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Exhibit (c) (2)
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of August 16, 1999 (this
"Agreement"), among the several stockholders of THE ▇▇▇▇▇▇ CORPORATION, a
Delaware corporation (the "Company"), that are parties hereto (each, a
"Stockholder" and, collectively, the "Stockholders"), HOCHTIEF AG, a corporation
organized under the laws of Germany ("Parent"), and BETA ACQUISITION CORP., a
Delaware corporation and an indirect wholly owned subsidiary of Parent
("Purchaser").
WHEREAS, Parent and Purchaser are entering into an Agreement
and Plan of Merger dated as of the date hereof (as amended from time to time,
the "Merger Agreement"; capitalized terms being used herein as defined therein
unless otherwise defined herein), with the Company, pursuant to which (i)
Purchaser agrees to commence a cash tender offer (as such tender offer may
hereafter be amended from time to time, the "Offer") to acquire (A) all the
issued and outstanding shares of Company Common Stock, including the associated
Rights, for $28.625 per share of Company Common Stock (such amount, or any
greater amount per share of Company Common Stock paid pursuant to the Offer,
being the "Per Share Amount") and (B) all the issued and outstanding shares of
Series C Preferred Stock and Series D Preferred Stock (collectively, the
"Company Preferred Stock"), for an amount in cash equal to the product of the
Per Share Amount multiplied by the number of shares of Company Common Stock
issuable upon the conversion of such shares of Company Preferred Stock, in each
case, net to the seller in cash (such amount, or any greater amount paid per
share of Company Preferred Stock pursuant to the Offer, being the "Per Preferred
Share Amount") (such Per Share Amount or Per Preferred Share Amount, as
applicable, being hereinafter the "Purchase Price"); and (ii) following
consummation of the Offer, Purchaser will merge with and into the Company (the
"Merger");
WHEREAS, as of the date hereof, each Stockholder is the record
or beneficial owner of the number of shares of Company Common Stock and/or
shares of Company Preferred Stock set forth on the signature page hereof beneath
such Stockholder's name (with respect to each Stockholder, such Stockholder's
"Existing Shares" and, together with (i) any shares of Company Common Stock or
shares of Company Preferred Stock acquired after the date hereof, whether upon
the exercise of warrants, options, conversion of convertible securities or
otherwise and (ii) any shares of Company Common Stock or shares of Company
Preferred Stock transferred to a Permitted Transferee in accordance with Section
6.01, such Stockholder's "Shares"); and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement and incurring the obligations set forth therein, including the
Offer, Parent and Purchaser have required that the Stockholders agree to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto
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agree as follows:
ARTICLE I
TENDER OF SHARES
SECTION 1.01. Tender of Shares. Each Stockholder, severally
and not jointly, agrees to tender, pursuant to and in accordance with the terms
of the Offer, and not withdraw, all such Stockholder's Shares; provided,
however, that any Stockholder who would incur liability under Section 16(b) of
the Exchange Act as a result thereof shall not be required to tender such Shares
to the extent necessary to avoid such liability. Each Stockholder, severally and
not jointly, acknowledges and agrees that Purchaser's obligation to accept for
payment the Shares in the Offer, including any Shares tendered by such
Stockholder, is subject to the terms and conditions of the Offer.
ARTICLE II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement. Each Stockholder, severally
and not jointly, hereby agrees that, from and after the date hereof and until
the close of business on the 180th day following termination of the Merger
Agreement, at any meeting of the stockholders of the Company, however called,
and in any action by consent of the stockholders of the Company, such
Stockholder will vote (or cause to be voted) such Stockholder's Shares (a) in
favor of the approval and adoption of the Merger Agreement, the Merger and all
the transactions contemplated by the Merger Agreement and this Agreement and
otherwise in such manner as may be necessary to consummate the Merger; (b)
except as otherwise agreed to in writing in advance by Parent, against any
action, proposal, agreement or transaction that would result in a breach of any
covenant, obligation, agreement, representation or warranty of the Company
contained in the Merger Agreement (whether or not theretofore terminated) or of
the Stockholder contained in this Agreement; and (c) against any action,
proposal, agreement or transaction (other than the Merger Agreement or the
Transactions) that could result in any of the conditions to the Company's
obligations under the Merger Agreement (whether or not theretofore terminated)
not being fulfilled or that is intended, or could reasonably be expected, to
impede, interfere or be inconsistent with, delay, postpone, discourage or
adversely affect the Merger Agreement (whether or not theretofore terminated),
the Offer, the Merger or this Agreement, including, but not limited to, any
Superior Proposal.
