Exhibit(c)(2)
THIS STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of October
17, 1997, is among Acquisition Holdings, Inc., a Delaware corporation
("Holdco"), and the stockholders (the "Stockholders") of ATC Group Services Inc.
(the "Company") signatory hereto.
RECITALS
WHEREAS, Holdco has simultaneously herewith delivered to the Company
an offer letter, dated October 17, 1997, from Xxxxx, Xxxx & Xxxxx, L.L.C.,
attached hereto as Exhibit A, pursuant to which Holdco through a subsidiary
would enter into a business combination with the Company (the "Transaction")
pursuant to an agreement and plan of merger in the form attached hereto as
Exhibit B (as the same may be negotiated and entered into by Holdco and/or its
affiliates and the Company, the "Merger Agreement") in accordance with which
Holdco would acquire the entire equity interest in the Company for $12 per share
of Common Stock; and
WHEREAS, the Stockholders have agreed to vote 14.99% in the aggregate
of the Common Stock of the Company in favor of the Transaction and Holdco and
the Stockholders desire to memorialize certain other agreements, all as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENT
1. Certain Definitions. For purposes of this Agreement:
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"Acquisition Proposal" shall mean any inquiry, proposal or offer from
any Person relating to any direct or indirect acquisition or purchase of 15% or
more of the assets of the Company and its subsidiaries or 15% or more of any
class of equity securities of the Company or any of its subsidiaries, any tender
offer or exchange offer that if consummated would result in any Person
beneficially owning 15% or more of any class of equity securities of the Company
or any of its subsidiaries, any merger, consolidation, business combination,
sale of substantially all the assets, recapitalization, liquidation, dissolution
or similar transaction involving the Company or any of its subsidiaries, other
than the Transaction, or any other transaction the consummation of which could
reasonably be expected to impede, interfere with, prevent or materially delay
the Transaction or which would reasonably be expected to dilute materially the
benefits to Holdco of the Transaction.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other Persons with
whom such Person would constitute a "group" within the meaning of Section 13(d)
of the Exchange Act.
"Closing Date" shall mean the date set forth in the Merger Agreement,
if executed and delivered, as the closing date for the Transaction.
"Common Stock" shall mean at any time the Common Stock, par value $.01
per share, of the Company.
"Existing Shares" shall mean the shares of Common Stock owned by the
Stockholders on the date hereof.
"Permitted Transfer" means a sale, transfer, assignment or other
disposition to a Permitted Transferee.
"Permitted Transferee" means any person who is (A) the spouse or
former spouse of, or any lineal descendent of, or any spouse of such lineal
descendant of, or the grandparent, parent, brother or sister of, or spouse of
such brother or sister of, either of the Stockholders or of a Permitted
Transferee; (B) upon the death of any of the Stockholders or any Permitted
Transferee of such person, the executors of the estate of such Stockholder or
such Permitted Transferee, and any of such Stockholder's or such Permitted
Transferee's heirs, testamentary trustees, devisees, or legatees; (C) any trust
for the benefit of one or more of the Stockholders or Permitted Transferees; (D)
upon the disability of either of the Stockholders or any Permitted Transferee,
any guardian or conservator of such Stockholder or such Permitted Transferee;
(E) any corporation, partnership or other entity if at least 95% of the
beneficial ownership is held by either Stockholder individually or by the
Stockholders in the aggregate or Permitted Transferees, or (F) a lending
institution in whose favor either of the Stockholders pledges or otherwise
grants a security interest in any or all of the Proxy Shares (as defined herein)
for the purpose of obtaining one or more bona fide loans or advances for the
exercise of options, warrants or other rights held by either Stockholder to
acquire shares of Common Stock; provided, that in each case such transferee (in
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the case of a transferee under clause (F) above, on behalf of itself and any
transferee of the collateral) assumes and agrees to perform and becomes a party
to this Agreement, agrees not to make an Acquisition Proposal, and agrees not to
dissent in the Transaction, all on terms reasonably acceptable to Holdco. For
purposes of this Agreement, when a Permitted Transferee has
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acquired Shares in accordance herewith, such person shall be deemed a
"Stockholder" hereunder.
