EXHIBIT 99.(d)(2)
EXECUTION COPY
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT, dated as of December 13, 2000 (this
"Agreement"), among Bodycote International plc, a public limited company
organized under the laws of England ("PARENT"), Bodycote Investments VI, Inc., a
Delaware corporation and wholly owned subsidiary of Parent ("MERGER SUB") and
each of the stockholders of the Company set forth on Schedule A hereto (each, a
"STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
RECITALS:
A. Parent, Merger Sub and Xxxxxxxx Corporation, a Delaware corporation
(the "COMPANY"), propose to enter into an Agreement and Plan of Merger, dated as
of the date hereof (the "MERGER AGREEMENT"), pursuant to which Merger Sub will
acquire the Company in a tender offer followed by a merger on the terms and
subject to the conditions set forth in the Merger Agreement. Except as otherwise
defined herein, terms used herein with initial capital letters have the
respective meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, each Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of shares of common stock, par value $.01 per
shares, of the Company (the "SHARES") set forth opposite such Stockholder's name
on Schedule A hereto (such Shares, together with any other Shares the beneficial
ownership of which is acquired by such Stockholder during the period from and
including the date hereof through and including the date on which this Agreement
is terminated pursuant to Section 6.2 hereof, are collectively referred to
herein as such Stockholder's "SUBJECT SHARES").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that each Stockholder
agree, and each Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
I. TENDER OF SUBJECT SHARES
1.1 AGREEMENT TO TENDER SHARES. Each Stockholder will tender or cause to
be validly tendered (and not withdrawn) pursuant to and in accordance with the
terms of the Offer and Section 14d-2 under the Securities Exchange Act of 1934,
not later than the fifth business day after commencement of the Offer and will
cause to remain validly tendered and not withdrawn until termination of this
Agreement, all of such Stockholder's Subject Shares (other than Shares for which
unexercised options are exercisable unless such options have been exercised).
Each Stockholder hereby acknowledges that Merger Sub's obligation to accept for
payment and pay for Shares (including such Stockholder's Subject Shares)
pursuant to the Offer is subject to the terms and conditions of the Offer set
forth in the Merger Agreement. Notwithstanding the provisions of the first
sentence of this Section 1.1, in the event that any Subject Shares are for
any reason withdrawn from the Offer or are not purchased pursuant to the Offer,
such Subject Shares will remain subject to the terms of this Agreement. Nothing
in this Agreement shall obligate any Stockholder to exercise any option to
purchase Shares.
II. VOTING OF SUBJECT SHARES
2.1 AGREEMENT TO VOTE SUBJECT SHARES. From the date hereof until this
Agreement is terminated pursuant to Section 6.2, at any meeting of the
stockholders of the Company called to consider and vote upon the adoption of the
Merger Agreement (and at any and all postponements and adjournments thereof),
and in connection with any action to be taken in respect of the adoption of the
Merger Agreement by written consent of stockholders of the Company, each
Stockholder will vote or cause to be voted (including by written consent, if
applicable) all of such Stockholder's Subject Shares which it has the right to
vote in favor of the adoption of the Merger Agreement and in favor of any other
matter necessary or appropriate for the consummation of the transactions
contemplated by the Merger Agreement that is considered and voted upon at any
such meeting or made the subject of any such written consent, as applicable. At
any meeting of the stockholders of the Company called to consider and vote upon
any Adverse Proposal (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of any
Adverse Proposal by written consent of stockholders of the Company, each
Stockholder will vote or cause to be voted (including by written consent, if
applicable) all of such Stockholder's Subject Shares which it has the right to
vote against the adoption of such Adverse Proposal. For purposes of this
Agreement, the term "ADVERSE PROPOSAL" means any (a) Acquisition Transaction,
(b) proposal or action that would reasonably be expected to result in a breach
of any covenant, agreement, representation or warranty of the Company set forth
in the Merger Agreement, or (c) the following actions (other than the Offer, the
Merger and the other transactions contemplated by the Merger Agreement): (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or its subsidiaries; (ii) a sale,
lease or transfer of a material amount of assets of the Company or one of its
subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its subsidiaries; (iii) (1) any change in a majority of
the persons who constitute the board of directors of the Company as of the date
hereof; (2) any change in the present capitalization of the Company or any
amendment of the Company's certificate of incorporation or bylaws, as amended to
date; (3) any other material change in the Company's corporate structure or
business; or (4) any other action that, in the case of each of the matters
referred to in clauses (iii)(1), (2) and (3) is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Offer or the Merger and the other transactions contemplated by this Agreement
and the Merger Agreement or increase the likelihood that such transactions will
not be consummated.
