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EXHIBIT (C)(2)
STOCKHOLDER AGREEMENT
AGREEMENT, dated December 11, 1997, among Voith Sulzer Paper Technology
North America Inc., a Delaware corporation ("Parent"), Voith Sulzer Acquisition
Corp., a California corporation and a wholly-owned subsidiary of Parent (the
"Purchaser"), and Elsag International N.V. (the "Stockholder").
W I T N E S S E T H :
WHEREAS, concurrently with the execution and delivery of this Agreement,
Parent, the Purchaser and Impact Systems, Inc., a California corporation (the
"Company"), have entered into an Agreement and Plan of Merger (as such agreement
may hereafter be amended from time to time, the "Merger Agreement"), pursuant to
which the Purchaser will be merged with and into the Company (the "Merger"); and
WHEREAS, in furtherance of the Merger, Parent and the Company desire that
as soon as practicable (and not later than five business days) after the
announcement of the execution of the Merger Agreement, the Purchaser shall
commence a cash tender offer (the "Offer") to purchase at the Offer Price all
outstanding shares of Common Stock (each as defined in Section 1 hereof),
including all of the Securities (as defined in Section 2 hereof) beneficially
owned by the Stockholder; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Owned" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
(as hereinafter defined) shall include securities Beneficially Owned by all
other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d)(3) of the Exchange Act.
(b) "Common Stock" shall mean the Common Stock, no par value, of the
Company.
(c) "Offer Price" shall mean cash in the amount of $2.75 per share of
Common Stock or, if greater, the price per share paid by the Purchaser in the
Offer.
(d) "Person" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
(e) Capitalized terms used and not defined herein shall have the respective
meanings ascribed to them in the Merger Agreement.
2. Tender of Shares.
(a) In order to induce Parent and the Purchaser to enter into the Merger
Agreement, the Stockholder hereby agrees to validly tender (or cause the record
owner of such shares to validly tender), and not to withdraw, pursuant to and in
accordance with the terms of the Offer, not later than the fifth business day
after commencement of the Offer pursuant to Section 1.01 of the Merger Agreement
and Rule 14d-2 under the Exchange Act, the number of shares of Common Stock set
forth opposite the Stockholder's name on Schedule I hereto (the "Existing
Securities", and together with any shares of Common Stock acquired by the
Stockholder in any capacity after the date hereof and prior to the termination
of this Agreement by means of purchase, dividend, distribution, exercise of
options or other rights to acquire Common Stock or in any other way, the
"Securities"), all of which are Beneficially Owned by the Stockholder. The
Stockholder hereby
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acknowledges and agrees that Parent's and the Purchaser's obligation to accept
for payment and pay for the Securities in the Offer, including the Securities
Beneficially Owned by the Stockholder, is subject to the terms and conditions of
the Offer.
(b) The Stockholder hereby permits Parent and the Purchaser to publish and
disclose in the Offer Documents and, if approval of the Company's stockholders
is required under applicable law, the Proxy Statement (including all documents
and schedules filed with the SEC) its identity and ownership of the Securities
and the nature of its commitments, arrangements and understandings under this
Agreement; provided that the Stockholder shall have a right to review and
comment on such disclosure a reasonable time before it is publicly disclosed.
3. Option.
(a) In order to induce Parent and the Purchaser to enter into the Merger
Agreement, the Stockholder hereby grants to Purchaser an irrevocable option (a
"Securities Option") to purchase the Securities (the "Option Securities") at the
Offer Price (the "Purchase Price"). If (i) the Merger Agreement is terminated in
accordance with Section 8.01(c), 8.01(e)(ii), 8.01(f) or 8.01(g) thereof, or
(ii) the Merger Agreement is terminated in accordance with Section 8.01(b)(ii)
thereof and (x) the Stockholder shall have breached the agreements set forth in
Section 2(a) hereof or (y) at the time of such termination the Minimum Condition
shall not have been satisfied, the Securities Option shall, in any such case,
become exercisable, in whole but not in part, upon the first to occur of any
such event and remain exercisable in whole but not in part until the date which
is 90 days after the date of the occurrence of such event (the "90 Day Period"),
so long as: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), required for the purchase
of the Securities upon such exercise shall have expired or been waived and any
other conditions under the other Antitrust Laws shall have been satisfied and
(ii) there shall not be in effect any preliminary injunction or other order
issued by any Governmental Entity prohibiting the exercise of the Securities
Option pursuant to this Agreement; provided that if (i) all HSR Act waiting
periods shall not have expired or been waived or the conditions under the other
Antitrust Laws shall not have been satisfied or (ii) there shall be in effect
any such injunction or order, in each case on the expiration of the 90 Day
Period, the 90 Day Period shall be extended until five (5) business days after
the later of (A) the later of the date of expiration or waiver of all HSR Act
waiting periods or the date on which the applicable conditions under the other
Antitrust Laws have been satisfied, and (B) the date of removal or lifting of
such injunction or order. In the event that the Purchaser wishes to exercise the
Securities Option, the Purchaser shall send a written notice (the "Notice") to
the Stockholder identifying the place and date (not less than two (2) nor more
than ten (10) business days from the date of the Notice) for the closing of such
purchase.
