Exhibit (c)(3)
Tender and Option Agreement, dated as of December 20, 1998, by and among Parent,
Purchaser and certain stockholders of the Company.
TENDER AND OPTION AGREEMENT
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TENDER AND OPTION AGREEMENT, dated as of December 20, 1998 (the
"Agreement"), among Rohm and Xxxx Company, a Delaware corporation ("Parent"),
Lightning Acquisition Corp., a New York corporation and a wholly owned
subsidiary of Parent ("Purchaser"), LeaRonal, Inc., a New York corporation (the
"Company") and each of the persons listed on Schedule A hereto (each a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, Purchaser and 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, the "Merger Agreement") providing for, among other
things, 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 Purchaser
for all of the issued and outstanding shares of common stock, par value $1.00
per share, of the Company (referred to herein as either the "Shares" or "Company
Common Stock") and the merger of the Company and Purchaser on the terms and
conditions set forth in the Merger Agreement (the "Merger");
WHEREAS, each Stockholder is the beneficial owner of the Shares set
forth opposite such Stockholder's name on Schedule A hereto; such Shares, as
such Shares may be adjusted by stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company, together with Shares issuable
upon the exercise of options (including the Options set forth in Schedule A) (as
the same may be adjusted as aforesaid), being collectively referred to herein as
the "Shares" of such Stockholder; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that the Stockholders enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Purchaser 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:
Section 1. Certain Definitions. Capitalized terms used but not
-------------------
otherwise defined herein have the meanings ascribed to such terms in the Merger
Agreement.
Section 2. Representations and Warranties of the Stockholders. Each
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Stockholder, severally and not jointly, represents and warrants to Parent and
Purchaser, as of the date hereof and as of the Closing (as defined below), as
follows:
(a) The Stockholder is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which meaning will apply for all purposes of this Agreement) of, and has
good title to, all of the Shares (including the Options), free and clear of any
mortgage, pledge, hypothecation, rights of others, claim, security
interest, charge, encumbrance, title defect, title retention agreement, voting
trust agreement, interest, option, lien, charge or similar restriction or
limitation, including any restriction on the right to vote, sell or otherwise
dispose of the Shares (each, a "Lien"), except as set forth in this Agreement.
(b) The Shares (including the Options) constitute all of the
securities (as defined in Section 3(a)(10) of the Exchange Act, which definition
will apply for all purposes of this Agreement) of the Company beneficially
owned, directly or indirectly, by the Stockholder.
(c) Except for the Shares (including the Options), the
Stockholder does not, directly or indirectly, beneficially own or have any
option, warrant or other right to acquire any securities of the Company that are
or may by their terms become entitled to vote or any securities that are
convertible or exchangeable into or exercisable for any securities of the
Company that are or may by their terms become entitled to vote, nor is the
Stockholder subject to any Contract, commitment, arrangement, understanding,
restriction or relationship (whether or not legally enforceable), other than
this Agreement, that provides for such Stockholder to vote or acquire any
securities of the Company. The Stockholder holds exclusive power to vote the
Shares and has not granted a proxy to any other person (as defined in the Merger
Agreement, which meaning will apply for all purposes of this Agreement) to vote
the Shares, subject to the limitations set forth in this Agreement.
(d) This Agreement has been duly executed and delivered by the
Stockholder and, assuming due authorization, execution and delivery of this
Agreement by Parent and Purchaser, is a valid and binding obligation of the
Stockholder enforceable against the Stockholder in accordance with its terms.
(e) Neither the execution and delivery of this Agreement nor
the performance by the Stockholder of the Stockholder's obligations hereunder
will conflict with, result in a violation or breach of, or constitute a default
(or an event that, with notice or lapse of time or both, would result in a
default) or give rise to any right of termination, amendment, cancellation, or
acceleration or result in the creation of any Lien on any Shares under, (i) any
Contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which the Stockholder is a party or by which the Stockholder is
bound or (ii) any injunction, judgment, writ, decree, order or ruling applicable
to the Stockholder; except for conflicts, violations, breaches, defaults,
terminations, amendments, cancellations, accelerations or Liens that would not
individually or in the aggregate be reasonably expected to prevent or materially
impair or delay the consummation by such Stockholder of the transactions
contemplated hereby.
(f) Neither the execution and delivery of this Agreement nor
the performance by the Stockholder of the Stockholder's obligations hereunder
will violate any law, decree, statute, rule or regulation applicable to the
Stockholder or require any order, consent, authorization or approval of, filing
or registration with, or declaration or notice to, any court, administrative
agency or other governmental body or authority, other than any required notices
or filings pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder (the "HSR
Act"), foreign antitrust or competition laws or the federal securities laws.