"Person" shall mean an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or other entity.
"Shares" shall mean the Existing Shares and any right to acquire
shares of Common Stock owned on the date hereof and any shares of Common Stock
or rights to acquire shares of Common Stock acquired by any Stockholder in any
capacity after the date hereof and prior to the termination of this Agreement.
"Shares" shall include (i) shares of Common Stock acquired upon the exercise of
options, warrants or other rights to acquire shares; (ii) shares of Common Stock
acquired upon the conversion or exchange of convertible or exchangeable
securities; (iii) shares of Common Stock acquired by means of purchase,
dividend, distribution, gift, bequest, inheritance or as a successor in interest
in any capacity or otherwise; and (iv) rights to acquire shares of Common Stock,
vested or not, presently exercisable or not, including, but not limited to,
options and warrants. In the event of a stock dividend or distribution, or any
change in the Common Stock by reason of any stock dividend, split-up,
recapitalization, reclassification, combination, exchange of shares or the like,
the term "Shares" shall be deemed to refer to and include the Shares as well as
all such stock dividends and distributions and any shares into which or for
which any or all of the Shares may be changed, reclassified or exchanged and
appropriate adjustments shall be made to the terms and provisions of this
Agreement. "Shares" shall also include voting trust certificates issued in
respect of any Shares.
2. Voting of Shares; No Inconsistent Agreements.
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(a) With respect to the Shares identified as Proxy Shares on Exhibit
C attached hereto (the "Proxy Shares"), each Stockholder, subject to the terms
of this Agreement, hereby irrevocably grants to, and appoints, Holdco and any
other Person who shall hereafter be designated by Holdco, 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 Proxy
Shares, or grant a consent or approval in respect of such Proxy Shares, at any
meeting of stockholders of the Company or at any adjournment thereof or in any
other circumstances upon which their vote, consent or other approval is sought,
(i) in favor of (A) the Transaction, (B) the Merger Agreement and (C) the
transactions contemplated by the Merger Agreement, including, but not limited
to, the amendments to the Certificate of Incorporation of the Company
contemplated thereby and (ii) against (other than in connection with the
Transaction) (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries (other than the Transaction); (B) any sale, lease or transfer by
the Company of a material amount of
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assets (including stock) of the Company or any of its subsidiaries, or a
reorganization, restructuring, recapitalization, special dividend, dissolution
or liquidation of the Company or any of its subsidiaries; and (C)(1) any change
in a majority of the persons who constitute the board of directors of the
Company or any of its subsidiaries; (2) any change in the present capitalization
of the Company or any of its subsidiaries including any proposal to sell a
substantial equity interest in the Company or any of its subsidiaries; (3) any
amendment of the Company or any of its subsidiaries' charters or by-laws; (4)
any other change in the Company or any of its subsidiaries' corporate structure
or business; and (5) any other action which, in the case of each of the matters
referred to in clauses (C)(1), (2), (3) or (4), is intended, or could reasonably
be expected, to impede, interfere with, delay, postpone, or materially adversely
affect the Transaction and the transactions contemplated by this Agreement and
the Merger Agreement.
(b) Such Stockholder represents that any proxies previously given in
respect of such Stockholder's Proxy Shares are not irrevocable, and that any
such proxies are hereby revoked.
(c) Such Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 2 is given to secure the performance of the duties of the
Stockholder under this Agreement. Such Stockholder hereby further affirms that
such irrevocable proxy is coupled with an interest and may under no
circumstances be revoked, except in connection with the termination of this
Agreement pursuant to Section 7 hereof. 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.