2.2 IRREVOCABLE PROXY. (a) GRANT OF PROXY. Each Stockholder hereby
appoints Parent and any designee of Parent, each of them individually, such
Stockholder's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent with respect to all of such
Stockholder's Subject Shares which it has the right to vote (i) in accordance
with Section 2.1 hereof and (ii) to sign its name (as a stockholder) to any
consent, certificate or other document relating to the Company that the law of
the State of Delaware may permit or require in connection with any matter
referred to in Section 2.1. This proxy is given to secure the performance of the
duties of such Stockholder under this Agreement and its existence will
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not be deemed to relieve the Stockholders of their obligations under Section
2.1. Each Stockholder affirms that this proxy is coupled with an interest and is
irrevocable until termination of this Agreement pursuant to Section 6.2,
whereupon such proxy and power of attorney shall automatically terminate. Each
Stockholder will take such further action or execute such other instruments as
may be necessary to effectuate the intent of this proxy. For Subject Shares as
to which the Stockholder is the beneficial but not the record owner, the
Stockholder will cause any record owner of such Subject Shares to grant to
Parent a proxy to the same effect as that contained herein.
(b) OTHER PROXIES REVOKED. Each Stockholder represents that any
proxy heretofore given in respect of such Stockholder's Subject Shares is not
irrevocable, and hereby revokes any and all such proxies.
III. PURCHASE OPTION
3.1 GRANT OF OPTION. Each Stockholder hereby grants to each of
Parent and Merger Sub an irrevocable option to purchase such Stockholder's
Subject Shares not purchased in the Offer (each, an "OPTION" and, collectively,
the "OPTIONS") on the terms and subject to the conditions set forth in this
Article III at a purchase price per share equal to the Offer Price (the
"PURCHASE PRICE").
3.2 EXERCISE OF OPTION. (a) If the Offer is consummated but (whether due
to improper tender or withdrawal of tender or breach of Section 1.1) Merger Sub
has not accepted for payment and paid for all of the Subject Shares, the Options
will become exercisable (in whole or in part) and remain exercisable (in whole
or in part) thereafter until termination of this Agreement pursuant to Section
6.2 (the applicable period of exercisability being the "OPTION PERIOD"). Parent
may exercise all of the Options, in whole or in part, at any time or from time
to time during the Option Period. Notwithstanding anything in this Agreement to
the contrary, Parent will be entitled to purchase all Subject Shares in respect
of which it shall have exercised an Option in accordance with the terms hereof
prior to the expiration of the Option Period, and the expiration of the Option
Period will not affect any rights hereunder which by their terms do not
terminate or expire prior to or as of such expiration.
(b) If Parent wishes to exercise an Option, it will deliver to the
applicable Stockholder (each a "SELLING STOCKHOLDER") a written notice (an
"EXERCISE NOTICE") to that effect which specifies (a) the total number of
Subject Shares it wishes to purchase (other than those purchased in the Offer)
and (b) a date (an "OPTION CLOSING DATE"), not earlier than two nor later than
five business days after the date such Exercise Notice is delivered, for the
consummation of the purchase and sale of such Subject Shares (an "OPTION
CLOSING"); PROVIDED, HOWEVER, that Parent will exercise the Option in accordance
with the federal securities laws. If the Option Closing cannot be effected on
the Option Closing Date specified in the Exercise Notice by reason of any
applicable judgment, decree, order, law or regulation, or because any applicable
waiting period under the HSR Act shall not have expired or been terminated, (i)
the Stockholders will promptly take all such actions as may be requested by
Parent, and will otherwise fully cooperate with Parent, to cause the elimination
of all such impediments to the Option Closing and (ii) the Option Closing Date
specified in the Exercise Notice will be extended to the second business day
following the elimination of all such impediments. The place of the Option
Closing
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will be at the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the time of the Option Closing will be
10:00 a.m. (Eastern Time) on the Option Closing Date. Upon the giving by Parent
to the Selling Stockholder of the Exercise Notice and the tender of the
aggregate Purchase Price, Parent will be deemed to be the holder of record of
the Subject Shares transferrable upon such exercise, notwithstanding that the
stock transfer books of the Company are then closed or that certificates
representing such Subject Shares have not been actually delivered to Parent.