SECTION 2.02. Irrevocable Proxy. If, and only if, any
Stockholder fails to comply with the provisions of Section 2.01 (as determined
by Parent in its sole discretion), such Stockholder hereby agrees that such
failure shall result, without any further action by such Stockholder, in the
irrevocable appointment of Parent, and each of its officers, as such
Stockholder's attorney and proxy pursuant to the provisions of Section 212(c) of
Delaware Law,
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with full power of substitution, to vote and otherwise act (by written consent
or otherwise) with respect to such Stockholder's Shares at any meeting of
stockholders of the Company (whether annual or special and whether or not an
adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise, on the matters and in the manner specified in Section 2.01. THIS
PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO
THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY
PERSON TO WHOM A STOCKHOLDER MAY TRANSFER ANY OF HIS SHARES IN BREACH OF THIS
AGREEMENT. Each Stockholder hereby revokes all other proxies and powers of
attorney with respect to such Stockholder's Shares that may have heretofore been
appointed or granted (the "Irrevocable Proxy"), and no subsequent proxy or power
of attorney shall be given or written consent executed (and if given or
executed, shall not be effective) by any Stockholder with respect thereto. All
authority herein conferred or agreed to be conferred shall survive the death or
incapacity of any Stockholder and the termination of the Irrevocable Proxy and
any obligation of the Stockholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of such Stockholder.
SECTION 2.03. Conflicts. In the case of any Stockholder who is
an officer or director of the Company, no provision of this Agreement shall
prevent or interfere with such Stockholder's performance of his or her
obligations, if any, solely in his capacity as an officer or director of the
Company, including, without limitation, the fulfillment of his or her fiduciary
duties under Delaware Law.
ARTICLE III
THE OPTION
SECTION 3.01. Grant of Option. Each Stockholder, severally and
not jointly, hereby grants to Purchaser an irrevocable option (each, an "Option"
and, collectively, the "Options") to purchase all, and not less than all, of
such Stockholder's shares of Company Common Stock and/or such Stockholder's
shares of Company Preferred Stock at the applicable Purchase Price, net to such
Stockholder in cash. Each Option shall expire if not exercised prior to the
close of business on the 180th day following termination of the Merger
Agreement.
SECTION 3.02. Exercise of Option. (a) Any or all of the
Options may be exercised by Purchaser as to any Stockholder, at any time and
from time to time, following termination of the Merger Agreement under
circumstances in which the Fee (or any portion thereof) shall be payable and
prior to the expiration of such Options.
(b) If Purchaser wishes to exercise an Option, Purchaser shall
send a written notice (the "Exercise Notice") to the applicable Stockholder of
its intention to exercise the Option, specifying the place, and, if then known,
the time and the date (the "Closing Date") of the closing (the "Closing") of the
purchase. The Closing Date shall occur on the third business
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day (or such longer period as may be required by applicable law or regulation)
after the later of (i) the date on which such Exercise Notice is delivered and
(ii) the satisfaction of the conditions set forth in Section 3.02(d). For the
purposes of this Agreement, the term "business day" means a Saturday, a Sunday
or a day on which banks are not required or authorized by law or executive order
to be closed in the City of New York.
(c) At the Closing, (i) each Stockholder whose Shares are
being purchased shall deliver to Purchaser (or its designee) all of such
Stockholder's Shares by delivery of a certificate or certificates evidencing
such Shares in the denominations designated by Purchaser, in its Exercise Notice
delivered pursuant to Section 3.02(b), duly endorsed to Purchaser or accompanied
by stock powers duly executed in favor of Purchaser, with all necessary stock
transfer stamps affixed, and (ii) Purchaser shall pay to each such Stockholder
the aggregate Purchase Price for such Stockholder's Shares.