(d) Each Stockholder severally and not jointly agrees that it shall not
enter into any agreement or understanding with any Person the effect of which
would be inconsistent with or violative of the provisions and agreements
contained herein, including in this Section 2. Further, from the date hereof
until such time as Holdco's designees shall constitute a majority of the members
of the Board of Directors of the Company, each Stockholder severally and not
jointly agrees that it will, if the Board of Directors of the Company fails or
refuses to submit the Transaction to the Company stockholders, vote all Proxy
Shares held of record or Beneficially Owned by such Stockholder to (i) call or
cause to be called a special meeting of stockholders of the Company (or effect a
written consent) to remove the directors of the Company who have so failed or
refused, or to increase the size of the Board of Directors and elect a majority
of new directors who will submit the Transaction to the stockholders of the
Company for a vote, and (ii) use its reasonable efforts to vote such Proxy
Shares to effect
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such removal and replacement, or increase and election, and the submission of
the Transaction to the stockholders of the Company; and (iii), at any time after
initial approval by the stockholders of the Company of the Transaction, if so
requested by Holdco, vote such Proxy Shares to approve all or any actions
incident to the Transaction or the other matters referred to in this Section 2
by stockholder written consent.
3. Other Stockholder Covenants.
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(a) Restriction on Transfer; Proxies and Non-interference. From the
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date hereof through the Closing Date or the earlier termination of this
Agreement in accordance with its terms, and except for Permitted Transfers as
expressly permitted herein and subject to Section 3(f), each Stockholder
severally and not jointly agrees that it shall not directly or indirectly:
(i) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to, or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of
(collectively, "transfer"), any or all of the Proxy Shares or any interest
therein;
(ii) grant any proxies or powers of attorney with respect to the
Proxy Shares, deposit the Proxy Shares into a voting trust or enter into a
voting agreement with respect to the Proxy Shares; or
(iii) take any action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect or would
result in a breach by such Stockholder of its obligations under this Agreement.
(b) No Solicitation.
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Subject to Section 3(f), from the date hereof until the Closing
Date, or the earlier termination of this Agreement in accordance with Section 7
hereof, each Stockholder severally and not jointly agrees that such Stockholder
shall not, and shall not permit any of such Stockholder's representatives,
agents or affiliates (including, without limitation, any investment banker,
attorney or accountant retained by any Stockholder) to, directly or indirectly,
enter into, solicit, initiate or continue any discussions or negotiations with,
or provide any information to, or otherwise cooperate in any other way with, any
Person or group, other than Holdco and its affiliates, concerning any offer or
proposal which constitutes or is reasonably likely to lead to an Acquisition
Proposal. Each Stockholder severally and not jointly agrees that it will
immediately notify Holdco orally and in writing if any discussions or
negotiations are sought to be initiated, any
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inquiry or proposal is made, or any information is requested with respect to any
Acquisition Proposal or which could lead to an Acquisition Proposal, and
immediately notify Holdco of all material terms of any proposal which it may
receive in respect of any such Acquisition Proposal, including the identity of
the prospective purchaser or soliciting party if known, and thereafter shall
inform Holdco on a timely, ongoing basis of the status and content of any
discussions or negotiations with such a third party, including immediately
reporting any material changes to the terms and conditions thereof.
(c) Reliance. Each Stockholder understands and acknowledges that
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Holdco is proposing to enter into the Transaction in reliance upon each
Stockholder's execution and delivery of this Agreement.
(d) Further Assurances. From time to time, at Holdco's request and
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without further consideration, each Stockholder severally and not jointly agrees
that it shall execute and deliver such additional documents and take all such
further lawful action as may be necessary or desirable to consummate and make
effective, in the most expeditious manner practicable, the purposes of this
Agreement.
(e) Stockholder Termination Fee. In the event that any Acquisition
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Proposal is consummated, then each Stockholder shall pay to Holdco as soon as
practicable, but in no event longer than two business days after receipt of the
consideration paid to such Stockholder in connection with such Acquisition
Proposal an amount (the "Stockholder Termination Fee") equal to the product of
(x) the number of Shares Beneficially Owned by such Stockholder, multiplied by
(y) the excess of the per share value of consideration paid or payable in
consequence of consummation of the Acquisition Proposal (with the value of any
non-cash consideration being determined by agreement of Holdco and such
Stockholder or, failing such agreement within 10 business days of consummation
of such Acquisition Proposal, as provided below) over $12. In the case of
options on Shares, to the extent the same are cancelled for a payment in cash
(the "Option Payment"), the amount due hereunder shall be the amount by which
the Option Payment exceeds the product of (a) the number of Shares underlying
such options and (b) $12. In the event that the consideration paid or payable in
consequence of consummation of the Acquisition Proposal: (i) consists solely of
cash, then the Stockholder Termination Fee shall be payable solely in cash, or
(ii) consists of cash and other non-cash property, or solely non-cash property,
then the Stockholder Termination Fee shall be payable in cash and such non-cash
property in the same proportion as the cash bears to the value of the non-cash
property issued or issuable in consequence of consummation of the Acquisition
Proposal (as such value is determined herein).