3.3 PAYMENT AND DELIVERY OF CERTIFICATES. At any Option Closing, Parent
will deliver to each Selling Stockholder, by wire transfer of immediately
available funds to the account designated by such Selling Stockholder to Parent
prior to the Option Closing, the Purchase Price payable in respect of the
Subject Shares to be purchased from such Selling Stockholder at the Option
Closing, and each Selling Stockholder will deliver to Parent such Subject
Shares, free and clear of all Liens, with the certificate or certificates
evidencing such Subject Shares being duly endorsed for transfer by such Selling
Stockholder and accompanied by all powers of attorney and/or other instruments
necessary to convey valid and unencumbered title thereto to Parent. The Selling
Stockholder will pay all expenses, and any and all United States federal, state
and local taxes and other charges that may be payable in connection with the
preparation, issue and delivery of stock certificates under this Section 3.3 in
the name of Parent or its designee.
3.4 ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. In the event of any
change in the capital stock of the Company by reason of a stock dividend,
subdivision, reclassification, recapitalization, split, combination, exchange of
shares, extraordinary distribution or similar transaction, the type and number
or amount of shares, securities or other property subject to each of the
Options, and the Purchase Price payable therefor, will be adjusted
appropriately, and proper provision will be made in the agreements governing
such transaction, so that (a) Parent will receive upon exercise of any Option
the type and number or amount of shares, securities or property that Parent
would have retained and/or been entitled to receive in respect of the applicable
Selling Stockholder's Subject Shares if the Option had been exercised
immediately prior to such event or the record date therefor, as applicable, and
(b) the applicable Selling Stockholder will receive upon exercise of any Option
granted by such Selling Stockholder the amount of cash that such Selling
Stockholder would have received as a result of the exercise of the Option if the
Option had been exercised immediately prior to such event or the record date
therefor, as applicable. The provisions of this Section 3.4 will apply in a like
manner to successive stock dividends, subdivisions, reclassifications,
recapitalizations, splits, combinations, exchanges of shares, extraordinary
distributions or similar transactions.
3.5 SHARING OF PROFITS. If (a) the Merger Agreement is terminated in
circumstances in which Parent is entitled to a fee pursuant to Section 8.01(b),
8.01(c) or 8.01(d) thereof and (b) not later than one year from the date of
termination of the Merger Agreement, (i) the Company consummates a merger,
acquisition, consolidation, recapitalization, liquidation, dissolution or
similar transaction involving, or any sale of all or substantially all of the
assets or equity securities of, the Company and its subsidiaries (a "BUSINESS
COMBINATION"), (ii) the Company enters into an Acquisition Agreement providing
for a Business Combination, which Business Combination is ultimately
consummated, irrespective of when such consummation occurs, (iii) a Stockholder
disposes of any or all of its Subject Shares to any person not an affiliate or
an associate of Parent or Merger Sub or to the Company or any affiliate thereof
in
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connection with a Business Combination, or (iv) a Stockholder realizes proceeds
in respect of its Subject Shares as a result of a distribution to such
Stockholder by the Company following the sale of substantially all of the
Company's assets in connection with a Business Combination (each, a "SUBSEQUENT
TRANSACTION"), in each case at a per share price or with equivalent per share
proceeds (including, in the case of clause (iv), the market value of the Shares
after giving effect to such transactions), as the case may be (the "SUBSEQUENT
PRICE"), having a value in excess of the Offer Price, then the Stockholder will
promptly pay to Parent an amount equal to one-half of the product of (1) the
excess of the Subsequent Price over the Offer Price multiplied by (2) the
greatest number of Subject Shares beneficially owned by such Stockholder between
the date hereof and the time a Business Combination is consummated (in the case
of clauses (i), (ii) and (iii)) or disposal by such Stockholder (in the case of
clause (iv)). Any non-cash consideration received by the Stockholder in a
Subsequent Transaction will be valued at fair market value at the time of
receipt thereof by the Stockholder. In the event of any stock dividends, stock
splits, recapitalizations, combinations, exchanges of shares or the like or any
other action that would have the effect of changing the Stockholder's ownership
of the Company's capital stock or other securities, the Offer Price will be
appropriately adjusted for the purpose of this Section 3.5.
