Exhibit 10.1
PURCHASE AND STANDSTILL AGREEMENT
AND MUTUAL RELEASE
THIS PURCHASE AND STANDSTILL AGREEMENT ("Agreement"), dated as of June 26,
1997, by and among HACH COMPANY, a Delaware corporation (the "Company"), and
XXXXXX INTERNATIONAL, INC., a Delaware corporation ("Xxxxxx").
R E C I T A L S:
Whereas, Xxxxxx owns 3,157,220 shares of the $1.00 par value Common Stock
of the Company (the "Shares"), which is approximately 28% of the issued and
outstanding shares of Common Stock of the Company; and
Whereas, Xxxxxx proposes to sell and the Company proposes to purchase the
Shares; and
Whereas, the Board of Directors of the Company, in consultation with legal
and financial advisors, has unanimously (with certain directors abstaining)
determined that the purchase of the Shares at the negotiated price is in the
best interests of the Company and its stockholders; and
Whereas, the Board of Directors of Xxxxxx, in consultation with legal and
financial advisors, has unanimously determined that the sale of the Shares at
the negotiated price is in the best interests of Xxxxxx and its stockholders;
and
Whereas, the Company and Xxxxxx are willing to effect the purchase and sale
of the Shares on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, the Company and Xxxxxx in consideration of the agreements,
covenants and conditions set forth herein, agree as follows:
ARTICLE 1.
TRANSFERS OF SHARES, PAYMENT AND CLOSING
1.1 TRANSFER OF SHARES BY XXXXXX. On the terms and subject to the
conditions of this Agreement, at the Closing (as defined herein), in exchange
for the Purchase Price referred to in Section 1.2, Xxxxxx shall sell, transfer
and deliver to the Company, and the Company shall purchase, acquire and accept
from Xxxxxx, the Shares.
1.2 PAYMENT FOR SHARES. The purchase price to be paid by the Company for
the Shares (the "Purchase Price") will be $19.00 per share or a total of
$59,987,180.00 for all said Shares. The Purchase Price shall be paid by wire
transfer of immediately available funds to an account or accounts designated in
writing by Xxxxxx. Such designation shall be received by the Company at least
48 hours prior to Closing.
1.3 CLOSING. The closing of the transaction contemplated by Section 1.1
of this Agreement ("Closing") shall take place at the offices of XxXxxxx Xxxxx &
Xxxxx, 000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx, on July 8, 1997
at 10:00 a.m., or at such earlier date and time as the parties may mutually
agree.
1.4 DELIVERIES AT CLOSING.
(a) At the Closing, Xxxxxx shall deliver or cause to be delivered to
the Company the following:
(i) stock certificates representing the Shares accompanied by
stock powers duly executed in blank and otherwise in form acceptable for
transfer on the books of the Company (the certificates and powers are referred
to herein as the "Share Certificates").
(ii) a certificate of the Secretary of Xxxxxx certifying
resolutions of the Board of Directors of Xxxxxx approving this Agreement and the
transactions contemplated hereby together with an incumbency and signature
certificate regarding the officer or officers signing on behalf of Xxxxxx.
(b) At the Closing, the Company shall deliver or cause to be
delivered to Xxxxxx the following:
(i) a certificate of the Secretary of the Company certifying
resolutions of the Board of Directors of the Company approving this Agreement
and the transactions contemplated hereby together with an incumbency and
signature certificate regarding the officer or officers signing on behalf of the
Company.
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(ii) the amount of $59,987,180.00 constituting the aggregate
Purchase Price by wire transfer of immediately available funds to a bank account
designated by Xxxxxx.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
OF XXXXXX
Xxxxxx represents and warrants to the Company as follows:
2.1 OWNERSHIP AND DELIVERY OF SHARES. Xxxxxx is the lawful owner of
record of the Shares and the Shares being transferred by Xxxxxx are owned by
Xxxxxx, free and clear of any and all pledges, security interests, liens,
charges, encumbrances or adverse claims. There are no outstanding options,
warrants, calls, subscriptions, agreements or commitments of any character
affecting the Shares. Xxxxxx is not a party to any voting trust, proxy or other
agreement or understanding with respect to the voting of the shares. At the
Closing against payment therefor pursuant to Section 1.2 hereof, Xxxxxx shall
transfer valid title to the Shares to the Company. Upon payment therefor and
delivery thereof at the Closing as provided herein, the Company will own the
Shares free and clear of all claims, liens and encumbrances other than those
created by the Company.