If Holdco and such Stockholder fail to agree promptly on the value of
such non-cash consideration, then the parties shall
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appoint an independent investment banking firm reasonably acceptable to Holdco
and such Stockholder to act as arbitrator (the "Arbitrator"). Upon the selection
of the Arbitrator, Holdco on the one hand and such Stockholder on the other
shall deliver to the Arbitrator and to each other their last and final offer
concurrently in writing (the "Certified Offers"). The Certified Offers shall
list one amount which the submitting party asserts is the appropriate valuation
of such non-cash consideration as of the date of submittal. The Arbitrator's
sole role shall be to select which one of the two Certified Offers most closely
approximates the valuation the Arbitrator would have determined for such non-
cash consideration, taking into account current market valuations of any
publicly traded securities which constitute such non-cash consideration. The
Arbitrator shall notify the parties of such determination. The determination of
the Arbitrator shall be binding on the parties. All costs and expenses of the
Arbitrator shall be borne by the parties whose Certified Offer is not selected.
Each Stockholder acknowledges that the agreements contained in this
Section 3(e) are an integral part of the transactions contemplated by this
Agreement and the Transaction. Accordingly, if the Stockholder shall fail to
pay when due any amounts which shall become due under Section 3(e) hereof, the
Stockholder shall in addition hereto pay to Holdco all costs and expenses
(including fees and disbursements of counsel) incurred in collecting such
overdue amounts, together with interest on such overdue amounts from the date
such payment was required to be made until the date such payment is received at
a rate per annum equal to the Prime Rate as announced from time to time by
Citibank, N.A. as its "prime rate," "reference rate," "base rate" or other
similar rate. Any payment required to be made pursuant to this Section 3(e)
shall be made when due by wire transfer of immediately available funds to an
account designated by Holdco.
The parties agree and acknowledge that in the event that any
Acquisition Proposal is consummated, it would be impracticable and extremely
difficult to ascertain with certainty the amount of damages to Holdco.
Therefore, the parties agree that payment of the Stockholder Termination Fee
pursuant to this Section 3(e) shall represent full liquidated damages. The
parties agree that no party shall be liable for special, indirect, incidental or
consequential damages of any nature arising from this Agreement.
(f) Fiduciary Duty of Directors. Holdco agrees and acknowledges that
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each Stockholder is a director of the Company, and, in such capacity, has
fiduciary duties to the stockholders of Company. Nothing in this Agreement
(including, without limitation, Section 3(b)) shall be deemed to limit or affect
the obligation of each Stockholder, as a director of the Company, to take any
and all action as may be necessary in the exercise of his fiduciary duty to the
stockholders of the Company.
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4. Representations and Warranties of Stockholders. Each
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Stockholder hereby severally and not jointly (and solely with respect to itself
and the Shares held of record or Beneficially Owned by such Stockholder)
represents and warrants to Holdco as follows:
(a) Ownership of Shares. Such Stockholder is the record and/or
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Beneficial Owner of the Existing Shares set forth on Exhibit C hereto. On the
date hereof, the Existing Shares constitute all of the Shares owned of record or
Beneficially Owned by such Stockholder. With respect to the number of shares set
forth opposite such Stockholder's name on Exhibit C hereto, and with the
exceptions noted thereon, if any, such Stockholder has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Sections 2 and 3 hereof, sole power of disposition, sole power of conversion,
sole power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Existing Shares with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this Agreement.
