Exhibit 11
ROHM AND XXXX COMPANY SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT (this "Agreement"), dated as of February
25, 1999, among Xxxxxx International, Inc., an Indiana corporation (the
"Company"), and the individuals and trusts (collectively, the "Shareholders")
named on Attachment A hereto, relating to the shares of Common Stock, par value
$2.50 per share (the "Common Shares"), of Rohm and Xxxx Company, a Delaware
corporation ("Parent"), beneficially owned by the Shareholders.
WITNESSETH:
WHEREAS, the Company, Parent and Xxxxxx Acquisition Corp.
(formerly known as Gershwin Acquisition Corp.), an Indiana corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), have entered into an Agreement
and Plan of Merger, dated as of January 31, 1999 (the "Merger Agreement"),
providing for (i) the offer (the "Offer") by Merger Sub to purchase up to
80,916,766 shares of Common Stock, par value $1.00 per share, of the Company
("Company Shares") and the associated preferred share purchase rights and (ii)
the merger of Merger Sub with the Company in accordance with the Business
Corporation Law of the State of Indiana (the "Merger"), on the terms and subject
to the conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, each Shareholder beneficially
owns the number of Common Shares set forth opposite such Shareholder's name on
Attachment A hereto (the "Owned Shares");
WHEREAS, the Company has requested that each Shareholder
agree, and each Shareholder has agreed, to vote all the Owned Shares, together
with any Common Shares acquired after the date of this Agreement, whether upon
the exercise of options, conversion of convertible securities or otherwise, and
any other voting securities of Parent (whether acquired heretofore or hereafter)
that are beneficially owned by such Shareholder or over which such Shareholder
has, directly or indirectly, the right to vote (collectively, the "Voting
Shares"), in favor of (i) an amendment to the Restated Certificate of
Incorporation of Parent to increase the number of authorized Common Shares to
400 million (the "Charter Amendment") and (ii) the issuance of Common Shares in
the Merger pursuant to the Merger Agreement (the "Share Issuance") and any other
matters submitted to the holders of Common Shares in furtherance of the Merger;
WHEREAS, the Merger Agreement contemplates that, if following
consummation of the Offer, the Charter Amendment and the Share Issuance are not
approved by the shareholders of Parent, the Merger consideration will be
adjusted to reduce the stock portion of the consideration paid thereunder such
that holders of Company Shares will receive, in the aggregate, the maximum
number of Common Shares that may be issued by Parent in the Merger without a
shareholder vote under applicable laws and stock exchange regulations, with the
remainder of the consideration paid in cash; and
WHEREAS, the Shareholders desire to express their support for
the Charter Amendment and the Share Issuance and the transactions contemplated
by the Merger Agreement.
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NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration given to each party hereto, the receipt of which
is hereby acknowledged, the parties agree as follows:
1. Agreement to Vote. Each Shareholder hereby agrees that,
during the time this Agreement is in effect, at any meeting of the shareholders
of Parent, however called, or any adjournment thereof, or by written consent,
such Shareholder shall be present (in person or by proxy) and vote (or cause to
be voted) all of its Voting Shares (a) in favor of the Charter Amendment and the
Share Issuance, and any other matter that is required to facilitate the
transactions contemplated by the Merger Agreement, and (b) against any action or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of Parent or
Merger Sub under the Merger Agreement or that would otherwise prevent or
materially delay the consummation of the transactions contemplated by the Merger
Agreement. Each Shareholder hereby revokes any proxy previously granted by it
with respect to the Owned Shares beneficially owned by such Shareholder.
2. Termination.
2.1. Termination of this Agreement. This Agreement shall
terminate on the earlier of (a) the consummation of the Merger pursuant to the
Merger Agreement or (b) the termination of the Merger Agreement in accordance
with its terms.
2.2. Effect of Termination. In the event of termination of
this Agreement pursuant to Section 2.1, this Agreement shall become void and of
no effect with no liability on the part of any party hereto; provided, however,
no such termination shall relieve any party hereto from any liability for any
breach of this Agreement occurring prior to such termination.
3. Representations and Warranties of Shareholders. Each
Shareholder hereby represents and warrants to the Company, solely as to such
Shareholder, as follows:
3.1 Due Organization. Each Shareholder that is not an
individual has been duly organized, is validly existing and is in good standing,
as applicable, under the laws of the jurisdiction of its organization.
3.2 Power; Due Authorization; Binding Agreement. Such
Shareholder has full legal capacity, power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by any Shareholder
that is a trust have been duly and validly authorized by all necessary action on
the part of such Shareholder's trustees, and no other proceedings on the part of
such Shareholder are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Shareholder and constitutes a valid and binding
agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms, except that enforceability may be subject to the
effect of any applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws
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affecting or relating to the enforcement of creditors rights generally and to
general principles of equity.
