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EXHIBIT 11(C)(2)
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT (this "Agreement"), dated as of February 12,
1999, by and among RSA Holdings Corp. of Delaware, a Delaware corporation
("Parent"), RSA Acquisition Corp., a Delware corporation ("Purchaser"), and the
other parties signatory hereto (each, a "Stockholder").
RECITALS
Concurrently herewith, Parent, Purchaser and American Safety Razor
Company, a Delaware corporation (the "Company"), are entering into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger Agreement";
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement), pursuant to which Purchaser agrees to make an offer
(the "Offer") for all outstanding shares of Common Stock, par value $0.01 per
share (the "Common Stock"), of the Company, at a price of $14.125 per share, net
to the Stockholder in cash, to be followed by a merger (the "Merger") of
Purchaser with and into the Company.
As a condition to its willingness to enter into the Merger Agreement
and make the Offer, Parent and Purchaser have required that each Stockholder
agree, and each Stockholder has agreed, among other things, to tender into the
Offer and to grant an irrevocable proxy with respect to the number of shares of
Common Stock of such Stockholder set forth on Annex A hereto, together with any
additional shares when and if they are acquired, including, without limitation,
pursuant to Section 5.5 hereof (such shares, and any additional shares when and
if they are acquired, being referred to herein as the "Shares"), on the terms
and conditions provided for herein.
In consideration of this Agreement, Purchaser has entered into the
Merger Agreement and agreed to have the Company pay the TJC Amount, as a
condition to the Merger Agreement.
The Board of Directors of the Company has approved this Agreement, the
Merger Agreement and the transactions contemplated hereby and thereby so as to
render inapplicable Section 203 of the Delaware General Corporation Law ("DGCL")
to the transactions contemplated hereby and thereby.
AGREEMENT
To implement the foregoing and in consideration of the mutual
agreements contained herein, the parties agree as follows:
1. Agreement to Tender. Each Stockholder hereby agrees to validly
tender (or cause the record owner of such shares to validly tender), pursuant to
and in accordance with the terms of the Offer, as soon as practicable after
commencement of the Offer but in no event later than 15 business days after the
date of commencement of the Offer, all of such Stockholder's Shares by physical
delivery of the certificates therefor (or by book entry or appropriate
instructions to brokers or custodians thereof, as the case may be) and to not
withdraw such Shares, except following termination of this Agreement pursuant to
Section 7 hereof. Each 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 Shares is subject to the terms and conditions of the
Offer. 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 Securities and Exchange Commission) his identity
and ownership of the Shares and the nature of his commitments, arrangements and
understandings under this Agreement.
2. Irrevocable Proxy. Each Stockholder hereby irrevocably appoints
Purchaser or any designee of Purchaser the lawful agent, attorney and proxy of
such Stockholder, during the term of this Agreement at any meeting of the
Stockholders of the Company, however called, or in connection with any written
consent of the Stockholders of the Company, to vote (or cause to be voted) the
Shares held of record or beneficially by such Stockholder (i) in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement, this Agreement and any actions required in furtherance
hereof and thereof; (ii) against any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or this Agreement; and (iii)
except as specifically requested in writing by Purchaser in advance, against the
following actions (other than the Offer, Merger and the transactions
contemplated by the Merger Agreement): (1) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or its subsidiaries; (2) a sale, lease or transfer of a
material amount of assets of the Company or its subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its subsidiaries; (3) (a) any change in the majority of the Board of Directors
of the Company; (b) any material change in the present capitalization of the
Company or any amendment of the Company's certificate of incorporation; (c) any
other material change in the Company's corporate structure or business; or (d)
any other action which, is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, discourage or materially adversely affect the
Offer, Merger or the transactions contemplated by the Merger Agreement or this
Agreement or the contemplated economic benefits of any of the foregoing. Each
Stockholder intends this proxy to be irrevocable and coupled with an interest
and will take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy and hereby revokes any proxy
previously granted by it with respect to the Shares. Each Stockholder shall not
hereafter, unless and until this Agreement terminates pursuant to Section 7.6
hereof, purport to vote (or execute a consent with respect to) such Shares
(other than through this irrevocable proxy) or grant any other proxy or power of
attorney with respect to any Shares, deposit any Shares into a voting trust or
enter into any agreement (other than this Agreement), arrangement or
understanding with any person, directly or indirectly, to vote, grant any proxy
or give instructions with respect to the voting of such Shares.
