Page 14 of 27
EXHIBIT 1
Pursuant to Rule 13D-1(k)(1), Xxxx X. XxXxxxxx, individually and as
Co-Trustee of the Xxxxxxx X. XxXxxxxx Marital Trust No. 1 and the Xxxxxxx X.
XxXxxxxx Marital Trust No. 2, Xxxxxxx X. Xxxxxxx, Xxxxxx X. XxXxxxxx, Xxxxxxxx
X. XxXxxxxx and Xxxxx X. XxXxxxxx agree that this Schedule is filed on behalf of
each of them.
Page 15 of 27
EXHIBIT 1
AGREEMENT
This AGREEMENT (the "Agreement"), dated as of August 19, 2002, is made
by and among Methode Electronics, Inc., a Delaware corporation (the "Company");
Marital Trust No. 1 and Marital Trust No. 2 each created under the Xxxxxxx X.
XxXxxxxx Trust (the "Trusts"); Xxxx X. XxXxxxxx, Xxxxxxxx X. XxXxxxxx, Xxxxx X.
XxXxxxxx, and Xxxxxx X. XxXxxxxx (individually, a "Stockholder" and collectively
with the Trusts, the "Stockholders").
RECITALS:
WHEREAS, a special committee (the "Special Committee") of the Company's
board of directors has authorized the Company to make a tender offer (the
"Offer") to purchase all of the issued and outstanding shares of the Company's
Class B common stock, par value $0.50 per share (the "Class B Stock"), at a
price of no less than $20 per share net to the seller in cash, subject to
adjustment as provided in Section 8(e) hereof (the "Offer Price");
WHEREAS, the Stockholders are the record and beneficial owners of those
shares of Class B Stock set forth opposite the Stockholder's name on Exhibit A
attached hereto (as may be adjusted from time to time pursuant to Section 8(e)
hereof, the "Subject Shares"); and
WHEREAS, as a condition to its willingness to make the Offer, the
Company, as authorized by the Special Committee has required that the
Stockholders enter into this Agreement; and as an inducement to the Company to
make the Offer, the Stockholders have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereby agree as follows:
Section 1. THE OFFER.
(a) Subject to terms and conditions hereof, the Company agrees to
commence the Offer as promptly as practicable, and in any event within ten (10)
business days, after the Company's receipt of the Supplemental Ruling (as
defined in Section 5(a) below). The Company's obligations to accept for payment
and to pay for shares of Class B Stock validly tendered pursuant to the Offer on
or prior to the expiration of the Offer and not withdrawn shall be subject only
to (i) there being validly tendered and not withdrawn prior to the final
expiration of the Offer that number of shares of Class B Stock such that the
total number of shares of Class B Stock outstanding after the completion of the
Offer would be less than 100,000 shares (the "Minimum Condition") and (ii) the
other conditions set forth in Exhibit B hereto.
(b) The Company expressly reserves the right to modify the terms of the
Offer, except that the Company shall not: (i) decrease the Offer Price,
(ii) change the form of consideration
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payable in the Offer, or (iii) impose additional conditions or modify any of the
conditions set forth in Exhibit B hereto in any manner adverse to the holders of
shares of Class B Stock.
(c) Except as prohibited by law, the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the Chicago,
Illinois office of Lord, Bissell & Brook at 10:00 a.m. on the first business day
immediately following the expiration of the Offer. Except as prohibited by law,
at the Closing, the Company shall pay for the Subject Shares validly tendered by
wire transfer in immediately available funds to accounts designated in writing
by the Stockholders at least five (5) business days prior to the Closing.
Section 2. AGREEMENTS OF THE STOCKHOLDERS.
(a) AGREEMENT TO TENDER. Each Stockholder hereby agrees to (i) validly
tender promptly, and in any event no later than the tenth business day following
the commencement of the Offer, or if the Stockholder has not received the
offering materials by such time, within two business days following receipt of
such materials, pursuant to the Offer and (ii) not withdraw any of the Subject
Shares. Each Stockholder shall receive the same offer price received by the
other stockholders of the Company in the Offer with respect to the shares of
Class B Stock tendered by it. The Company's obligation to accept for payment and
pay for the shares of Class B Stock tendered in the Offer pursuant to this
Agreement shall be subject to all the terms and conditions of the Offer and this
Agreement.
