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Exhibit (d)(3)
EXECUTION COPY
TENDER AGREEMENT
AGREEMENT, dated as of April 22, 2000 among , Dorel Industries, Inc., a
Quebec corporation ("Parent"), Diamond Acquisition Subsidiary, Inc., a
Massachusetts corporation and a wholly-owned subsidiary of Parent (the
"Purchaser"), Safety 1st, a Massachusetts corporation (the "Company"), and the
stockholders of the Company signatory hereto (collectively referred to herein as
the "Stockholders" and each, a "Stockholder").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this Agreement,
Parent, the Purchaser and the Company, have entered into an Agreement and Plan
of Merger (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"), pursuant to which the Purchaser will be merged with and
into the Company (the "Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company desire that
as soon as practicable after the execution and delivery of the Merger Agreement,
the Purchaser shall commence a cash tender offer (the "Offer") to purchase at a
price of $13.875 per share all outstanding shares of Company Common Stock (as
defined in Section 1 hereof) including all of the Shares (as defined in Section
2 hereof) beneficially owned by Stockholders; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholders agree, and the Stockholders
have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) "Company Common Stock" shall mean at any time the Common Stock, par
value $.01 per share, of the Company.
(c) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
(d) Capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement.
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2. Tender of Shares.
(a) In order to induce Parent and the Purchaser to enter into the Merger
Agreement, each of the Stockholders hereby agrees to validly tender (or cause
the record owner of such shares to validly tender), and not to withdraw,
pursuant to and in accordance with the terms of the Offer, not later than the
seventh business day after commencement of the Offer pursuant to Section 1.1 of
the Merger Agreement and Rule 14d-2 under the Exchange Act, the number of shares
of Company Common Stock set forth opposite such Stockholder's name on Schedule I
hereto (the "Existing Shares", and together with any shares acquired by such
Stockholder in any capacity after the date hereof and prior to the termination
of this Agreement whether upon the exercise of Options or by means of purchase,
dividend, distribution or otherwise, the "Shares"), all of which are
Beneficially Owned by such Stockholder. Each Stockholder hereby acknowledges and
agrees that Parent's and the Purchaser's obligation to accept for payment and
pay for the Shares in the Offer, including the Shares Beneficially Owned by such
Stockholder, is subject to the terms and conditions of the Offer.
(b) Upon acceptance and payment therefor by Purchaser, the transfer by the
Stockholders of the Shares to Purchaser in the Offer shall pass to and
unconditionally vest in the Purchaser good and valid title to the Shares, free
and clear of all Encumbrances.
(c) The Stockholders hereby permit Parent and the Purchaser to publish and
disclose in the Offer Documents and, if approval of the Company's stockholders
is required under applicable law, the Proxy Statement (including all documents
and schedules filed with the SEC), their identity and ownership of the Shares
and the nature of their commitments, arrangements and understandings under this
Agreement.
3. Additional Agreements.
(a) Voting Agreement. Each Stockholder shall, at any meeting of the
holders of Company Common Stock, however called, or in connection with any
written consent of the holders of Company Common Stock, vote (or cause to be
voted) the Shares (if any) then held of record or Beneficially Owned by such
Stockholder, (i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the approval of the terms thereof and each
of the other actions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance thereof and hereof; and (ii) against any
Acquisition Proposal and against any action or agreement that would impede,
prevent or nullify this Agreement, or result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or which would result in any of the
conditions set forth in Annex A to the Merger Agreement or set forth in Article
VIII of the Merger Agreement not being fulfilled.
(b) No Inconsistent Arrangements. Each of the Stockholders hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, it shall not (i) transfer (which term shall include, without
limitation, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of such Stockholder's Shares, Options or any interest
therein, (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such Shares, Options
or any interest
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therein, (iii) grant any proxy, power-of-attorney or other authorization in or
with respect to such Shares or Options, (iv) deposit such Shares or Options into
a voting trust or enter into a voting agreement or arrangement with respect to
such Shares or Options, or (v) take any other action that would in any way
restrict, limit or interfere with the performance of its obligations hereunder
or the transactions contemplated hereby or by the Merger Agreement.