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3. Representations and Warranties.
3.1. Representations and Warranties of Purchaser. Each of Parent and
Purchaser hereby represents and warrants to each Stockholder as follows:
(a) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by the Board of Directors of
Purchaser and Parent, as the case may be, and no other corporate
proceedings on the part of Parent or Purchaser, as the case may be, are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed
and delivered by Parent and Purchaser, as the case may be, and
constitutes a valid and binding agreement of Parent and Purchaser, as
the case may be, enforceable against each 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
enforcement of creditors' rights generally and (ii) is subject to
general principles of equity.
(b) No Conflicts. Except for (i) filings under the HSR Act, if
applicable, (ii) the applicable requirements of the Exchange Act, and
the Securities Act of 1933, as amended (the "Securities Act"), (iii)
the applicable requirements of state securities, takeover or Blue Sky
laws and (iv) such notifications, filings, authorizing actions, orders
and approvals as may be required under other laws, (A) no filing with,
and no permit, authorization, consent or approval of, any state,
federal or foreign public body or authority is necessary for the
execution of this Agreement by Purchaser or Parent, as the case may be,
and the consummation by each of the transactions contemplated hereby
and (B) neither the execution and delivery of this Agreement by
Purchaser or Parent, as the case may be, nor the consummation by it of
the transactions contemplated hereby nor compliance by it with any of
the provisions hereof shall (1) conflict with or result in any breach
of any provision of its certificate of incorporation or by-laws (or
similar documents), (2) 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,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, agreement or other instrument or obligation to which
it is a party or by which it or any of its properties or assets may be
bound or (3) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to it or any of its properties or assets,
except in the case of (2) or (3) for violations, breaches or defaults
which would not in the aggregate materially impair the ability of
Purchaser or Parent, as the case may be, to perform its obligations
hereunder.
(c) Good Standing. Each of Parent and Purchaser is a
corporation duly organized, validly existing and in good standing under
the laws of Delaware and has all requisite corporate power and
authority to execute and deliver this Agreement.
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3.2. Representations and Warranties of Stockholder. Each Stockholder
hereby severally represents and warrants to Parent and Purchaser as follows:
(a) Ownership of Shares and Options. Subject to Section 4.3,
Stockholder (or accounts or trusts controlled or beneficially owned by
Stockholder) is the owner of the Shares and options to acquire Shares
("Stock Options") set forth on Annex A hereto and has the power to vote
and dispose of such Shares. To Stockholder's knowledge, such Shares
are, or upon issuance will be, validly issued, fully paid and
nonassessable, with no personal liability attaching to the ownership
thereof. Stockholder has, or upon issuance will have, good title to the
Shares, free and clear of any agreements, liens, adverse claims or
encumbrances whatsoever with respect to the ownership of or the right
to vote such Shares.
(b) Power; Binding Agreement. Stockholder has the legal
capacity, power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and
performance of this Agreement by Stockholder will not violate any other
agreement to which Stockholder is a party including, without
limitation, any voting agreement, stockholders agreement or voting
trust. This Agreement has been duly and validly authorized, executed
and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against 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 enforcement of creditors' rights generally and (ii) is
subject to general principles of equity.
(c) No Conflicts. Except for (i) filings under the HSR Act, if
applicable, (ii) the applicable requirements of the Exchange Act and
the Securities Act, (iii) the applicable requirements of state
securities, takeover or Blue Sky laws, (iv) such notifications,
filings, authorizing actions, orders and approvals as may be required
under other laws, (A) no filing with, and no permit, authorization,
consent or approval of, any state, federal or foreign public body or
authority is necessary for the execution of this Agreement by
Stockholder and the consummation by Stockholder of the transactions
contemplated hereby and (B) neither the execution and delivery of this
Agreement by Stockholder nor the consummation by Stockholder of the
transactions contemplated hereby nor compliance by Stockholder with any
of the provisions hereof shall (1) conflict with or result in any
breach of any provision of the certificate of incorporation, by-laws,
trust or charitable instruments (or similar documents) of Stockholder,
(2) 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, material modification or
acceleration) under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which Stockholder is a party or by which he
or it or any of his or its properties or assets may be bound or (3)
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Stockholder or any of his or its properties or
assets, except in the case of (2)
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or (3) for violations, breaches or defaults which would not in the
aggregate materially impair the ability of Stockholder to perform his
or its obligations hereunder.
