EXHIBIT (c)(2)
AGREEMENT
Agreement made as of January 31, 1992 (this
"Agreement") among Xxxxxxxxx X. Xxxxxxx ("Transferor"), Theta II
Limited, a company organized under the laws of The Turks and
Caicos Islands ("Transferee"), and Henkel Corporation, a Delaware
corporation ("Henkel")
WHEREAS, Transferor is the holder of certain shares of
Common Stock, $.01 par value ("Loctite Common Stock"), of Loctite
Corporation, a Delaware corporation ("Loctite"), and expects to
become the holder of certain additional shares of Loctite Common
Stock in the near future; and
WHEREAS, Transferor desires to transfer such shares of
Loctite Common Stock to Transferee; and
WHEREAS, Henkel has a right of first refusal with
respect to the proposed transfers by Transferor of such shares of
Loctite Common Stock, but, on the terms and conditions of this
Agreement, is willing to permit such transfers;
NOW, THEREFORE, in consideration of the mutual
agreements contained herein, and for other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Transfer of Loctite Common Stock. On the
terms and subject to the conditions of this Agreement, upon the
receipt by Henkel of a duly executed acknowledgement of Loctite,
in the form of Annex A hereto, Transferor shall transfer to
Transferee all of the 131,492 shares of Loctite Common Stock
currently owned of record by Transferor and, upon the transfer of
record ownership thereto to Transferor, all of the 560,466 shares
of Loctite Common Stock currently owned of record by certain
trusts for the benefit of Transferor.
Section 2. Representations and Warranties of
Transferor and Transferee.
Transferor and Transferee hereby represent and warrant
to Henkel as follows:
(a) Transferee is a corporation duly organized,
validly existing and in good standing under the laws of The Turks
and Caicos Islands. A complete and correct copy of the
constituent documents of Transferee is attached hereto as Annex
B.
(b) Each of Transferor and Transferee has all
requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby in accordance
with the terms hereof.
(c) The execution and delivery of this Agreement by
Transferee and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate
action on the part of Transferee and no other corporate
proceeding is necessary for the execution and delivery of this
Agreement by Transferee, the performance by Transferee of its
obligations hereunder and the consummation by Transferee of the
transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Transferor and Transferee
and constitutes a legal, valid and binding agreement of each of
them, enforceable against each of them in accordance with its
terms.
(d) Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated
hereby in accordance with the terms hereof (i) results or will
result in a material breach of, or constitutes or will constitute
a material default under, any agreement or other undertaking to
which Transferor or Transferee is a party or by which Transferor
or Transferee may be bound, or (ii) results or will result in a
material violation of any order, writ, injunction, decree or
award of any court or governmental authority to which Transferor
or Transferee may be subject, or (iii) results or will result in
a material violation of any Federal or state law, statute,
ordinance, rule or regulation applicable to Transferor or
Transferee.
(e) Transferor currently owns 131,492 shares of
Loctite Common Stock and expects to obtain record ownership of an
additional 560,466 shares of Loctite Common Stock currently owned
of record by certain trusts for the benefit of Transferor, and,
upon consummation of the transfers contemplated hereby,
Transferee will own, 691,958 shares of Loctite Common Stock, in
each case, free and clear of any liens, charges, claims or
encumbrances, other than as created by the provisions of this
Agreement and the Stock Purchase Agreement dated as of May 23,
1985 among Henkel, as assignee of Henkel of America, Inc., and
each of the selling stockholders listed on Exhibit A thereto (the
"Stock Purchase Agreement"), a copy of which is attached hereto
as Annex C. Such shares of Loctite Common Stock were validly
issued and are fully paid and non-assessable.