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(g) The Stockholder understands and acknowledges that Parent is
entering into, and causing Purchaser to enter into, the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this Agreement.
Section 3. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to Parent and Purchaser, as of the date hereof and as of
the Closing, as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York, has the
requisite corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby, and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement.
(b) This Agreement has been duly executed and delivered by the
Company and, assuming due authorization, execution and delivery of this
Agreement by the Stockholders, Parent and Purchaser, is a valid and binding
obligation of the Company, enforceable against it in accordance with its terms.
(c) Neither the execution and delivery of this Agreement nor
the performance by the Company of its obligations hereunder will conflict with,
result in a violation or breach of, or constitute a default (or an event that,
with notice or lapse of time or both, would result in a default) or give rise to
any right of termination, amendment, cancellation, or acceleration or result in
the creation of any Lien on the assets or properties of the Company under, (i)
its certificate of incorporation or bylaws, (ii) any Contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which the
Company is a party or by which the Company is bound or (iii) any judgment, writ,
decree, order or ruling applicable to the Company; except in the case of clauses
(ii) and (iii) for conflicts, violations, breaches, defaults, terminations,
amendments, cancellations, accelerations or Liens that would not individually or
in the aggregate be reasonably expected to prevent or materially impair or delay
the consummation by the Company of the transactions contemplated hereby.
(d) Neither the execution and delivery of this Agreement nor
the performance by the Company of its obligations hereunder will violate any
law, decree, statute, rule or regulation applicable to the Company or require
any order, consent, authorization or approval of, filing or registration with,
or declaration or notice to, any court, administrative agency or other
governmental body or authority, other than any required notices or filings
pursuant to the HSR Act, foreign antitrust or competition laws or the federal
securities laws.
(e) The Company has taken all necessary corporate or other
action (including approval by the Board of Directors of the Company) to render
inapplicable to this Agreement and the Merger Agreement and the transactions
contemplated hereby and thereby Section 912 of the NYBCL.
Section 4. Representations and Warranties of Parent and Purchaser.
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Parent and Purchaser represent and warrant to the Stockholders, as of the date
hereof and as of the Closing, as follows:
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(a) Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of their
respective jurisdiction of incorporation, has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by
Parent and Purchaser and, assuming the due authorization, execution and delivery
of this Agreement by the Company and the Stockholders, is a valid and binding
obligation of each of Parent and Purchaser, enforceable against each of them in
accordance with its terms.
(c) Neither the execution and delivery of this Agreement nor
the performance by Parent and Purchaser of their respective obligations
hereunder will conflict with, result in a violation or breach of, or constitute
a default (or an event that, with notice or lapse of time or both, would result
in a default) or give rise to any right of termination, amendment, cancellation,
or acceleration under, (i) their respective certificates of incorporation or
bylaws, (ii) any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which Parent or Purchaser is a party or by which
Parent or Purchaser is bound or (iii) any judgment, writ, decree, order or
ruling applicable to Parent or Purchaser; except in the case of clauses (ii) and
(iii) for conflicts, violations, breaches or defaults that would not
individually or in the aggregate be reasonably expected to prevent or materially
impair or delay the consummation by Parent or Purchaser of the transactions
contemplated hereby.
(d) Neither the execution and delivery of this Agreement nor
the performance by Parent and Purchaser of their respective obligations
hereunder will violate any law, decree, statute, rule or regulation applicable
to Parent or Purchaser or require any order, consent, authorization or approval
of, filing or registration with, or declaration or notice to, any court,
administrative agency or other governmental body or authority, other than any
required notices or filings pursuant to the HSR Act or the federal securities
laws.
(e) Any Shares acquired upon exercise of the Purchase Option
(as defined below) will be acquired for Parent's or Purchaser's own account, for
investment purposes only and will not be, and the Purchase Option is not being,
acquired by Parent and Purchaser with a view to public distribution thereof in
violation of any applicable provisions of the Securities Act of 1933, as amended
(the "Securities Act").