IV. REPRESENTATIONS AND WARRANTIES
4.1 CERTAIN REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder, severally and not jointly, represents and warrants to Parent and
Merger Sub, as of the date hereof, as of the Option Closing Date and as of the
Closing Date, as follows:
(a) OWNERSHIP. Such Stockholder is the sole record and beneficial
owner of the options to acquire Shares described on Schedule B hereto (the
"EXISTING OPTIONS") and will, upon exercise, have full and unrestricted power to
dispose of and to vote any Shares for which the Existing Options are exercisable
("OPTION SHARES"). Such Stockholder is the sole record and beneficial owner of
the number of Shares set forth opposite such Stockholder's name on Schedule A
hereto, has full and unrestricted power to dispose of and to vote such Shares.
Such Shares are now, and at all times during the term hereof will be, and such
Option Shares will upon exercise and at all times thereafter during the term
hereof be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all Liens and proxies, except for
any Liens or proxies arising hereunder. The transfer by such Stockholder of its
Subject Shares to Merger Sub or Parent pursuant to the Offer or the applicable
Option, respectively, will pass to and unconditionally vest in Merger Sub or
Parent good and valid title to those Subject Shares, free and clear of all Liens
other than restrictions set forth under applicable securities laws. Except as
set forth opposite the Stockholder's name on Schedule A or Schedule B hereto,
such Stockholder (i) does not beneficially own any securities of the Company on
the date hereof; (ii) does not, directly or indirectly, beneficially own or have
any option, warrant or other right to acquire any securities of the Company that
are or may by their terms become entitled to vote or any securities that are
convertible or exchangeable into or exercisable for any securities of the
Company that are or may by their terms become entitled to vote, nor is the
Stockholder subject to any contract, commitment, arrangement, understanding or
relationship (whether or not legally enforceable), other than this Agreement,
that allows or obligates him to vote, dispose of or acquire any securities of
the Company; and (iii) holds exclusive power to vote the Subject Shares and has
not granted a proxy to any other Person to vote the Subject Shares, subject to
the limitations set forth in this Agreement.
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(b) (b) POWER AND AUTHORITY; EXECUTION AND DELIVERY. Such
Stockholder that is not a natural person is a limited partnership or corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Such Stockholder has all requisite partnership, corporate or
individual, as applicable, power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement. This Agreement has been duly executed and delivered by such
Stockholder and constitutes a valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
(c) (c) NO CONFLICTS. The execution and delivery of this Agreement
do not, and, subject to compliance with the HSR Act and appropriate filings
under securities laws (which such Stockholder agrees to make promptly), to the
extent applicable, the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, conflict with, result in a
violation or breach of, or constitute a default (or an event that, with notice
or lapse of time or both, would result in a default) or give rise to any right
of termination, amendment, cancellation, notice or acceleration under, (i) such
Stockholder's articles of organization, partnership agreement or similar
constituent documents, (ii) any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which such Stockholder is a party or
by which such Stockholder is bound, (iii) any injunction judgment, writ, decree,
order or ruling applicable to such Stockholder or (iv) any law, statute, rule or
regulation applicable to such Stockholder; except in the case of clauses (ii)
and (iii) for conflicts, violations, breaches or defaults that would not (1)
impair the ability of such Stockholder to perform its obligations under this
Agreement or (2) prevent or delay the consummation of any of the transactions
contemplated hereby.
(d) BROKERS. Except as set forth in Section 4.20 of the Merger
Agreement, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement or the Merger Agreement based upon arrangements
made by or on behalf of such Stockholder that is or will be payable by the
Company or any of its subsidiaries.
4.2 AFFILIATE TRANSACTIONS. All agreements, contracts, transfers of
assets or liabilities or other commitments or transactions, whether or not
entered into in the ordinary course of business, to or by which the Company or
any of its subsidiaries, on the one hand, and such Stockholder or any of its
affiliates (other than the Company or any of its subsidiaries), on the other
hand, are or have been a party or otherwise bound or affected, that (i) are
currently pending or in effect or (ii) involve continuing liabilities and
obligations that, individually or in the aggregate, have been, are or will be
material to the Company or any of its subsidiaries taken as a whole, have either
been disclosed in the Company SEC Reports or are set forth in Section 4.23 of
the Company Disclosure Schedule.
4.3 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. Each of
Parent and Merger Sub hereby represents and warrants, jointly and severally, to
each Stockholder, as of the date hereof and as of the Closing Date, that:
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(a) ORGANIZATION; AUTHORITY. Parent is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation. Merger Sub is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation. Each
of Parent and Merger Sub has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement.