(b) In the event the Option Securities are acquired by the Purchaser
pursuant to the exercise of the Securities Option (the "Acquired Securities"),
the Stockholder shall be entitled to receive, and the Purchaser shall promptly
pay to the Stockholder, upon any subsequent disposition, transfer or sale
("Sale") of the Acquired Securities during the term of this Agreement an amount
per share in cash equal to 50% of the difference between the net proceeds
received per share in the Sale and the Purchase Price. The Purchaser shall only
effect any Sale in an arms' length bona fide transaction to an unaffiliated
third party.
4. Additional Agreements.
(a) Voting Agreement. The Stockholder shall, at any meeting of the
stockholders of the Company, however called, or in connection with any written
consent of the stockholders of the Company, vote (or cause to be voted) all
Securities then held of record or Beneficially Owned by the Stockholder, (i) in
favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the Stock Option Agreement and the approval of the terms thereof
and each of the other actions contemplated by the Merger Agreement, the Stock
Option Agreement and this Agreement and any actions required in furtherance
thereof and hereof; and (ii) against any proposal relating to an Acquisition
Transaction and against any action or agreement that would impede, frustrate,
prevent or nullify this Agreement, or result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or the Stock Option Agreement or which would
result in any of the conditions set forth in Annex I to the Merger Agreement or
set forth in Article VII of the Merger Agreement not being fulfilled.
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(b) No Inconsistent Arrangements. The Stockholder hereby covenants and
agrees that, except as contemplated by this Agreement and the Merger Agreement,
it shall not (i) transfer (which term shall include, without limitation, any
sale, gift, pledge (other than a pledge which does not impair the Stockholder's
ability to perform under this Agreement) or other disposition), or consent to
any transfer of, any or all of the Securities or any interest therein, (ii)
enter into any contract, option or other agreement or understanding with respect
to any transfer of any or all of the Securities or any interest therein, (iii)
grant any proxy, power-of-attorney or other authorization in or with respect to
the Securities, (iv) deposit the Securities into a voting trust or enter into a
voting agreement or arrangement with respect to the Securities or (v) take any
other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated hereby
or by the Merger Agreement or the Stock Option Agreement (including, without
limitation, any action that would cause the Merger to be subject to Section 1101
of the GCL).
(c) Grant of Irrevocable Proxy; Appointment or Proxy.
(i) The Stockholder hereby irrevocably grants to, and appoints, Parent
and Xxx Xxxx and Xxxx Xxxxxxxxx, or either of them, in their respective
capacities as officers or directors of Parent, and any individual who shall
hereafter succeed to any such office or directorship of Parent, and each of
them individually, 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 Securities, or grant a consent or approval in
respect of the Securities, in favor of the various transactions
contemplated by the Merger Agreement and the Stock Option Agreement (the
"Transactions") and against any proposal relating to an Acquisition
Transaction.
(ii) The Stockholder represents that any proxies heretofore given in
respect of the Stockholder's Securities are not irrevocable, and that any
such proxies are hereby revoked.
(iii) 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 4(c) 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 705 of the GCL. A legend
reflecting the foregoing irrevocable proxy shall be placed on the
certificate or certificate representing the Securities.
(d) No Solicitation. The Stockholder hereby agrees, in the capacity as a
stockholder of the Company, that neither the Stockholder nor any affiliates,
representatives or agents shall (and, if the Stockholder is a corporation,
partnership, trust or other entity, the Stockholder shall cause its officers,
directors, partners, and employees, representatives and agents, including, but
not limited to, investment bankers, attorneys and accountants, not to), directly
or indirectly, encourage, solicit, participate in or initiate discussions or
negotiations with, or provide any information to, any corporation, partnership,
person or other entity or group (other than Parent, the Purchaser or any of
their respective affiliates or representatives) concerning any proposal relating
to an Acquisition Transaction. The Stockholder will immediately cease any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any proposal relating to an Acquisition Transaction.