(d) The Closing shall be subject to the satisfaction of each
of the following conditions:
(i) No Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any Law (whether temporary,
preliminary or permanent) which is then in effect and has the effect of
making the acquisition of Shares by Purchaser pursuant to the exercise
of the Options illegal or otherwise restricting, preventing or
prohibiting consummation of the purchase and sale of the Shares
pursuant to the exercise of the Options; and
(ii) any waiting period applicable to the
consummation of the purchase and sale of the Shares pursuant to the
exercise of the Options under the HSR Act shall have expired or been
terminated.
SECTION 3.03. Recapture. In the event Purchaser sells any
Shares acquired pursuant to the exercise of an Option hereunder within the
two-year period following the applicable Closing at a price in excess of the
Purchase Price for such Shares, Purchaser shall promptly pay to the applicable
Stockholder an amount equal to such excess (less any taxes incurred by Purchaser
in connection therewith).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents
and warrants to Parent and to Purchaser in respect of such Stockholder as
follows:
SECTION 4.01. Organization, Qualification. (a) Such
Stockholder, if it is an
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individual, has all legal capacity to enter into this Agreement, to carry out
his or her obligations hereunder and to consummate the transactions contemplated
hereby.
(b) Such Stockholder, if it is a corporation or other legal
entity, (i) is duly organized, validly existing and, if applicable, in good
standing under the laws of the jurisdiction of its incorporation or formation
and has the requisite power and authority and all necessary governmental
approvals to own, lease and operate its properties and to carry on its business
as it is now being conducted, except where the failure to be so organized,
existing or, if applicable, in good standing or to have such power, authority
and governmental approvals would not prevent or materially delay consummation of
the transactions contemplated by this Agreement or otherwise prevent or
materially delay such Stockholder from performing its obligations under this
Agreement and (ii) is duly qualified or licensed as a foreign corporation to do
business, and is, if applicable, in good standing, in each jurisdiction where
the character of the properties owned, leased or operated by such Stockholder or
the nature of its business makes such qualification or licensing necessary,
except for such failures to be so qualified or licensed and, if applicable, in
good standing that would not prevent or materially delay consummation of the
transactions contemplated by this Agreement or otherwise prevent or materially
delay such Stockholder from performing its obligations under this Agreement.
(c) Such Stockholder, if it is a corporation, has heretofore
furnished to Parent and Purchaser a complete and correct copy of the certificate
of incorporation and the by-laws or equivalent organizational documents, each as
amended to date, of such Stockholder. Such Stockholder, if it is a trust, has
heretofore furnished to Parent and Purchaser a complete and correct copy of the
trust agreement or equivalent agreement, as amended to date, of such
Stockholder. Such certificates of incorporation, by-laws or equivalent
organizational documents and any of the provisions of such certificate of
incorporation, by-laws or equivalent organizational documents are in full force
and effect. Such Stockholder is not in violation of any of the provisions of its
certificate of incorporation, by-laws or equivalent organizational documents.
SECTION 4.02. Authority Relative to this Agreement. Such
Stockholder has all necessary power and authority to execute and deliver this
Agreement, to perform such Stockholder's obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
SECTION 4.03. No Conflict. (a) The execution and delivery of
this Agreement by such Stockholder do not, and the performance of this Agreement
by such Stockholder shall not, (i) conflict with or violate the certificate of
incorporation or by-laws of such Stockholder that is a corporation, (ii)
assuming satisfaction of the requirements set forth in Section 4.03(b) below,
conflict with or violate the terms of any trust agreements or equivalent
organizational documents of any Stockholder that is a trust, (iii) conflict with
or violate any Law applicable to such Stockholder or by which the Shares owned
by such Stockholder are bound or affected or
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(iv) result in any breach of, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the Shares owned by such
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder or the Shares
owned by such Stockholder are bound or affected, except for any such conflicts,
violations, breaches, defaults or other occurrences that would not prevent or
materially delay consummation of the transactions contemplated by this Agreement
or otherwise prevent or materially delay such Stockholder from performing its
obligations under this Agreement.