(b) EXECUTION AND DELIVERY. This Agreement has been duly executed
and delivered by Parent and Merger Sub and, assuming that this Agreement
constitutes a valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of Parent and Merger Sub, enforceable
against Parent and Merger Sub in accordance with its terms.
(c) NO CONFLICTS. Neither the execution and delivery of this
Agreement nor the performance by Parent or Merger Sub of its respective
obligations hereunder will conflict with, result in a violation or breach of, or
constitute a default (or an event that, with notice or lapse of time or both,
would result in a default) or give rise to any right of termination, amendment,
cancellation, or acceleration under, (i) Parent's or Merger Sub's certificate of
incorporation, bylaws or similar constituent documents, (ii) any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which Parent or Merger Sub is a party or by which Parent or Merger Sub is bound,
(iii) any judgment, writ, decree, order or ruling applicable to Parent or Merger
Sub, or (iv) any law, statute, rule or regulation applicable to Parent or Merger
Sub; except in the case of clauses (ii) and (iii) for conflicts, violations,
breaches or defaults that would not (1) impair the ability of Parent or Merger
Sub to perform its obligations under this Agreement or (2) prevent or delay the
consummation of any of the transactions contemplated hereby.
(d) SECURITIES LAW COMPLIANCE. The Options and the Subject Shares
to be acquired upon exercise of the Options are being and will be acquired by
Parent without a view to public distribution thereof otherwise than in
compliance with the Securities Act and applicable state securities laws and will
not be transferred or otherwise disposed of except in a transaction registered
or exempt from registration under the Securities Act and in compliance with
applicable state securities laws. Neither Parent nor Merger Sub will effect any
offer or sale of Subject Shares which would cause any Stockholder to violate the
registration requirements of the Securities Act or the registration or
qualification requirements of the securities laws of any jurisdiction.
V. CERTAIN COVENANTS OF STOCKHOLDERS
5.1 RESTRICTION ON TRANSFER OF SUBJECT SHARES, PROXIES AND
NONINTERFERENCE. No Stockholder will, directly or indirectly: (a) except
pursuant to the terms of this Agreement and for the conversion of Subject Shares
at the Effective Time pursuant to the terms of the Merger Agreement, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Stockholder's Subject Shares other than any sale, transfer or assignment to
members of such Stockholder's family, a family trust of such Stockholder or a
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charitable institution if the transferee of such Subject Shares agrees in
writing to be bound by the terms hereof and notice of such sale, transfer or
assignment, including the name and address of the Merger Sub, transferree or
assignee, is delivered to Parent pursuant to Section 6.6. hereof; (b) acquire
any Shares or other securities of the Company (other than in connection with a
transaction of the type described in Section 5.2) or enter into any contract,
option, arrangement or other undertaking with respect to the direct or indirect
acquisition of any interest in or the voting of any Subject Shares or any other
securities of the Company; (c) except pursuant to the terms of this Agreement,
grant any proxies or powers of attorney, deposit any Subject Shares into a
voting trust or enter into a voting agreement with respect to any Subject
Shares; or (d) take any action that would reasonably be expected to make any of
its representations or warranties contained herein untrue or incorrect or have
the effect of impairing the ability of such Stockholder to perform such
Stockholder's obligations under this Agreement or preventing or delaying the
consummation of any of the transactions contemplated hereby.
5.2 ADJUSTMENTS. (a) In the event (i) of any stock dividend, stock
split, recapitalization, reclassification, combination or exchange of shares of
capital stock or other securities of the Company on, of or affecting the Shares
or the like or any other action that would have the effect of changing a
Stockholder's ownership of the Company's capital stock or other securities or
(ii) a Stockholder becomes the beneficial owner of any additional Shares or
other securities of the Company, then the terms of this Agreement will apply to
the shares of capital stock held by the Stockholder immediately following the
effectiveness of the events described in clause (i) or the Stockholder becoming
the beneficial owner thereof, as described in clause (ii), as though they were
Shares hereunder.
(b) Each Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of any new Shares acquired by
such Stockholder, if any, after the date hereof.