The Stockholder will immediately communicate to Parent the terms of any
proposal, discussion, negotiation or inquiry (and will disclose any written
materials received by the Stockholder in connection with such proposal,
discussion, negotiation or inquiry) and the identity of the party making such
proposal or inquiry which it may receive in respect of any such Acquisition
Transaction. Any action taken by the Company or any member of the Board of
Directors of the Company in accordance with Section 6.07 of the Merger Agreement
shall be deemed not to violate this Section 4(d).
(e) Reasonable Efforts. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable Laws to consummate and
make effective the
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transactions contemplated by this Agreement. Each party shall promptly consult
with the other and provide any necessary information and material with respect
to all filings made by such party with any Governmental Entity in connection
with this Agreement and the transactions contemplated hereby.
(f) Waiver of Appraisal Rights. The Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have.
5. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent and the Purchaser as follows:
(a) Ownership of Securities. The Stockholder is the record and Beneficial
Owner of the Existing Securities, as set forth on Schedule I. On the date
hereof, the Existing Securities constitute all of the Securities owned of record
or Beneficially Owned by the Stockholder. The Stockholder has sole voting power
and sole power to issue instructions with respect to the matters set forth in
Sections 2, 3 and 4 hereof, sole power of disposition, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Securities with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. The Stockholder has the power and authority
to enter into and perform all of the Stockholder's obligations under this
Agreement. The execution, delivery and performance of this Agreement by the
Stockholder will not violate any other agreement to which the Stockholder is a
party including, without limitation, any voting agreement, proxy arrangement,
pledge agreement, shareholders agreement or voting trust. This Agreement has
been duly and validly executed and delivered by the Stockholder and constitutes
a valid and binding agreement of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except that such enforceability (i)
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to the enforcement of creditors' rights generally and (ii)
is subject to general principles of equity. There is no beneficiary or holder of
a voting trust certificate or other interest of any trust of which the
Stockholder is a trustee, or any party to any other agreement or arrangement,
whose consent is required for the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions contemplated hereby.
(c) No Conflicts. Except for filings under the HSR Act, other applicable
Antitrust Laws and the Exchange Act (i) no filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is necessary for
the execution and delivery of this Agreement by the Stockholder, the
consummation by the Stockholder of the transactions contemplated hereby and the
compliance by the Stockholder with the provisions hereof and (ii) none of the
execution and delivery of this Agreement by the Stockholder, the consummation by
the Stockholder of the transactions contemplated hereby or compliance by the
Stockholder with any of the provisions hereof, except in cases in which any
conflict, breach, default or violation described below would not interfere with
the ability of such Stockholder to perform such Stockholder's obligations
hereunder, shall (A) conflict with or result in any breach of any organizational
documents applicable to the Stockholder, (B) result in a violation or breach of,
or constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, modification or
acceleration) under, any of the terms, conditions or provisions of any note,
loan agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which the Stockholder is a party or by which the Stockholder or any of
its properties or assets may be bound, or (C) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
the Stockholder or any of such Stockholder's properties or assets.
(d) No Liens. Except as permitted by this Agreement, the Existing
Securities and the certificates representing such securities are now, and at all
times during the term hereof will be, held by the Stockholder, or by a nominee
or custodian for the benefit of the Stockholder, free and clear of all Liens,
proxies, voting trusts or agreements, understandings or arrangements or any
other rights whatsoever, except for any such Liens or proxies arising hereunder.
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(e) No Finder's Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Stockholder.
(f) Reliance by Parent. The Stockholder understands and acknowledges that
Parent is entering into, and causing the Purchaser to enter into, the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
6. Representations and Warranties of Parent and the Purchaser. Each of
Parent and the Purchaser hereby represents and warrants to the Stockholder as
follows:
(a) Power; Binding Agreement. Parent and the Purchaser each has the
corporate power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
by each of Parent and the Purchaser will not violate any other agreement to
which either of them is a party. This Agreement has been duly and validly
executed and delivered by each of Parent and the Purchaser and constitutes a
valid and binding agreement of each of Parent and the Purchaser, enforceable
against each of Parent and the Purchaser in accordance with its terms, except
that such enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and (ii) is subject to general principles of equity.
