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EXHIBIT (c)(2)
CONFORMED COPY
STOCKHOLDER AGREEMENT dated as of July 21, 1998, among
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, a New Jersey corporation ("Parent"), LIB
ACQUISITION CORP., a Delaware corporation and a wholly owned
subsidiary of Parent ("Sub") and the parties listed on
Schedule A attached hereto (the "Stockholders").
WHEREAS Parent, Sub and DePuy, 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 in accordance with
this Agreement, the "Merger Agreement") providing for (i) 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 Sub for all the outstanding shares of
common stock, par value $.01 per share, of the Company ("Company Common Stock")
and (ii) for the merger of Sub with and into the Company (the "Merger"), upon
the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS each Stockholder is the record and beneficial owner of the
number of shares of Company Common Stock set forth opposite such Stockholder's
name on Schedule A attached hereto (such shares of Company Common Stock,
together with any other shares of capital stock of the Company acquired by the
Stockholders after the date hereof and during the term of this Agreement
(including through the exercise of any stock options, warrants or similar
instruments), being collectively referred to herein as the "Subject Shares");
and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Sub have requested that the Stockholders enter into
this Agreement.
NOW, THEREFORE, to induce Parent and Sub 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:
1. Purchase and Sale of Shares. (a) The Stockholders hereby jointly
and severally agree to sell to
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Sub, and Sub hereby agrees to purchase, all Subject Shares of such Stockholders
at a price equal to the Offer Price; provided that such obligation to sell and
such obligation to purchase are subject to Sub having accepted shares of Company
Common Stock for payment under the Offer in accordance with Section 1.01 of the
Merger Agreement. Each Stockholder may tender its Subject Shares into the Offer
and Sub may direct that each Stockholder tender its Subject Shares. Any Subject
Shares not purchased in the Offer will be purchased by Sub immediately following
the purchase of shares of Company Common Stock in the Offer. Sub shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement such amounts as may be required to be deducted and
withheld with respect to the making of such payment under the Internal Revenue
Code of 1986, as amended, or under any provision of state, local or foreign tax
law; provided, however, that Sub shall promptly pay any amounts deducted and
withheld hereunder to the applicable governmental authority, shall promptly file
all tax returns and reports required to be filed in respect of such deductions
and withholding, and shall promptly provide to the Stockholders proof of such
payment and a copy of all such tax returns and reports.
(b) The Stockholders shall not be required to tender their Subject
Shares in the event of any amendment to the Merger Agreement that creates any
additional Offer Condition, reduces the Offer Price or otherwise adversely
affects the Stockholders without the prior written approval of the Stockholders.
2. Representations and Warranties of the Stockholders. The
Stockholders hereby jointly and severally represent and warrant to Parent and
Sub as follows:
(a) Authority. Each Stockholder has all requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement by each Stockholder, and the consummation of the
transactions contemplated hereby, have been duly authorized by all
necessary corporate action on the part of each Stockholder. This Agreement
has been duly executed and delivered by each Stockholder and constitutes a
valid and binding obligation of each Stockholder enforceable against each
such Stockholder in accordance with its
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terms. Except for the expiration or termination of the applicable waiting
periods under the Merger Control Laws (as defined below) and required
filings with the Securities and Exchange Commission, the execution and
delivery of this Agreement do not, and the consummation by Stockholders of
the transactions contemplated hereby and compliance with the terms hereof
will not, (i) conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under any provision of,
any trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law,
ordinance, rule or regulation applicable to any Stockholder or to the
property or assets of any Stockholder, (ii) require any filing with, or
permit, authorization, consent or approval of, any Federal, state or local
government or any court, tribunal, administrative agency or commission or
other governmental or regulatory authority or agency, domestic, foreign or
supranational, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to any Stockholder or any of the
properties or assets of any Stockholder, including the Subject Shares.
"Merger Control Laws" means (i) the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and (ii) Council
Regulation (EEC) No. 4064/89 of 21 December 1989 and (iii) all amendments
of, and all other applicable bills, acts, decrees, regulations or
ordinances relating to, the foregoing legislative acts.