2.2 AUTHORIZATION OF TRANSACTION. Xxxxxx has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement has been duly and validly authorized, executed and delivered by
Xxxxxx and constitutes the valid and legally binding obligation of Xxxxxx,
enforceable against Xxxxxx in accordance with its terms and conditions. Xxxxxx
is not required to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of its stockholders or of any government or
governmental agency or any stock exchange in order to consummate the
transactions contemplated by this Agreement.
2.3 NONCONTRAVENTION. Neither the execution and the delivery by Xxxxxx of
this Agreement, nor the consummation by Xxxxxx of the transactions contemplated
hereby, will (A) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge or other restriction of any
government, governmental agency, or court to which Xxxxxx is subject, or (B)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Xxxxxx is a party or by which it is
bound or to which any of its assets are subject.
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2.4 BROKERS' FEES. Xxxxxx has no liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Company could become liable or
obligated.
2.5 LITIGATION. Xxxxxx has no knowledge (as defined below) of any action,
suit, proceeding, hearing, or investigation of, in or before any court or quasi-
judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator involving the Shares, its ownership or
authority with respect to the Shares, or the transactions contemplated by this
Agreement.
2.6 ENTIRE OWNERSHIP. Other than the Shares and other than 500 shares of
Common Stock of the Company owned by a director of Xxxxxx, neither Xxxxxx nor
any of its Affiliates (as defined below) beneficially owns, directly or
indirectly, any securities issued by the Company. Since September 15, 1995, the
date of Xxxxxx'x last amendment to its Schedule 13D, neither Xxxxxx nor any of
its Affiliates has (i) directly or indirectly, purchased or sold any shares of
the Common Stock of the Company or (ii) caused or encouraged any Person (as
defined below) to purchase or sell any such shares.
ARTICLE 3.
REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company represents, warrants and agrees for the benefit of Xxxxxx as
follows:
3.1 AUTHORIZATION OF TRANSACTION. The Company has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of the Company, enforceable against the Company in accordance with its terms and
conditions. The Company is not required to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of its stockholders or
of any government or governmental agency or NASDAQ (as defined below), in order
to consummate the transactions contemplated by this Agreement.
3.2 NONCONTRAVENTION. Neither the execution and the delivery by the
Company of this Agreement, nor the consummation by the Company of the
transactions contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which the
Company is subject, or (B) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Company is a party or by which it is bound or to which any of its assets are
subject.
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3.3 BROKERS' FEES. The Company has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Xxxxxx could become liable
or obligated.
3.4 SEC REPORTS. Since July 1, 1996, the Company has filed all forms,
reports and documents with the SEC required to be filed by it pursuant to the
Federal securities laws and the rules and regulations of the SEC (as defined
below) thereunder, all of which to the Company's knowledge (as defined below)
complied in all material respects with all applicable requirements of the 1933
Act (as defined below) and the 1934 Act (as defined below) and the rules and
regulations promulgated thereunder. The above reports of the Company to the SEC
are collectively referred to herein as the "Company SEC Reports." None of the
Company SEC Reports, including, without limitation, any financial statements or
schedules included therein, at the time filed and at the date of Closing,
contained or will contain any untrue statement of a material fact or omitted or
will omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
3.5 LITIGATION. The Company has no knowledge of any action, suit,
proceeding, hearing, or investigation of, in, or before any court or quasi-
judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator involving the transactions contemplated by
this Agreement.
ARTICLE 4.
