EXHIBIT 99.3
CONFORMED COPY
STOCKHOLDER AGREEMENT dated as of July 21, 1998,
among XXXXXXX & XXXXXXX, a New Jersey corporation
("Parent"), LIB ACQUISITION CORP., a Delaware
corporation and a wholly owned subsidiary of Parent
("Sub") and the parties listed on Schedule A attached
hereto (the "Stockholders").
WHEREAS Parent, Sub and DePuy, Inc., a Delaware corporation
(the "Company"), propose to enter into an Agreement and Plan of Merger dated as
of the date hereof (as the same may be amended or supplemented in accordance
with this Agreement, the "Merger Agreement") providing for (i) the making of a
cash tender offer (as such offer may be amended from time to time as permitted
under the Merger Agreement, the "Offer") by Sub for all the outstanding shares
of common stock, par value $.01 per share, of the Company ("Company Common
Stock") and (ii) for the merger of Sub with and into the Company (the "Merger"),
upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS each Stockholder is the record and beneficial owner of
the number of shares of Company Common Stock set forth opposite such
Stockholder's name on Schedule A attached hereto (such shares of Company Common
Stock, together with any other shares of capital stock of the Company acquired
by the Stockholders after the date hereof and during the term of this Agreement
(including through the exercise of any stock options, warrants or similar
instruments), being collectively referred to herein as the "Subject Shares");
and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Sub have requested that the Stockholders enter into
this Agreement.
NOW, THEREFORE, to induce Parent and Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Purchase and Sale of Shares. (a) The Stockholders
hereby jointly and severally agree to sell to Sub, and Sub hereby agrees to
purchase, all Subject Shares of such Stockholders at a price equal to the
Offer Price; provided that such obligation to sell and such obligation to
purchase are subject to Sub having accepted shares of Company Common Stock
for payment under the Offer in accordance with Section 1.01 of the Merger
Agreement. Each Stockholder may tender its Subject Shares into the Offer
and Sub may direct that each Stockholder tender its Subject Shares. Any
Subject Shares not purchased in the Offer will be purchased by Sub
immediately following the purchase of shares of Company Common Stock in the
Offer. Sub shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement such amounts as may be
required to be deducted and withheld with respect to the making of such
payment under the Internal Revenue Code of 1986, as amended, or under any
provision of state, local or foreign tax law; provided, however, that Sub
shall promptly pay any amounts deducted and withheld hereunder to the
applicable governmental authority, shall promptly file all tax returns and
reports required to be filed in respect of such deductions and withholding,
and shall promptly provide to the Stockholders proof of such payment and a
copy of all such tax returns and reports.
(b) The Stockholders shall not be required to tender their
Subject Shares in the event of any amendment to the Merger Agreement that
creates any additional Offer Condition, reduces the Offer Price or otherwise
adversely affects the Stockholders without the prior written approval of the
Stockholders.
2. Representations and Warranties of the Stockholders.
The Stockholders hereby jointly and severally represent and warrant to
Parent and Sub as follows:
(a) Authority. Each Stockholder has all requisite corporate
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by each Stockholder, and the
consummation of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of each
Stockholder. This Agreement has been duly executed and delivered by
each Stockholder and constitutes a valid and binding obligation of each
Stockholder enforceable against each such Stockholder in accordance
with its terms. Except for the expiration or termination of the
applicable waiting periods under the Merger Control Laws (as defined
below) and required filings with the Securities and Exchange
Commission, the execution and delivery of this Agreement do not, and
the consummation by Stockholders of the transactions contemplated
hereby and compliance with the terms hereof will not, (i) conflict
with, or result in any violation of, or default (with or without notice
or lapse of time or both) under any provision of, any trust agreement,
loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to any Stockholder or to the property or assets
of any Stockholder, (ii) require any filing with, or permit,
authorization, consent or approval of, any Federal, state or local
government or any court, tribunal, administrative agency or commission
or other governmental or regulatory authority or agency, domestic,
foreign or supranational, or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to any Stockholder or
any of the properties or assets of any Stockholder, including the
Subject Shares. "Merger Control Laws" means (i) the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and
(ii) Council Regulation (EEC) No. 4064/89 of 21 December 1989 and (iii)
all amendments of, and all other applicable bills, acts, decrees,
regulations or ordinances relating to, the foregoing legislative acts.
