================================================================================
VOTING AND TENDER AGREEMENT
by and among
XXXXXX CORPORATION,
RICOH COMPANY LTD.
and
LW ACQUISITION CORP.
Dated as of November 29, 2000
TABLE OF CONTENTS
PAGE
VOTING AND TENDER AGREEMENT............................................1
ARTICLE I DEFINITIONS............................................1
ARTICLE II AGREEMENT OF PRINCIPAL STOCKHOLDER TO TENDER AND
TO VOTE................................................2
Section 2.1 Tender Agreement.......................................2
Section 2.2 Voting Agreement.......................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL
STOCKHOLDER............................................3
Section 3.1 Authority Relative to This Agreement...................3
Section 3.2 No Conflict(a).........................................3
Section 3.3 Title to the Shares....................................4
Section 3.4 No Finder's Fee........................................4
ARTICLE IV COVENANTS OF THE PRINCIPAL STOCKHOLDER.................4
Section 4.1 No Inconsistent Agreements.............................4
Section 4.2 No Encumbrances........................................4
Section 4.3 No Solicitation........................................5
Section 4.4 Waiver of Appraisal Rights.............................5
Section 4.5 Commercially Reasonable Efforts........................5
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND
MERGER SUBSIDIARY......................................5
Section 5.1 Authority Relative to This Agreement...................5
Section 5.2 No Conflict............................................6
ARTICLE VI MISCELLANEOUS..........................................6
Section 6.1 Termination............................................6
Section 6.2 Non-Survival...........................................6
Section 6.3 Specific Performance...................................7
Section 6.4 Headings...............................................7
Section 6.5 Entire Agreement.......................................7
Section 6.6 Amendment..............................................7
Section 6.7 Severability...........................................7
Section 6.8 Governing Law..........................................7
Section 6.9 Jurisdiction...........................................7
Section 6.10 Waiver of Jury Trial...................................8
Section 6.11 Counterparts...........................................8
Section 6.12 Successors and Assigns.................................8
Section 6.13 Notices................................................8
VOTING AND TENDER AGREEMENT
VOTING AND TENDER AGREEMENT, dated as of November 29, 2000 (this
"AGREEMENT"), between XXXXXX CORPORATION, a Delaware corporation (the "PRINCIPAL
STOCKHOLDER"), RICOH COMPANY LTD., a Japanese corporation ("PARENT"), and LW
ACQUISITION CORP., a Delaware corporation and a wholly-owned subsidiary of
Parent ("MERGER SUBSIDIARY").
WHEREAS, Xxxxxx Worldwide, Inc., a Delaware corporation (the
"Company"), Parent and Merger Subsidiary are entering into an Agreement and Plan
of Merger, dated as of the date hereof (as amended from time to time in
accordance with its terms, the "MERGER AGREEMENT"), which provides for, among
other things, an offer to purchase by Merger Subsidiary all of the issued and
outstanding shares of common stock, par value $0.01 per share, of the Company
(the "COMMON SHARES"), including the associated rights ("RIGHTS") to purchase
shares of Participating Preferred Stock, $.01 par value per share, issued
pursuant to the Company Rights Plan (the Common Shares, together with the
Rights, are hereinafter referred to as the "COMPANY SHARES"), followed by the
merger of Merger Subsidiary with and into the Company (the "MERGER"), with the
Company surviving the Merger;
WHEREAS, as of the date hereof, the Principal Stockholder owns
8,785,958 Company Shares; and
WHEREAS, as a condition to the willingness of Parent and Merger
Subsidiary to enter into the Merger Agreement, each of Parent and Merger
Subsidiary has requested that the Principal Stockholder agree, and the Principal
Stockholder has agreed, to enter into this Agreement with respect to (a) all of
the Company Shares now owned and which may hereafter be acquired (whether by
means of purchase, dividend, distribution or in any other way) by the Principal
Stockholder (collectively, the "SHARES") and (b) certain other matters as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed to them in the Merger Agreement as in effect on
the date hereof.
