AGREEMENT TO TENDER
AGREEMENT (this "AGREEMENT"), dated as of March 26, 2000,
among Forvaltnings AB Ratos (publ.), a Swedish corporation ("PARENT"), Ratos
Acquisition Corp., a Delaware corporation ("MERGER SUB"), Xxxxxx Xxxxxxxxxx,
Xxxxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxx, A. Xxxxxxxxx Xxxxxxxx, Xxxx X. Xxxxxxxx,
Xxxx X. Xxxxx, H. Xxxx Xxxxx and Xxxx X. Xxxxxxxx (each a "Director" and
collectively, the "DIRECTORS").
RECITALS
WHEREAS, Parent, Merger Sub and Xxxx Company, a Delaware
corporation (the "COMPANY"), have entered into an Agreement and Plan of Merger,
dated as of the date hereof (the "MERGER AGREEMENT"), pursuant to which Merger
Sub will commence a cash tender offer to acquire all of the outstanding shares
of common stock, par value $.10 per share, of the Company (the "COMPANY COMMON
STOCK") and the Company and Merger Sub will merge, with the Company as the
surviving corporation in the merger;
WHEREAS, as of the date hereof, each Director is a member of
the board of directors of the Company (the "BOARD");
WHEREAS, each Director is the record and beneficial owner of
the number of shares of Company Common Stock set forth opposite such Director's
name on Schedule A hereto and the number of options to purchase shares of
Company Common Stock set forth opposite such Director's name on Schedule B
hereto; such shares and options, as they may be adjusted by stock dividend,
stock split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other transaction or event involving the
Company, together with any shares of Company Common Stock or options to purchase
shares of Company Common Stock that may be acquired after the date hereof by
such Director, being collectively referred to herein as the "SHARES"; and
WHEREAS, as a condition to their willingness to enter into
the Merger Agreement, Parent and Merger Sub have requested that the Directors
enter into this Agreement;
NOW, THEREFORE, to induce Parent and Merger Sub to enter
into, and in consideration of their entering into, the Merger Agreement, the
parties hereto agree as follows:
1. TENDER OF SHARES. Each Director hereby agrees that he or
she shall tender his or her Shares into the Offer (as defined in the Merger
Agreement) and that he
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or she shall not withdraw any Shares so tendered, unless the Board determines
not to recommend the Offer pursuant to Section 1.2(b) or Section 6.2(b) of the
Merger Agreement.
2. APPOINTMENT OF NEW DIRECTORS AND RESIGNATION OF CURRENT
DIRECTORS.
(a) Subject to the terms and conditions contained in Section 1.3
of the Merger Agreement, each Director hereby agrees (i) to take all actions
necessary to appoint such number of new members of the Board designated by
Parent as provided for in Section 1.3(a) of the Merger Agreement and (ii) to
resign as director of the Company upon request of Parent and/or Merger Sub, in
each case, to the extent required in order to allow the Company to comply with
Section 1.3(a) of the Merger Agreement and in accordance with the terms and
conditions contained therein.
(b) In the event that one or more Directors fail to resign from
the Board in accordance with the terms of paragraph 2(a), above, the Board shall
immediately call a special meeting of the shareholders of the Company in order
to vote upon the removal of such Director or Directors from the Board.
3. REPRESENTATIONS AND WARRANTIES OF THE DIRECTORS. Each
Director hereby represents and warrants severally and not jointly to Parent and
Merger Sub as follows:
(a) AUTHORITY. The Director has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Director and, assuming this Agreement constitutes a valid and binding obligation
of Parent and Merger Sub, constitutes a valid and binding obligation of the
Director enforceable against the Director in accordance with its terms.
(b) THE SHARES. The Director's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by such Director, or by a nominee or custodian for the benefit of such
Director, and the Director has good and marketable title to such Shares, free
and clear of any liens, proxies, voting trusts or agreements, understandings or
arrangements, except for any such liens or proxies arising hereunder.