3.3 Ownership of Shares. On the date hereof, the Owned Shares
set forth opposite such Shareholder's name on Attachment A hereto are owned of
record or beneficially by such Shareholder and constitute all of the Voting
Shares owned of record or beneficially by such Shareholder, free and clear of
any claims, liens, encumbrances and security interests, except for such claims,
liens and encumbrances as are specified on Attachment B hereto. The Shareholders
have voting power with respect to all of such Owned Shares.
3.4 No Conflicts. The execution and delivery of this Agreement
by such Shareholder do not, and the performance of the terms of this Agreement
by such Shareholder will not, (a) require such Shareholder to obtain the consent
or approval of, or make any filing with or notification to, any governmental or
regulatory authority, domestic or foreign, (b) in the case of a Shareholder that
is a trust, conflict with or violate the Declaration of Trust or other trust
agreement of such Shareholder, (c) require the consent or approval of any other
person pursuant to any material agreement, obligation or instrument binding on
such Shareholder or its properties and assets, (d) conflict with or violate any
material law, rule, regulation, order, judgment or decree applicable to such
Shareholder or by which any property or asset of such Shareholder is bound or
(e) violate any other material agreement to which such Shareholder is a party
including, without limitation, any voting agreement, stockholders agreement,
irrevocable proxy or voting trust, except for any consent, approval, filing or
notification, the failure of which to obtain, make or give would not, or any
conflict or violation which would not, prevent, delay or materially adversely
affect the consummation of the transactions contemplated by this Agreement or
the Merger Agreement.
4. Representations and Warranties of the Company. The Company
hereby represents and warrants to each Shareholder as follows: The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Indiana. The Company has full corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of the Company, and no other proceedings on the
part of the Company are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company.
5. Certain Covenants of Shareholders. Each Shareholder hereby
covenants and agrees as follows:
5.1 Restriction on Transfer, Proxies and Non-Interference.
Each Shareholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to (a) sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, or limitation on the voting rights of, any
of the Voting Shares, (b) grant any proxies or powers of attorney, deposit any
Voting Shares into a voting trust or enter into a voting agreement with respect
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to any Voting Shares or (c) take any action that would make any representation
or warranty of such Shareholder contained herein untrue or incorrect or have the
effect of preventing or disabling such Shareholder from performing its
obligations under this Agreement. Any transfer of Voting Shares not permitted
hereby shall be null and void. Each Shareholder agrees that any such prohibited
transfer may and should be enjoined. If any involuntary transfer of any of the
Voting Shares shall occur (including , but not limited to, a sale by a
Shareholder's trustee in bankruptcy, or a sale to a purchaser at any creditor's
or court sale), the transferee (which term, as used herein, shall include any
and all transferees and subsequent transferees of the initial transferee) shall
take and hold such Voting Shares subject to all of the restrictions, liabilities
and rights under this Agreement, which shall continue in full force and effect.
5.2 Additional Shares. Each Shareholder hereby agrees, while
this Agreement is in effect, to promptly notify the Company of the number of any
new Voting Shares acquired by such Shareholder, if any, after the date hereof.
Any such shares shall be subject to the terms of this Agreement.
5.3 Certain Actions Restricted. Each Shareholder hereby agrees
that prior to the conclusion of the Parent Stockholders Meeting (as defined in
the Merger Agreement) (including any adjournments thereof) it will not, and will
not permit its trustees, officers, agents or representatives to, directly or
indirectly, without the written consent of the Company, take, or propose to
take, or agree to take in writing or otherwise, any action which would be
reasonably likely to prevent or materially delay the Offer or the Merger or make
any of the representations or warranties of such Shareholder contained in this
Agreement, untrue and incorrect as of the date when made if such action had then
been taken; provided, that nothing contained in this Section 5.3 shall prevent
the trustee or trustees of any Shareholder that is a trust from taking any
action which does not constitute a breach of Section 1, Section 5.1 or Section
5.2 hereof to the extent that such trustee or trustees determine in good faith,
based on the advice of outside counsel to such trustee or trustees, that failure
to take such action would violate its or their fiduciary duties under applicable
law.
6. Further Assurances. From time to time, at the Company's
request and without further consideration, each Shareholder shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
7. Stop Transfer Order. In furtherance of this Agreement, and
concurrently herewith, each Shareholder shall and hereby does authorize Parent
or Parent's counsel to notify Parent's transfer agent that there is a stop
transfer order with respect to all of such Shareholder's Voting Shares.