STANDSTILL PROVISIONS
4.1 STANDSTILL PROVISIONS. From the date hereof through and including the
tenth (10th) anniversary of the Closing, Xxxxxx agrees that, without the
Company's prior written consent, Xxxxxx will not, and will not permit or cause
any of its Controlled Affiliates (as defined below) to and will not encourage
any of its Controlling Affiliates (as defined below) to:
(a) acquire, announce an intention to acquire, offer or propose to
acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,
beneficial ownership of any $1.00 par value Common Stock of the Company or other
securities of the Company (collectively the "Securities") or direct or indirect
rights or options to acquire (through purchase, exchange, conversion or
otherwise) any Securities;
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(b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined in Rule 14a-1 under the
0000 Xxx) to vote any Securities, seek to advise, encourage or influence any
person or entity with respect to the voting of any Securities, initiate or
propose any shareholder proposal under Rule 14a-8 under the 1934 Act or induce
or attempt to induce any other person to initiate any shareholder proposal;
(c) make any statement or proposal, whether written or oral, to the
Board of Directors of the Company, or to any director, officer or agent of the
Company, or make any public announcement or proposal whatsoever with respect to
a merger or other business combination, sale or transfer of assets,
recapitalization, dividend, share repurchase, liquidation or other extraordinary
corporate transaction with the Company or other transaction which could result
in a change of control, or solicit or encourage any other person to make such
statement or proposal;
(d) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the 0000 Xxx) with respect to any Securities;
(e) otherwise act, alone or in concert with others, to seek to
exercise any control over the management, Board of Directors or policies of the
Company;.
(f) make a public request to the Company (or its directors, officers,
shareholders, employees or agents) to amend or waive any provisions of this
Agreement, the Certificate of Incorporation or By-Laws of the Company;
(g) take any action which might require the Company to make a public
announcement regarding the possibility of any transaction referred to in
paragraph (c) above or similar transaction or, advise, assist or encourage any
other persons in connection with the foregoing; or
(h) disclose any intention, plan or arrangement inconsistent with the
foregoing.
Notwithstanding the foregoing, if the Closing shall not take place hereunder
(other than as a result of a material breach hereof by Xxxxxx), then the
obligations of Xxxxxx under this Section 4.1 shall be of no further force or
effect.
ARTICLE 5.
ADJUSTMENT ON CHANGE OF CONTROL
5.1 ADJUSTMENT ON CHANGE OF CONTROL. In the event that a Change of
Control (as defined below) (i) occurs on or prior to September 30, 1998, and
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(ii) if as a result of the transaction resulting in such Change of Control any
stockholders of the Company receive cash of more than $19.00 per share (the
purchase price to be paid per share for the Shares at Closing) for their
respective shares of Common Stock of the Company, then at the closing of such
transaction the Company shall pay to Xxxxxx in cash an amount equal to the
product of (x) the difference between the greatest amount per share received by
stockholders of the Company in such transaction and the amount of the purchase
price to be paid per share for the Shares at Closing TIMES (y) 3,157,220. In
the event that between the date hereof and the date of the consummation of such
transaction the Company's stock is subject to any stock split, stock dividend,
merger, consolidation, recapitalization, combination or reorganization, an
equitable adjustment shall be made to reflect any such event in computing the
additional amount to be paid to Xxxxxx pursuant to this provision. In the event
the payment in such Change of Control transaction is not made solely in cash,
the parties shall in good faith negotiate a fair cash equivalent for any non-
cash element and failing to reach agreement thereon the same shall be determined
through arbitration in Chicago, Illinois, in accordance with the rules of the
American Arbitration Association, with Xxxxxx and the Company each selecting one
arbitrator and such arbitrators selecting a third arbitrator. The decision of
such panel of arbitrators shall be final, conclusive and binding on the parties
hereto.