2
ARTICLE II
AGREEMENT OF PRINCIPAL STOCKHOLDER TO TENDER AND TO VOTE
Section 2.1 TENDER AGREEMENT. (a)(i) The Principal Stockholder shall
validly tender for sale to Merger Subsidiary, pursuant to the terms of the Offer
and Rule 14d-2 under the Exchange Act, no later than the tenth business day
after commencement of the Offer or, if later, the fifth business day following
receipt of the applicable Offer Documents, the Company Shares then owned of
record or beneficially by the Principal Stockholder and (ii) except as provided
in clause (a)(i) above, during the time this Agreement is in effect, the
Principal Stockholder shall not transfer, sell, give, assign, hypothecate,
pledge, encumber, grant a security interest in, enter into any contract, option
or other agreement or understanding with respect to, or otherwise dispose of
(whether by operation of law or by agreement or otherwise), any Company Shares,
or any right, title or interest therein or thereto. The Principal Stockholder
hereby acknowledges and agrees that Parent's and Merger Subsidiary's obligation
to accept for payment and pay for the Company Shares in the Offer, including all
Company Shares beneficially owned by the Principal Stockholder, is subject to
the terms and conditions of the Offer and the Merger Agreement.
(b) The Principal Stockholder shall not, subject to applicable law,
withdraw the tender of its Company Shares effected in accordance with the
foregoing paragraph (a); provided, however, the Principal Stockholder may
decline to tender, or may withdraw, any and all of such Company Shares, if (i)
without the prior written consent of the Principal Stockholder, Parent and/or
Merger Subsidiary shall amend the Offer to (A) reduce the price per share to be
paid to less than $3.00 per share, net to the seller in cash, (B) reduce the
number of Common Shares subject to the Offer, (C) change the form of
consideration payable in the Offer, or (D) amend or modify any term or condition
of the Offer in a manner adverse to the stockholders of the Company; (ii) any
governmental entity shall have issued a final, nonappealable order, decree or
ruling or taken any other action permanently restraining, enjoining, or
otherwise prohibiting, the Principal Stockholder from tendering Company Shares;
or (iii) the Company's board of directors has not recommended to stockholders of
the Company, or has withdrawn its recommendation, that such stockholders accept
the Offer and tender their Company Shares pursuant to the Offer and approve and
adopt the Merger Agreement and Merger.
(c) The Principal Stockholder hereby permits Parent and Merger
Subsidiary 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) its identity and
ownership of the Company Shares and the nature of its commitments, arrangements
and undertakings under this Agreement, subject to providing a copy of such
disclosure to the Principal Stockholder and considering any reasonable comments
thereon provided by the Principal Stockholder.
3
Section 2.2 VOTING AGREEMENT. The Principal Stockholder hereby
agrees that during the time this Agreement is in effect, at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, the Principal Stockholder shall vote its Company
Shares in a manner consistent with Section 2.01(b) of the Registration Rights
Agreement, dated November 5, 1999, between Principal Stockholder and the
Company, as the same is in effect on the date hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL STOCKHOLDER
The Principal Stockholder hereby represents and warrants to Parent
and Merger Subsidiary as follows:
Section 3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. The Principal
Stockholder has all necessary corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by the Principal Stockholder and the consummation by the Principal
Stockholder of the transactions contemplated hereby have been duly and validly
authorized by the Principal Stockholder, and no other proceedings on the part of
the Principal Stockholder are necessary to authorize this Agreement or to
consummate such transactions. This Agreement has been duly and validly executed
and delivered by the Principal Stockholder and, assuming the due authorization,
execution and delivery by Parent and Merger Subsidiary, constitutes a legal,
valid and binding obligation of the Principal Stockholder, enforceable against
the Principal Stockholder in accordance with its terms.
Section 3.2 NO CONFLICT. (a) The execution and delivery of this
Agreement by the Principal Stockholder do not, and the performance of this
Agreement by the Principal Stockholder shall not, (i) conflict with or violate
the organizational documents of the Principal Stockholder, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to the
Principal Stockholder or by which the Shares are bound or affected or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse or time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the Company Shares pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Principal
Stockholder is a party or by which the Principal Stockholder or the Company
Shares are bound or affected, except, in the case of clauses (ii) and (iii), for
any such conflicts, violations, breaches, defaults or other occurrences which
would not prevent or delay the performance by the Principal Stockholder of its
obligations under this Agreement.
4
(b) The execution and delivery of this Agreement by the Principal
Stockholder do not, and the performance of this Agreement by the Principal
Stockholder shall not, require any consent, approval, authorization or permit
of, or filing with or notification to, any court or arbitrator or any
Governmental Entity except for (i) applicable requirements, if any, of the HSR
Act and the Exchange Act, (ii) any requirements imposed solely as a result of
the fact that Parent is not incorporated in the United States and (iii) 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 Principal Stockholder of its obligations under this
Agreement.