(b) STOCKHOLDER INFORMATION. Each Stockholder hereby agrees to permit
the Company to publish and disclose in the Offer documents its identity and
ownership of shares of Class B Stock and the nature of its commitments,
arrangements and understandings under this Agreement. Each Stockholder and its
counsel shall be given a reasonable opportunity to review and comment on the
Offer documents before the filing thereof with the Securities and Exchange
Commission (the "SEC").
(c) NO INCONSISTENT AGREEMENTS. Except as contemplated by this
Agreement, each Stockholder shall not enter into any tender, voting or other
such agreement, or grant a proxy or power of attorney, with respect to the
Subject Shares that is inconsistent with this Agreement or otherwise take any
other action that would in any way restrict, limit, interfere with or frustrate
the performance of its obligations hereunder or the transactions contemplated
hereby or the completion of the transactions contemplated hereby.
(d) NO TRANSFER OF SUBJECT SHARES. Each Stockholder agrees not to
transfer (except as otherwise provided herein) record ownership or beneficial
ownership (or both) of any Subject Shares or any interest therein, without the
Company's prior written consent. For the purposes of this Agreement, the term
"transfer" and the like means any sale, assignment, grant, transfer, gift,
pledge, creation of a lien or other disposition of any Subject Shares or any
interest of any nature therein. At the Company's request, each Stockholder shall
present to the Company the stock certificates representing its Shares for
placing an appropriate legend concerning the restrictions on transfer imposed
hereby.
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(e) NO SOLICITATION. Except in an authorized capacity as a director of
the Company or in the performance of duties as a director of the Company, each
Stockholder agrees that it shall not, nor shall it authorize or knowingly permit
any of its advisors or representatives to, (i) participate in any discussions or
negotiations regarding, or furnish to any person any information with respect
to, or take any other action to facilitate any inquiries or the making of any
proposal to sell or otherwise transfer any of the Subject Shares, or (ii)
solicit, initiate or knowingly facilitate or encourage any tender or exchange
offer involving the Company or its capital stock or any proposal for, or
indication of interest in a merger, consolidation, stock exchange, business
combination, reorganization, recapitalization, liquidation, dissolution or other
similar transaction involving the Company.
(f) ALTERNATIVE TRANSACTION STRUCTURE. In the event that the Offer is
not completed prior to the End Date as a result of the failure to satisfy the
Minimum Condition, the Stockholders agree to cooperate with the Company and
support an alternative transaction structure so long as such alternative
transaction would be consummated no later than the End Date and the Stockholders
would receive cash consideration equal to the Offer Price. Such cooperation and
support would include, without limitation, voting in favor of a merger
transaction in which the holders of the Class B Common Stock would receive cash
consideration equal to the Offer Price.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
In order to induce the Stockholders to enter into this Agreement, the
Company hereby represents and warrants to each Stockholder as follows:
(a) CORPORATE POWER AND AUTHORITY. The Company is duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Company has all requisite corporate power and authority to enter into and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement by the Company have been duly authorized by all
necessary corporate action on the part of the Company. This Agreement has been
duly executed and delivered by the Company and (assuming due authorization,
execution and delivery by each Stockholder) constitutes the legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms subject to (i) applicable bankruptcy, insolvency, fraudulent
conveyance and other similar laws and (ii) general principles of equity,
including equitable defenses and limits as to the availability of equitable
remedies, whether such principles are considered in a proceeding at law or in
equity.
(b) CAPITALIZATION. As of the date of this Agreement, the Company's
authorized capital stock consists solely of (i) 50,000 shares of Series A,
junior participating preferred stock, par value $100 per share (the "Preferred
Stock"), (ii) 100,000,000 shares of Class A common stock, par value $0.50 per
share (the "Class A Stock"), and (iii) 5,000,000 shares of Class B Stock. As of
July 24, 2002, (i) no shares of Preferred Stock were issued and outstanding,
(ii) 35,076,819 shares of Class A Stock were issued and outstanding, and (iii)
1,087,317 shares of Class B Stock were issued and outstanding.