5.3 NO SOLICITATION. No Stockholder will take, authorize or permit any
of its officers, directors, employees, agents or representatives (including any
investment banker, financial advisor, attorney or accountant for such
Stockholder) ("Representatives") to take, any action that the Company would be
prohibited from taking under Section 5.03(a) of the Merger Agreement. Each
Stockholder will, and will cause its Representatives to, immediately cease all
existing discussions or negotiations with respect to any of the foregoing and
promptly (and in any event within one business day) advise Parent in writing of
the receipt by such Stockholder of a request for information or any inquiries or
proposals relating to an Acquisition Transaction. Notwithstanding any provision
of this Section 5.3 or Section 5.6 to the contrary, (a) if any Stockholder is a
member of the Board of Directors of the Company, such member of the Board of
Directors of the Company may take actions in such capacity to the extent
permitted by Section 5.03 of the Merger Agreement, and (b) if any Stockholder is
an officer of the Company, such officer may take actions in such capacity to the
extent directed to do so by the Board of Directors in compliance with Section
5.03 of the Merger Agreement.
5.4 WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that such Stockholder
may have.
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5.5 NONEXERCISE OF RIGHTS OF FIRST REFUSAL. No Stockholder will exercise
any purchase right or right of first refusal that it may have with respect to
any Shares of any other Person in connection with any tender by such other
Person of such Shares pursuant to the Offer.
5.6 COOPERATION. Each Stockholder will cooperate fully with Parent,
Merger Sub and the Company in connection with their respective reasonable best
efforts to fulfill the conditions to (a) the Offer set forth in Annex I to the
Merger Agreement and (b) the Merger set forth in Article VI of the Merger
Agreement.
5.7 DISCLOSURE. Each Stockholder hereby authorizes Parent and Merger Sub
to publish and disclose in the Offer Documents, any announcement or disclosure
required by the London Stock Exchange Listing Rules 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 in connection with
either of the foregoing), its identity and ownership of the Shares and the
nature of its commitments, arrangements and understandings under this Agreement.
VI. MISCELLANEOUS
6.1 FEES AND EXPENSES. Each party hereto will pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
6.2 AMENDMENT; TERMINATION. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto. This
Agreement will terminate on the earliest to occur of (a) the consummation of the
purchase of all the Subject Shares pursuant to the Offer, (b) the Effective Time
or (c) the date the Merger Agreement is terminated in accordance with its terms.
This Agreement may be earlier terminated by the mutual consent of the Board of
Directors of Parent and the Stockholders representing a majority of the Subject
Shares subject to this Agreement. Except as set forth below, in the event of
termination of this Agreement pursuant to this Section 6.2, this Agreement will
become null and void and of no effect with no liability on the part of any party
hereto and all proxies granted hereby will be automatically revoked; provided,
however, that no such termination will relieve any party hereto from any
liability for any breach of this Agreement occurring prior to such termination.
Notwithstanding anything to the contrary contained in this Agreement, if
this Agreement is terminated for any reason, Sections 3.5, 6.1, 6.5, 6.15 and
6.16 and this Section 6.2 will survive any termination of this Agreement
indefinitely.
6.3 EXTENSION; WAIVER. Any agreement on the part of a party to waive any
provision of this Agreement, or to extend the time for any performance
hereunder, will be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise will not constitute a waiver of
such rights. Any waiver by any party of a breach of any provision of this
Agreement will not operate as or be construed as a waiver of any other breach of
such provision or of any breach of any other provision of this Agreement. The
failure of a party to insist upon strict adherence to any term of this Agreement
or one or more sections hereof will not be considered a
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waiver or deprive that party of a right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
6.4 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES; SEVERAL OBLIGATIONS.
This Agreement and the Merger Agreement constitute the entire agreement among
the parties hereto with respect to the subject matter hereof, and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to such matters. Neither the Merger Agreement nor this Agreement is
intended to confer upon any Person other than the parties hereto any rights or
remedies. The obligations of, and the representations and warranties made by,
each Stockholder shall be several and not joint and shall relate only to such
Stockholder.
6.5 GOVERNING LAW. This Agreement will 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 conflict of laws thereof.
6.6 NOTICES. Any notice required to be given hereunder will be
sufficient if in writing, and sent by facsimile transmission and by courier
service (with proof of service), hand delivery or certified or registered mail
(return receipt requested and first-class postage prepaid), addressed as
follows:
If to Parent or Merger Sub:
Bodycote International plc
Xxxxxx Xxxx, Xxxxxxxxxxxx
Xxxxxxxx, Xxxxxx Xxxxxxx
XX00 0XX
Telephone: x00 (0) 0000 000000
Facsimile: x00 (0) 0000 000000
With copies to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Fax No.: 000-000-0000
If to any Stockholder:
At their address on Schedule A
10
With copies to:
Xxxx X. Xxxxxx
Xxxx, Xxxx & Xxxxx
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other address as any party specifies by written notice, such notice
being deemed to have been delivered as of the date so telecommunicated,
personally delivered or mailed.