Section 3.3 TITLE TO THE SHARES. As of the date hereof, the
Principal Stockholder is the record and beneficial owner of 8,785,958 Company
Shares. Such Company Shares are all of the securities of the Company owned,
either of record or beneficially, by the Principal Stockholder and the Principal
Stockholder owns no other rights or interests exercisable for or convertible
into any securities of the Company. The Company Shares are owned free and clear
of all security interests, liens, claims, pledges, options, rights of first
refusal, agreement, limitations on the Principal Stockholder's voting rights
(other than the Registration Rights Agreement, dated November 5, 1999, between
the Company and the Principal Stockholder), charges and other encumbrances of
any nature whatsoever. The Principal Stockholder has not appointed or granted
any proxy, which appointment or grant is still effective, with respect to the
Company Shares, except in connection with the 2000 Annual Meeting of the
Company. Upon purchase of the Company Shares by Merger Subsidiary, Merger
Subsidiary will at the time of such purchase deliver to Merger Subsidiary good
and valid title to the Company Shares, free and clear of any lien, charge,
encumbrance or similar claim of whatever nature.
Section 3.4 NO FINDER'S FEE. 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 hereby based upon arrangements made by or on behalf of the
Principal Stockholder.
ARTICLE IV
COVENANTS OF THE PRINCIPAL STOCKHOLDER
Section 4.1 NO INCONSISTENT AGREEMENTS. The Principal Stockholder
hereby covenants and agrees that, except as contemplated by this Agreement, the
Principal Stockholder shall not enter into any agreement or grant a proxy or
power of attorney with respect to the Company Shares which is inconsistent with
this Agreement.
Section 4.2 NO ENCUMBRANCES. The Principal Stockholder hereby
covenants and agrees that the Principal Stockholder shall not by any action or
omission cause any security interests, liens, claims, pledges, charges,
encumbrances, options, rights of first refusal, agreements or limitations on the
Principal Stockholder's voting rights, to
5
attach to the Company Shares to be tendered to Merger Subsidiary pursuant to
Section 2.1.
Section 4.3 NO SOLICITATION. The Principal Stockholder hereby agrees
that it shall not (and shall cause its Subsidiaries, controlled Affiliates,
officers, directors, partners, employees and, to the extent acting on its
behalf, its 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 negotiate with, or
provide any information to, any Person or group (other than Parent) concerning
any Acquisition Proposal, or make a public announcement in support of any
Acquisition Proposal or that encourages stockholders of the Company not to
support the Offer and the Merger. From and after the execution of this Agreement
and while this Agreement is in effect, the Principal Stockholder shall
immediately advise Parent in writing upon the receipt, directly or indirectly,
of any inquiries, discussions, negotiations or proposals relating to an
Acquisition Proposal, identify the offeror and furnish to Parent a copy of any
such proposal or inquiry, if it is in writing, or a written summary of any oral
proposal or inquiry relating to an Acquisition Proposal. The Principal
Stockholder shall promptly advise Parent of any development relating to such
proposal.
Section 4.4 WAIVER OF APPRAISAL RIGHTS. The Principal Stockholder
hereby waives any rights of appraisal or rights to dissent from the Merger that
it may have under the DGCL or otherwise.
Section 4.5 COMMERCIALLY REASONABLE EFFORTS. The Principal
Stockholder shall promptly consult with Parent and use commercially reasonable
efforts to provide any necessary information and material with respect to all
filings made by the Principal Stockholder with any Governmental Entity in
connection with this Agreement and the Merger Agreement and the transactions
contemplated hereby and thereby. Parent acknowledges that the Principal
Stockholder will file an amendment to Schedule 13D or 13G in connection with
this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGER SUBSIDIARY
Parent and Merger Subsidiary hereby represent and warrant to the
Principal Stockholder as follows:
Section 5.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Each of Parent and
Merger Subsidiary has all necessary power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Parent and Merger Subsidiary and the consummation by Parent and Merger
Subsidiary of the transactions contemplated hereby have been duly and validly
authorized by Parent and Merger Subsidiary, and no other proceedings on the part
of Parent or Merger Subsidiary
6
are necessary to authorize this Agreement or to consummate such transactions.
This Agreement has been duly and validly executed and delivered by Parent and
Merger Subsidiary and, assuming the due authorization, execution and delivery by
the Principal Stockholder, constitutes a legal, valid and binding obligation of
Parent and Merger Subsidiary, enforceable against them in accordance with its
terms.