8. Miscellaneous.
8.1 Non-Survival. The representations and warranties made
herein shall not survive the termination of this Agreement.
8.2 Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement among the parties with respect to the subject
matter hereof and
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supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof and (b) shall not be
assigned by operation of law or otherwise.
8.3 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
8.4 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, by facsimile
transmission or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to a Shareholder, to such Shareholder's address set forth on the
signature pages hereto,
copy to:
Rohm and Xxxx Company
000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Secretary
Fax: (000) 000-0000
and
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Company:
Xxxxxx International, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Fax: (000) 000-0000
copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
8.5 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
laws thereof.
8.6 Specific Performance. Each Shareholder recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the Company to sustain irreparable injury and damages,
for which money damages would not provide an adequate remedy, and therefore each
Shareholder agrees that in the event of any such breach the Company shall be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity. In addition, each of the parties
hereto (a) consents to submit itself to the personal jurisdiction of any Federal
or state court located in the State of Delaware in the event any dispute arises
out of this Agreement or any of the transactions contemplated by this Agreement;
(b) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court; and (c) agrees that it
will not bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a Federal or state court
sitting in the State of Delaware, and appoints Parent as the agent for service
of process in connection with this Agreement.
8.7 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same Agreement.
8.8 Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
8.9 Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President for Legal Affairs,
General Counsel and Secretary
XXXX XXXX TRUST DATED
DECEMBER 20, 1945
c/o Xxxx X. Xxxx, Trustee
000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx, Trustee
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx, Trustee
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XXXX XXXX TRUST DATED
DECEMBER 21, 1945
c/o Xxxx X. Xxxx, Trustee
000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx, Trustee
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx, Trustee
XXXX XXXX CHARITABLE TRUST
DATED AUGUST 3, 1955
c/o Xxxx X. Xxxx, Trustee
000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx, Trustee
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx, Trustee
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XXXX XXXX CHARITABLE TRUST
DATED SEPTEMBER 28, 1956
c/o Xxxx X. Xxxx, Trustee
000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx, Trustee
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx, Trustee
XXXXXX X. XXXX TRUST (A) DATED
AUGUST 24, 1961
c/o Xxxx X. Xxxx, Trustee
000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx, Trustee
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx, Trustee
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx, Trustee
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XXXXXX X. XXXX TRUST (B) DATED
AUGUST 24, 1961
c/o Xxxx X. Xxxx, Trustee
000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
By: /s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx, Trustee
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx, Trustee
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx, Trustee
/s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx
000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
/s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
/s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx
The Xxxxxxx Penn Foundation
0 Xxxxx Xxxxxx - 00xx Xxxxx
000 X. 00xx Xxxxxx
Xxxxxxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx
P. O. Xxx 000
Xxxx Xxxxx, XX 00000
/s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
P. O. Xxx 000
Xxxx Xxxxx, XX 00000
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/s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
000 Xxx Xxxx
Xxxxxx, XX 00000
/s/ Xxxxxxx Xxxx
---------------------------------------
Xxxxxxx Xxxx
000 Xxx Xxxx
Xxxxxx, XX 00000
/s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx
0000 Xxxxxxxxxxx Xxxxxx
Xxx. 00X
Xxxxxxxxxxxx, XX 00000
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ATTACHMENT A
Shareholder Owned Shares
------------------------------------------------------------- ---------------
Xxxx Xxxx Trust dated 12/20/45 2,301,048
Xxxx Xxxx Trust dated 12/21/45 27,083,736
Xxxx Xxxx Charitable Trust dated 8/3/55 5,819,580
Xxxx Xxxx Charitable Trust dated 9/28/56 21,670,560
Xxxxxx X. Xxxx (A) Trust dated 8/24/61 3,484,152
Xxxxxx X. Xxxx (B) Trust dated 8/24/61 3,484,152
Xxxx X. Xxxx, individually 373,755
Xxxx X. Xxxx, individually 282,192
Xxxx X. Xxxx, jointly with Xxxxx X. Xxxx 94,686
Xxxxxxx X. Xxxx, individually 131,598
Xxxxxxx X. Xxxx, jointly with Xxxxxx X. Xxxx 186,762
Xxxxxx X. Xxxx, individually 43,638
Xxxxxx X. Xxxx, jointly with Xxxxxxx Xxxx 488,781
Xxxxxx X. Xxxx, jointly with Vanguard Brokerage 12,285
Xxxxxxx Xxxx 50,409
Xxxxx X. Xxxx, widow of Xxxx Xxxx 30,000
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