(b) Capitalization. At the close of business on July 20,
1998, the Stockholders were the record and beneficial owners of
83,000,000 Shares.
(c) The Subject Shares. Each Stockholder is the
record and beneficial owner of, and has good and valid title to,
the Subject Shares set forth opposite its name on Schedule A
attached hereto, free and clear of any claims, liens,
encumbrances, security interests, options, charges and
restrictions of any kind (other than restrictions pursuant to
applicable securities laws). Each Stockholder does not own, of
record or beneficially, any shares of capital stock of the Company
other than the Subject Shares set forth opposite its name on
Schedule A attached hereto. Each Stockholder has the sole right
to vote such Subject Shares, and none of such Subject Shares are
subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Subject Shares,
except as contemplated by this Agreement.
(d) Brokers. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Stockholders.
3. Representation and Warranty of Parent and Sub. Parent
and Sub hereby jointly and severally represent and warrant to the
Stockholders as follows:
(a) Authority. Parent and Sub have all requisite corporate
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by each of Parent and Sub,
and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of each
of Parent and Sub. This Agreement has been duly executed and delivered
by Parent and Sub and constitutes a valid and binding obligation of
Parent and Sub enforceable against Parent and Sub in accordance with
its terms. Except for the expiration or termination of the applicable
waiting periods under the Merger Control Laws and required filings with
the Securities and Exchange Commission, the execution and delivery of
this Agreement do not, and the consummation by Parent and Sub of the
transactions contemplated hereby and compliance with the terms hereof
will not, (i) conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under any provision
of, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, notice, decree,
statute, law, ordinance, rule or regulation applicable to Parent or Sub
or to the property or assets of Parent or Sub, (ii) require any filing
with, or permit, authorization, consent or approval of, any Federal,
state or local government or any court, tribunal, administrative agency
or commission or other governmental or regulatory authority or agency,
domestic, foreign or supranational, or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Parent or
Sub or any of the properties or assets of Parent or Sub.
(b) Securities Act. The Subject Shares will be acquired in
compliance with, and Sub will not offer to sell or otherwise dispose of
any Shares so acquired by it in violation of the registration
requirements of, the Securities Act of 1933, as amended.
(c) Financing. Sub has, or will have at the time that any
payment is required to be made to any Stockholder hereunder, the funds
necessary to make such payment to such Stockholder.
(d) Brokers. No broker, investment banker, financial advisor
or other person, other than Credit Suisse First Boston Corporation, the
fees and expenses of which will be paid by Parent, is entitled to any
broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Parent or
Sub.
4. Covenants of Stockholders. The Stockholders jointly
and severally agree as follows:
(a) At any meeting of stockholders of the Company called to
vote upon the Merger and the Merger Agreement or at any adjournment
thereof or in any other circumstances upon which a vote, consent or
other approval (including by written consent) with respect to the
Merger and the Merger Agreement is sought, the Stockholders shall vote
(or cause to be voted) the Subject Shares in favor of the Merger, the
adoption by the Company of the Merger Agreement and the approval of the
terms thereof and each of the other transactions contemplated by the
Merger Agreement; provided that no amendment to the Merger Agreement
will be made that creates additional Offer Conditions, reduces the
Offer Price or otherwise adversely affects the Stockholders without the
prior approval of the Stockholders.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholders' votes, consents or other approvals are sought, the
Stockholders shall vote (or cause to be voted) the Subject Shares
against (i) any Takeover Proposal (as such term is defined in Section
6.02 of the Merger Agreement) and (ii) any amendment of the Company's
Certificate of Incorporation or Bylaws or other proposal or transaction
involving the Company, which amendment or other proposal or transaction
would be reasonably likely to impede, frustrate, prevent, delay or
nullify the Offer, the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement or change in any
manner the voting rights of any class of Company Common Stock. The
Stockholders further agree not to enter into any agreement inconsistent
with the foregoing.
(c) The Stockholders shall not (i) sell, transfer, give,
pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or consent to any Transfer of, any or all
of such Subject Shares or any interest therein or enter into any
contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, the Subject Shares to any
person other than pursuant to the terms of the Offer or the Merger or
otherwise to Sub in accordance with Section 1 or (ii) enter into any
voting arrangement, whether by proxy, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to the Subject Shares in
connection with, directly or indirectly, any Takeover Proposal. The
Stockholders shall not commit or agree to take any of the foregoing
actions.