Section 5. Transfer of the Shares. During the term of this Agreement,
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except as otherwise expressly provided herein, each Stockholder agrees that such
Stockholder will not (a) tender into any tender or exchange offer or otherwise
sell, transfer, pledge, assign, hypothecate or otherwise dispose of, or encumber
with any Lien, any of the Shares, except for (i) transfers to any spouse or
descendant (including by adoption) of such Stockholder, or any trust or
retirement plan or account for the benefit of such Stockholder, spouse or
descendant; provided any such transferee agrees in writing to be bound by the
terms of this Agreement and (ii) transfers by operation of law provided that any
such transferee shall be bound by the terms of this Agreement, (b) acquire any
shares of Company Common Stock or other securities of the Company (otherwise
than in connection with a transaction of the type described in Section 6 or by
exercising any of the
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Options), (c) deposit the Shares into a voting trust, enter into a voting
agreement or arrangement with respect to the Shares or grant any proxy or power
of attorney with respect to the Shares, (d) enter into any Contract, option or
other arrangement (including any profit sharing arrangement) or undertaking with
respect to the direct or indirect acquisition or sale, transfer, pledge,
assignment, hypothecation or other disposition of any interest in or the voting
of any Shares or any other securities of the Company or (e) take any other
action that would in any way restrict, limit or interfere with the performance
of such Stockholder's obligations hereunder or the transactions contemplated
hereby or which would otherwise diminish the benefits of this Agreement to
Parent or Purchaser.
Section 6. Adjustments.
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(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Shares or the
like or any other action that would have the effect of changing a Stockholder's
ownership of the Company's capital stock or other securities or (ii) a
Stockholder becomes the beneficial owner of any additional Shares of or other
securities of the Company, then the terms of this Agreement will apply to the
shares of capital stock held by such Stockholder immediately following the
effectiveness of the events described in clause (i) or such Stockholder becoming
the beneficial owner thereof, as described in clause (ii), as though they were
Shares hereunder.
(b) Each Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent and Purchaser of the number of any new Shares
acquired by such Stockholder, if any, after the date hereof.
Section 7. Tender of Shares. Each Stockholder hereby agrees that such
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Stockholder will validly tender (or cause the record owner of such shares to
validly tender) and sell (and not withdraw, except in the event the Purchase
Option is exercised, in which case such withdrawal shall be for the limited
purpose of consummating the Purchase Option) pursuant to and in accordance with
the terms of the Offer not later than the fifth business day after commencement
of the Offer (or the earlier of the expiration date of the Offer and the fifth
business day after such Shares are acquired by such Stockholder if the
Stockholder acquires Shares after the date hereof), or, if the Stockholder has
not received the Offer Documents by such time, within two business days
following receipt of such documents, all of the then outstanding shares of
Company Common Stock beneficially owned by such Stockholder (including the
shares of Company Common Stock outstanding as of the date hereof and set forth
on Schedule A hereto opposite such Stockholder's name). Upon the purchase by
Purchaser of all of such then outstanding shares of Company Common Stock
beneficially owned by such Stockholder pursuant to the Offer in accordance with
this Section 7, this Agreement will terminate as it relates to such Stockholder.
In the event, notwithstanding the provisions of the first sentence of this
Section 7, any Shares beneficially owned by a Stockholder are for any reason
withdrawn from the Offer or are not purchased pursuant to the Offer, such Shares
will remain subject to the terms of this Agreement. Each Stockholder
acknowledges that Purchaser's obligation to accept for payment and pay for the
shares of Company Common Stock tendered in the Offer is subject to all the terms
and conditions of the Offer.