(c) No Solicitation. Each Stockholder hereby agrees, in the capacity as a
Stockholder or otherwise, that neither such Stockholder nor any of its
Subsidiaries or affiliates shall (and such Stockholder shall use its best
efforts to cause its officers, directors, employees, representatives and agents,
including, but not limited to, investment bankers, attorneys and accountants,
not to), directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group (other than Parent,
any of its affiliates or representatives) concerning any Acquisition Proposal or
take any other action prohibited by Section 7.3 of the Merger Agreement. Each
Stockholder will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal.
(d) Waiver of Appraisal Rights. Each Stockholder hereby waives any rights
of appraisal or rights to dissent from the Merger that such Stockholder may
have.
4. Representations and Warranties of the Stockholders. Each Stockholder
hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. Such Stockholder is the record and Beneficial
Owner of the Shares, as set forth on Schedule I. On the date hereof, the
Existing Shares constitute all of the Shares owned of record or Beneficially
Owned by such Stockholder. Such Stockholder has sole voting power and sole power
to issue instructions with respect to the matters set forth in Sections 2, 3 and
4 hereof, sole power of disposition, sole power of conversion, sole power to
demand appraisal rights and sole power to agree to all of the matters set forth
in this Agreement, in each case with respect to all of the Existing Shares with
no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. Each Stockholder has the legal capacity,
power and authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by such Stockholder will not violate any other agreement to which
such Stockholder is a party including, without limitation, any voting agreement,
proxy arrangement, pledge agreement, shareholders agreement or voting trust.
This Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its terms. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which such Stockholder is a trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by such Stockholder
of the transactions contemplated hereby.
(c) No Conflicts. Except for filings under the HSR Act and the Exchange
Act, (i) no filing with, and no permit, authorization, consent or approval of,
any Governmental
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Entity is necessary for the execution of this Agreement by such Stockholder and
the consummation by such Stockholder of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by such Stockholder,
the consummation by such Stockholder of the transactions contemplated hereby or
compliance by such Stockholder with any of the provisions hereof shall (A)
conflict with or result in any breach of any organizational documents applicable
to the Stockholder, (B) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
such Stockholder is a party or by which such Stockholder or any of its
properties or assets may be bound, or (C) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to such Stockholder or
any of its properties or assets.
(d) No Encumbrances. Except as permitted by this Agreement, the Shares and
the certificates representing such Shares are now, and at all times during the
term hereof will be, held by such Stockholder, or by a nominee or custodian for
the benefit of such Stockholder, free and clear of all Encumbrances, proxies,
voting trusts or agreements, understandings or arrangements or any other rights
whatsoever, except for any such Encumbrances or proxies arising hereunder.
(e) No Finder's Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Stockholder.
5. Representations and Warranties of Parent and the Purchaser. Each of
Parent and the Purchaser hereby represents and warrants to the Stockholders as
follows:
(a) Power; Binding Agreement. Each of Parent and the Purchaser has the
corporate power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
by each of Parent and the Purchaser will not violate any other agreement to
which either of them is a party. This Agreement has been duly and validly
executed and delivered by each of Parent and the Purchaser and constitutes a
valid and binding agreement of each of Parent and the Purchaser, enforceable
against each of Parent and the Purchaser in accordance with its terms.
(b) No Conflicts. Except for filings under the HSR Act, the Exchange Act,
State Securities or State "Blue Sky" laws and the MGL (i) no filing with, and no
permit, authorization, consent or approval of, any Governmental Entity is
necessary for the execution of this Agreement by each of Parent and the
Purchaser and the consummation by each of Parent and the Purchaser of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by each of Parent and the Purchaser, the consummation by each of
Parent and the Purchaser of the transactions contemplated hereby or compliance
by each of Parent and the Purchaser with any of the provisions hereof shall (A)
conflict with or result in any breach of any organizational documents applicable
to either of Parent or the Purchaser, (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise
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to any third party right of termination, cancellation, material modification or
acceleration) under any material terms, conditions or provisions of any material
note, loan agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement understanding, agreement or other instrument or obligation of any
kind to which either of Parent or the Purchaser is a party or by which either of
Parent or the Purchaser or any of their properties or assets may be bound, or
(C) violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to either of Parent or the Purchaser or any of their
properties or assets.
6. Further Assurances. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
7. Stop Transfer. The Stockholders shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer is
made in compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for which
any or all of the Shares may be changed or exchanged.
