STOCKHOLDERS SUPPORT AGREEMENT
STOCKHOLDERS SUPPORT AGREEMENT dated as of April 21, 1999, by and
among XXXXXXX CORPORATION, a Delaware corporation ("Parent"), on the one
hand, and each of XXXXXXX X. XXXX-XXXXXX and XXXXX X. XXXX (each a
"Stockholder" and, collectively, the "Stockholders"), on the other hand.
Each Stockholder is executing this Agreement in her or his capacity as a
stockholder of HACH COMPANY, a Delaware corporation (the "Company").
WHEREAS, Parent, H20 ACQUISITION CORP., a Delaware corporation and
a wholly owned subsidiary of Parent ("Sub"), and the Company, are entering
into an Agreement and Plan of Merger (the "Merger Agreement"; capitalized
terms used without definition herein having the meanings ascribed thereto in
the Merger Agreement) under which the Stockholders will receive substantial
value for their interest in the Company;
WHEREAS, a significant portion of the goodwill and value of the
Company resides in the "Hach" tradename;
WHEREAS, each Stockholder is a director of the Company, who
possesses significant knowledge and information about and expertise in the
Company Business (as defined below) which is extremely valuable to
competitors of the Company, and accordingly Parent has required as a
condition to its willingness to enter into the Merger Agreement that each
Stockholder make, and each Stockholder has agreed to make, the commitments
set forth herein;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
Section 1. AGREEMENT TO SUPPORT TRANSACTION. Until the earlier
of the Effective Time and the termination of this Agreement in accordance
with its terms:
(a) Each Stockholder hereby agrees that, immediately following the
execution and delivery of this Agreement and the Merger Agreement, she or he
shall execute and deliver, or cause to be executed and delivered by the
record owner of shares beneficially owned by such Stockholder, in accordance
with Section 228 of the DGCL, the Restated Certificate of Incorporation and
By-laws of the Company, the Written Consent of Stockholders Without a
Meeting, in the form attached hereto as Annex A, with respect to all shares
of Company Common Stock that are owned beneficially or of record by such
Stockholder or as to which such Stockholder has, directly or indirectly, the
right to vote or direct the voting.
(b) Each Stockholder hereby further agrees she or he shall, from
time to time, at the request of Parent, (i) timely execute and deliver (or
cause to be timely executed and delivered) an additional written consent with
respect to, or (ii) vote, or cause to be voted, at any meeting of
stockholders of the Company held prior to the earlier of the Effective Time
and the termination of this Agreement or at any adjournment or postponement
thereof, in person or by proxy, all shares of Company Common Stock, and any
other voting securities of the Company (whether acquired heretofore or
hereafter), that are beneficially owned by such Stockholder or her
or his Affiliates or as to which such Stockholder or any of her or his
Affiliates has, directly or indirectly, the right to vote or direct the
voting, in favor of approval and adoption of the Merger Agreement and the
Merger (including as they may be amended by the Board of Directors of the
Company), and any action required in furtherance thereof and against any
action or agreement that would result in a material breach of any
representation, warranty, covenant or obligation of the Company contained in
the Merger Agreement.
(c) Other than pursuant to the Merger or with Parent's prior
written consent, each Stockholder agrees that she or he will not, and will
not permit any company, trust or other entity controlled by such Stockholder
to, and will not permit any of such Stockholder's Affiliates to, contract to
sell, sell, pledge, encumber or otherwise transfer or dispose of any Company
Common Stock beneficially owned by her or him or any interest therein or
securities convertible thereinto or any voting rights with respect thereto
without giving Parent prior written notice thereof and in any event if such
transaction could reasonably be expected to jeopardize Parent's ability to
account for the Merger as a "pooling of interests."
(d) Each Stockholder hereby revokes any and all previous proxies
with respect to such Stockholder's shares of Company Common Stock or any
other voting securities of the Company.