4. Certain Covenants of Stockholder. Each Stockholder hereby severally
covenants and agrees as follows:
4.1. No Solicitation. Neither Stockholder nor any officer, director,
employee, representative or agent of Stockholder shall, directly or indirectly,
solicit, facilitate, participate in or initiate any inquiries or the making of
any proposal by any person or entity (other than Purchaser or any affiliate of
Purchaser) which constitutes, or may reasonably be expected to lead to, (a) any
sale of the Shares or (b) any Takeover Proposal or Acquisition Transaction. If
Stockholder, or any officer, director, employee, representative or agent of
Stockholder, receives an inquiry or proposal with respect to the sale of Shares,
then Stockholder shall promptly inform Purchaser of the terms and conditions, if
any, of such inquiry or proposal and the identity of the person making it.
Stockholder shall, and shall cause its officers, directors, employees,
representatives and agents to, immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing. This Section 4.1 will not bind
or apply to any person in their capacity as director of the Company.
4.2. Restriction on Transfer, Proxies and NonInterference. Stockholder
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, any of the Shares or Stock Options or (b) grant any proxies,
deposit any Shares into a voting trust or enter into a voting agreement with
respect to any Shares or (c) take any action that would make any representation
or warranty of such Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling such Stockholder from performing his
obligations under this Agreement.
4.3. Legending of Certificates; Nominees Shares. If requested by
Purchaser, Stockholder agrees to submit to Purchaser contemporaneously with or
promptly following execution of this Agreement all certificates representing the
Shares so that Purchaser may note thereon a legend referring to the proxy and
other rights granted to it by this Agreement. If any of the Shares beneficially
owned by Stockholder are held of record by a brokerage firm in "street name"or
in the name of any other nominee (a "Nominee", and, as to such Shares, "Nominee
Shares"), Stockholder agrees that, upon written notice by Purchaser requesting
it, Stockholder will within five days of the giving of such notice execute and
deliver to Purchaser a limited power of attorney in such form as shall be
reasonably satisfactory to Purchaser enabling Purchaser to require the Nominee
to (i) grant to Purchaser an irrevocable proxy to the same effect as Section 1
and 2 hereof with respect to the Nominee Shares held by such Nominee, (ii)
tender such Nominee Shares in the Offer pursuant to Section 1 hereof, and (iii)
submit to Purchaser the certificates representing such Nominee Shares for
notation of the above-referenced legend thereon.
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4.4. Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith, Stockholder shall and hereby does authorize the Company's
counsel to notify the Company's transfer agent that there is a stop transfer
order with respect to all of the Shares (and that this Agreement places limits
on the voting and transfer of such shares).
4.5. Stock Options. Each Stockholder that owns any Stock Options hereby
agrees not to take any action that would affect the full vesting or free
exercisability of such Stock Options. Each Stockholder that owns any Stock
Options hereby agrees with Purchaser that, if requested by Purchaser at any time
during the period from and including the Exercise Date to the Expiration Date
when Purchaser desires to exercise the Option with respect to any Shares
underlying any Stock Options, the Stockholder will exercise such number of fully
vested and freely exercisable Stock Options (including any such Stock Options
that may become fully vested and freely exercisable at any subsequent time
between the Exercise Date and the Expiration Date) as may be necessary to enable
Purchaser to acquire such Shares.
5. 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 action as may be necessary
or desirable to consummate the transactions contemplated by this Agreement,
including, without limitation, to vest in Purchaser good title to any Shares
purchased hereunder.