4. COVENANTS OF THE DIRECTORS. Each Director hereby agrees as
follows:
(a) The Director shall not, except as contemplated by the terms of
this Agreement and the Merger Agreement, sell, transfer, pledge, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, assignment or other
disposition of, or grant of any lien with
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respect to, the Shares to any person other than Parent or Merger Sub or take any
other action that would in any way restrict, limit or interfere with the
performance of his/her obligations hereunder or the transactions contemplated
hereby.
(b) Each Director will, from time to time, execute and deliver, or
cause to be executed and delivered, such additional or further transfers,
assignments, endorsements, consents and other instruments as Parent or Merger
Sub may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
5. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties. 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.
Each Director agrees that the obligations to tender the Shares hereunder shall
attach to such Director's Shares and shall be binding upon any person or entity
to which legal or beneficial ownership of such Shares shall pass, whether by
operation of law or otherwise, including without limitation such Director's
heirs or successors.
6. AMENDMENT; WAIVER. This Agreement may be amended only by a
written instrument signed by all of the parties hereto. No provision of this
Agreement may be waived orally, but only by a written instrument signed by the
party against whom enforcement of such waiver is sought.
7. COUNTERPARTS. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
8. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Delaware
without giving effect to Delaware conflicts of law principles.
9. NOTICES. Any notice, request, instruction or other
document to be given hereunder by any party to the others shall be deemed given
if in writing and delivered personally or sent by registered mail (return
receipt requested) or overnight courier (providing proof of delivery), postage
prepaid or facsimile (which is confirmed):
IF TO PARENT OR MERGER SUB, ADDRESSED TO:
Xxxx Xxxxxxxx
Forvaltnings AB Ratos (publ.)
Xxxxxxxxxxxxxx 0
XX-000 00 Xxxxxxxxx, Xxxxxx
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Attention: President
Fax: x00 000 0000
IF TO ANY DIRECTOR, ADDRESSED TO HIM OR HER C/O:
Xxxxxx X. Xxxxxxxxxx
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
or to such other addresses as may be designated in writing by the party to
receive such notice as provided above.
10. ENTIRE AGREEMENT. This Agreement (i) constitutes the
entire agreement, and supersedes all other prior agreements and understandings,
both written and oral, among the parties, with respect to the subject matter
hereof; and (ii) is for the benefit only of the parties hereto and is not
intended to create any obligations to, or rights in respect of, any other
persons or entities.
11. ILLEGALITY. In case any provision in this Agreement shall
be declared or held invalid, illegal or unenforceable, in whole or in part,
whether generally or in any particular jurisdiction, such provision shall be
deemed amended to the extent, but only to the extent, necessary to cure such
invalidity, illegality or unenforceability, and the validity, legality and
enforceability of the remaining provisions, both generally and in every other
jurisdiction, shall not in any way be affected or impaired thereby.
12. INJUNCTIVE RELIEF. The parties hereto acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties hereto
acknowledge their intention that, to the fullest extent permissible under
applicable laws, the parties shall be entitled to an injunction or injunctions
to prevent or cure breaches of the provisions of this Agreement, this being in
addition to any other remedy to which they may be entitled by law or equity.
13. HEADINGS. The paragraph headings herein are for
convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties hereto or their duly authorized officers on the date
first hereinabove written.
FORVALTNINGS AB RATOS (PUBL.)
By: ______________________
Name:
Title:
RATOS ACQUISITION CORP.
By: ______________________
Name:
Title:
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XXXXXX XXXXXXXXXX XXXXXXX X. XXXXXXXXXX
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XXXXXX X. XXXXX A. XXXXXXXXX XXXXXXXX
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XXXX X. XXXXXXXX XXXX X. XXXXX
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H. XXXX XXXXX XXXX X. XXXXXXXX
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SCHEDULE A
HOLDINGS OF SHARES OF XXXX COMPANY
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SCHEDULE B
HOLDINGS OF OPTIONS TO PURCHASE SHARES OF XXXX COMPANY
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