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Section 8. Voting Agreement. Each Stockholder, by this Agreement,
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does hereby (a) agree to appear (or not appear, if requested by Parent or
Purchaser) at any annual, special, postponed or adjourned meeting of the
stockholders of the Company or otherwise cause the Shares such Stockholder
beneficially owns to be counted as present (or absent, if requested by Parent or
Purchaser) thereat for purposes of establishing a quorum and to vote or consent,
and (b) constitute and appoint Parent and Purchaser, or any nominee thereof,
with full power of substitution, during and for the term of this Agreement, as
his true and lawful attorney and proxy for and in his name, place and xxxxx, to
vote all the Shares such Stockholder beneficially owns at the time of such vote,
at any annual, special, postponed or adjourned meeting of the stockholders of
the Company (and this appointment will include the right to sign his or its name
(as stockholder) to any consent, certificate or other document relating to the
Company that laws of the State of New York may require or permit), in the case
of both (a) and (b) above, (x) in favor of approval and adoption of the Merger
Agreement and approval and adoption of the Merger and the other transactions
contemplated thereby and (y) against (1) any Acquisition Proposal, (2) any
action or agreement that would result in a breach in any respect of any
covenant, agreement, representation or warranty of the Company under the Merger
Agreement and (3) the following actions (other than the Merger and the other
transactions contemplated by the Merger Agreement): (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its subsidiaries; (ii) a sale, lease
or transfer of a material amount of assets of the Company or any of its
subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or any of its subsidiaries; (iii) (A) any change in a majority of
the persons who constitute the board of directors of the Company or any of its
subsidiaries as of the date hereof; (B) any change in the present capitalization
of the Company or any amendment of the Company's or any of its subsidiaries'
certificate of incorporation or bylaws, as amended to date; (C) any other
material change in the Company's or any of its subsidiaries' corporate structure
or business; or (D) any other action that is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Offer, the Merger and the other transactions contemplated by this Agreement and
the Merger Agreement. This proxy and power of attorney is a proxy and power
coupled with an interest, and each Stockholder declares that it is irrevocable
until this Agreement shall terminate in accordance with its terms. Each
Stockholder hereby revokes all and any other proxies with respect to the Shares
that such Stockholder may have heretofore made or granted. For Shares as to
which a Stockholder is the beneficial but not the record owner, such Stockholder
shall use his or its best efforts to cause any record owner of such Shares to
grant to Parent a proxy to the same effect as that contained herein. Each
Stockholder hereby agrees to permit Parent and Purchaser to publish and disclose
in the Offer Documents and the Proxy Statement and related filings under the
securities laws such Stockholder's identity and ownership of Shares and the
nature of his or its commitments, arrangements and understandings under this
Agreement. Notwithstanding the foregoing, Xxxxxx Xxxxx, Xxxxxxx X. Xxxxxx and
Xxxxxxxx Xxxxxx are not bound by the terms of this Section 8.
Section 9. No Solicitation. Each Shareholder agrees that neither such
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Stockholder nor any of such Stockholder's officers, directors, employees,
trustees, representatives, agents or affiliates (including, without limitation,
any investment banker, attorney or accountant retained by any of them) will
directly or indirectly initiate, solicit or encourage (including by way of
furnishing
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non-public information or assistance), or take any other action to facilitate,
any inquiries or the making or submission of any Acquisition Proposal, or enter
into or maintain or continue discussions or negotiate with any person or entity
in furtherance of such inquiries or to obtain or induce any person to make or
submit an Acquisition Proposal or agree to or endorse any Acquisition Proposal
or assist or participate in, facilitate or encourage, any effort or attempt by
any other person or entity to do or seek any of the foregoing or authorize or
permit any of its officers, directors, employees, trustees or any of its
affiliates or any investment banker, financial advisor, attorney, accountant or
other representative or agent retained by any of them to take any such action.
Each Stockholder shall immediately advise Parent in writing of the receipt of
request for information or any inquiries or proposals relating to an Acquisition
Proposal.
Section 10. Grant of Purchase Option. The Stockholder hereby grants
------------------------
to Parent and Purchaser an irrevocable option (the "Purchase Option") to
purchase for cash, in a manner set forth below, any or all of the Shares (and
including Shares acquired after the date hereof by such Stockholder)
beneficially owned by the Stockholder at a price (the "Exercise Price") per
Share equal to $34.00 (the "Offer Price"). In the event of any stock dividends,
stock splits, recapitalizations, combinations, exchanges of shares or the like,
the Offer Price will be appropriately adjusted for the purpose of this Section
10.
Section 11. Exercise of Purchase Option.
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(a) Subject to the conditions set forth in Section 13 hereof,
the Purchase Option may be exercised by Parent or Purchaser, in whole or in
part, at any time or from time to time after the occurrence of any Trigger Event
(as defined below). The Company and each Stockholder shall notify Parent
promptly in writing of the occurrence of any Trigger Event, it being understood
that the giving of such notice by the Company or the Stockholder is not a
condition to the right of Parent or Purchaser to exercise the Purchase Option.
In the event Parent or Purchaser wishes to exercise the Purchase Option, Parent
shall deliver to each Stockholder a written notice (an "Exercise Notice")
specifying the total number of Shares it wishes to purchase from such
Stockholder. Each closing of a purchase of Shares (a "Closing") will occur at a
place, on a date and at a time designated by Parent or Purchaser in an Exercise
Notice delivered at least two business days prior to the date of the Closing.
