EXHIBIT 99.1
FORM OF TENDER AGREEMENT
TENDER AGREEMENT, dated as of December 7, 2003 (this "Agreement"),
by and among Xxxxxx-Xxxxxxxx Corporation ("Purchaser"), an Ohio corporation, and
each other person listed on the signature pages hereof (each, a "Stockholder"
and, collectively, the "Stockholders").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Xxxxxxx International plc, a public limited company organized under
the laws of England and Wales (the "Company"), and Purchaser are entering into
an Acquisition Agreement (the "Acquisition Agreement"; capitalized terms used
but not defined herein shall have the meanings assigned to them in the
Acquisition Agreement), which provides that, upon the terms and subject to the
conditions set forth therein, Purchaser will make a cash tender offer (the
"Offer") to acquire all of the issued and outstanding Ordinary Shares, $0.01 par
value (the "Ordinary Shares"), of the Company, including for the avoidance of
doubt those represented by American Depositary Shares ("ADSs"), and all of the
issued and outstanding A Ordinary Shares, (pound) 8.00 par value, of the
Company (the "A Ordinary Shares" and, together with the Ordinary Shares and the
ADSs, the "Shares"), each in return for the payment by Purchaser of $24.00 per
Share or such higher price as may be paid in the Offer (the "Per Share
Amount"), in each case net to the seller in cash;
WHEREAS, as of the date hereof, each Stockholder owns the number of
Ordinary Shares, including those represented by ADS, set forth opposite such
Stockholder's name on Schedule I hereto (together with any additional Ordinary
Shares, including those represented by ADSs, acquired by each Stockholder after
the date hereof or upon exercise of the Company Options or otherwise, his, her
or its "Tendered Ordinary Shares"), and the number of A Ordinary Shares, set
forth opposite such Stockholder's name on Schedule II hereto (together with any
additional A Ordinary Shares acquired by each Stockholder after the date hereof,
his, her or its "Tendered A Ordinary Shares"; the Tendered A Ordinary Shares and
the Tendered Ordinary Shares are hereinafter collectively referred to as the
"Tendered Shares");
WHEREAS, as a condition to its willingness to enter into the
Acquisition Agreement, Purchaser has requested that the Stockholders enter into
this Agreement; and
WHEREAS, in order to induce Purchaser to enter into the Acquisition
Agreement, the Stockholders are willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I.
TENDER OF COMPANY STOCK
1.1. Tender of Shares. Each Stockholder, severally and not jointly,
hereby irrevocably agrees to tender to Purchaser (and not withdraw) pursuant to
and in accordance with the terms of
the Offer its Tendered Shares for a per share consideration equal to the Per
Share Amount not later than the second business day after commencement of the
Offer or with respect to any Shares acquired after commencement of the Offer,
within two business days after such Shares are so acquired but in no event
later than the expiration of the Offer. In the event, notwithstanding the
provisions of the first sentence of this Section 1.1, any Tendered Shares are
for any reason withdrawn from the Offer or are not purchased pursuant to the
Offer, such Tendered Shares will remain subject to the terms of this Agreement.
Purchaser acknowledges that each Stockholder's obligation to sell the Tendered
Shares to Purchaser is conditioned upon Purchaser's acceptance and payment for
the Tendered Shares in the Offer. Each Stockholder acknowledges that
Purchaser's obligation to accept for payment and pay for the Tendered Shares in
the Offer is subject to all the terms and conditions of the Offer. For purposes
of this Agreement, "business day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or obligated by law or executive order to close in New York City
or London. Each Stockholder, severally and not jointly, hereby represents that
upon transfer to Purchaser of the Tendered Shares owned by such Stockholder upon
consummation of the transactions contemplated by the Offer, Purchaser will have
good title to such Tendered Shares, free and clear of all Liens.
1.2. No Disposition or Encumbrance of Shares. Each Stockholder,
severally and not jointly, hereby covenants and agrees that, from the date
hereof to the termination of this Agreement, except as may be required to
permit a Stockholder to exchange any ADSs held, directly or indirectly by it,
for the underlying Ordinary Shares under the terms of the depositary agreement
relating to the ADSs to which it is a party, he, she or it shall not, and shall
not offer or agree to, (a) sell, transfer, pledge, tender, assign, hypothecate,
or otherwise dispose of or transfer any interest in, or create or permit to
exist any Lien on, its Tendered Shares; or (b) acquire any Shares or other
securities of the Company other than in connection with the exercise of Company
Options.