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(c) CONFLICTS; CONSENTS AND APPROVALS. The execution and delivery of
this Agreement and the consummation of the transactions contemplated by this
Agreement do not and will not (i) violate, conflict with, or result in a breach
of any provision of, or constitute a default under, the Company's Restated
Certificate of Incorporation, as amended, or By-laws; (ii) violate, or conflict
with, or result in a breach of any provision of, or constitute a default (or an
event which, with the giving of notice or lapse of time or both, would become a
default) under, or entitle any party to terminate, accelerate, modify or call a
default under, or result in the creation of any encumbrance upon any of the
Company's properties or assets under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, deed of trust, license, contract,
undertaking, agreement, lease or other instrument or obligation to which the
Company is a party; (iii) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to the Company; or (iv) other than the required
filings with the SEC, require any action or consent or approval of, or review
by, or registration or material filing by the Company with, any third party or
any local, state or federal court, arbitral tribunal, administrative agency or
commission or other governmental or regulatory body, agency, instrumentality or
authority, except, with respect to clauses (ii), (iii) and (iv), as would not
have a material adverse effect on the Company.
(d) LITIGATION. As of the date hereof, to the Company's knowledge,
there are no actions, suits or proceedings pending against the Company (or any
of its properties, rights or franchises), at law or in equity, or before any
federal or state commission, board, bureau, agency, regulatory or administrative
instrumentality or other governmental authority or any arbitrator or arbitration
tribunal, that would reasonably be expected to, individually or in the
aggregate, prevent, materially impair or materially delay the consummation of
the transactions contemplated hereby.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS.
In order to induce the Company to enter into this Agreement, each
Stockholder represents and warrants to the Company as follows:
(a) TITLE TO SUBJECT SHARES. Each Stockholder is the record and/or
beneficial owner of the Subject Shares listed opposite such Stockholder's name
on Exhibit A hereto and has full and unrestricted power to dispose of and to
vote such Subject Shares. The Subject Shares and the certificates representing
the Subject Shares are now and at all times during the term hereof will be held
by each Stockholder, or by a nominee or custodian for the benefit of the
Stockholder, free and clear of all liens, adverse claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever (including any contractual restriction on the
right to vote, sell or otherwise dispose of such Subject Shares), except for any
such encumbrances or proxies arising hereunder.
(b) AUTHORITY. Each Stockholder has the necessary and sufficient right
and authority to enter into and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement by it has
been duly authorized by all necessary action on its part. This Agreement has
been duly executed and delivered by each Stockholder and (assuming due
authorization, execution and delivery by the Company) constitutes the legal,
valid and binding
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Page 19 of 27
obligation of each such Stockholder, enforceable against it in accordance with
its terms subject to (i) applicable bankruptcy, insolvency, fraudulent
conveyance and other similar laws and (ii) general principles of equity,
including equitable defenses and limits as to the availability of equitable
remedies, whether such principles are considered in a proceeding at law or in
equity.
(c) CONFLICTS; CONSENTS AND APPROVALS. With respect to each
Stockholder, the execution and delivery of this Agreement and the consummation
of the transactions contemplated by this Agreement do not and will not: (i)
conflict with, or result in a breach of any provision of or, constitute a
default under, its trust agreement, if applicable; (ii) violate, or conflict
with, or result in a breach of any provision of, or constitute a default (or an
event which, with the giving of notice or lapse of time or both, would become a
default) under, or entitle any party to terminate, accelerate, modify or call a
default under, or result in the creation of any encumbrance upon any of its
properties or assets under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, deed of trust, license, contract, undertaking,
agreement, lease or other instrument or obligation to which it is a party; (iii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to it; or (iv) require any action or consent or approval of, or
review by, or registration or material filing by it with, any third party or any
local, state or federal court, arbitral tribunal, administrative agency or
commission or other governmental or regulatory body, agency, instrumentality or
authority except, with respect to clauses (ii), (iii) and (iv), as would not
have a material adverse effect on such Stockholder.
(d) LITIGATION. As of the date hereof, to the knowledge of each
Stockholder, there are no actions, suits or proceedings pending against such
Stockholder (or any of its properties, rights or franchises), at law or in
equity, or before any federal or state commission, board, bureau, agency,
regulatory or administrative instrumentality or other governmental authority or
any arbitrator or arbitration tribunal, that would reasonably be expected to,
individually or in the aggregate, prevent, materially impair or materially delay
the consummation of the transactions contemplated hereby.
