TENDER AGREEMENT
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TENDER AGREEMENT, dated as of September 2, 1999 (the "Agreement"),
among Dyckerhoff Aktiengesellschaft, a corporation organized under the laws of
the Federal Republic of Germany ("Parent"), Level Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Purchaser") and the
persons listed on Schedule A hereto (each a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS, Parent, Purchaser and Lone Star Industries, Inc., a Delaware
corporation (the "Company") propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
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 (i) 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 (ii)
all of the outstanding warrants to purchase Company Common Stock (the
"Warrants") 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 and
Warrants set forth opposite such Stockholder's name on Schedule A hereto; such
Shares and Warrants, as may be adjusted by stock or warrant dividend, stock or
warrant split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, together with Shares and Warrants that may be acquired after the date
hereof by such Stockholder, including Shares issuable upon the exercise of
options (including the Options set forth in Schedule A), being collectively
referred to herein as the "Securities" 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
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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 herein), 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 Securities, 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 Securities
(each, a "Lien"), except as set forth in this Agreement.
(b) The Securities 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 Securities, the Stockholder does not, directly or
indirectly, other than as disclosed on Schedule A, 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, other than disclosed on Schedule A, 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 Securities 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,
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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
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder (the "HSR Act") or the federal securities
laws.
(g) Except as set forth in Section 3.8 of the Merger Agreement, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement or the Merger Agreement based upon arrangements made by or on behalf
of the Stockholder that is or will be payable by the Company or any of its
subsidiaries.
(h) 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 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:
(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
(or similar organizational documents), (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
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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 set forth in Section 4.4 of the Merger Agreement.
Section 4. Transfer of the Shares. During the term of this Agreement,
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except as otherwise expressly contemplated herein and in the Merger Agreement,
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
Securities, 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 that 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
Options or Warrants), (c) deposit the Securities into a voting trust, enter into
a voting agreement or arrangement with respect to the Securities 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 Securities 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 5. Adjustments.
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(a) In the event (i) of any stock or warrant dividend, stock or
warrant split, recapitalization, reclassification, combination or exchange of
shares of capital stock or other securities of the Company on, of or affecting
the Securities 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
Securities of or other securities of the Company, then the terms of this
Agreement will apply to the shares of capital stock or other securities 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 Securities hereunder.
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(b) Each Stockholder hereby agrees, while this Agreement is in effect,
to promptly notify Parent and Purchaser of the number of any new Securities
acquired by such Stockholder, if any, after the date hereof.
Section 6. Tender of Securities. Each Stockholder hereby agrees that
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such Stockholder will validly tender (or cause the record owner of such shares
to validly tender) and sell pursuant to and in accordance with the terms of the
Offer not later than the tenth business day after commencement of the Offer (or
the earlier of the expiration date of the offer and the tenth business day after
such Shares or Warrants, as the case may be, are acquired by such Stockholder if
the Stockholder acquires Shares or Warrants 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 and Warrants beneficially owned by such
Stockholder (including the shares of Company Common Stock and Warrants
outstanding as of the date hereof and set forth on Schedule A opposite such
Stockholder's name). Subject to the terms hereof, upon the purchase by
Purchaser of all of such then outstanding shares of Company Common Stock and
Warrants beneficially owned by such Stockholder pursuant to the Offer in
accordance with this Section 6, this Agreement will terminate as it relates to
such Stockholder. Each Stockholder acknowledges that Purchaser's obligation to
accept for payment and pay for the shares of Company Common Stock and Warrants
tendered in the Offer is subject to all the terms and conditions of the Offer
and the Merger Agreement.
Section 7. Termination. This Agreement will terminate as to any
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Stockholder upon the earlier of (a) the purchase of all the Securities
beneficially owned by such Stockholder pursuant to the Offer in accordance with
Section 6 and (b) the date the Merger Agreement is terminated in accordance with
its terms.
Section 8. Expenses. Except as otherwise expressly provided herein
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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.
Parent and Purchaser, on the one hand, and the Stockholders, severally and not
jointly, on the other hand, will indemnify and hold harmless the other from and
against any and all claims or liabilities for finder's fees or brokerage
commissions or other like payments incurred by reason of action taken by them or
him, respectively.
Section 9. Further Assurances. Each party hereto will execute and
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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.
Section 10. Publicity. Each of the parties hereto agrees that it
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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
without the consent of the other parties, except as may be required by law or
applicable stock exchange rules.
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Section 11. Stockholder Capacity. No person executing this Agreement
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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 Securities 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 12. Enforcement. Each stockholder acknowledges 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. 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 party further
agrees 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
another party hereto may have against the another party hereto for any failure
to perform its obligations under this Agreement. In addition, each party hereby
(i) consents to submit such party 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 of this
Agreement or any of the transactions contemplated hereby. Each party 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 13. Miscellaneous.
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(a) All representations, warranties, covenants and agreements made
herein will survive until the earlier of (a) the payment by Purchaser for the
Securities purchased pursuant to the Offer or (b) the termination of the Merger
Agreement in accordance with its 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
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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, together with the Merger Agreement and the other
agreements referred to therein, 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:
If to Parent or Purchaser to:
Dyckerhoff Aktiengesellschaft
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
with copies to:
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Dechert Price & ▇▇▇▇▇▇
4000 ▇▇▇▇ Atlantic Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to a Stockholder, at the address set forth on Schedule A hereto.
if to the Company:
Lone Star Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(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 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 Purchaser under this Agreement,
provided that any such assignment will not relieve Purchaser from any of its
obligations hereunder.
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(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.
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IN WITNESS WHEREOF, each of the 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.
DYCKERHOFF AKTIENGESELLSCHAFT
/s/ ▇▇▇▇▇ ▇▇▇▇▇
By: ________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:Chief Excutive Officer
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
By: ________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:Chief Financial Officer
LEVEL ACQUISITION CORP.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
By: ________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:
THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ FOUNDATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: ________________________
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
_______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Schedule A
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Stockholder Number of Shares
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The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Foundation 1,234,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 3,826*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 11,096*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3,984*
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 13,264*
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,742*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 49,958*
_________________
* Numbers do not include shares purchased under the Employee Stock Purchase
Plan ("ESPP") during 1999. No ESPP shares are covered hereunder (whether
or not set forth in the number of shares herein), however, each
Stockholder will use his best efforts to have such shares tendered in the
Offer by such plan. Numbers also do not include Options owned by the
Stockholder which are covered by Section 2.10 of the Merger Agreement,
provided that notwithstanding Section 2.10 of the Merger Agreement, if a
Stockholder acquires any Shares pursuant to an exercise of such
Stockholder's Options, such Shares shall be subject to this Agreement.
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