5.2 DEFINITION OF CHANGE OF CONTROL. A "Change of Control" shall occur
(A) when the stockholders of the Company approve a definitive agreement or plan
(i) to merge or consolidate the Company with or into another Company (other than
a merger or consolidation which would result in the Voting Stock (as defined
below) of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation), or (ii) to sell, or
otherwise dispose of, all or substantially all of the Company's property and
assets, or (iii) to liquidate the Company or (B) if the Company is the subject
of a Rule 13e-3 transaction (as defined under the 1934 Act). The term "Voting
Stock" means all capital stock of the Company which by its terms may be voted on
all matters submitted to stockholders of the Company generally. Without
limiting the generality of the foregoing, the transaction contemplated by this
Agreement is not a Change of Control.
ARTICLE 6.
CONDITIONS PRECEDENT TO OBLIGATION
OF THE COMPANY TO PURCHASE THE SHARES
Each of the following shall be conditions to the Company's obligations with
respect to the Closing:
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6.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties of Xxxxxx made in this Agreement shall be correct as of the Closing,
with the same force and effect as though such representations and warranties had
been made at the Closing.
6.2 PERFORMANCE OF COVENANTS. Except where specifically provided to the
contrary, all the terms, conditions and covenants of this Agreement shall be
complied with and performed by Xxxxxx on or before the Closing.
6.3 CLOSING DELIVERIES. The Company shall have received all of the
documents and items specified in Section 1.4(a) executed by Xxxxxx and the other
parties thereto.
6.4 NO INJUNCTION. On the Closing Date there shall be no effective
injunction, writ, preliminary injunction, temporary restraining order or other
order of any nature issued by a court of competent jurisdiction directing that
the transactions provided for herein or any of them not be consummated as so
provided.
6.5 MARKET OUT. (a) There shall not have occurred any material adverse
change in the financial markets in the United States (as defined below) or any
outbreak of hostilities or escalation thereof or other calamity or crisis, (b)
trading generally on the New York Stock Exchange shall not have been suspended,
limited or restricted or minimum or maximum prices for trading shall not have
been fixed, or maximum range for prices for securities shall not have been
required, by said exchange or by order of the SEC or any other governmental
authority, and (c) a banking moratorium shall not have been declared by either
Federal or New York authorities. A "material adverse change in the financial
markets in the United States" shall mean (i) a more than 10% single-day decline
in either the Dow Xxxxx Industrials Average or the Standard & Poors index of 500
stocks or (ii) a more than 20% decline in either such index on a cumulative
basis between the close of trading on June 25, 1997 and the close of trading on
the last trading day prior to Closing.
ARTICLE 7.
CONDITIONS PRECEDENT TO OBLIGATION
OF XXXXXX TO SELL THE SHARES
Each of the following shall be conditions of Xxxxxx'x obligations with
respect to the Closing:
7.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties of the Company made in this Agreement shall be correct as of the
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Closing, with the same force and effect as though such representations and
warranties had been made at the Closing.
7.2 PERFORMANCE OF COVENANTS. Except where specifically provided to the
contrary, all of the terms, conditions and covenants of this Agreement shall be
complied with and performed by the Company on or before the Closing.
7.3 CLOSING DELIVERIES. Xxxxxx shall have received all of the documents
and items specified in Section 1.4(b) executed by the Company and the other
parties thereto.
7.4 NO INJUNCTION. On the Closing Date, there shall be no effective
injunction, writ, preliminary injunction, temporary restraining order or other
order of any nature issued by a court of competent jurisdiction directing that
the transactions provided for herein or any of them not be consummated as so
provided.
ARTICLE 8.
TERMINATION
8.1 TERMINATION. This Agreement may be terminated at any time on or prior
to the Closing Date:
(a) by the mutual consent of Xxxxxx and the Company;
(b) by Xxxxxx or the Company, if the Closing shall not have taken
place on or before July 31, 1997;
(c) by the Company, if there shall have been a material breach of any
covenant or representation or other agreement of Xxxxxx hereunder, and such
breach shall not have been remedied within three (3) business days after receipt
by Xxxxxx of a notice in writing from the Company specifying the breach and
requesting such be remedied; or
(d) by Xxxxxx, if there shall have been a material breach of any
covenant or representation or other agreement of the Company hereunder, and such
breach shall not have been remedied within three (3) business days after receipt
by the Company of notice in writing from Xxxxxx specifying the breach and
requesting such be remedied.