(e) ADEQUATE ACCESS. Each Stockholder acknowledges that the Company has
provided it with adequate access to financial and other information concerning
the Company and that it has been afforded the opportunity to ask such questions
and receive such other information from Company representatives as it deems
necessary in order to evaluate whether to enter into this Agreement.
Section 5. ADDITIONAL COVENANTS.
(a) SUPPLEMENTAL IRS PRIVATE LETTER RULING. The Company shall use its
reasonable efforts to promptly apply for and obtain a supplemental private
letter ruling from the Internal Revenue Service ("IRS") that the Offer and the
transactions contemplated by this Agreement will not adversely affect the
Company's ability to rely on the private letter ruling received by the Company
from the IRS with respect to its distribution of shares of Stratos Lightwave,
Inc. to its stockholders in April 2001 (the "Supplemental Ruling"). The Company
agrees to promptly notify the Stockholders in writing if it determines that it
will be unable to obtain the Supplemental Ruling.
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(b) HORIZON LOAN. Within two (2) business days after their receipt of
the proceeds of the sale of its shares of Class B Stock pursuant to the Offer,
the Trusts shall cause Horizon Farms Inc. ("Horizon") to repay in full the
principal amount and all accrued interest due under that certain Promissory Note
dated April 15, 2001 between the Company and Horizon in the principal amount of
$6 million.
(c) DIRECTOR RESIGNATIONS. Prior to the completion of the Offer, the
Trusts shall use its reasonable best efforts to cause Xxxxx X. XxXxxxxx and Xxx
Xxx Xxxxxx to resign from the Company's board of directors or, at the Company's
request, shall take all lawful action, including the execution and delivery of a
written consent, to remove such directors, in each case, effective as of receipt
of the Offer Price for the Subject Shares by the Stockholders at the Closing.
Section 6. CONDITIONS PRECEDENT.
(a) CONDITIONS TO THE COMPANY'S OBLIGATIONS. The obligations of the
Company to complete the Offer shall be subject to the satisfaction of the
conditions set forth on Exhibit B hereto.
(b) CONDITIONS TO THE STOCKHOLDERS' OBLIGATIONS. The obligations of
each Stockholder under this Agreement shall be subject to the condition that no
statute, rule, regulation, executive order, decree, temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other governmental entity or other legal restraint or
prohibition preventing the Stockholders from tendering the Subject Shares
pursuant to the Offer or otherwise performing its obligations under this
Agreement shall be in effect; provided, however, that the Stockholders shall use
reasonable efforts to prevent the entry of any such injunction or other order
and to appeal as promptly as possible any injunction or other order that may be
entered.
Section 7. TERMINATION.
(a) TERMINATION. Anything contained herein to the contrary
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the completion of the Offer:
(i) By mutual written consent of the Company (as approved by
the Special Committee) and the Trusts;
(ii) By the Company if any of the conditions set forth in
Section 6(a) shall not have been satisfied, and shall not have been
waived by the Company (as approved by the Special Committee);
(iii) By the Trusts if the condition set forth in Section 6(b)
shall not have been satisfied, and shall not have been waived by the
Trusts; or
(iv) By the Company or the Trusts if the Offer has not been
completed by the Company on or prior to March 31, 2003 (the "End
Date");
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provided, however, that the right to terminate this Agreement under clauses,
(ii), (iii) and (iv) above shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of, or results
in, the failure of the Offer to be completed prior to such date.
(b) NOTICE OF TERMINATION. In the event of termination by the Company
or the Trusts pursuant to this Section 7, written notice thereof shall forthwith
be given to the other party or parties and the transactions contemplated by this
Agreement shall be terminated, without further action by any party.
(c) TERMINATION FEE. In the event that this Agreement is terminated by
the Company pursuant to Section 7(a)(ii) due to the fact that an event or
circumstance described in Subsection (b) of Exhibit B hereto has occurred, then,
in such event, the Company shall pay to the Stockholders (in proportion to the
number of shares of Class B Stock held by each as described on Exhibit A hereto)
within five (5) business days after such termination a fee of U.S.$400,000 in
the aggregate, which amount shall be payable in immediately available funds.