1.3. Further Assurances. Each Stockholder, severally and not
jointly, shall perform such further acts and execute such further documents and
instruments as may reasonably be required to vest in Purchaser the power to
carry out and give effect to the provisions of this Agreement.
1.4. Power of Attorney. Each Stockholder irrevocably and by way of
security for his, her or its obligations hereunder appoints the Purchaser and
any director or officer of the Purchaser to be his, her or its attorney to sign,
execute and deliver on his, her or its behalf forms of acceptance and any other
document required for a valid acceptance of the Offer in respect of the Tendered
Shares and to do all acts and things in his, her or its name as may be
reasonably necessary for or incidental to such acceptance and/or conveyance.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and
warrants to Purchaser on the date hereof and as of the Closing Date as follows:
2.1. Authorization. Such Stockholder has all requisite power to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby
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have been duly authorized by all necessary action on the part of such
Stockholder. This Agreement has been duly executed and delivered by or on behalf
of such Stockholder and, assuming its due authorization, execution and delivery
by Purchaser, constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
2.2. No Conflicts, Required Filings and Consents.
(a) The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
will not, (i) conflict with or violate any statute, law, ordinance, rule,
regulation, order, decree or judgment applicable to such Stockholder or by which
he, she or it or any of its assets or properties (including, without limitation,
its Tendered Shares) is bound or affected, or (ii) result in any breach of or
constitute a default (with notice or lapse of time, or both) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of a Lien on any of the property or assets of such
Stockholder, including, without limitation, its Tendered Shares, pursuant to any
indenture or other loan document provision or other contract, license,
franchise, permit or other instrument or obligation to which such Stockholder is
a party or by which such Stockholder or any of its properties is bound or
affected.
(b) Except for such filings as are contemplated by the
Acquisition Agreement and except for filings required under applicable
securities laws, the execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Authority except where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or delay the performance by the
Stockholder of its obligations under this Agreement.
2.3. Shares. a) Such Stockholder is the beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act, which definition will apply for
all purposes of this Agreement) of its Tendered Shares and holds Company Options
to acquire Ordinary Shares in the amount set forth on Schedule I, in each case
free and clear of any Lien, except as may arise pursuant to this Agreement, and
there exist no options, proxies or voting agreements affecting the Tendered
Shares.
(b) Except for the rights of the Stockholder under the Company
Options, the Tendered Shares constitute all of the securities (as defined in
Section 3(a)(10) of the Securities Exchange Act, which definition will apply
for all purposes of this Agreement) of the Company beneficially owned by the
Stockholder.
(c) Except for the Tendered Shares and the Company Options,
the Stockholder 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
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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) that allows or obligates him, her or it to vote or
acquire any securities of the Company.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to each Stockholder as follows:
3.1. Organization, Qualification and Authorization. Purchaser is a
corporation duly organized and validly existing under the laws of the State of
Ohio. Purchaser has the power to execute and deliver this Agreement and to carry
out its obligations hereunder. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of Purchaser. This Agreement has
been duly executed and delivered by Purchaser and, assuming its due
authorization, execution and delivery by each Stockholder, constitutes a legal,
valid and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms.
3.2. No Conflicts, Required Filings and Consents.
(a) The execution and delivery of this Agreement by Purchaser
do not, and the performance of this Agreement by Purchaser will not, (i)
conflict with or violate any statute, law, ordinance, rule, regulation, order,
decree or judgment applicable to Purchaser or by which it or any of its
properties is bound or affected, or (ii) result in any breach of or constitute a
default (with notice or lapse of time, or both) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a Lien on any of the property or assets of Purchaser, pursuant
to any indenture or other loan document provision or other contract, license,
franchise, permit or other instrument or obligation to which Purchaser is a
party or by which Purchaser or any of its properties is bound or affected.
