipient at least one business day prior to such payment.
(b) Expenses. Subject to the terms of the Merger Agreement, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given upon receipt to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(i) if to Diamond or MAC, to
c/o X. X. Xxxxxx Industries
00 xxx Xxxxxx Xxxxxxx
00000 Xxxxxx, Xxxxxx
Telecopy: 33 3 21 95 4774
Attention: Xx. Xxxx Xxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx, Esq.
and
(ii) if to a Shareholder, to the address set forth under the
name of such Shareholder on Schedule A hereto
with a copy to:
Cleary, Gottlieb, Xxxxx and Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxxxxxx, Esq.
(e) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of 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".
(f) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(g) Entire Agreement. This Agreement (including the documents and
instruments referred to herein) 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.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law principles.
(i) Publicity. Diamond and MAC on the one hand and the Shareholders on
the other hand shall consult with each other and the Company before issuing any
press release or otherwise making any public statements with respect to this
Agreement or any of the transactions contemplated by the Merger Agreement. Prior
to the closing of the Merger, Diamond, MAC and the Shareholders shall not issue
any such press release or make any such public statement without the prior
consent of the other (which consent shall not be unreasonably withheld), except
as may be required by Law or any listing agreement with the NYSE or any
securities exchange to which Diamond, MAC or the Company is a party and, in such
case, shall use reasonable effects to consult with all the parties hereto prior
to such release or statement being issued. The parties shall agree on the text
of a joint press release by which Diamond, MAC and the Company will announce the
execution of this Agreement.
10. Shareholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director, employee or officer of the Company
makes any agreement or understanding herein in his or her capacity as a
director, employee or officer of the Company. Each Shareholder signs solely in
his capacity as the record holder and beneficial owner of, or the trustee of a
trust whose beneficiaries are the beneficial owners of, such Shareholder's
Shares and nothing herein shall limit or affect any actions taken by, or
requires that any actions be taken by, such Shareholder in his capacity as an
officer, employee or director of the Company.
11. 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 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 a court of the United States in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto waives any right to trial by jury with
respect to any claim or proceeding related to or arising out of this Agreement
or any of the transactions contemplated hereby.
12. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
13. Termination. The provisions of Sections 3, 4 and 5 hereof shall
terminate automatically and be of no further force and effect on the earlier to
occur of (a) the consummation of the Transactions (as defined in the Merger
Agreement) and (b) the termination of the Merger Agreement, and the other
provisions (including, without limitation, Section 7) of this Agreement shall
survive any termination of the Merger Agreement.
* * * * *
IN WITNESS WHEREOF, Diamond, MAC and each Shareholder have caused this
Agreement to be duly authorized, executed and delivered, all as of the date
first written above.
X.X. XXXXXX INDUSTRIES
By: /s/ A. Ibled
-----------------------------------
Its: President
MOUNTAIN ACQUISITION CORP.
By: /s/ X. Xxxxxx
-----------------------------------
Its: Authorized Representative
SHAREHOLDERS:
XXXXXXX X. XXXXXXX, on behalf of
himself, and
THE XXXXXXX XXXXXXX XXXXXXX
AND XXXXX XXXXX XXXXXXX
COMMUNITY PROPERTY TRUST,
and
THE XXXXXXX XXXXXXX XXXXXXX
SEPARATE PROPERTY TRUST
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Address: x/x Xxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
--------------------------------------
Address: x/x Xxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
XXXXXXX X. XXXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Address: x/x Xxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
XXXXXX X. XXXXXXX, on behalf
of himself, and
THE XXXXXX X. XXXXXXX
AND XXXXXX X. XXXXXXX REVOCABLE
LIVING TRUST
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Address: x/x Xxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
SCHEDULE A
Options to Purchase
Shareholder Common Shares Common Shares
---------- ------------- -------------------
Xxxxxx X. Xxxxx 3,956,353 247,500
---------------
Xxxxxxx X. Xxxxxxx 0 497,500
------------------
Xxxxxxx Xxxxxxx Xxxxxxx and Xxxxx
Xxxxx Dingmanperty Trust 109,845 0
Xxxxxxx Xxxxxxx Xxxxxxx Separate
Property Trust 1,184,192 0
Xxxxxxx X. Xxxxxxxxxx 1,587,038 240,000
---------------------
Xxxxxx X. Xxxxxxx 0 0
-----------------
Xxxxxx X. Xxxxxxx and Xxxxxx X.
Xxxxxxx Revocable Living Trust 2,488,469 0
--------- ---------
Total 9,325,897 985,000