(d) EFFECT OF TERMINATION. If this Agreement is terminated and the
transactions contemplated hereby are abandoned as described in this Section 7,
this Agreement shall become void and of no further force and effect except as
provided in Section 7(c) above. Nothing in this Section 7 shall be deemed to
release any party from any liability for any breach by such party of the terms
and provisions of this Agreement or to impair the right of any party to compel
specific performance by another party of its obligations under this Agreement.
Section 8. OTHER PROVISIONS.
(a) COUNTERPARTS. This Agreement may be executed via facsimile or
original signatures in any number of counterparts, which together shall
constitute one and the same Agreement. The parties may execute more than one
copy of the Agreement, each of which shall constitute an original.
(b) ENTIRE AGREEMENT. This Agreement (including the exhibits attached
hereto) constitutes the entire agreement among the parties and supersedes all
prior agreements, understandings, arrangements or representations by or among
the parties, written and oral, with respect to the subject matter hereof.
(c) THIRD PARTY BENEFICIARIES. Nothing in this Agreement, express or
implied, is intended or shall be construed to create any third party
beneficiaries.
(d) SPECIFIC PERFORMANCE. The transactions contemplated by this
Agreement are unique. Accordingly, each of the parties acknowledges and agrees
that, in addition to all other remedies to which it may be entitled, each of the
parties hereto is entitled to a decree of specific performance and injunctive
and other equitable relief.
(e) CERTAIN EVENTS. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting
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shares of Class B Stock, the number of Subject Shares and the Offer Price shall
be adjusted appropriately.
(f) AMENDMENT. This Agreement may not be altered, amended or
supplemented except by an agreement in writing signed by each of the parties
hereto and, in the case of the Company, approved by the Special Committee.
(g) NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by fax
or like transmission and on the next business day when sent by Federal Express
or other reputable overnight courier service to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to the Company: Methode Electronics, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Executive Officer
Fax: (000) 000-0000
Tel: (000) 000-0000
with copies to: Morris, Nichols, Arsht & Xxxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Tel: (000) 000-0000
If to the Stockholders: c/o Xxxxx X. XxXxxxxx
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy to: Xxx Xxx Xxxxxx, Esq.
00 X. Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Tel: (000) 000-0000
(h) ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
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(i) FEES AND EXPENSES. Except as otherwise provided in this Agreement,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated by this Agreement shall be the responsibility of and
shall be paid by the party incurring such fees or expenses, whether or not the
transactions contemplated by this Agreement are consummated.
(j) PUBLIC ANNOUNCEMENTS. The Company and the Trusts agree to consult
with each other before issuing any press release or making any other public
announcement with respect to this Agreement, except as may be required by
applicable law or the Company's listing agreement with Nasdaq.
(k) FURTHER ASSURANCES. From time to time, at the other party's request
and without 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 and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(l) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
(m) GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by the laws of the State of Illinois, without giving effect to the
conflict of laws principles thereof. Each party irrevocably and unconditionally
consents to submit to the non-exclusive jurisdiction of the courts of the State
of Delaware and of the United States of America, in each case located in the
State of Delaware, for any action or proceeding arising out of or relating to
this Agreement and the transactions contemplated by this Agreement. Each party
irrevocably and unconditionally waives any objection to the laying of venue of
any action or proceeding in the courts of the State of Delaware or of the United
States of America, in each case located in the State of Delaware, and further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any action or proceeding brought in any such court has been
brought in an inconvenient forum. Each party hereby irrevocably waives any right
it may have to personal service of summons, complaint, or other process in
connection with any proceeding commenced in any such court and agrees that
service may be made by registered or certified mail addressed to such party and
sent in accordance with the provisions of Section 8(g) hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first written above.