(b) A "Trigger Event" means any one of the following: (i) the
Merger Agreement becomes terminable under circumstances that entitle Parent or
Purchaser to receive the Termination Fee or the Expenses under Section 8.3(b) of
the Merger Agreement (regardless of whether the Merger Agreement is actually
terminated and whether such Termination Fee or Expenses are then actually paid),
(ii) the Offer is consummated but, due to the failure of the Stockholder to
validly tender and not withdraw all of the then outstanding shares of Company
Common Stock beneficially owned by such Stockholder, the Purchaser has not
accepted for payment or paid for all of such shares of Company Common Stock,
(iii) a tender or exchange offer for at least 20% of the shares of Company
Common Stock shall have been publicly proposed to be made or shall have been
made by another person, or (iv) it shall have been publicly disclosed or Parent
or Purchaser shall have otherwise learned that (A) any person or "group" (as
defined in Section 13(d)(3) of the Exchange Act) (other than Parent or
Purchaser) shall have acquired or proposed to acquire beneficial ownership of
more than 20% of any class or series of capital stock
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of the Company (including the Company Common Stock), through the acquisition of
stock, the formation of a group or otherwise, or shall have been granted any
option, right or warrant, conditional or otherwise, to acquire beneficial
ownership of more than 20% of any class or series of capital stock of the
Company or any of its subsidiaries, or (B) any person or group (other than
Parent and Purchaser) shall have entered into or publicly offered to enter into
a definitive agreement or an agreement in principle with respect to a merger,
consolidation or other business combination with the Company or any of its
subsidiaries.
(c) If requested by Parent and Purchaser in the Exercise
Notice, such Stockholder shall exercise all Options (to the extent exercisable)
and other rights (including conversion or exchange rights) beneficially owned by
such Stockholder and shall sell or, if directed by Parent and Purchaser, tender
the Shares acquired pursuant to such exercise to Parent or Purchaser as provided
in this Agreement.
(d) In the event (i) Parent or Purchaser exercises the Purchase
Option and purchases Shares pursuant to this Section 11 representing at least
20% of the then outstanding shares of Company Common Stock on a fully diluted
basis (the "Purchase Event"), (ii) no Acquisition Proposal shall have been
consummated and (iii) the Merger Agreement shall have terminated and the Company
shall not have been in material breach of the Merger Agreement at the time of
such termination, upon the written request of the Company made within five
business days after the Purchase Event, Parent shall cause Purchaser or another
subsidiary of Parent to commence, as soon as reasonably practicable, a tender
offer for all shares of Company Common Stock at a cash price equal to the Offer
Price, on terms and subject to conditions substantially similar to those
contained in the Merger Agreement.
(e) If, within twelve months following the exercise of the
Purchase Option by Parent or Purchaser, Parent or Purchaser sells any or all of
the Shares acquired upon exercise of the Purchase Option to an unaffiliated
third party (a "Subsequent Sale") at a per Share price in excess of the Offer
Price (the "Subsequent Sale Price"), then Parent or Purchaser will pay to each
Stockholder, within five days of receipt of payment by Parent or Purchaser, an
amount equal to such Stockholder's pro rata share of 50% of the excess of the
Subsequent Sale Price over the Offer Price multiplied by the number of shares
sold in the Subsequent Sale.
Section 12. Termination of Purchase Option. The Purchase Option will
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terminate (a) if this Agreement terminates pursuant to Section 7 or (b) upon the
earliest of: (i) the Effective Time; (ii) termination of the Merger Agreement
other than upon, during the continuance of or after a Trigger Event; or (iii) 90
days following any termination of the Merger Agreement upon, during the
continuance of or after a Trigger Event (or if, at the expiration of such 90 day
period the Purchase Option cannot be exercised by reason of any applicable
judgment, decree, order, injunction, law or regulation, 10 business days after
such impediment to exercise has been removed or has become final and not subject
to appeal). Upon the giving by Parent or Purchaser to the Stockholder of the
Exercise Notice and the tender of the aggregate Exercise Price, Parent or
Purchaser, as the case may be, will be deemed to be the holder of record of the
Shares transferable upon such exercise, notwithstanding that the stock transfer
books of the Company are then closed or that certificates representing such
Shares have not been actually delivered to Parent.
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Section 13. Conditions To Closing. The obligation of each
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Stockholder to sell such Stockholder's Shares to Parent or Purchaser hereunder
is subject to the conditions that (i) all waiting periods, if any, under the HSR
Act, applicable to the sale of the Shares or the acquisition of the Shares by
Parent or Purchaser, as the case may be, hereunder have expired or have been
terminated; (ii) all consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any court, administrative agency or
other Governmental Entity, if any, required in connection with sale of the
Shares or the acquisition of the Shares by Parent or Purchaser hereunder have
been obtained or made; and (iii) no preliminary or permanent injunction or other
order by any court of competent jurisdiction prohibiting or otherwise
restraining such sale or acquisition is in effect.
