Exhibit D(2)
AGREEMENT
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AGREEMENT (this "Agreement"), dated as of March 26, 2000, among
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Forvaltnings AB Ratos (publ.), a Swedish corporation ("Parent"), Ratos
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Acquisition Corp., a Delaware corporation ("Merger Sub"), Xxxxxx Xxxxxxxxxx,
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Xxxxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxx, A. Xxxxxxxxx Xxxxxxxx, Xxxx X. Xxxxxxxx,
Xxxx X. Xxxxx, H. Xxxx Xxxxx and Xxxx X. Xxxxxxxx (each a "Director" and
collectively, the "Directors").
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RECITALS
WHEREAS, Parent, Merger Sub and Xxxx Company, a Delaware corporation (the
"Company"), have entered into an Agreement and Plan of Merger, dated as of the
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date hereof (the "Merger Agreement"), pursuant to which Merger Sub will commence
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a cash tender offer to acquire all of the outstanding shares of common stock,
par value $.10 per share, of the Company (the "Company Common Stock") and the
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Company and Merger Sub will merge, with the Company as the surviving corporation
in the merger;
WHEREAS, as of the date hereof, each Director is a member of the board of
directors of the Company (the "Board");
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WHEREAS, each Director is the record and beneficial owner of the number of
shares of Company Common Stock set forth opposite such Director's name on
Schedule A hereto and the number of options to purchase shares of Company Common
Stock set forth opposite such Director's name on Schedule B hereto; such shares
and options, as they may be adjusted by stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other transaction or event involving the Company, together
with any shares of Company Common Stock or options to purchase shares of Company
Common Stock that may be acquired after the date hereof by such Director, being
collectively referred to herein as the "Shares"; and
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WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Merger Sub have requested that the Directors enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Merger Sub to enter into, and in
consideration of their entering into, the Merger Agreement, the parties hereto
agree as follows:
1. Tender of Shares. Each Director hereby agrees that he or she shall
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tender his or her Shares into the Offer (as defined in the Merger Agreement) and
that he or she shall not withdraw any Shares so tendered, unless the Board
determines not to
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recommend the Offer pursuant to Section 1.2(b) or Section 6.2(b) of the Merger
Agreement.
2. Appointment of New Directors and Resignation of Current Directors.
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(a) Subject to the terms and conditions contained in Section 1.3 of the
Merger Agreement, each Director hereby agrees (i) to take all actions necessary
to appoint such number of new members of the Board designated by Parent as
provided for in Section 1.3(a) of the Merger Agreement and (ii) to resign as
director of the Company upon request of Parent and/or Merger Sub, in each case,
to the extent required in order to allow the Company to comply with Section
1.3(a) of the Merger Agreement and in accordance with the terms and conditions
contained therein.
(b) In the event that one or more Directors fail to resign from the Board
in accordance with the terms of paragraph 2(a), above, the Board shall
immediately call a special meeting of the shareholders of the Company in order
to vote upon the removal of such Director or Directors from the Board.
3. Representations and Warranties of the Directors. Each Director
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hereby represents and warrants severally and not jointly to Parent and Merger
Sub as follows:
(a) Authority. The Director has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Director and, assuming this Agreement constitutes a valid and binding obligation
of Parent and Merger Sub, constitutes a valid and binding obligation of the
Director enforceable against the Director in accordance with its terms.
(b) The Shares. The Director's Shares and the certificates representing
such Shares are now, and at all times during the term hereof will be, held by
such Director, or by a nominee or custodian for the benefit of such Director,
and the Director has good and marketable title to such Shares, free and clear of
any liens, proxies, voting trusts or agreements, understandings or arrangements,
except for any such liens or proxies arising hereunder.
4. Covenants of the Directors. Each Director hereby agrees as follows:
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(a) The Director shall not, except as contemplated by the terms of this
Agreement and the Merger Agreement, sell, transfer, pledge, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, assignment or other
disposition of, or grant of any lien with respect to, the Shares to any person
other than Parent or Merger Sub or take any other action that would in any way
restrict, limit or interfere with the performance of his/her obligations
hereunder or the transactions contemplated hereby.