(b) Due Authorization. Such Stockholder has all requisite capacity,
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power and authority to execute and deliver this Agreement and perform its
obligations hereunder. This Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a valid and binding agreement
enforceable against such Stockholder in accordance with its terms except to the
extent (i) such enforcement may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors rights and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) No Conflicts. Except for filings, authorizations, consents and
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approvals contemplated by the Transaction and necessary for the consummation of
the transactions contemplated hereby and thereby, (i) no filing with, and no
permit, authorization, consent or approval of, any state or federal public body
or authority is necessary for the execution of this Agreement by such
Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by such Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder with any of
the provisions hereof shall (A) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which
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such Stockholder is a party or by which such Stockholder or any of its
properties or assets may be bound, or (B) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to such Stockholder or
any of its properties or assets.
(d) No Encumbrances. Except as set forth on Exhibit C or as otherwise
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permitted herein, the Shares and the certificates representing such Shares are
now, and at all times during the term hereof, will be, held by such Stockholder,
or by a nominee, custodian or trust for the benefit of such Stockholder, free
and clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances whatsoever,
except for any such arising hereunder.
(e) No Finder's Fees. No broker, investment banker, financial advisor
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or other Person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of such Stockholder.
5. Representations and Warranties of Holdco. Holdco represents and
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warrants to the Stockholders as follows:
(a) Organization. Holdco is a corporation duly organized, validly
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existing and in good standing under the laws of its state of incorporation, and
has all requisite corporate power or other power and authority to execute and
deliver this Agreement and perform its obligations hereunder. The execution and
delivery by Holdco of this Agreement and the performance by Holdco of its
obligations hereunder have been duly and validly authorized by its Board of
Directors and, except as contemplated in the Transaction, no other corporate
proceedings on the part of Holdco are necessary to authorize the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(b) Agreement. This Agreement has been duly and validly executed and
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delivered by Holdco and constitutes a valid and binding agreement of Holdco
enforceable against Holdco in accordance with its terms, except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency, or other
similar laws, now or hereafter in effect, affecting creditors' rights generally,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought.
(c) No Conflicts. Except for filings, authorizations, consents, and
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approvals contemplated by the Transaction and necessary for the consummation of
the transactions contemplated hereby and thereby, (i) no filing with, and no
permit, authorization, consent or approval of, any state or federal public body
or authority is necessary for the execution of this Agreement
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by Holdco and the consummation by Holdco of the transactions contemplated
hereby, and (ii) none of the execution and delivery of this Agreement by Holdco,
the consummation by Holdco of the transaction contemplated hereby or compliance
by Holdco with any of the provisions hereof shall (A) conflict with or result in
any breach of the charter or bylaws of Holdco, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third-party right of termination, cancellation,
material modifications or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Holdco is a party or by which Holdco of its
properties or assets may be bound, or (C) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to Holdco or its
respective properties or assets.
6. Legend.
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(a) Each Stockholder severally and not jointly agrees with, and
covenants to, Holdco that such Stockholder shall not request that the Company
register the transfer (by book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Proxy Shares, unless such
transfer is in compliance with this Agreement.
(b) Each Stockholder severally and not jointly agrees that it shall
promptly after the date hereof surrender to Holdco all certificates representing
the Proxy Shares held by such Stockholder, and Holdco shall place the following
legend on such certificates, which legend, except as otherwise expressly
provided in this Agreement, shall remain on such certificates until the
termination of this Agreement:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AGREEMENT,
DATED AS OF OCTOBER 17, 1997 AMONG CERTAIN STOCKHOLDERS AND ACQUISITION
HOLDINGS, INC. THE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFER OR
ENCUMBRANCE AND VOTING. A COPY OF THE AGREEMENT IS AVAILABLE AT THE
PRINCIPAL OFFICE OF THE COMPANY."
7. Termination. This Agreement shall terminate upon the earlier to
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occur of (i) the Closing Date and (ii) that date which is one year after the
date hereof; provided, however, if Holdco shall have breached its obligations
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under this Agreement or the Merger Agreement, then this Agreement shall
terminate in all respects (including, without limitation, Section 3(e)) 150 days
after the date hereof unless Holdco breaches its obligations under Section
10(a), in which case this Agreement shall terminate immediately upon such
breach. Notwithstanding the immediately
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preceding sentence, the parties hereto agree that the provisions of Section 3(e)
(but only to the extent an Acquisition Proposal is made, proposed, communicated,
disclosed or consummated prior to termination hereunder) and Section 8 shall
survive any termination of this Agreement, and that no such termination shall
relieve any party of liability for a breach hereof prior to termination.