(b) The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the Exchange Act, Blue Sky Laws, state takeover laws
and the pre-merger notification requirements of the HSR Act, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or materially delay
consummation of the transactions contemplated by this Agreement, or otherwise
prevent such Stockholder from performing its material obligations under this
Agreement.
SECTION 4.04. Title to the Shares. As of the date hereof, such
Stockholder is the record or beneficial owner of the number of shares of Company
Common Stock, Series C Preferred Stock and/or Series D Preferred Stock set forth
beneath such Stockholder's name on the signature page hereof. Such Shares are
all the securities of the Company owned, either of record or beneficially, by
such Stockholder (other than Shares owned by others as to which such Stockholder
may also be deemed a beneficial owner). The Shares owned by such Stockholder are
owned free and clear of all Liens, other than any Liens created by this
Agreement. Except as provided in this Agreement, such Stockholder has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares owned by such Stockholder. At the Closing, such
Stockholder will deliver, and upon such delivery and payment of the Purchase
Price therefor, as applicable, Purchaser will receive good, valid and marketable
title to such Stockholder's Shares free and clear of any Liens, other than
pursuant to this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser hereby, jointly and severally, represent
and warrant to each Stockholder as follows:
SECTION 5.01. Corporate Organization. Each of Parent and
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the
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jurisdiction of its incorporation and has the requisite corporate power and
authority and all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted, except
where the failure to be so organized, existing or in good standing or to have
such power, authority and governmental approvals would not prevent or materially
delay consummation of the transactions contemplated by this Agreement or
otherwise prevent or materially delay Parent or Purchaser from performing its
obligations under this Agreement.
SECTION 5.02. Authority Relative to this Agreement. Each of
Parent and Purchaser has all necessary corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement by Parent and Purchaser and the
performance by Parent and Purchaser of their obligations hereunder have been
duly and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of Parent or Purchaser is necessary to
authorize this Agreement. This Agreement has been duly and validly executed and
delivered by Parent and Purchaser and, assuming due authorization, execution and
delivery by the Stockholders, constitutes a legal, valid and binding obligation
of each of Parent and Purchaser enforceable against each of Parent and Purchaser
in accordance with its terms.
SECTION 5.03. No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by Parent and Purchaser do not, and
the performance of this Agreement by Parent and Purchaser will not, (i) conflict
with or violate the certificate of incorporation or by-laws or equivalent
organizational documents of Parent or Purchaser, (ii) assuming satisfaction of
the requirements set forth in 5.03(b) below, conflict with or violate any Law
applicable to Parent or Purchaser or by which any property or asset of either of
them is bound or affected, or (iii) result in any breach of, or constitute a
default (or an event which, with notice or lapse of time or both, would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of Parent or Purchaser pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Parent or Purchaser is a
party or by which Parent or Purchaser or any property or asset of either of them
is bound or affected, except, with respect to clauses (ii) and (iii), any such
conflicts, violations, breaches, defaults or other occurrences that would not
prevent or materially delay consummation of the transactions contemplated by
this Agreement or otherwise prevent or materially delay Parent or Purchaser from
performing its obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent and
Purchaser do not, and the performance of this Agreement by Parent and Purchaser
will not, require any consent, approval, authorization or permit of, or filing
with, or notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the Exchange Act, Blue Sky Laws and state takeover laws
and the pre-merger notification requirements of the HSR Act, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make
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such filings or notifications, would not prevent or materially delay
consummation of the transactions contemplated by this Agreement, or otherwise
prevent Parent or Purchaser from performing their material obligations under
this Agreement.
SECTION 5.04. Investment Intent. The purchase of Shares from
the Stockholders pursuant to this Agreement is for the account of Purchaser
solely for the purpose of investment and not with a view to, or for offer or
sale in connection, with any distribution thereof within the meaning of the
Securities Act.