6.7 ASSIGNMENT. Neither this Agreement nor any of the rights, interests,
or obligations under this Agreement may be assigned or delegated, in whole or
in part, by operation of law or otherwise, by any Stockholder without the
prior written consent of Parent or by Parent without the consent of the
applicable Stockholder (and then only with respect to such Stockholder), and
any such assignment or delegation that is not consented to will be null and
void; PROVIDED that this Agreement, together with any rights, interests, or
obligations of Parent hereunder, may be assigned or delegated, in whole or in
part, by Parent to any direct or indirect wholly owned subsidiary of Parent
without the consent of or any action by any Stockholder upon notice by Parent
to each Stockholder affected thereby as herein provided; PROVIDED FURTHER,
HOWEVER, that any such assignment shall not relieve Parent of its obligations
hereunder. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns (including, without limitation, any Person
to whom any Subject Shares are sold, transferred or assigned).
6.8 FURTHER ASSURANCES. Each Stockholder will execute and deliver such
other documents and instruments and take such further actions as may be
necessary or appropriate or as may be reasonably requested by Parent in order to
ensure that Parent and Merger Sub receive the full benefit of this Agreement.
6.9 PUBLICITY. Parent, Merger Sub, the Company and each Stockholder will
consult with each other party before issuing any press release or otherwise
making any public statements with respect to this Agreement or the Merger
Agreement or the other transactions contemplated hereby or thereby and will not
issue any such press release or make any such public statement before such
consultation, except as may be required by law or applicable stock exchange
rules.
6.10 ENFORCEMENT. 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, the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are entitled at law or in
equity.
11
6.11 SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such a 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.
6.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same instrument and
will become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
6.13 HEADINGS. The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
6.14 REMEDIES NOT EXCLUSIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity will be cumulative and not alternative, and the exercise of any thereof
by either party will not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
6.15 JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each party
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of the Chancery or other courts of the
State of Delaware (A "DELAWARE COURT"), and any appellate court from any such
court, in any suit, action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment resulting from any
suit, action or proceeding, and each party hereby irrevocably and
unconditionally agrees that all claims in respect of any such suit, action or
proceeding may be heard and determined in a Delaware Court.
(b) It will be a condition precedent to each party's right to
bring any such suit, action or proceeding that such suit, action or proceeding,
in the first instance, be brought in a Delaware Court (unless such suit, action
or proceeding is brought solely to obtain discovery or to enforce a judgment),
and if each such court refuses to accept jurisdiction with respect thereto, such
suit, action or proceeding may be brought in any other court with jurisdiction.
(c) No party may move to (i) transfer any such suit, action or
proceeding from a Delaware Court to another jurisdiction, (ii) consolidate any
such suit, action or proceeding brought in a Delaware Court with a suit, action
or proceeding in another jurisdiction, or (iii) dismiss any such suit, action or
proceeding brought in a Delaware Court for the purpose of bringing the same in
another jurisdiction.
(d) Each party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, (i) any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in a Delaware Court,
(ii) the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court, and (iii) the right to object, with
respect to such
12
suit, action or proceeding, that such court does not have jurisdiction over such
party. Each party irrevocably consents to service of process in any manner
permitted by law.
6.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUR OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed as of the day and year first written above.