(d) The Stockholders shall not, and shall use their reasonable
efforts to cause any investment banker, financial advisor, attorney,
accountant or other representative of any such Stockholder not to,
directly or indirectly, (i) solicit, initiate or encourage (including
by way of furnishing information), or take any other action to
facilitate, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Takeover
Proposal or (ii) participate in any discussions or negotiations
regarding any Takeover Proposal.
5. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each Stockholder hereby irrevocably grants to, and appoints, Parent
and Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx, in their respective capacities
as officers of Parent, and any individual who shall hereafter succeed to
any such office of Parent, and each of them individually, such
Stockholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of such Stockholder, to vote such
Stockholder's Subject Shares, or grant a consent or approval in respect of
such Subject Shares against (i) any Takeover Proposal or (ii) any amendment
of the Company's Certificate of Incorporation or Bylaws, or other proposal
or transaction (including any consent solicitation to remove or elect any
directors of the Company) involving the Company which amendment or other
proposal or transaction would be reasonably likely to impede, frustrate,
prevent, delay or nullify the Offer, the Merger, the Merger Agreement or
any of the other transactions contemplated by the Merger Agreement.
(b) Each Stockholder represents that any proxies heretofore
given in respect of such Stockholder's Subject Shares are not irrevocable, and
that any such proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 5 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Stockholder in accordance with this Agreement.
Such Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. Such Stockholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 212(e)
of the Delaware General Corporation Law (the "DGCL"). Such irrevocable proxy
shall be valid until the earlier to occur of (i) eleven months from the date
hereof or (ii) the termination of this Agreement pursuant to Section 9.
(d) Any action taken by Parent pursuant to the proxy granted
under Section 5(a)(ii) shall provide that the Stockholders may revoke such
action effective upon termination of the Merger Agreement.
6. Further Assurances. Upon the terms and subject to the
conditions set forth in this Agreement, each of the parties agrees to use
all reasonable efforts (as described in Section 7.03(a) of the Merger
Agreement) to consummate and make effective, in the most expeditious manner
practicable, the Offer and the Merger, and the other transactions
contemplated by this Agreement and the Merger Agreement.
7. Certain Events. (a) Each Stockholder agrees that
this Agreement and the obligations hereunder shall attach to such
Stockholder's Subject Shares and shall be binding upon any person or entity
to which legal or beneficial ownership of such Subject Shares shall pass,
whether by operation of law or otherwise, including such Stockholder's
administrators or successors. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Company Common Stock, or the
acquisition of additional shares of Company Common Stock or other voting
securities of the Company by any Stockholder, the number of Subject Shares
listed in Schedule A beside the name of such Stockholder shall be deemed
adjusted appropriately and this Agreement and the obligations hereunder
shall attach to any additional shares of Company Common Stock or other
voting securities of the Company issued to or acquired by such Stockholder.
(b) Each Stockholder agrees that it will deliver to the
Company, within 10 business days after the date hereof (or, in the event Subject
Shares are acquired subsequent to the date hereof within 10 business days after
the date of such acquisition), any and all certificates representing such
Stockholder's Subject Shares solely for the purpose of the Company inscribing
upon such certificates the legend in accordance with Section 7.13 of the Merger
Agreement.
8. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of the other parties, except that
(i) Sub may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to any U.S. subsidiary of Parent that
may be substituted for Sub as contemplated by Section 2.01 of the Merger
Agreement, and (ii) Parent may assign, in its sole discretion, any and all
of its rights, interests and obligations hereunder to any direct or
indirect wholly owned subsidiary of Parent, provided that Parent will
remain liable for its obligations hereunder in the event of any assignment
pursuant to this clause (ii). 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.
9. Termination. (a) This Agreement, and all rights and
obligations of the parties hereunder, shall terminate upon the date upon
which the Merger Agreement is terminated in accordance with its terms.
Notwithstanding the foregoing, Sections 8, 9 and 10 shall survive any
termination of this Agreement.
(b) Notwithstanding Section 9(a) above, Stockholders may
terminate this Agreement in the event the Company has the right to terminate the
Merger Agreement pursuant to Section 9.01(b) thereof.