ARTICLE VI
COVENANTS OF THE STOCKHOLDERS
SECTION 6.01. No Disposition or Encumbrance of Shares. Each
Stockholder, severally and not jointly, hereby agrees that, except as
contemplated by this Agreement, such Stockholder shall not (i) sell, transfer,
tender, assign, contribute to the capital of any entity, hypothecate, give or
otherwise dispose of, grant a proxy or power of attorney with respect to,
deposit into any voting trust, or create or permit to exist any Liens of any
nature whatsoever with respect to, any of such Stockholder's Shares (or agree or
consent to, or offer to do, any of the foregoing), (ii) take any action that
would make any representation or warranty of such Stockholder herein untrue or
incorrect in any material respect or have the effect of preventing or disabling
such Stockholder from performing such Stockholder's obligations hereunder or
(iii) directly or indirectly, initiate, solicit or encourage any person to take
actions that could reasonably be expected to lead to the occurrence of any of
the foregoing; provided that each Stockholder shall be entitled to transfer all
or any portion of such Stockholder's Shares to any Permitted Transferee who or
which, as applicable, agrees in writing to be bound by the provisions of this
Agreement. As used herein, "Permitted Transferee" means, in the case of any
Stockholder who is a natural person and who is a signatory to this Agreement on
the date hereof, a person who is the descendent or spouse of such Stockholder or
a partnership, corporation or trust the entire beneficial interest of which is
owned or controlled by such descendant or spouse and to whom or to which, as
applicable, Shares are transferred from such Stockholder (i) by will or the laws
of descent and distribution or (ii) by gift without consideration of any kind.
SECTION 6.02. No Solicitation of Transactions. Each
Stockholder, severally and not jointly, agrees that between the date of this
Agreement and the date of termination of the Merger Agreement, such Stockholder
will not, directly or indirectly, through any officer, agent or otherwise, (a)
solicit, initiate, accept or knowingly encourage the submission of any
Acquisition Proposal, or (b) participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or
otherwise cooperate in any way, or assist or participate in, facilitate or
encourage any proposal that constitutes, or may reasonably be expected to lead
to an Acquisition Proposal. Each Stockholder shall, and shall direct or cause
its directors, officers, employees, representatives and agents to, immediately
cease and cause to be terminated any discussions or negotiations with any
parties that may be ongoing with respect to
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any Acquisition Proposal. Each Stockholder shall promptly advise Parent orally
and in writing of any Acquisition Proposal or any request for information with
respect to any Acquisition Proposal, the material terms and conditions of such
Acquisition Proposal or request and the identity of the person making such
Acquisition Proposal or request.
SECTION 6.03. Further Action; Reasonable Best Efforts. Upon
the terms and subject to the conditions hereof, Parent, Purchaser and each
Stockholder shall (i) if necessary, make promptly their respective filings, and
thereafter make any other required submissions, under the HSR Act, with respect
to this Agreement and (ii) use their reasonable best efforts to take, or cause
to be taken, all appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement, including, without limitation,
using its reasonable best efforts to obtain all Permits, consents, approvals,
authorizations, qualifications and orders of Governmental Authorities and
parties to contracts with the Company and the Subsidiaries as are necessary for
the consummation of this Agreement; provided that neither Purchaser nor Parent
will be required by this Section 6.03 to take any action, including entering
into any consent decree, that requires the divestiture of a material amount of
assets of any of Purchaser or Parent or their respective subsidiaries. In case
any further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each party to this Agreement
shall use their reasonable best efforts to take all such action.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. The Stockholders' obligation
hereunder to tender, and not withdraw, their Shares pursuant to the Offer shall
terminate on the expiration date of the Offer. The Options (including any Option
as to which an Exercise Notice has been delivered but for which the Closing has
not occurred) shall terminate in accordance with the provisions of Section
3.02(a). The remaining provisions of this Agreement shall terminate, and no
party shall have any rights or obligations hereunder and this Agreement shall
become null and void and have no further effect upon the earliest of (a) the
effective time of the Merger and (b) the close of business on the 180th day
following the termination of the Merger Agreement. Nothing in this Section 7.01
shall relieve any party of liability for any breach of this Agreement. Parent
and Purchaser acknowledge that, in the event of termination of this Agreement,
Stockholders shall no longer have the obligation to tender, and may withdraw,
their Shares.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendment. This Agreement may not be amended
except by an instrument in writing signed by all the parties hereto.