6. Adjustments to Prevent Dilution, Etc. In the event of a stock
dividend or distribution, or any change in the Company's Common Stock by reason
of any stock dividend, split-up, reclassification, recapitalization, combination
or the exchange of shares, the term "Shares" shall be deemed to refer to and
include the Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Shares may be changed or
exchanged. In such event, the amount to be paid per share by Purchaser shall be
proportionately adjusted.
7. Miscellaneous.
7.1. Entire Agreement; Assignment. This Agreement (i) constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and (ii) shall not
be assigned by operation of law or otherwise, provided that Purchaser may assign
its rights and obligations hereunder to any direct or indirect wholly owned
parent company or subsidiary of Purchaser, but no such assignment shall relieve
Purchaser of its obligations hereunder if such assignee does not perform such
obligations.
7.2. Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
7.3. 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
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if so given) by hand delivery, telegram, telex or telecopy, 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 Stockholder: At such Stockholder's address set forth
on Annex A hereto
If to Parent or Purchaser: RSA Holdings Corp. of Delaware
c/o X.X. Childs Associates, L.P.
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxx
copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
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.
7.4. 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.
7.5. Cooperation as to Regulatory Matters. If so requested by
Purchaser, promptly after the date hereof, Stockholder will use its reasonable
best efforts to cause it and the Company (if required) to make all filings which
are required under the HSR Act and applicable requirements and to seek all
regulatory approvals required in connection with the transactions contemplated
hereby. The parties shall furnish to each other such necessary information and
reasonable assistance as may be requested in connection with the preparation of
filings and submissions to any governmental agency, including, without
limitation, filings under the provisions of the HSR Act. Stockholder shall also
use its reasonable best efforts to cause the Company to supply Purchaser with
copies of all correspondence, filings or communications (or memoranda setting
forth the substance thereof) between the Company and its representatives and the
Federal Trade Commission, the Department of Justice and any other governmental
agency or authority and members of their respective staffs with respect to this
Agreement and the transactions contemplated hereby.
7.6. Termination. This Agreement shall terminate on the earlier of (i)
the Effective Time or (ii) the termination of the Merger Agreement in accordance
with its terms, provided, that such termination will not terminate or affect
Section 3 thereof.
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7.7. 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, each of the
parties hereto agrees that 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.
7.8. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original, but both of which shall
constitute one and the same Agreement.
7.9. 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.
7.10. 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, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written.
RSA HOLDINGS CORP. OF DELAWARE
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title:
RSA ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
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XXXX X. XXXXXX
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
XXXXX X. XXXXXXXXX
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
XXXXXXXX X. XXXXXXX
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
XXXX X. XXXXXX
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
XXXXXX X. XXXXX
By: /s/ Xxxxxx X. Xxxxx
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XXXX MAX
By: /s/ Xxxx Max
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LEUCADIA NATIONAL CORP.
By: /s/ Xxxxxx X. Orlando
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Name: Xxxxxx X. Orlando
Title: Vice President and CEO
JZ Equity Partners PLC
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name:
Title:
XXXXXXX X. XXXXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
XXXXXX X. XXXXXX
By: /s/ Xxxxxx X. Xxxxxx
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ANNEX A
Number of Shares of
Number of Shares Common Stock Underlying
Stockholder Name of Common Stock Stock Options
---------------- --------------- -------------
Xxxx X. Xxxxxx XX 332,140 0
c/o The Jordan Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxxxx 303,140 0
c/o The Jordan Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx X. Xxxxxxx 360,639 0
c/o The Jordan Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx X. Xxxxxx 184,860 0
c/o The Jordan Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxx 175,200 0
c/o The Jordan Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx Max 94,346 0
c/o The Jordan Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Leucadia National Corp. 419,233 0
c/o The Jordan Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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Number of Shares of
Number of Shares Common Stock Underlying
Stockholder Name of Common Stock Stock Options
---------------- --------------- -------------
MCIT PLC 245,496 0
c/o The Jordan Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxxxxx 169,000 60,000
c/o American Safety Razor Company
One Razor Xxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxx 27,600 65,000
c/o American Safety Razor Company
One Razor Xxxxx Xxxx
Xxxxxx, XX 000000