10. General Provisions.
(a) Amendments. This Agreement may not be amended
except by an instrument in writing signed by each of the parties
hereto.
(b) Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed), sent by overnight courier (providing
proof of delivery) or mailed by registered or certified mail (return
receipt requested) to Parent and Sub in accordance with Section 10.02
of the Merger Agreement and to the Stockholders at their respective
addresses or telecopier numbers set forth on Schedule A attached hereto
(or at such other address or telecopier number for a party as shall be
specified by like notice).
(c) Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section to this Agreement
unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Wherever the words
"include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation".
Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger
Agreement.
(d) Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that each party need not sign the
same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein)
(i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof and (ii) is not intended to
confer upon any person other than the parties hereto any rights or
remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware
regardless of the laws that might otherwise govern under applicable
principles of conflicts of law thereof.
(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
rule of law or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect. Upon
such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent
of the parties as closely as possible to the fullest extent permitted
by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
11. Enforcement. The parties 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. 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 of this
Agreement in any court of the United States located in the State of
Delaware or in a Delaware state court, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party
will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, (iii) agrees that such party
will not bring any action relating to this Agreement or the transactions
contemplated hereby in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court and (iv) waives any right to
trial by jury with respect to any claim or proceeding related to or arising
out of this Agreement or any of the transactions contemplated hereby.
12. Public Announcements. Parent and Sub, on the one
hand, and the Stockholders, on the other hand, will consult with each other
before issuing, and provide each other with a reasonable opportunity to
review and comment upon, any press release or other public statements with
respect to the transactions contemplated by this Agreement and the Merger
Agreement, including the Offer and the Merger, and shall not issue, or
permit any of their respective subsidiaries to issue, any such press
release or make any such public statement prior to such consultation,
except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange or national securities quotation system, in which case the party
making such release will use reasonable efforts to obtain comments from the
other party before issuance of such release or statement.
13. Indemnification. Parent agrees to indemnify and hold
harmless each Stockholder from all liability for taxes, costs and other expenses
incurred by any Stockholder or any affiliate of any Stockholder (other than the
Company or any of its foreign or domestic subsidiaries) solely as a result of
Parent's exercise of its right to purchase the Company's foreign subsidiaries
prior to the closing of the Offer pursuant to Section 7.14 of the Merger
Agreement, to the extent such taxes, costs or other expenses are in excess of
the taxes, costs or other expenses that would have been incurred by such
Stockholder or such affiliate of such Stockholder (other than the Company or any
of its foreign or domestic subsidiaries) if Parent had not exercised such right
prior to closing of the Offer.
IN WITNESS WHEREOF, Parent, Sub and the Stockholders have
caused this Agreement to be duly executed and delivered as of the date first
written above.
XXXXXXX & XXXXXXX,
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
LIB ACQUISITION CORP.,
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CORANGE LIMITED,
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
CORANGE INTERNATIONAL LIMITED,
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
CORANGE INTERNATIONAL HOLDING B.V.,
By: /s/ X. X. VAN DER HOEK
------------------------------------
Name: X. X. van der Hoek
Title: Directo
PHARMINVEST S.A.,
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President & GM
SCHEDULE A
Number of Shares
Name, Address of Company Common
and Telecopier Stock Owned of
Number of Stockholder Record
--------------------- ------------------
Corange Limited 3,168,745
Xxxxxx Xxxxx, Xxxxxx xxx Xxxxxxxxxx
Xxxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: President
Tel: xx0 000 000 00 00
Fax: xx0 000 000 00 00
Corange International Limited 528,247
Xxxxxx Xxxxx, Xxxxxx xxx Xxxxxxxxxx
Xxxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: President
Tel: xx0 000 000 00 00
Fax: xx0 000 000 00 00
Corange International Holding B.V. 13,272,193
c/o Roche Nederland X.X.
Xxxxxxxxxxxxxx 00
NL-3641 AA Mijdrecht The Netherlands
Attention: General Manager
Tel: xx00 000 00 00 00
Fax: xx00 000 00 00 00
Pharminvest S.A. 66,030,815
000 Xxx xx Xxxxxx
X-0000 Xxxxxxxxxx, Xxxxxxxxxx
Attention: President
Tel: xx000 00 0000-0
Fax: xx000 00 00 00