(e) Each Stockholder hereby agrees to, will cause any company,
trust or other entity controlled by such Stockholder to, and will cause such
Stockholder's Affiliates to, cooperate fully with Parent in connection with
the Merger Agreement and the transactions contemplated thereby. Each
Stockholder agrees that neither such Stockholder nor any of her or his
representatives, agents or Affiliates will, directly or indirectly,
encourage, solicit or engage in discussions or negotiations with any third
party (other than Parent) concerning any merger, consolidation, business
combination, sale of a significant amount of securities or assets or similar
transaction ("Alternative Transactions") other than the transactions
contemplated hereby and by the Merger Agreement. Each Stockholder shall
immediately request that any Person that has received directly or indirectly
from such Stockholder any confidential information involving the Company or
any of its Subsidiaries return all copies thereof to the Company and shall,
and shall cause her or his representatives, agents and Affiliates to,
terminate all discussions or negotiations with any Person with respect to any
Alternative Transaction. Each Stockholder will notify Parent immediately of
any inquiries or proposals with respect to any such transaction that are
received by, or any such negotiations or discussions of which such
Stockholder is aware that are sought to be initiated with, such Stockholder
or any of such Stockholder's Affiliates or the Company or any of its
Subsidiaries, will advise Parent of the identity of any Person proposing any
such Alternative Transaction and of the terms thereof and shall keep Parent
apprised with respect to all matters relating thereto.
(f) Each Stockholder is signing this Agreement solely in her or
his capacity as a record holder and beneficial owner of shares of Company
Common Stock and nothing herein shall limit or affect any actions taken by a
Stockholder in her or his capacity as an officer or director of the Company,
subject to the provisions of the Merger Agreement.
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Section 2. RULE 145; POOLING LETTER. Each Stockholder is on
the date hereof executing, and shall cause each of such Stockholder's
Affiliates identified as Affiliates of the Company on the Company's letter
referred to in Section 5.10 of the Merger Agreement to execute by the
thirtieth day prior to the Effective Time, a written agreement in the form
attached as Exhibit 5.10 to the Merger Agreement (relating to compliance with
Rule 145 and pooling rules).
Section 3. TAX REPRESENTATIONS. Each Stockholder shall deliver
to Parent's counsel and the Company's counsel, if so requested by such
counsel, respectively, a certificate setting forth such representations as
are customary to be given by shareholders in transactions such as the Merger
in connection with the opinions contemplated by Sections 6.2(d) and 6.3(c) of
the Merger Agreement.
Section 4. COVENANT NOT TO COMPETE. (a) Each Stockholder
agrees that, commencing at the Effective Time and continuing until the third
anniversary of the Effective Time, such Stockholder shall not carry on or
participate in the design, manufacture or marketing of laboratory
instruments, process analyzers and test kits for analyzing the properties of
water and other aqueous solutions (any such activities being referred to
herein as "Company Business") or in any business in competition with any
Company Business, as conducted by the Company on the date hereof, in any
country in which the Company operates. Each Stockholder shall not, whether or
not for compensation, engage in any Company Business, or assist or advise any
other Person in such Person's conduct of any Company Business, whether as a
director, officer, employee, consultant, adviser, independent contractor or
otherwise; PROVIDED, HOWEVER, that the Stockholders shall not be prohibited
from owning up to five percent (5%) of the outstanding securities in any
Person that is engaged in any Company Business as a passive investor.
(b) Each Stockholder agrees that, commencing at the Effective
Time and continuing until the fifth anniversary of the Effective Time, such
Stockholder shall not (i) lend or allow such Stockholder's name or reputation
to be used in or to promote any Company Business, other than for the benefit
of Parent and its Affiliates (including the Company); or (ii) solicit, divert
or attempt to divert from Parent and its Affiliates any business
constituting, or any customer of, or any supplier of, any part of the Company
Business then conducted by the Company, Parent or any of their Affiliates.
Section 5. COVENANT NOT TO SOLICIT. In addition to the
foregoing, each Stockholder further agrees that such Stockholder shall not,
commencing at the Effective Time and continuing until the fifth anniversary
of the Effective Time, induce or attempt to induce any Person (i) engaged or
employed currently or within the prior 12 months (whether part-time or
full-time) by the Company or any of its Affiliates to leave the employ of or
engagement with the Company, or its Affiliates, as the case may be, or to
cease providing the services to or on behalf of the Company or its
Affiliates, as the case may be, then provided by such Person, or in any other
manner seek to engage, employ or contract for the services of, any such
Person (whether or not for compensation) in any capacity, or (ii) that is
then or has been within the prior 12 months a customer or supplier with
respect to any Company Business to interfere, in any way, directly or
indirectly, with the business relationship between the Company or any of its
Affiliates and any such customer.