(b) Capitalization. At the close of business on July 20, 1998, the
Stockholders were the record and beneficial owners of 83,000,000 Shares.
(c) The Subject Shares. Each Stockholder is the record and
beneficial owner of, and has good and valid title to, the Subject Shares
set forth opposite its name on Schedule A attached hereto, free and clear
of any claims, liens, encumbrances, security interests, options, charges
and restrictions of any kind (other than restrictions pursuant to
applicable securities laws). Each Stockholder does not own, of record or
beneficially, any shares of capital stock of the Company other than the
Subject Shares set forth
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opposite its name on Schedule A attached hereto. Each Stockholder has the
sole right to vote such Subject Shares, and none of such Subject Shares
are subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Subject Shares, except as
contemplated by this Agreement.
(d) Brokers. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on
behalf of the Stockholders.
3. Representation and Warranty of Parent and Sub. Parent and Sub
hereby jointly and severally represent and warrant to the Stockholders as
follows:
(a) Authority. Parent and Sub have all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement by each of Parent and Sub, and the consummation of the
transactions contemplated hereby, have been duly authorized by all
necessary corporate action on the part of each of Parent and Sub. This
Agreement has been duly executed and delivered by Parent and Sub and
constitutes a valid and binding obligation of Parent and Sub enforceable
against Parent and Sub in accordance with its terms. Except for the
expiration or termination of the applicable waiting periods under the
Merger Control Laws and required filings with the Securities and Exchange
Commission, the execution and delivery of this Agreement do not, and the
consummation by Parent and Sub of the transactions contemplated hereby and
compliance with the terms hereof will not, (i) conflict with, or result in
any violation of, or default (with or without notice or lapse of time or
both) under any provision of, any trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to
Parent or Sub or to the property or assets of Parent or Sub, (ii) require
any filing with, or permit, authorization, consent or approval of, any
Federal,
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state or local government or any court, tribunal, administrative agency or
commission or other governmental or regulatory authority or agency,
domestic, foreign or supranational, or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Parent or
Sub or any of the properties or assets of Parent or Sub.
(b) Securities Act. The Subject Shares will be acquired in
compliance with, and Sub will not offer to sell or otherwise dispose of
any Shares so acquired by it in violation of the registration requirements
of, the Securities Act of 1933, as amended.
(c) Financing. Sub has, or will have at the time that any payment is
required to be made to any Stockholder hereunder, the funds necessary to
make such payment to such Stockholder.
(d) Brokers. No broker, investment banker, financial advisor or
other person, other than Credit Suisse First Boston Corporation, the fees
and expenses of which will be paid by Parent, is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Parent or Sub.
4. Covenants of Stockholders. The Stockholders jointly and severally
agree as follows:
(a) At any meeting of stockholders of the Company called to vote
upon the Merger and the Merger Agreement or at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought, the Stockholders shall vote (or cause to be voted)
the Subject Shares in favor of the Merger, the adoption by the Company of
the Merger Agreement and the approval of the terms thereof and each of the
other transactions contemplated by the Merger Agreement; provided that no
amendment to the Merger Agreement will be made that creates additional
Offer Conditions, reduces the Offer Price or otherwise adversely affects
the Stockholders without the prior approval of the Stockholders.
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(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholders' votes, consents or other approvals are sought, the
Stockholders shall vote (or cause to be voted) the Subject Shares against
(i) any Takeover Proposal (as such term is defined in Section 6.02 of the
Merger Agreement) and (ii) any amendment of the Company's Certificate of
Incorporation or Bylaws or other proposal or transaction involving the
Company, which amendment or other proposal or transaction would be
reasonably likely to impede, frustrate, prevent, delay or nullify the
Offer, the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or change in any manner the voting
rights of any class of Company Common Stock. The Stockholders further
agree not to enter into any agreement inconsistent with the foregoing.