Section 14. Closing. At any Closing with respect to Shares
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beneficially owned by a Stockholder, (a) such Stockholder will deliver to
Parent, Purchaser or their respective designee a certificate or certificates in
definitive form representing the number of the Shares designated by Parent or
Purchaser, as the case may be, in its Exercise Notice, such certificate to be
registered in the name of Parent, Purchaser or their respective designee and (b)
Parent or Purchaser, as the case may be, will deliver to the Stockholder the
aggregate Exercise Price for the Shares so designated and being purchased by
wire transfer of immediately available funds.
Section 15. Registration Rights.
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(a) Following termination of the Merger Agreement, Parent or
Purchaser may in its sole discretion (but shall not be required) by written
notice (the "Registration Notice") to the Company request the Company to
register under the Securities Act all or any part of the shares of Company
Common Stock acquired under the Purchase Option (the "Registrable Securities").
(b) The Company shall use commercially reasonable efforts to
effect, as promptly as practicable, the registration under the Securities Act of
the Registrable Securities; provided, however, that (i) Parent and Purchaser
will be entitled to no more than one effective registration statement hereunder
and (ii) the Company will not be required to file any such registration
statement during any period of time (not to exceed 40 days after such request in
the case of clause (A) below or 90 days in the case of clauses (B) and (C)
below) when (A) the Company is in possession of material non-public information
that it reasonably believes would be detrimental to be disclosed at such time
and that such information would have to be disclosed if a registration statement
were filed at that time; (B) the Company is required under the Securities Act to
include audited financial statements for any period in such registration
statement and such financial statements are not yet available for inclusion in
such registration statement; or (C) the Company determines, in its reasonable
judgment, that such registration would interfere with any proposed financing,
acquisition or other material transaction involving the Company or any of its
affiliates. The Company shall use its reasonable best efforts to cause any
Registrable Securities registered pursuant to this Section 15 to be qualified
for sale under the securities or blue-sky laws of such jurisdictions as Parent
or Purchaser may reasonably request and shall continue such registration or
qualification in effect in such jurisdiction; provided, however, that the
Company will not be required to qualify to do business in, or to consent to
general service of process in, any jurisdiction by reason of this provision.
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(c) The registration rights set forth in this Section 15 are
subject to the condition that Parent and Purchaser shall provide the Company
with such information with respect to their Registrable Securities, the plans
for the distribution thereof, and such other information with respect to such
holder as, in the reasonable judgment of counsel for the Company, is necessary
to enable the Company to include in such registration statement all material
facts required to be disclosed with respect to a registration thereunder.
(d) A registration effected under this Section 15 will be
effected at the Company's expense, except for underwriting discounts and
commissions and the fees and the expenses of counsel to Parent and Purchaser
(which will be paid by Parent and Purchaser, and the Company shall provide to
the underwriters (in connection with an underwritten offering) such
documentation (including certificates, opinions of counsel and "comfort" letters
from auditors) as are customary in connection with underwritten offerings as
such underwriters may reasonably require. In connection with any such
registration, the parties agree (i) to indemnify each other and the underwriters
in the customary manner, (ii) to enter into an underwriting agreement in form
and substance customary for transactions of such type with the underwriters
participating in such offering and (iii) to take all further actions that will
be reasonably necessary to effect such registration and sale (including, if the
underwriters deem it necessary, participating in road-show presentations).
Section 16. Termination. This Agreement will terminate (a) as to any
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Stockholder upon the purchase of all the Shares beneficially owned by such
Stockholder pursuant to the Offer in accordance with Section 7, (b) except for
Sections 10, 11, 12, 13, 14 and 15 hereof, which will only terminate as and when
provided therein, on the earlier to occur of (i) the Effective Time or (ii) the
date the Merger Agreement is terminated in accordance with its terms, or (c) by
the mutual consent of each Stockholder as to its rights and obligations
hereunder, the Board of Directors of the Company and the Board of Directors of
Parent.
Section 17. Expenses. Except as otherwise expressly provided herein
--------
or in the Merger Agreement, all costs and expenses incurred by any of the
parties hereto will be borne by the party incurring such costs and expenses.