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Section 6. REPRESENTATIONS AS TO STOCK OWNERSHIP. Each
Stockholder represents and warrants to Parent that (a) Schedule I hereto sets
forth, opposite such Stockholder's name, the number and type of shares of
Company Common Stock or other securities of the Company of which such
Stockholder is the record or beneficial owner, and (b) such Stockholder is
the lawful owner of such shares, free and clear of all liens, charges,
encumbrances, voting agreements and commitments of every kind, except as may
be disclosed on Schedule I.
Section 7. EFFECTIVENESS AND TERMINATION. In the event the
Merger Agreement is terminated in accordance with its terms, this Agreement
shall automatically terminate and be of no further force or effect. Upon such
termination, except for any rights any party may have in respect of any
breach by any other party of its obligations hereunder, none of the parties
hereto shall have any further obligation or liability hereunder.
Section 8. MISCELLANEOUS.
(a) NOTICES, ETC. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall
be in writing and shall be deemed to have been duly given when delivered
personally (by courier service or otherwise) or when delivered by telecopy
(with receipt acknowledged), to Parent at Xxxxxxx Corporation, 0000 00xx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or to any Stockholder at her or his
address set forth in the records of the Company, or to such other address as
any such party shall have designated by notice so given to each other party.
(b) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by
an instrument in writing signed by each party hereto. The failure of any
party hereto to exercise any right, power or remedy provided under this
Agreement or otherwise available in respect hereof at law or in equity, or to
insist upon compliance by any other party hereto with its obligations
hereunder, and any custom or practice of the parties at variance with the
terms hereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such
compliance.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns. Any transfer of shares of Company Common
Stock notwithstanding, the transferor shall remain liable for the performance
of all obligations under this Agreement of transferor. Any transferee of
shares of Company Common Stock permitted pursuant to this Agreement shall
take such shares subject to the provisions of this Agreement and deliver to
Parent in advance of such transfer its signed acknowledgment to such effect.
(d) ENTIRE AGREEMENT. This Agreement (together with the Merger
Agreement and the other agreements and documents expressly contemplated
hereby and thereby) embodies the entire agreement and understanding among the
parties relating to the subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter. There are no
representations, warranties or covenants by the parties hereto relating to
such subject matter other than those expressly set forth in this Agreement
and the Merger Agreement.
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(e) SEVERABILITY. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such term to the other parties or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
applicable law, PROVIDED that, in such event, the parties shall negotiate in
good faith in an attempt to agree to another provision (in lieu of the term
or application held to be invalid or unenforceable) that will be valid and
enforceable and will carry out to the maximum extent possible the parties'
intentions hereunder.
(f) REMEDIES. The parties acknowledge that money damages are not
an adequate remedy for violations of this Agreement and that any party may,
in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any
violation hereof and, to the extent permitted by applicable law, each party
waives any objection to the imposition of such relief or any requirement for
a bond. All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(g) GOVERNING LAW; JURISDICTION. This Agreement and all disputes
hereunder shall be governed by and construed and enforced in accordance with
the internal laws of the State of Delaware, without regard to principles of
conflicts of law. Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware or the United
States District Court of Delaware in any action, suit or proceeding arising
in connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection
based on FORUM NON CONVENIENS or any other objection to venue therein). Each
party hereto hereby waives any right to a trial by jury in connection with
any such action, suit or proceeding.
(h) NAME, CAPTIONS, GENDER. The name assigned this Agreement and
the section captions used herein are for convenience of reference only and
shall not affect the interpretation or construction hereof. Whenever the
context may require, any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
(i) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one instrument. Each counterpart may consist
of a number of copies each signed by less than all, but together signed by
all, the parties hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first above written.
XXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
STOCKHOLDERS
/s/ Xxxxxxx Xxxx-Xxxxxx
------------------------------
Name: Xxxxxxx Xxxx-Xxxxxx
/s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
SCHEDULE I
SHARE OWNERSHIP
NAME OF SHAREHOLDER SHARES OWNED
SHARES OPTIONS
Class A Class A
Common Stock Common Stock Common Stock Common Stock
------------ ------------ ------------ ------------
Xxxxxxx X. Xxxx-Xxxxxx 4,546,990 4,541,647 0 0
Xxxxx X. Xxxx 238,350 227,514 20,000 54,000
--------- --------- ------ ------
--------- --------- ------ ------
Total: 4,785,340 4,769,161 20,000 54,000