8. Confidentiality and Public Announcements. The parties recognize
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that successful consummation of the transactions contemplated by this Agreement
may be dependent upon confidentiality with respect to the matters referred to
herein. In this connection, pending public disclosure thereof, each of the
parties hereto severally and not jointly agrees not to disclose or discuss such
matters with anyone not a party to this Agreement (other than its counsel,
advisors, corporate parents and affiliates) without the prior written consent of
the other parties hereto, except for filings required pursuant to the Exchange
Act and the rules and regulations thereunder or disclosures its counsel advises
are necessary in order to fulfill its obligations imposed by law or the
requirements of any securities exchange. At all times during the term of this
Agreement, the parties hereto will consult with each other before issuing or
making any reports, statements or releases to the public with respect to this
Agreement or the transactions contemplated hereby and will use good faith
efforts to agree on the text of public reports, statements or releases.
9. Severance and Consulting Agreements. Holdco and the Stockholders
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agree to enter into severance, consulting and non-competition agreements in the
forms attached hereto as Exhibits D-1 and D-2 on and as of the effective date of
the merger under the Merger Agreement.
10. General Provisions.
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(a) Commercially Reasonable Efforts to Consummate the Transaction.
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Holdco agrees that if the Merger Agreement, in the form attached hereto (the
"Form Merger Agreement"), is acceptable to the Special Committee of Independent
Directors of the Company's Board of Directors (the "Special Committee"), Holdco
will execute the Form Merger Agreement; provided, however, that Holdco will not
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be required to execute the Form Merger Agreement if the Company discloses on the
Company Disclosure Schedule (as such term is defined in the Form Merger
Agreement) an event or circumstance of which Holdco has no knowledge as of the
date hereof that would cause the representations and warranties in the Form
Merger Agreement to fail to be true and correct without regard to the Company
Disclosure Schedule. If such an event or circumstance is disclosed on the
Company Disclosure Schedule or if the Special Committee requests changes to the
Form Merger Agreement, Holdco agrees to negotiate the Merger Agreement in good
faith and to use its commercially reasonable efforts to consummate the
Transaction on terms mutually acceptable to the Special Committee and Holdco.
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(b) Expenses. Whether or not the transactions contemplated hereby are
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consummated, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such expenses, except as otherwise specifically noted herein or in the Merger
Agreement.
(c) Notices. All notices, requests, demands and other communications
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which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted if transmitted by telecopy, electronic or digital transmission
method; the day after it is sent, if sent for next day delivery to a domestic
address by recognized overnight delivery service (e.g., Federal Express); and
upon receipt, if sent by certified or registered mail, return receipt requested.
In each case notice shall be sent to:
(i) if to Holdco, to:
Acquisition Holdings, Inc.
c/x Xxxxx, Xxxx & Xxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(ii) if to the Stockholders, to the respective
addresses set forth on Exhibit C.
(d) Interpretation. When a reference is made in this Agreement to
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Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the word "include," "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation". This Agreement shall not be construed for or against either party
by reason of the authorship or alleged authorship of any provision hereof or by
reason of the status of the respective parties. All terms defined in this
Agreement in the
12
singular shall have comparable meanings when used in the plural, and vice versa,
unless otherwise specified.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
----------------------------------------------
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 is not intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder.
(f) Assignment. Except in connection with Permitted Transfers,
----------
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned (whether by operation of law or otherwise) by any Stockholder
without the consent of Holdco. 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.
(g) Governing Law. This Agreement shall be construed, interpreted
-------------
and the rights of the parties determined in accordance with the laws of the
State of New York (without reference to the choice of law provisions), except
with respect to matters of law concerning the internal corporate affairs of any
corporate entity which is a party to or the subject of this Agreement, and as to
those matters the law of the jurisdiction under which the respective entity
derives its powers shall govern.