Section 18. Further Assurances. Each party hereto will execute and
------------------
deliver all such further documents and instruments and take all such further
action as may be reasonably necessary in order to consummate the transactions
contemplated hereby. The Company covenants to Parent and Purchaser that it and
its Board of Directors shall (i) take all action necessary to ensure that no
state takeover statute or similar statute or regulation is or becomes applicable
to the Purchase Option, the Offer, the Merger, this Agreement, the Merger
Agreement or any of the other transactions contemplated by the foregoing (the
"Transactions") and (ii) if any state takeover statute or similar statute or
regulation becomes applicable to any of the Transactions, take all action
necessary to ensure that the Purchase Option and the other Transactions may be
consummated as promptly as practicable on the terms contemplated by this
Agreement and the Merger Agreement and otherwise to minimize the effect of such
statute or regulation on the Purchase Option and the other Transactions.
-10-
Section 19. Publicity. A Stockholder shall not issue any press
---------
release or otherwise make any public statements with respect to this Agreement
or the Merger Agreement or the other transactions contemplated hereby or thereby
without the consent of Parent and Purchaser, except as may be required by law or
applicable stock exchange rules.
Section 20. Stop Transfer Order; Legend. The Company agrees with, and
---------------------------
covenants to, Parent and Purchaser that the Company shall not register the
transfer of any certificate representing any Stockholder's Shares unless such
transfer is made in accordance with the terms of this Agreement. Each
Stockholder agrees to place the following legend on any and all certificates
evidencing the Shares:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT CERTAIN TENDER AND OPTION
AGREEMENT, DATED AS OF DECEMBER 20, 1998, BY AND AMONG ROHM AND XXXX COMPANY,
LIGHTNING ACQUISITION CORP., LEARONAL, INC. AND CERTAIN STOCKHOLDERS OF
LEARONAL, INC. ANY TRANSFER OF SUCH SHARES OF COMMON STOCK IN VIOLATION OF THE
TERMS OF SUCH AGREEMENT SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
Section 21. Stockholder Capacity. No person executing this Agreement
--------------------
makes any agreement or understanding herein in such Stockholder's capacity as a
director or officer of the Company or any subsidiary of the Company. Each
Stockholder signs solely in such Stockholder's capacity as the beneficial owner
of such Stockholder's Shares and nothing herein shall limit or affect any
actions taken by a Stockholder in such Stockholder's capacity as an officer or
director of the Company or any subsidiary of the Company to the extent
specifically permitted by the Merger Agreement.
Section 22. Enforcement. Each Stockholder and the Company acknowledge
-----------
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 Parent and Purchaser will
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
Each Stockholder and the Company further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief. The provisions of this paragraph are
without prejudice to any other rights that any party hereto may have against
another party hereto for any failure to perform its obligations under this
Agreement. In addition, each Stockholder (i) consents to submit to the personal
jurisdiction of any Federal court located in the State of New York or any New
York state court in the event any dispute arises out of this Agreement or any of
the transactions contemplated hereby, (ii) agrees not to attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (iii) agrees not to bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a Federal
court located in the State of New York or a New York state court and (iv) waives
any right to trial by jury with respect to any claim or proceeding related to or
arising out
-11-
of this Agreement or any of the transactions contemplated hereby. Each
Stockholder hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in the courts of the State of New York
or of the United States of America located in the State of New York, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
Section 23. Miscellaneous.
-------------
(a) All representations and warranties contained herein will
survive for twelve months after the termination hereof. The covenants and
agreements made herein will survive in accordance with their respective terms.
(b) Any provision of this Agreement may be waived at any time
by the party that is entitled to the benefits thereof. No such waiver, amendment
or supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(c) This Agreement, the Merger Agreement, the Other Agreements
and the Confidentiality Agreement constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements among the parties with respect to such matters. This Agreement
may not be amended, changed, supplemented, waived or otherwise modified, except
upon the delivery of a written agreement executed by the parties hereto.
(d) This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
(e) The descriptive headings contained herein are for
convenience and reference only and will 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." Words in the singular include the plural, and
words in the plural include the singular.
(f) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
-12-
If to the Company to:
LeaRonal, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: 000-000-0000
With a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx.
Telecopy: 000-000-0000
If to Parent or Purchaser to:
Rohm and Xxxx Company
000 Xxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: 000-000-0000
Lightning Acquisition Corp.
Suite 104 - Xxxxxx Building
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
with copies to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: 000-000-0000
If to a Stockholder, at the address set forth on Schedule A hereto.
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
-13-
(g) This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one agreement.