(b) The execution and delivery of this Agreement by Purchaser
do not, and the performance of this Agreement by Purchaser will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, except where
the failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or delay the performance
by Purchaser of its obligations under this Agreement.
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ARTICLE IV.
MISCELLANEOUS
4.1. Expenses. All costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall be paid by the
party incurring such costs and expenses.
4.2. Notices. All notices or other communications under this
Agreement shall be in writing and shall be given by delivery in person, by
facsimile, cable, telegram, telex or other standard form of
telecommunications, or by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows (or such other address for a
party as shall be specified in a notice given in accordance with this Section
4.2) and shall be deemed to have been given one business day after
transmission by facsimile, cable, telegram, telex of other standard form of
telecommunications or four days after deposit in the U.S. mail:
If to a Stockholder, at the address or facsimile number of such
Stockholder set forth on Schedule I, with copies to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Telecopy: 000-000-0000
and
Xxxxx & Xxxxx
Xxx Xxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: Xxxxxxx XxXxxxx, Esq.
Telecopy: 00-000-000-0000
If to Purchaser, to:
Xxxxxx-Xxxxxxxx Corporation
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Xxxxx Day
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
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4.3. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
4.4. Entire Agreement. This Agreement and any documents delivered by
the parties in connection herewith constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
4.5. Assignment, Binding Effect. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (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 and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
4.6. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any New York court, without bond or other
security being required, this being in addition to any other remedy to which
they are entitled at law or in equity.
4.7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ITS RULES OF CONFLICT OF LAWS.
4.8. Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
4.9. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the parties
hereto.
4.10. Termination. This Agreement shall terminate and be of no
further force and effect, automatically and without any required action of the
parties hereto, at the time of the
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earlier to occur of (i) the tender of the Tendered Shares in accordance with
Section 1.1 hereof, or (ii) the termination of the Acquisition Agreement in
accordance with its terms. All representations, warranties and agreements made
by the parties to this Agreement shall survive the termination of this Agreement
indefinitely.
4.11. Waiver. Any provision of this Agreement may be waived at any
time by the party that is entitled to the benefits thereof. No such waiver will
be effective unless in a writing and is signed by the party or parties sought to
be bound thereby. Any waiver by any party of a breach of any provision of this
Agreement will not operate as or be construed to be 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 waiver or deprive that
party of the right thereafter to insist upon strict adherence to that term or
any other term of this Agreement.
4.12. Adjustments. The number and type of securities subject to this
Agreement will be appropriately adjusted 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.
4.13. Compliance. None of the Stockholders shall take any action
that would result in a breach in any respect of any covenant, agreement,
representation or warranty of the Company under the Acquisition Agreement.
Without limiting the foregoing, each Stockholder shall comply in all respects
with Section 4.7 of the Acquisition Agreement.
4.14. Legal Representation. This Agreement was negotiated by the
parties with the benefit of legal representation and any rule of construction
or interpretation otherwise requiring this Agreement to be construed or
interpreted against any party shall not apply to any construction or
interpretation thereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, Purchaser has caused this Agreement to be
executed by its duly authorized representative and each Stockholder has caused
this Agreement to be executed, or duly executed by an authorized signatory, all
as of the date first written above.
XXXXXX-XXXXXXXX CORPORATION
By:
---------------------------------
Name:
Title:
[NAME OF STOCKHOLDERS]
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SCHEDULE I
HOLDERS OF ORDINARY SHARES, $0.01 PAR VALUE,
REPRESENTED BY AMERICAN DEPOSITARY SHARES AND COMPANY OPTIONS
NAME NUMBER OF NUMBER OF PERCENTAGE OF TOTAL CONTACT
ORDINARY COMPANY ORDINARY SHARES INFORMATION
SHARES HELD OPTIONS (REPRESENTED BY ADSs)
(REPRESENTED AND COMPANY OPTIONS
BY ADSs)
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SCHEDULE II
HOLDERS OF `A' ORDINARY SHARES, (pound) 8.00 PAR VALUE
NAME NUMBER OF PERCENTAGE CONTACT INFORMATION
'A' ORDINARY OF
SHARES HELD OUTSTANDING
'A' ORDINARY
SHARES
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