8. Termination. This Agreement shall terminate upon the earlier to occur
of (i) the Effective Time or (ii) the termination of the Merger Agreement in
accordance with its terms.
9. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations hereunder shall
attach to the 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, a Stockholder's heirs,
guardians, administrators or successors. Notwithstanding any transfer of Shares,
the transferor shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of the other parties, provided
that Parent may assign, in its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly owned Subsidiary of Parent, but no
such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
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(d) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy (with a
confirmation copy sent for next day delivery via courier service, such as
Federal Express), or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to a Stockholder: to such Stockholder's address set forth on
Schedule I hereto
If to Parent or
Acquisition Sub: 0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx X00 0X0
Attention: President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
copy to: Shearman & Sterling
Commerce Court West
000 Xxx Xxxxxx, Xxxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore in the event
of any such breach the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and
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injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity (subject to Section 4(f) hereof).
(h) Remedies Cumulative. 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 or exclusive, and 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 (subject to Section 4(f)
hereof).
(i) No Waiver. 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.
(j) No Third Party Beneficiaries. Subject to the provisions of Section
10(c), this Agreement is not intended to be for the benefit of, and shall not be
enforceable by, any person or entity who or which is not a party hereto.
(k) Choice of Law/Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts without regard to its rules of conflict of laws. Each party hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the Commonwealth of Massachusetts and of the United States of
America located in the Commonwealth of Massachusetts (the "Massachusetts
Courts") for any litigation arising out of or relating to this Agreement and the
Transactions (and agrees not to commence any litigation relating thereto except
in such courts), waives any objection to the laying of venue of any such
litigation in the Massachusetts Courts and agrees not to plead or claim in any
Massachusetts Court that such litigation brought therein has been brought in any
inconvenient forum. Each of the parties hereto agrees, (a) to the extent such
party is not otherwise subject to service of process in the Commonwealth of
Massachusetts, to appoint and maintain an agent in the Commonwealth of
Massachusetts as such party's agent for acceptance of legal process, and (b)
that service of process may also be made on such party by prepaid certified mail
with a proof of mailing receipt validated by the United States Postal Service
constituting evidence of valid service. Service made pursuant to (a) or (b)
above shall have the same legal force and effect as if served upon such party
personally within the Commonwealth of Massachusetts. For purposes of
implementing the parties' agreement to appoint and maintain an agent for service
of process in the Commonwealth of Massachusetts, each party does hereby appoint
CT Corporation, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, as
such agent.
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
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(m) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same Agreement.
(n) No Agreement Until Executed. Irrespective of negotiations among the
parties or the exchanging of drafts of this Agreement, this Agreement shall not
constitute or be deemed to evidence a contract, agreement, arrangement or
understanding among the parties hereto unless and until (i) the Company Board
has approved, for purposes of Section 110F of the MGL and any applicable
provision of the Articles of Organization, the terms of this Agreement and (ii)
this Agreement is executed by parties hereto.
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[TENDER AGREEMENT]
[PURCHASER SIGNATURE PAGE]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the day and year first above written.
DOREL INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
DIAMOND ACQUISITION SUBSIDIARY, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President and Treasurer
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[TENDER AGREEMENT]
[COMPANY SIGNATURE PAGE]
SAFETY 1ST, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxxxx
Title: CEO
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[TENDER AGREEMENT]
[STOCKHOLDER SIGNATURE PAGE]
STOCKHOLDERS
/s/ Xxxxxxx Xxxxxx
------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxxxx
---------------------
Xxxxxxx Xxxxxxxxx
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Bear, Xxxxxxx & Co., Inc.
/s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx
DB Capital Partners, Inc.
/s/ Xxxxxx Xxxx
---------------
Xxxxxx Xxxx
BT Capital Partners, Inc.
/s/ Xxxx Xxxxx
--------------
Xxxx Xxxxx
Schedule I
Number of Shares
and Options
Name and Address of Stockholder Beneficially Owned
Xxxxxxx Xxxxxx 2,764,000
Xxxxxxx Xxxxxxxxx 566,151
BT Capital Partners, Inc. 634,173
Bear, Xxxxxxx & Co., Inc. 633,009
Xxxx Xxxxx 422,000
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