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(b) Each Director will, from time to time, execute and deliver, or cause to
be executed and delivered, such additional or further transfers, assignments,
endorsements, consents and other instruments as Parent or Merger Sub may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
5. Assignment. Neither this Agreement nor any of the rights, interests
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or obligations hereunder shall be assigned by any of the parties hereto without
the prior written consent of the other parties. 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. Each
Director agrees that the obligations to tender the Shares hereunder shall attach
to such Director's 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 Director's
heirs or successors.
6. Amendment; Waiver. This Agreement may be amended only by a written
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instrument signed by all of the parties hereto. No provision of this Agreement
may be waived orally, but only by a written instrument signed by the party
against whom enforcement of such waiver is sought.
7. Counterparts. For the convenience of the parties hereto, this
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Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
8. Governing Law. This Agreement shall be governed by, and construed
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and interpreted in accordance with, the laws of the State of Delaware without
giving effect to Delaware conflicts of law principles.
9. Notices. Any notice, request, instruction or other document to be
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given hereunder by any party to the others shall be deemed given if in writing
and delivered personally or sent by registered mail (return receipt requested)
or overnight courier (providing proof of delivery), postage prepaid or facsimile
(which is confirmed):
If to Parent or Merger Sub, addressed to:
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Xxxx Xxxxxxxx
Forvaltnings AB Ratos (publ.)
Xxxxxxxxxxxxxx 0
XX-000 00 Xxxxxxxxx, Xxxxxx
Attention: President
Fax: x00 000 0000
If to any Director, addressed to him or her c/o:
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Xxxxxx X. Xxxxxxxxxx
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
or to such other addresses as may be designated in writing by the party to
receive such notice as provided above.
10. Entire Agreement. This Agreement (i) constitutes the entire agreement,
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and supersedes all other prior agreements and understandings, both written and
oral, among the parties, with respect to the subject matter hereof; and (ii) is
for the benefit only of the parties hereto and is not intended to create any
obligations to, or rights in respect of, any other persons or entities.
11. Illegality. In case any provision in this Agreement shall be declared
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or held invalid, illegal or unenforceable, in whole or in part, whether
generally or in any particular jurisdiction, such provision shall be deemed
amended to the extent, but only to the extent, necessary to cure such
invalidity, illegality or unenforceability, and the validity, legality and
enforceability of the remaining provisions, both generally and in every other
jurisdiction, shall not in any way be affected or impaired thereby.
12. Injunctive Relief. The parties hereto acknowledge and agree that
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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. Accordingly, the parties hereto acknowledge their intention
that, to the fullest extent permissible under applicable laws, the parties shall
be entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement, this being in addition to any other remedy to
which they may be entitled by law or equity.
13. Headings. The paragraph headings herein are for convenience of
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reference only, do not constitute part of this Agreement and shall not be deemed
to limit or otherwise affect any of the provisions hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto or their duly authorized officers on the date first
hereinabove written.
FORVALTNINGS AB RATOS (PUBL.)
By: _________________________________
Name:
Title:
RATOS ACQUISITION CORP.