(c) The Stockholders shall not (i) sell, transfer, give, pledge,
assign or otherwise dispose of (including by gift) (collectively,
"Transfer"), or consent to any Transfer of, any or all of such Subject
Shares or any interest therein or enter into any contract, option or other
arrangement (including any profit sharing arrangement) with respect to the
Transfer of, the Subject Shares to any person other than pursuant to the
terms of the Offer or the Merger or otherwise to Sub in accordance with
Section 1 or (ii) enter into any voting arrangement, whether by proxy,
voting agreement, voting trust, power-of-attorney or otherwise, with
respect to the Subject Shares in connection with, directly or indirectly,
any Takeover Proposal. The Stockholders shall not commit or agree to take
any of the foregoing actions.
(d) The Stockholders shall not, and shall use their reasonable
efforts to cause any investment banker, financial advisor, attorney,
accountant or other representative of any such Stockholder not to,
directly or indirectly, (i) solicit, initiate or encourage (including by
way of furnishing information), or take any other action to facilitate,
any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Takeover Proposal or (ii)
participate in any discussions or negotiations regarding any Takeover
Proposal.
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5. Grant of Irrevocable Proxy; Appointment of Proxy. (a) Each
Stockholder hereby irrevocably grants to, and appoints, Parent and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in their respective capacities as officers of
Parent, and any individual who shall hereafter succeed to any such office of
Parent, and each of them individually, 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 Subject Shares, or
grant a consent or approval in respect of such Subject Shares against (i) any
Takeover Proposal or (ii) any amendment of the Company's Certificate of
Incorporation or Bylaws, or other proposal or transaction (including any consent
solicitation to remove or elect any directors of the Company) involving the
Company which amendment or other proposal or transaction would be reasonably
likely to impede, frustrate, prevent, delay or nullify the Offer, the Merger,
the Merger Agreement or any of the other transactions contemplated by the Merger
Agreement.
(b) Each Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Subject Shares are not irrevocable, and that any
such proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 5 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of such Stockholder in accordance with this Agreement. Such
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. 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 (the "DGCL"). Such irrevocable proxy shall be
valid until the earlier to occur of (i) eleven months from the date hereof or
(ii) the termination of this Agreement pursuant to Section 9.
(d) Any action taken by Parent pursuant to the proxy granted under
Section 5(a)(ii) shall provide that the Stockholders may revoke such action
effective upon termination of the Merger Agreement.
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6. Further Assurances. Upon the terms and subject to the conditions
set forth in this Agreement, each of the parties agrees to use all reasonable
efforts (as described in Section 7.03(a) of the Merger Agreement) to consummate
and make effective, in the most expeditious manner practicable, the Offer and
the Merger, and the other transactions contemplated by this Agreement and the
Merger Agreement.
7. Certain Events. (a) Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to such Stockholder's Subject Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of law or
otherwise, including such Stockholder's administrators or successors. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Company Common Stock, or the acquisition of additional shares of
Company Common Stock or other voting securities of the Company by any
Stockholder, the number of Subject Shares listed in Schedule A beside the name
of such Stockholder shall be deemed adjusted appropriately and this Agreement
and the obligations hereunder shall attach to any additional shares of Company
Common Stock or other voting securities of the Company issued to or acquired by
such Stockholder.
(b) Each Stockholder agrees that it will deliver to the Company,
within 10 business days after the date hereof (or, in the event Subject Shares
are acquired subsequent to the date hereof within 10 business days after the
date of such acquisition), any and all certificates representing such
Stockholder's Subject Shares solely for the purpose of the Company inscribing
upon such certificates the legend in accordance with Section 7.13 of the Merger
Agreement.
8. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that (i) Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to any U.S. subsidiary of Parent that may be substituted
for Sub as contemplated by Section 2.01 of the Merger Agreement, and (ii) Parent
may assign, in its sole discretion, any and all of its rights,
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interests and obligations hereunder to any direct or indirect wholly owned
subsidiary of Parent, provided that Parent will remain liable for its
obligations hereunder in the event of any assignment pursuant to this clause
(ii). 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.