(f) Transferor currently owns 1 share of capital
stock, nominal value $1.00 per share ("Theta Capital Stock"), of
Transferee and, in connection with the transfers contemplated
hereby, will obtain ownership of an additional 99 shares of Theta
Capital Stock, in each case, free and clear of any liens,
charges, claims or encumbrances, other than as created by the
provisions of this Agreement. Such shares of Theta Capital Stock
constitute all of the outstanding shares of capital stock of
Transferee. Other than pursuant to this Agreement, there are not
authorized or outstanding any subscriptions, options, conversion
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rights, warrants or other agreements, securities or commitments
of any nature whatsoever (whether oral or written and whether
firm or conditional) obligating Transferor or Transferee to
issue, deliver or sell, or cause to be issued, delivered or sold,
the shares of Theta Capital Stock held by Transferor or any other
shares of the capital stock, or any securities convertible into
or exchangeable for shares of capital stock, of Transferee or
obligating Transferor or Transferee to grant, extend or enter
into any such agreement or commitment.
(g) Except for obligations or liabilities incurred in
connection with its organization or the consummation of the
transactions contemplated hereby, Transferee has not incurred any
obligations or liabilities and has not engaged many business or
activity of any type or kind whatsoever or entered into any
agreements or arrangements with any person or entity.
Section 3. Representations and Warranties of Henkel.
Henkel hereby represents and warrants to Transferor
and Transferee as follows:
(a) Henkel is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
(b) Henkel has all requisite power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof.
(c) This Agreement has been duly and validly executed
and delivered by Henkel and constitutes a legal, valid and
binding agreement of Henkel, enforceable against it in accordance
with its terms.
Section 4. Covenants and Agreements of Transferor and
Transferee.
(a) Transferor hereby grants to Henkel a right of
first refusal, on the same terms and conditions as the right of
first refusal granted pursuant to the provisions of Section 7(b)
of the Stock Purchase Agreement, with respect to all shares of
Theta Capital Stock at any time owned of record or beneficially
by the Transferor as long as Transferee owns any shares of
Loctite Common Stock, and hereby agrees to be bound by the right
of first refusal provisions of Section 7(b) of the Stock Purchase
Agreement with respect to all shares of Theta Capital Stock at
any time owned of record or beneficially by him as long as
Transferee owns any shares of Loctite Common Stock (as fully and
with the same legal effect as if Section 7(b) of the Stock
Purchase Agreement had referred specifically to such shares of
Theta Capital Stock) and with respect to all shares of Loctite
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Common Stock owned of record or beneficially by Transferee or, in
the event of a transfer permitted by the proviso to Section 4(d)
hereof, by Transferor.
(b) Transferee hereby grants to Henkel a right of
first refusal, on the same terms and conditions as the right of
first refusal granted pursuant to the provisions of Section 7(b)
of the Stock Purchase Agreement, with respect to all shares of
Loctite Common Stock acquired by Transferee by transfer as
contemplated hereby from Transferor, and all shares of Loctite
Common Stock issued in respect of any such shares, and hereby
agrees to be bound by the right of first refusal provisions of
Section 7(b) of the Stock Purchase Agreement with respect to all
shares of Loctite Common Stock acquired by Transferee by transfer
as contemplated hereby from Transferor, and all shares of Loctite
Common Stock issued in respect of any such shares.
(c) In furtherance of the foregoing right of first
refusal and without limitation, Transferor shall not sell,
transfer, pledge or otherwise dispose of or encumber, directly or
indirectly, any shares of Theta Capital Stock, or reach an
agreement or understanding to do any of the foregoing, without
the prior written consent of Henkel. Transferee will not suffer
or permit any transfer of shares of Theta Capital Stock to be
effected in violation of this Agreement and will cause its
Directors to decline, in accordance with Article 8 of the
Articles of Association of Transferee in effect as of the date
hereof, to register in the Register of Transferee any transfer of
shares of Theta Capital Stock attempted to be effected in
violation of this Agreement. Sales, transfers or other
dispositions attempted to be effected in violation of the
provisions of this Agreement shall be null and void and the
shares of Theta Capital Stock subject to such attempted sale,
transfer or other disposition shall remain subject to this
Agreement.