METHODE ELECTRONICS, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
-------------------------------
Title: President
-------------------------------
STOCKHOLDERS
Marital Trust No. 1 and Marital Trust No. 2
Created under the Xxxxxxx X. XxXxxxxx Trust
By: Bank One, as successor co-trustee of
Marital Trust No 1 and Marital Trust No. 2
created under the Xxxxxxx X. XxXxxxxx Trust
By: /s/ Xxxx Xxxxx
---------------------------------
Its: Vice President and Trust Officer
---------------------------------
By: /s/ Xxxx X. XxXxxxxx
------------------------------------
Xxxx X. XxXxxxxx, as co-trustee of
Marital Trust No 1 and Marital Trust No. 2
Created under the Xxxxxxx X. XxXxxxxx Trust
/s/ Xxxx X. XxXxxxxx
--------------------------------------------
Xxxx X. XxXxxxxx
/s/ Xxxxxxxx X. XxXxxxxx
--------------------------------------------
Xxxxxxxx X. XxXxxxxx
/s/ Xxxxx X. XxXxxxxx
--------------------------------------------
Xxxxx X. XxXxxxxx
/s/ Xxxxxx X. XxXxxxxx
--------------------------------------------
Xxxxxx X. XxXxxxxx
-24-
EXHIBIT A
Number of Class B Shares
Stockholder Name Held of Record and/or Beneficially
---------------- ----------------------------------
Marital Trust No. 1 and Marital Trust
No. 2 Created under the
Xxxxxxx X. XxXxxxxx Trust 880,901
Xxxx X. XxXxxxxx 890,902(1)
Xxxxxxxx X. XxXxxxxx 898,182(1)
Xxxxx X. XxXxxxxx 881,169(1)(2)
Xxxxxx X. XxXxxxxx 904,209(1)
(1) Includes 87,277 shares held by the Xxxxxxx X. XxXxxxxx Marital Trust No. 1
and 793,624 shares held by the Xxxxxxx X. XxXxxxxx Marital Trust No. 2.
(2) Includes 268 shares held by his wife.
EXHIBIT B
Notwithstanding any other provision of the Offer, the Company will not
be required to accept for payment, purchase or pay for any shares tendered, and
may terminate or amend the Offer or may postpone the acceptance for payment of,
or the purchase of and the payment for shares tendered if (i) the Minimum
Condition shall not have been satisfied, or (ii) at any time prior to the time
of payment for any shares, any of the following events or circumstances shall
have occurred and be continuing:
(a) The Company has not received the Supplemental Ruling or such ruling
shall not be in full force and effect as of the completion of the Offer.
(b) There shall not have been any change, circumstance or event outside
the ordinary course of business caused, directly or indirectly, by, or
resulting, directly or indirectly, from any action or inaction by any person
other than the Company that individually or in the aggregate, is or is
reasonably likely to be materially adverse to the business, properties,
liabilities, operations or condition (financial or otherwise) of the Company and
its subsidiaries taken as a whole.
(c) There has been threatened, instituted or pending before any court,
authority, agency or other tribunal any action, suit or proceeding by any
government or governmental, regulatory or administrative agency, authority or
tribunal or by any other person, domestic, foreign or supranational, or any
judgment, order or injunction entered, enforced or deemed applicable by any
court, authority, agency or tribunal, which, directly or indirectly prohibits or
makes illegal or otherwise directly or indirectly restrains or prohibits the
Offer, the acceptance for payment of, or payment for, any of the shares by the
Company; provided, however, that the Company shall use reasonable efforts to
prevent the entry of any such judgment, injunction or other order and to appeal
as promptly as possible any judgment, injunction or other order that may be
entered.
(d) There shall have occurred and continues to exist: (i) any general
suspension of trading in, or limitation on prices for, securities on any United
States national securities exchange or in the over-the-counter market; (ii) the
declaration of a banking moratorium or any suspension of payments in respect of
banks in the United States, whether or not mandatory; or (iii) any limitation,
whether or not mandatory, by any governmental, regulatory or administrative
agency or authority on, or any event that, in the Company's reasonable judgment,
could materially affect, the extension of credit by banks or other lending
institutions in the United States.
(e) The Company shall not have sufficient legally available funds from
which the Class B Stock tendered in the Offer may lawfully be purchased.
The conditions referred to above are for the Company's sole benefit and
may be asserted by the Company regardless of the circumstances giving rise to
any condition, and may be waived by the Company, in whole or in part, at any
time and from time to time in the Company's sole discretion. The Company's
failure at any time to exercise any of the foregoing rights will not be deemed a
waiver of any right, and each such right will be deemed an ongoing right that
may be asserted at any time and from time to time prior to the expiration of the
Offer.