(b) No Conflicts. Except for filings under the HSR Act, other applicable
Antitrust Laws and the Exchange Act, (i) no filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is necessary for
the execution of this Agreement by each of Parent and the Purchaser, the
consummation by each of Parent and the Purchaser of the transactions
contemplated hereby and the compliance by Parent and the Purchaser with the
provisions hereof and (ii) none of the execution and delivery of this Agreement
by each of Parent and the Purchaser, the consummation by each of Parent and the
Purchaser of the transactions contemplated hereby or compliance by each of
Parent and the Purchaser with any of the provisions hereof, except in cases in
which any conflict, breach, default or violation described below would not
interfere with the ability of Parent or the Purchaser to perform their
respective obligations hereunder, shall (A) conflict with or result in any
breach of any organizational documents applicable to either of Parent or the
Purchaser, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, modification or acceleration) under,
any of the terms, conditions or provisions of any note, loan agreement, bond,
mortgage, indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which either of
Parent or the Purchaser is a party or by which either of Parent or the Purchaser
or any of their properties or assets may be bound, or (C) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to either of Parent or the Purchaser or any of their properties or
assets.
7. Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
8. Stop Transfer. The Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Securities, unless such transfer
is made in compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "Securities" shall refer to and include the Securities as well as all such
stock dividends and distributions and any shares into which or for which any and
all of the Securities may be changed or exchanged.
9. Termination. The covenants, agreements and proxy contained herein with
respect to the Securities shall terminate upon the earlier of (a) the Effective
Time, (b) the first anniversary of the date hereof, or (c) the termination of
the Merger Agreement pursuant to Section 8.01(a), 8.01(b)(i), 8.01(b)(iii),
8.01(d) or 8.01(e)(i) thereof.
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10. No Limitation. Nothing in this Agreement shall be construed to prohibit
any officer or affiliate of the Stockholder who is or has designated a member of
the Board of Directors of the Company from taking any action solely in his
capacity as a member of the Board of Directors of the Company or from exercising
his fiduciary duties as a member of such Board of Directors.
11. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger Agreement constitute
the entire agreement between the parties with respect to the subject matter
hereof and supersede all other prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations hereunder shall
attach to the Securities and shall be binding upon any person or entity to which
legal or beneficial ownership of the Securities shall pass, whether by operation
of law or otherwise, including, without limitation, the Stockholder's
administrators or successors. Notwithstanding any transfer of Securities, the
transferor shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of law or
otherwise without the prior written consent of the Stockholder or Parent and the
Purchaser, as the case may be, provided that Parent or the Purchaser may assign,
in its respective sole discretion, its rights and obligations hereunder to any
direct or indirect subsidiary of Parent, but no such assignment shall relieve
Parent or the Purchaser of its obligations hereunder if such assignee does not
perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties hereto.
(e) 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 given) by hand delivery or telecopy (with a
confirmation copy sent for next day delivery via courier service, such as
Federal Express), 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 the Stockholder:
c/o Elsag Xxxxxx International N.V.
00000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Parent
or the Purchaser:
Voith Sulzer Paper Technology North America Inc.
0000 X. Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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Copy to:
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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.
(f) 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. Notwithstanding anything to the contrary contained in this
Agreement, neither Parent nor the Purchaser shall be deemed to be the owner, nor
shall Parent or the Purchaser have the power to vote for the election of
directors, with respect to some or all of the Securities for purposes of the
California General Corporation Law until the purchase of, and payment for, such
Securities is actually consummated. The rights of Parent and the Purchaser
hereunder shall be limited as provided in the preceding sentence.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore in the event
of any such breach the aggrieved party 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.
(h) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any rights,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California, without giving effect to
the principles of conflicts of law thereof.
(l) Waiver of Jury Trial. Each party hereto hereby waives any right to a
trial by jury in connection with any action, suit or proceeding brought in
connection with this Agreement.
(m) 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.
(n) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, the Purchaser and the Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
VOITH SULZER PAPER TECHNOLOGY
NORTH AMERICA INC.
By: /s/ R. XXX XXXX
------------------------------------
Name: R. Xxx Xxxx
Title: Executive Vice President
By: /s/ XXXX XXXXXXXXX
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
VOITH SULZER ACQUISITION CORP.
By: /s/ R. XXX XXXX
------------------------------------
Name: R. Xxx Xxxx
Title: President
By: /s/ XXXX XXXXXXXXX
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
ELSAG INTERNATIONAL N.V.
By: /s/ XXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxx
Title: Group VP
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SCHEDULE I
NUMBER OF SHARES
OF COMMON STOCK
NAME OF STOCKHOLDER BENEFICIALLY OWNED
---------------------------------------------------------------------------- ------------------
Elsag International N.V. ................................................... 2,378,900