8.2 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
Section 8.1, all obligations and agreements o the parties hereunder shall
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terminate, except that no such termination shall relieve any party from
liability for any prior willful breach of this Agreement.
ARTICLE 9.
MUTUAL RELEASES
9.1 RELEASE AND WAIVER. Effective upon the Closing, each of the parties
hereto, for itself and its subsidiaries, and for each of their respective
principals, partners, fiduciaries, affiliates, managers, directors,
stockholders, officers, agents and employees and for the predecessors,
successors and assigns of each of them (the "Releasing Persons"), does hereby
forever and unconditionally release, acquit and discharge each of the other
parties hereto, and each of their respective principals, partners, fiduciaries,
affiliates, managers, directors, stockholders, officers, agents and employees,
and the predecessors, successors and assigns of each of them (collectively the
"Released Persons"), with respect to any and all claims, controversies, causes
of action, suits or liabilities of whatever kind or nature, whether known or
unknown, whether in law or in equity, which the Releasing Persons had or has
against any Released Person for any matter, thing, event or omission which
arises directly or indirectly out of the ownership by Xxxxxx of the Shares,
including without limitation claims which Xxxxxx has or believes it may have as
a stockholder relating to fiduciary duties of directors or officers, disclosure
or similar matters; provided, however, that nothing contained herein shall
release any claim with respect to this Agreement.
ARTICLE 10.
MISCELLANEOUS
10.1 DEFINED TERMS. The following shall have the meanings indicated:
"Affiliates" shall have the meaning specified in Rule 12b-2 under the
1934 Act. "Controlled Affiliates" shall mean a Person which is controlled by
another Person."Controlling Affiliates" shall mean a Person which controls
another Person.
"NASDAQ" shall mean the Nasdaq Stock Market.
"Knowledge," when used in respect of the Company or Xxxxxx, shall mean
the actual knowledge of its Chief Executive Officer, Chief Operating Officer or
Chief Financial Officer.
"Person" shall have the meaning specified in Section 2(a)(2) of the
1933 Act.
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"SEC" shall mean the U.S. Securities and Exchange Commission.
"1933 Act" shall mean Securities Act of 1933, as amended.
"1934 Act" shall mean Securities Exchange Act of 1934, as amended.
10.2 SPECIFIC PERFORMANCE. The parties hereto acknowledge and 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. Accordingly, it is agreed that, in addition to any other
remedies which they may have, the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of competent jurisdiction.
10.3 EFFORTS TO CLOSE. Subject to the terms and conditions hereof, the
Company and Xxxxxx each agree to use their commercially reasonable efforts to
take all action required of them to fulfill their respective obligations under
the terms of this agreement and to facilitate the consummation of the
transactions contemplated hereby.
10.4 PUBLIC DISCLOSURE. As soon as practicable following the execution and
delivery of this Agreement, the Company and Xxxxxx shall issue press releases in
the forms attached hereto as Exhibits A and B, respectively. Thereafter,
without the prior written consent of the other party, neither party shall make a
public statement regarding the other party or the transactions contemplated
hereby; provided, however, that without such prior written consent, each party
shall be free to make comments to its stockholders and employees and to
financial analysts and the press which are substantially consistent with
disclosures in such press releases and in prior public disclosures; provided,
further that Xxxxxx may make appropriate disclosures in an amendment to its
Schedule 13D and the Company may make appropriate disclosures in an amendment to
its preliminary proxy statement filed with the SEC on May 19, 1997; and
provided, further, that each party may file the press release and a copy of this
Agreement as part of a Form 8-K filing under the 1934 Act or other required
regulatory filing and may make any other disclosure required by law.