By: _________________________________
Name:
Title:
__________________________________ ----------------------------------
Xxxxxx Xxxxxxxxxx Xxxxxxx X. Xxxxxxxxxx
__________________________________ ----------------------------------
Xxxxxx X. Xxxxx A. Xxxxxxxxx Xxxxxxxx
__________________________________ ----------------------------------
Xxxx X. Xxxxxxxx Xxxx X. Xxxxx
__________________________________ ----------------------------------
H. Xxxx Xxxxx Xxxx X. Xxxxxxxx
5
SCHEDULE B
XXXX COMPANY
Stock Options Held by Directors:
Total # Option #Exercised #Exercised Options
Name of of shs. price or currently currently
Date of grant Grantee granted per sh. cancelled outstanding exerciseable
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28-Jul-94 Batinovich, R. 4,500.0 2.389 0.0 4,500 4,500
28-Mar-95 Batinovich, R. 4,500.0 3.056 0.0 4,500 4,500
20-Mar-96 Batinovich, R. 4,500.0 4.111 0.0 4,500 4,500
18-Feb-97 Batinovich, R. 4,500.0 7.667 0.0 4,500 4,500
17-Feb-98 Batinovich, R. 4,500.0 11.000 0.0 4,500 4,500
16-Feb-99 Batinovich, R. 4,500.0 9.500 0.0 4,500 0
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24-Mar-91 Xxxxxxxxxx, R. 4,500.0 4.056 0.0 4,500 4,500
05-May-92 Xxxxxxxxxx, R. 4,500.0 4.111 0.0 4,500 4,500
23-Mar-93 Xxxxxxxxxx, R. 4,500.0 2.222 0.0 4,500 4,500
28-Mar-94 Xxxxxxxxxx, R. 4,500.0 2.833 0.0 4,500 4,500
12-Sep-95 Xxxxxxxxxx, R. 4,500.0 4.056 0.0 4,500 4,500
20-Mar-96 Xxxxxxxxxx, R. 4,500.0 4.111 0.0 4,500 4,500
18-Feb-97 Xxxxxxxxxx, R. 4,500.0 7.667 0.0 4,500 4,500
17-Feb-98 Xxxxxxxxxx, R. 4,500.0 11.000 0.0 4,500 4,500
16-Feb-99 Xxxxxxxxxx, R. 4,500.0 9.500 0.0 4,500 0
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18-Feb-97 Xxxxx, D. 4,500.0 7.667 0.0 4,500 4,500
17-Feb-98 Xxxxx, D. 4,500.0 11.000 0.0 4,500 4,500
16-Feb-99 Xxxxx, D. 4,500.0 9.500 0.0 4,500 0
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28-Apr-98 Gerstell, F. 4,500.0 13.000 0.0 4,500 4,500
16-Feb-98 Gerstell, F. 4,500.0 9.500 0.0 4,500 0
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28-Mar-95 Xxxxx, J. 4,500.0 3.056 0.0 4,500 4,500
20-Mar-96 Xxxxx, J. 4,500.0 4.111 0.0 4,500 4,500
18-Feb-97 Xxxxx, J. 4,500.0 7.667 0.0 4,500 4,500
17-Feb-98 Xxxxx, J. 4,500.0 11.000 0.0 4,500 4,500
16-Feb-99 Xxxxx, J. 4,500.0 9.500 0.0 4,500 0
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24-Mar-91 Xxxxx, X.X. 4,500.0 4.056 0.0 4,500 4,500
05-May-92 Xxxxx, X.X. 4,500.0 4.111 0.0 4,500 4,500
23-Mar-93 Xxxxx, X.X. 4,500.0 2.222 0.0 4,500 4,500
28-Mar-94 Xxxxx, X.X. 4,500.0 2.833 0.0 4,500 4,500
00-Xxx-00 Xxxxx, X.X. 250,000.0 9.500 0.0 250,000 250,000
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16-Jul-96 Xxxxxxxx, J. 4,500.0 5.722 0.0 4,500 4,500
18-Feb-97 Xxxxxxxx, J. 4,500.0 7.667 0.0 4,500 4,500
17-Feb-98 Xxxxxxxx, J. 4,500.0 11.000 0.0 4,500 4,500
16-Feb-99 Xxxxxxxx, J. 4,500.0 9.600 0.0 4,500 0
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12-Jan-95 Xxxxxxxx, J. 99,000.0 2.222 0.0 99,000 99,000
29-Apr-97 Xxxxxxxx, J. 30,000.0 8.000 0.0 30,000 15,000
25-Mar-98 Xxxxxxxx, J. 22,500.0 12.750 0.0 22,500 5,625
16-Feb-99 Xxxxxxxx, J. 15,000.0 9.500 0.0 15,000 0
SCHEDULE A
XXXX Company
Directors Stock Holdings
@ 3/24/00
Xxxx Xxxxx 212,975
Xxx Xxxxxxxxxx 225,000
Xxxxxxx Xxxxxxxxxx 5,625
Xxxxxx Xxxxx 10,500
Xxxx Xxxxx 1,500
Xxxx Xxxxxxxx 8,550
Xxxx Xxxxxxxx 4,500
Xxxx Xxxxxxxx 2,199