9. Termination. (a) This Agreement, and all rights and obligations
of the parties hereunder, shall terminate upon the date upon which the Merger
Agreement is terminated in accordance with its terms. Notwithstanding the
foregoing, Sections 8, 9 and 10 shall survive any termination of this Agreement.
(b) Notwithstanding Section 9(a) above, Stockholders may terminate
this Agreement in the event the Company has the right to terminate the Merger
Agreement pursuant to Section 9.01(b) thereof.
10. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied
(which is confirmed), sent by overnight courier (providing proof of
delivery) or mailed by registered or certified mail (return receipt
requested) to Parent and Sub in accordance with Section 10.02 of the
Merger Agreement and to the Stockholders at their respective addresses or
telecopier numbers set forth on Schedule A attached hereto (or at such
other address or telecopier number for a party as shall be specified by
like notice).
(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall 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".
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Capitalized terms used and not otherwise defined in this Agreement shall
have the respective meanings assigned to them in the Merger Agreement.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i)
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 (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless
of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
(g) 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. 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 to the fullest extent permitted by applicable law in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
11. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall
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be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any court of the United States located in the State of Delaware or in a
Delaware state court, this being in addition to any other remedy to which they
are entitled at law or in equity. In addition, each of the parties hereto (i)
consents to submit such party to the personal jurisdiction of any Federal court
located in the State of Delaware or any Delaware state court in the event any
dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) agrees that such party will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(iii) agrees that such party will not bring any action relating to this
Agreement or the transactions contemplated hereby in any court other than a
Federal court sitting in the State of Delaware or a Delaware 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.
12. Public Announcements. Parent and Sub, on the one hand, and the
Stockholders, on the other hand, will consult with each other before issuing,
and provide each other with a reasonable opportunity to review and comment upon,
any press release or other public statements with respect to the transactions
contemplated by this Agreement and the Merger Agreement, including the Offer and
the Merger, and shall not issue, or permit any of their respective subsidiaries
to issue, any such press release or make any such public statement prior to such
consultation, except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange or national securities quotation system, in which case the party making
such release will use reasonable efforts to obtain comments from the other party
before issuance of such release or statement.
13. Indemnification. Parent agrees to indemnify and hold harmless
each Stockholder from all liability for taxes, costs and other expenses incurred
by any Stockholder or any affiliate of any Stockholder (other than the Company
or any of its foreign or domestic subsidiaries) solely as a result of Parent's
exercise of its right to purchase the Company's foreign subsidiaries prior to
the closing of the Offer pursuant to Section 7.14 of the Merger Agreement, to
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the extent such taxes, costs or other expenses are in excess of the taxes, costs
or other expenses that would have been incurred by such Stockholder or such
affiliate of such Stockholder (other than the Company or any of its foreign or
domestic subsidiaries) if Parent had not exercised such right prior to closing
of the Offer.
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IN WITNESS WHEREOF, Parent, Sub and the Stockholders have caused
this Agreement to be duly executed and delivered as of the date first written
above.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
LIB ACQUISITION CORP.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CORANGE LIMITED,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
CORANGE INTERNATIONAL LIMITED,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
CORANGE INTERNATIONAL HOLDING B.V.,
By: /s/ ▇. ▇. VAN DER HOEK
------------------------------------
Name: ▇. ▇. van der Hoek
Title: Director
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PHARMINVEST S.A.,
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President & GM
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SCHEDULE A
Name, Address Number of Shares
and Telecopier of Company Common
Number of Stockholder Stock Owned of Record
--------------------- ---------------------
Corange Limited 3,168,745
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: President
Tel: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇
Corange International Limited 528,247
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: President
Tel: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇
Corange International Holding B.V. 13,272,193
c/o Roche Nederland ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
NL-3641 AA Mijdrecht The Netherlands
Attention: General Manager
Tel: ▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇
Pharminvest S.A. 66,030,815
▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention: President
Tel: ▇▇▇▇▇ ▇▇ ▇▇▇▇-▇
Fax: ▇▇▇▇▇ ▇▇ ▇▇ ▇▇