10.5 EXPENSES. Each party to this Agreement shall pay its own costs and
expenses (including all legal, accounting, broker, finder and investment banker
fees) relating to this Agreement, the negotiations leading up to this Agreement
and the transactions contemplated by this Agreement.
10.6 AMENDMENT. This Agreement shall not be amended or modified except by
a writing duly executed by Xxxxxx and the Company.
10.7 FURTHER ASSURANCES. Each party to this Agreement shall execute all
instruments and documents and take all actions as may reasonably be necessary to
effectuate this Agreement.
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10.8 ENTIRE AGREEMENT. This Agreement, including the other instruments,
agreements and documents delivered pursuant to this Agreement, contain all of
the terms, conditions and representations and warranties agreed upon by the
parties relating to the subject matter of this Agreement and supersede all prior
agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter.
10.9 HEADINGS. The headings contained in this Agreement are intended
solely for convenience and shall not affect the rights of the parties to this
Agreement.
10.10 NOTICES. All notices, requests, demands, and other
communications hereunder shall be deemed to have been duly given if delivered in
person, or by electronic facsimile, or mailed, certified and registered mail
with postage prepaid (and, if by electronic facsimile, with acknowledgment or
evidence of receipt or with copies mailed, certified or registered mail with
postage prepaid):
(a) If to Xxxxxx:
Xxxxxx International, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X'Xxxxxxx, Chairman
and Chief Executive Officer
Telefax No.: 847/559-0285
With a copy to:
Xxxx, Xxxx and Xxxxx
Three First National Plaza, Suite 3200
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telefax No. 312/372-2098
(b) If to the Company:
Hach Company
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxx-Xxxxxx, Chairman and
Chief Executive Officer
Telefax No.: 970/962-6740
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With a copy to:
XxXxxxx Xxxxx & Xxxxx
000 Xxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Case, Esq.
Telefax No.: 312/993-9350
10.11 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to this Agreement to the
extent possible. In any event, all other provisions of this Agreement shall be
deemed valid and enforceable to the full extent possible.
10.12 WAIVER. Waiver of any term or condition of this Agreement by any
party shall only be effective if in writing and shall not be construed as a
waiver of any subsequent breach or failure of the same term or condition, or a
waiver of any other term or condition of this Agreement.
10.13 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall
confer any rights upon any person or entity which is not a party or an assignee
of a party to this Agreement.
10.14 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each and every
representation, warranty and agreement of the Parties contained herein or in any
certificate, schedule or other document delivered before or at the Closing shall
survive the Closing.
10.15 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Delaware without regard to conflicts of law
principles.
10.16 ATTORNEYS' FEES. Should an action be instituted by either of the
parties hereto in any court of law or equity pertaining to the enforcement of
any of the provisions of this Agreement, the prevailing party shall be entitled
to recover, in addition to any judgment or decree rendered therein, all court
costs and reasonable attorneys' fees and expenses.
10.17 CONSTRUCTION. Each party to this Agreement and its counsel have
reviewed and revised this Agreement. The rule of construction that any
ambiguity shall be resolved against the drafting party shall not be employed in
the interpretation of this Agreement.
10.18 SUCCESSORS AND ASSIGNS; ASSIGNMENT. All of the terms, covenants
and conditions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. No party
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hereto shall be permitted to assign its rights under this Agreement except with
the written consent of the other party, except that Xxxxxx may assign its rights
under this Agreement to any subsidiary of Xxxxxx or to any successor (whether by
purchase, merger or otherwise) to all or substantially all of the assets or
business of Xxxxxx. No assignment or transfer permitted hereunder shall relieve
any such assignor or transferor of any of its obligations hereunder and any
assignee or transferee shall assume in writing all of the undertakings of
assignor or transferor under this Agreement.
IN WITNESS WHEREOF, each of the parties have executed its name to this
Agreement, authorized as of the day and year first above written.