Section 5.2 NO CONFLICT. (a) The execution and delivery of this
Agreement by each of Parent and Merger Subsidiary do not, and the performance of
this Agreement by each of Parent and Merger Subsidiary shall not, (i) conflict
with or violate the organizational documents of the Parent or Merger Subsidiary,
(ii) conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to the Parent or Merger Subsidiary or (iii) result in any
breach of or constitute a default (or an event that with notice or lapse or time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of any material note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Parent or Merger Subsidiary is a
party or by which Parent or Merger Subsidiary is bound or affected, except, in
the case of clauses (ii) and (iii), for any such conflicts, violations,
breaches, defaults or other occurrences which would not prevent or delay the
performance by the Parent or Merger Subsidiary of its obligations under this
Agreement or the Merger Agreement.
(b) The execution and delivery of this Agreement by each of Parent
and Merger Subsidiary do not, and the performance of this Agreement by each of
Parent and Merger Subsidiary shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any court or
arbitrator or any Governmental Entity except for applicable requirements, if
any, of the HSR Act and the Exchange Act and 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 Parent or
Merger Subsidiary of its obligations under this Agreement or the Merger
Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 TERMINATION. This Agreement shall terminate upon the
earlier of (i) the Effective Time; (ii) the termination of the Merger Agreement
in accordance with its terms; (iii) the termination of the Agreement at the
written election of the Principal Stockholder in the event the Principal
Stockholder is entitled to decline to tender or withdraw Company Shares pursuant
to the proviso contained in Section 2.1(b) of this Agreement; and (iv) by
written notice given by the Principal Stockholder to the Parent if the Offer has
not been effected by the 120th day following the date hereof.
Section 6.2 NON-SURVIVAL. The representations and warranties made
herein shall terminate upon the Principal Stockholder's sale of the Shares to
Merger
7
Subsidiary in the Offer, other than the Principal Stockholder's representations
in Sections 3.3 and 3.4, which shall survive the sale of the Shares.
Section 6.3 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event that the provisions of this
Agreement are not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
Section 6.4 HEADINGS. The headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 6.5 ENTIRE AGREEMENT. This Agreement, together with the
Confidentiality Agreement, September 28, 2000, by and among Parent and Principal
Stockholder, constitute the entire agreement among Parent, Merger Subsidiary and
the Principal Stockholder with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
Parent, Merger Subsidiary and the Principal Stockholder with respect to the
subject matter hereof and thereof.
Section 6.6 AMENDMENT. This Agreement may not be amended except by
an instrument in writing signed by each of the parties hereto.
Section 6.7 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. 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 a mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated.
Section 6.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state.
Section 6.9 JURISDICTION. Each party to this Agreement hereby
irrevocably agrees that any legal action or proceeding arising out of or
relating to this Agreement or any agreements or transactions contemplated hereby
shall be brought in the courts of the State of Delaware and hereby expressly
submits to the personal jurisdiction and venue of such courts for the purposes
thereof and expressly waives any claim of improper venue and any claim that such
courts are an inconvenient forum. Each party hereby irrevocably consents to the
service of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or
8
certified mail, postage prepaid, to the address set forth or referred to in
Section 6.13, such service to become effective 10 days after such mailing.
Section 6.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 6.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Section 6.12 SUCCESSORS AND Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto (and which transfer
shall not relieve the Principal Stockholder of its obligations hereunder in the
event of a breach by its transferee).
Section 6.13 NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopy or similar
writing) and shall be given,
if to Parent or Merger Subsidiary, to:
00-0, Xxxxxx-Xxxxxx 0-Xxxxx
Xxxxxx-xx, Xxxxx 000-0000, Xxxxx
Telephone: (00) 0-0000-0000
Telecopy: (00) 0-0000-0000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X.
Xxxxxxxxxx, Esq.
9
if to the Principal Stockholder, to:
Xxxxxx Corporation
0000 Xxxx Xxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Corporate Secretary
with a copy to:
Xxxxxx Corporation
0000 Xxxx Xxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
or such other address or telecopy number as such party may hereafter specify for
the purpose by notice to the other parties hereto given in accordance with this
Section 6.13. Each such notice, request or other communication shall be
effective when delivered at the address specified in this Section 6.13.
10
IN WITNESS WHEREOF, the Principal Stockholder, Parent and Merger
Subsidiary have caused this Agreement to be duly executed as of the date hereof.
XXXXXX CORPORATION
By: /s/ XXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President - Treasurer
RICOH COMPANY LTD.
By: /s/ XXXXXX XXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director and
Executive Vice President
LW ACQUISITION CORP.
By: /s/ XXXXXX XXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