(d) Transferee shall not, and Transferor shall not
cause or permit Transferee to, sell, transfer, pledge or
otherwise dispose of or encumber, directly or indirectly, any
shares of Loctite Common Stock, or reach an agreement or
understanding to do any of the foregoing, without the prior
written consent of Henkel, except in accordance with Section 7(b)
of the Stock Purchase Agreement; provided, however, that
Transferee may transfer shares of Loctite Common Stock back to
Transferor without the prior written consent of Henkel, in which
event, however, such shares of Loctite Common Stock shall be held
by Transferor subject to the right of first refusal provisions of
Section 7(b) of the Stock Purchase Agreement and shall not
thereafter be transferred by Transferor, including, without
limitation, to Transferee, without the prior written consent of
Henkel, except in accordance with Section 7(b) of the Stock
Purchase Agreement. Sales, transfers or other dispositions
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attempted to be effected in violation of the provisions of this
Agreement shall be null and void and the shares of Loctite Common
Stock subject to such attempted sale, transfer or other
disposition shall remain subject to this Agreement.
(e) Transferee shall not, and Transferor shall not
cause, suffer or permit Transferee to, (i) engage in any business
or activity other than the ownership of shares of Loctite Common
Stock or (ii) own any assets other than shares of Loctite Common
Stock.
(f) Transferor shall not cause or permit Transferee to
amend its constituent documents in effect on the date hereof,
without the prior written consent of Henkel, which consent, in
the case of an amendment required by law, shall not be
unreasonably withheld.
(g) Transferor acknowledges and agrees that each of
the certificates representing shares of Theta Capital Stock, and
Transferor and Transferee acknowledge and agree that each of the
certificates representing shares of Loctite Common Stock subject
to the right of first refusal described herein, shall be stamped
with a legend satisfactory to Henkel reflecting the provisions of
this Agreement and the Stock Purchase Agreement.
(h) Transferor and Transferee recognize and
acknowledge that Henkel would not have consented to the transfer
of Loctite Common Stock contemplated hereby and granted the
waiver provided herein without the representations, covenants and
agreements of Transferor and Transferee contained in this
Agreement and that a breach of any of such representations,
covenants and agreements will cause Henkel to sustain injury for
which it would not have an adequate remedy at law for money
damages. Therefore, Transferor and Transferee agree that in the
event of any such breach, Henkel shall be entitled to the remedy
of specific performance of such covenants and agreements and
preliminary and permanent injunctive and other equitable relief
in addition to any other remedy to which it may be entitled, at
law or in equity.
Section 5. Agreement of Henkel. Effective upon the
receipt by Henkel of a duly executed acknowledgement of Loctite,
in the form of Annex A hereto, Henkel waives the provisions of
Section 7(b) of the Stock Purchase Agreement to the extent, but
only to the extent, necessary to permit the transfer contemplated
hereby.
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Section 6. Miscellaneous.
(a) This Agreement shall terminate on May 23, 1998,
unless sooner terminated by mutual agreement of all the parties
hereto.
(b) This Agreement and the Stock Purchase Agreement
set forth the entire agreement among the parties with respect to
the subject matter hereof and supersede all other previous
written, oral or implied understandings among them with respect
to such matters.
(c) This Agreement may not be modified or amended
except by an instrument in writing signed by the party against
whom enforcement of any such modification or amendment is sought.
(d) All agreements, covenants, representations and
warranties contained herein shall survive the execution and
delivery of this Agreement and the transfer of shares of Loctite
Common Stock contemplated hereby.
(e) This Agreement shall be construed in accordance
with and governed by the laws of the State of New York.
(f) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned parties hereto
have duly executed this Agreement as of the date first above
written.
/s/ Xxxxxxxxx X. Xxxxxxx
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Xxxxxxxxx X. Xxxxxxx
THETA II LIMITED
/s/ Xxxxxxxxx X. Xxxxxxx
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By Xxxxxxxxx X. Xxxxxxx,
Managing Director
HENKEL CORPORATION
/s/ Xxxxxx X. Xxxxx
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By Xxxxxx X. Xxxxx, Secretary
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