HACH COMPANY
By: /s/ Xxxxx X. Xxxx
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Its: President
---------------------------------
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxx X'Xxxxxxx
---------------------------------------
Its: CEO
---------------------------------
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EXHIBIT A
DRAFT
HACH AND XXXXXX AGREE ON STOCK BUYBACK
--------------------------------------
Loveland, Colorado, June 26, 1997 Hach Company (NASDAQ:_________)
announced today that it has entered into a definitive agreement with Xxxxxx
International for the repurchase by Hach Company of Xxxxxx International's
entire holdings of Hach Company Common Stock. The 3,157,220 shares,
representing approximately 28% of Hach Company's outstanding Common Stock
will be purchased for $19.00 per share. The purchase will be made using
approximately $25 million to $30 million of cash on hand, supplemented by
bank borrowings. The purchase is expected to be completed shortly, subject to
certain customary closing conditions.
"We believe this represents a win-win resolution of a long-standing issue for
both Hach Company and Xxxxxx International. Form the standpoint of Hach
Company and its stockholders, other than Xxxxxx International, the
transaction is significantly and immediately accretive to earnings per share.
Moreover, it achieves a restructuring of our capital base to reflect more
appropriate leverage for our company and does so in a transaction which does
not reduce the real public float in our shares," said Xxxxxxx Xxxx-Xxxxxx,
Hach Company's chairman and chief executive officer. "Finally, the market
overhang represented by Xxxxxx International's holdings will be eliminated."
Hach Company was advised in the transaction by Lazard Freres & Co. LLC.
Separately, Hach Company indicated that its board intends to proceed
with a previously-announced proposed amendment to its certificate of
incorporation to a create a new non-voting class of common stock. The
proposed amendment will be submitted for stockholder approval this summer.
Hach Company is engaged in the manufacture and distribution of
laboratory instruments, process analyzers, test kits,and analytical reagents
which are used to analyze the chemical content and other properties of water
and other aqueous solutions.
* * *
The press release contains forward-looking statements, including without
limitation, statements regarding expected earnings. Actual results may
materially differ from these in the forward-looking statements. Factors that
may cause such differences include [to be completed] and are more fully
discussed in [to be completed].
Exhibit B
DRAFT
XXXXXX INTERNATIONAL, INC.
000 XXXXXX XXXX., XXXXXXXXXX, XX 00000 - 000-000-0000 - FAX 000-000-0000
NEWS RELEASE For further information, please contact:
Xx. Xxxx X'Xxxxxxx. Chairman/CEO
HACH COMPANY AND XXXXXX INTERNATIONAL
AGREE ON STOCK BUYBACK
Northbrook, Illinois, June 26, 1997 - Xxxxxx International, Inc.
(NYSE: LAW) announced today that it has entered into a definitive agreement
with Hach Company for the repurchase by Hach of Xxxxxx'x entire holdings of
Hach Common Stock. The 3,157,220 shares, representing approximately 27.8% of
Hach's outstanding Common Stock, will be purchased for $19.00 per share, for
a total purchase price of $59,987,180. The net cash received after tax form
this transaction is expected to be approximately $39 million. The purchase is
expected to be completed by July 8, 1997, subject to certain customary
closing conditions.
Xxxx X'Xxxxxxx, Chairman and Chief Executive Officer of Xxxxxx,
commented that "We believe this transaction will be beneficial to both
parties. The price to be received by Xxxxxx represents a premium over recent
prices of Hach stock. Our board felt that in order to enhance stockholder
value, this was the appropriate time to liquidate our investment in Hach, the
proceeds of which will be used to further Xxxxxx'x long-term plans."
Xxxxxx is a specialty chemical company, with 20 facilities in 16
countries throughout the world. It is a major manufacturer and distributor of
printing ink vehicles, wax compounds and powders, and synthetic and
hydrocarbon resins to the graphic arts industry. Xxxxxx also serves the
industrial coatings, adhesives and rubber industries.
This press release contains forward-looking statements which are not
historical facts. These statements involve risks and uncertainties that could
cause actual results to differ materially, including, but not limited to
certain global and regional economic conditions and factors detailed in the
Company's Securities and Exchange Commission filings.