BODYCOTE INTERNATIONAL PLC
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer
BODYCOTE INVESTMENTS VI INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: President
14
STOCKHOLDERS
Xxxxx X. Xxxxxxxx Trust Under Agreement
dated March 6, 1957 for Xxxxx X. Xxxx
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
By: Bank of America, Co-Trustee
By: /s/ Jan Xxxx Xxxxxxxx
----------------------------------
Name: Jan Xxxx Xxxxxxxx
Title: Senior Vice President
15
STOCKHOLDERS
Xxxxx X. Xxxxxxxx Trust Under Agreement
dated March 6, 1957 Xxxxx X. Xxxxxx
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
By: Bank of America, Co-Trustee
By: /s/ Jan Xxxx Xxxxxxxx
----------------------------------
Name: Jan Xxxx Xxxxxxxx
Title: Senior Vice President
16
STOCKHOLDERS
Xxxxx X. Xxxxxx Trust
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx, Principal
By: Bank of America, Investment Agent
By: /s/ Jan Xxxx Xxxxxxxx
----------------------------------
Name: Jan Xxxx Xxxxxxxx
Title: Senior Vice President
17
STOCKHOLDERS
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx, Individually
18
STOCKHOLDERS
Delaware Charter Guarantee and
Trust Company fbo Xxxxxx X. Xxxxxx
XXX Rollover
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
19
STOCKHOLDERS
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx, Individually
20
STOCKHOLDERS
Xxxxx and Xxxxxx Xxxxxx Family Foundation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Co-Trustee
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Co-Trustee
21
STOCKHOLDERS
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx, Individually
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx, Individually
22
STOCKHOLDERS
By: /s/ Xxx X. Xxxxxxxx
-------------------------------------
Name: Xxx X. Xxxxxxxx, Individually
23
STOCKHOLDERS
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Individually
24
STOCKHOLDERS
By: /s/ Xxx Xxxx
-------------------------------------
Name: Xxx Xxxx, Individually
25
STOCKHOLDERS
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx, Individually
26
EXECUTION COPY
SCHEDULE A
STOCKHOLDER ADDRESS NUMBER OF SHARES
----------- ------- ----------------
Xxxxx X. Xxxx 00 Xxxxx Xxxxx Xxxx 19,590 (sole voting and
Xxxxxx Xxxxxx, XX 00000 dispositive power)
246,926 (shared voting
and dispositive power)
Xxx Xxxx 00 Xxxxx Xxxxx Xxxx 246,926 (shared voting
Xxxxxx Xxxxxx, XX 00000 and dispositive power)
Xxxxxx X. Xxxxxx 0000 Xxxxxxxxxxx Xxxx 75,750 (sole voting and
Xxxxxxxx, XX 00000 dispositive power)
The Delaware Charter 0000 Xxxxxxxxxxx Xxxx 5,000 (sole voting and
Guarantee Trust Company Xxxxxxxx, XX 00000 dispositive power)
f/b/o Xxxxxx X. Xxxxxx
XXX Rollover
Xxxxx X. Xxxxxx 0000 Xxxxxxxxxxx Xxxx 000,000
Xxxxxxxx, XX 00000
Xxxxx and Xxxxxx Xxxxxx 1180 Whitebridge Hill 52,175
Family Foundation Xxxxxxxx, XX 00000
Xxx X. Xxxxxxxx c/x Xxxxxxxx Corporation 71,500(sole voting and
0000 Xxxxx Xxxxx Xxxx dispositive power)
Suite 700 36,000 (shared voting
Xxxxxxxx, XX 00000 and dispositive power)
Xxxxxxx X. Xxxxxxxx c/x Xxxxxxxx Corporation 36,000 (shared voting
0000 Xxxxx Xxxxx Xxxx and dispositive power)
Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx c/x Xxxxxxxx Corporation 22,115 (shared voting
0000 Xxxxx Xxxxx Xxxx and dispositive power)
Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxx c/x Xxxxxxxx Corporation 22,115 (shared voting
0000 Xxxxx Xxxxx Xxxx and dispositive power)
Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxx Trust c/o Bank of America 56,705
(Tax I.D. No. ###-##-####) 000 Xxxxx XxXxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx Trust c/o Bank of America 27,600
Under Agreement 000 Xxxxx XxXxxxx Xxxxxx
dated March 6, 1957 Suite 0216
for Xxxxx X. Xxxx Xxxxxxx, XX 00000
(Tax. I.D. No. 00-0000000)
Xxxxx X. Xxxxxxxx Trust c/o Bank of America 47,634
Under Agreement dated 000 Xxxxx XxXxxxx Xxxxxx
March 6, 1957 Suite 0216
for Xxxxx X. Xxxxxx Xxxxxxx, XX 00000
(Tax I.D. No. 00-0000000
EXECUTION COPY
SCHEDULE B
STOCKHOLDER ADDRESS NUMBER OF OPTION SHARES
----------- ------- -----------------------
Xxxxxx X. Xxxxxx 0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000 16,500
Xxx X. Xxxxxxxx c/x Xxxxxxxx Corporation
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000 162,500
Xxxxxxx X. Xxxxxx c/x Xxxxxxxx Corporation 64,000
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