(h) This Agreement is binding upon and is solely for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement will be assigned by any of the
parties hereto without the prior written consent of the other parties, except
that Parent and Purchaser will have the right to assign to any direct or
indirect wholly owned subsidiary of Parent or Purchaser any and all rights and
obligations of Parent or Purchaser under this Agreement, provided that any such
assignment will not relieve either Parent or Purchaser from any of its
obligations hereunder.
(i) In the event any term or provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect. Upon any such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto will negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated by this
Agreement are consummated to the fullest extent possible.
(j) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative, and the exercise of any thereof by either party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
-14-
IN WITNESS WHEREOF, each of the Company, Parent and Purchaser has
caused this Agreement to be signed by its officer or director thereunto duly
authorized and each Stockholder has signed this Agreement, all as of the date
first written above.
ROHM AND XXXX COMPANY
By: /s/ Xxxxx X. Xxxxx
_______________________________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
LIGHTNING ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxx
_______________________________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President
LEARONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
_______________________________________________
Name: Xxxxxx X. Xxxxxx
Title: President
STOCKHOLDERS:
/s/ Barnet X. Xxxxxx
__________________________________________________
Barnet X. Xxxxxx, individually, as Trustee and
General Partner of Xxxxxx Properties Limited
Partnership #1
/s/ Xxxxxxx Xxxxxx
_________________________________________________
Xxxxxxx Xxxxxx, individually, as Trustee and
General Partner of Xxxxxx Properties Limited
Partnership #2
[signatures continue on next page]
-15-
/s/ Xxxx X. Xxxxx
_________________________________________________
Xxxx X. Xxxxx, individually and as General Partner
of Nobel Limited Partnership
/s/ Xxxxxx X. Xxxxxx
_________________________________________________
Xxxxxx X. Xxxxxx, as Trustee and individually
/s/ Xxxxxxx Xxxx
_________________________________________________
Xxxxxxx Xxxx, as Trustee
/s/ Xxxxxxx X. Xxxxx
_________________________________________________
Xxxxxxx X. Xxxxx, as Trustee
/s/ Xxxxxxx Xxxxxxx
_________________________________________________
Xxxxxxx Xxxxxxx
/s/ Xxx Xxxx
_________________________________________________
Xxx Xxxx
/s/ Xxxxxx Xxxxxxx
_________________________________________________
Xxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
_________________________________________________
Xxxxx X. Xxxxxxxxx
/s/ Xxxxxx Xxxxx
_________________________________________________
Xxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
_________________________________________________
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxxx Xxxxxx
_________________________________________________
Xxxxxxxx Xxxxxx
-16-
SCHEDULE A
Number Number
of of
Stockholder Address Shares Options
----------- ------- ------ -------
Barnet X. Xxxxxx and (1) 420,928
Xxxxxxx Xxxx, as
Trustees of Revocable
Trust f/b/o Barnet X.
Xxxxxx
Xxxxxxx Xxxxxx and (1) 351,354
Xxxxxxx Xxxx, as
Trustees of Revocable
Trust f/b/o Xxxxxxx
Xxxxxx
Xxxx X. Xxxxx, individually (1) 1,217,660
and as general partner (1) 5,917
on behalf of Nobel
Limited Partnership
Xxxxxx X. Xxxxxx (1) 284,018
Xxxxxx X. Xxxxxx and (1) 263,671
Xxxxxxx X. Xxxxx, as
Trustees f/b/o Xxxxxx
Xxxxxx
Xxxxxxx Xxxx, as Trustee (1) 50,000
f/b/o Xxxxxx Xxxxxx
Barnet X. Xxxxxx as (1) 242,500
General Partner on
behalf of Xxxxxx
Properties Limited
Partnership #1
Xxxxxxx Xxxxxx as (1) 15,000
General Partner on
behalf of Xxxxxx
Properties Limited
Partnership #2
Xxxxxxx Xxxxxxx (1) 76,715 217,382
Xxxxxx Xxxxxxx (1) 53,942 106,096
Xxxxx X. Xxxxxxxxx (1) 19,731 171,400
Xxx Xxxx 0000 Xxxxxxxx Xxxxxx 000,000
Xxxxxxxx, XX 00000
Xxxxxx Xxxxx (1) 48,566
Number Number
of of
Stockholder Address Shares Options
----------- ------- ------ -------
Xxxxxxx X. Xxxxxx (1) 50,596
Xxxxxxxx Xxxxxx (1) 48,565
__________ ---------
Totals 3,619,664 778,896
========== =========
(1) c/o LeaRonal Inc., 000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000