(h) Severability. Each party agrees that, should any court or other
------------
competent authority hold any provision of this Agreement or part hereof to be
null, void or unenforceable, or order any party to take any action inconsistent
herewith or not to take an action consistent herewith or required hereby, the
validity, legality and enforceability of the remaining provisions and
obligations contained or set forth herein shall not in any way be affected or
impaired thereby. Upon any such holding that any provision of this Agreement is
null, void or unenforceable, the parties 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 extent possible. Except as otherwise
contemplated by this Agreement, to the extent that a party hereto took an action
inconsistent herewith or failed to take action consistent herewith or required
hereby pursuant to an order or judgment of a court or other competent authority,
such party shall incur no liability or obligation unless such party did not in
good faith seek to resist or object to the imposition or entering of such order
or judgment.
(i) Injunctive Relief. Subject to the last paragraph of Section 3(e),
-----------------
the parties acknowledge that it will be impossible to measure in money the
damages that would be suffered if the parties fail to comply with any of the
obligations herein imposed on them and that in the event of any such failure, an
aggrieved
13
Person or entity will be irreparably damaged and will not have an adequate
remedy at law. Subject to the last paragraph of Section 3(e), any such Person or
entity shall, therefore, be entitled to injunctive relief, including specific
performance, to enforce such obligations, and if any action should be brought in
equity to enforce any of the provisions of this Agreement, none of the parties
shall raise the defense that there is an adequate remedy at law.
(j) Attorneys' Fees. If any party to this Agreement brings an action
---------------
to enforce its rights under this Agreement, the prevailing party shall be
entitled to recover its costs and expenses, including without limitation
reasonable attorneys' fees, incurred in connection with such action, including
any appeal of such action.
(k) Cumulative Remedies. Subject to the last paragraph of Section 3
-------------------
(e), all rights and remedies of either party hereto are cumulative of each other
and of every other right or remedy such party may otherwise have at law or in
equity, and the exercise of one or more rights or remedies shall not prejudice
or impair the concurrent or subsequent exercise of other rights or remedies.
(l) Counterparts. This Agreement may be executed in two or more
------------
counterparts, all of which shall be considered one and the same instrument and
shall become effective when executed and delivered by each of the parties.
(m) Amendments, Waivers, Etc. This Agreement may not be amended,
-------------------------
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(n) Binding Agreement. Each Stockholder agrees that this Agreement
-----------------
and the obligations hereunder shall attach to the Shares and shall be binding
upon any Person or entity to which legal or Beneficial Ownership of such shares
shall pass, whether by operation of law or otherwise, including, without
limitation, such Stockholder's heirs, distributees, guardians, administrators,
executors, legal representatives, or successors or other transferees (for value
or otherwise) and any other successors in interest. Notwithstanding any transfer
of Shares the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
(o) Capacity. For purposes of this Agreement and the representations,
--------
covenants and promises contained herein, each of the Stockholders is acting
solely in his capacity as a stockholder of, and not as a director, officer,
employee, representative or agent of, the Company.
(p) Obligations of the Stockholders. The liabilities and obligations
-------------------------------
of each Stockholder under any provision of this
14
Agreement are several and not joint and apply solely to such Stockholder and to
the Shares held of record or Beneficially Owned by such Stockholder. No
Stockholder shall have any liability or obligation under this Agreement for any
act, omission or breach by any other Stockholder.
(q) Consent and Jurisdiction. Each party irrevocably and
------------------------
unconditionally agrees and consents that any suit, action or other legal
proceeding arising out of or related to this Agreement shall be brought and
heard in New York County, State of New York and each party irrevocably consents
to personal jurisdiction in any and all tribunals in said County.
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Acquisition Holdings, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
President
/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxx
16
EXHIBIT C
STOCKHOLDER EXISTING SHARES (#) PROXY SHARES (#)
----------- ------------------- ----------------
Xxxxxx Xxxxx 1,022,042 720,035
c/o ATC Group Services Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxx 638,739 449,995
c/o ATC Group Services Inc.
000 Xxxx 00xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
Total 1,660,781 1,170,030
Total Outstanding* 7,805,407
--------------------------
* As of August 18, 1997.