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SECTION 8.02. Waiver. Any party to this Agreement may (i)
extend the time for the performance of any obligation or other act of any other
party hereto, (ii) waive any inaccuracy in the representations and warranties of
another party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement of another party contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
SECTION 8.03. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall 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) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 8.03):
(a) if to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, A. ▇▇▇▇ ▇▇▇▇▇▇, A. ▇▇▇▇ ▇▇▇▇▇▇
Associates, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and EBSPSW Holding AG,
addressed to it at:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
(b) if to any other Stockholder, addressed to such Stockholder:
c/o The ▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. Gozo, Esq.
with a copy to:
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▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(c) if to Parent or Purchaser:
Hochtief AG
▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Telecopy: 011-49-201-824-2859
Attention: Dr. Ing. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
SECTION 8.04. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated by this Agreement is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the
fullest extent possible.
SECTION 8.05. Further Assurances. Each Stockholder, Parent and
Purchaser will execute and deliver all such further documents and instruments
and take all such further action as may be necessary in order to consummate the
transactions contemplated hereby.
SECTION 8.06. Assignment. This Agreement shall not be assigned
by operation of law or otherwise, except that Parent and Purchaser may assign
all or any of their rights and obligations hereunder to any affiliate of Parent,
provided that no such assignment shall relieve Parent or Purchaser of its
obligations hereunder if such assignee does not perform such obligations.
12
12
SECTION 8.07. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 8.08. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
SECTION 8.09. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York. All
actions and proceedings arising out of or relating to this Agreement shall be
heard and determined in any New York state or federal court sitting in The City
of New York. The parties hereto hereby (i) submit to the exclusive jurisdiction
of any New York state or federal court sitting in The City of New York for the
purpose of any Action arising out of or relating to this Agreement brought by
any party hereto, and (ii) waive, and agree not to assert by way of motion,
defense, or otherwise, in any such Action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement may not be enforced in or by any of the above-named courts.
SECTION 8.10. Waiver of Jury Trial. Each of the parties hereto
hereby waives to the fullest extent permitted by applicable law any right it may
have to a trial by jury with respect to any actions or proceedings directly or
indirectly arising out of, under or in connection with this Agreement.
SECTION 8.11. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
SECTION 8.12. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 8.13. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Shares of Company
Common Stock: 95,855
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Shares of Company
Common Stock: 0
/s/ ▇▇▇▇▇▇ ▇. FEE
-----------------------------
Name: ▇▇▇▇▇▇ ▇. Fee
Shares of Company
Common Stock: 15,350
/s/ LEIF LOMO
-----------------------------
Name: Leif Lomo
Shares of Company
Common Stock: 4,500
/s/ G. JEFFREY RECORDS, JR.
-----------------------------
Name: G. Jeffrey Records, Jr.
Shares of Company
Common Stock: 123,248
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Shares of Company
Common Stock: 61,750
14
14
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Shares of Company
Common Stock: 8,000
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Shares of Company
Common Stock: 0
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Shares of Company
Common Stock: 285
15
15
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Shares of Company
Common Stock: 0
------
/s/ A. ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: A. ▇▇▇▇ ▇▇▇▇▇▇
Shares of Company
Common Stock: 12,000
------
▇▇▇▇▇▇ INTERNATIONAL INC.
By: /s/ A. ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: A. ▇▇▇▇ ▇▇▇▇▇▇
Title: President
Shares of Company
Common Stock: 4,500
------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Shares of Company
Common Stock: 0
------
16
16
EBSPSW HOLDING AG
Shares of Series C
Preferred Stock: 9,000
Shares of Series D
Preferred Stock: 6,000
Shares of Company
Common Stock: 30,750
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Chairman
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-Chairman
HOCHTIEF AG
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and
Chief Executive Officer
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Member of the
Executive Board
BETA ACQUISITION CORP.
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: President and Chairman