EXHIBIT 99.2
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of August 21,
1998 by and among Warburg, ▇▇▇▇▇▇ Investors, L.P., a Delaware limited
partnership (the "Primary Stockholder"), Numark Laboratories, Inc., a Delaware
corporation (the "Purchaser"), and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a resident of the
Commonwealth of Pennsylvania (the "Executive Stockholder," and together with the
Primary Stockholder, the "Stockholders").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Purchaser, ▇▇▇▇▇▇ & ▇▇▇▇▇ Laboratories,
Inc., a Delaware corporation (the "Subsidiary"), and ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc., a
Delaware corporation (the "Company"), are entering into an Asset Purchase
Agreement of even date herewith (as it may be amended or modified from time to
time, the "Acquisition Agreement"), pursuant to which Purchaser will acquire
from the Company substantially all of the Company's assets and assume
substantially all of the Subsidiary's liabilities (as it may be amended or
modified from time to time the "Transaction");
WHEREAS, each Stockholder owns, as of the date hereof, that number of
shares of the Company's common stock (the "Common Stock"), par value $0.01 per
share (the "Existing Shares," together with any shares of Common Stock
beneficial ownership (as defined in Section 2.1 below) of which is acquired by
such Stockholder after the date hereof and prior to the earlier of (i) the date
of the Company's stockholders meeting contemplated by the Acquisition Agreement
(including as may be postponed or adjourned the "Meeting Date"), and (ii)
termination hereof, hereinafter collectively referred to as the "Shares") set
forth opposite his or its name on Annex I hereto; and
WHEREAS, as a condition to their willingness to enter into the
Acquisition Agreement, and in reliance upon each Stockholder's representations,
warranties, covenants and agreements hereunder, Purchaser has requested that
each Stockholder agree, and each Stockholder has agreed, to enter into this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for such other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and intending to be legally
bound hereby, it is agreed as follows:
1. Agreement to Vote.
1.1. Each Stockholder hereby agrees that during the time this Agreement
is in effect, subject to Section 6.1(c) below, at any meeting of the
stockholders of Company, however called, and in any action by consent of the
stockholders of Company, the Stockholder shall: (a) vote his or its Shares in
favor of the approval and adoption of the Acquisition Agreement; (b) vote his or
its Shares against any action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
Company under the Acquisition Agreement; and (c) vote his or its Shares against
(i) any proposal from a Person, other than the Transaction, relating to a
merger, business combination, recapitalization, reorganization or liquidation
involving Company or the Subsidiary (as defined in the Acquisition Agreement),
or the sale or transfer of a material amount of assets of Company or the
Subsidiary (each an "Acquisition Proposal"), or (ii) any change in the
management or board of directors of Company, except as may otherwise be agreed
to in writing by Purchaser. Each Stockholder acknowledges receipt and review of
a copy of the Acquisition Agreement.
2. Representations and Warranties of Stockholders. Each Stockholder represents
and warrants to Purchaser as follows:
2.1. Ownership of Shares. On the date hereof, the Existing Shares are
all of the Shares currently owned of record or beneficially owned (which, for
purposes of this Agreement, shall be determined in accordance with Rule
13d-3(a)(1) under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) by such Stockholder or any Affiliates (as defined in the Acquisition
Agreement) of such Stockholder. Such Stockholder has, with respect to the
Existing Shares, and on the Meeting Date will have, with respect to the Shares,
good, valid and marketable title, and the right to vote such Common Stock in
accordance with the terms of this Agreement, in each case free and clear of all
liens, claims, encumbrances, voting agreements, voting trusts or proxies which
would interfere with such Stockholder's ability to vote the Shares in accordance
with the terms of this Agreement.
2.2. Power; Binding Agreement. Such Stockholder has the full legal
right, power and authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution and delivery of this Agreement
by such Stockholder will not violate any other agreement to which such
Stockholder is a party including, without limitation, any voting agreement,
stockholder agreement or voting trust. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and binding
agreement of such Stockholder, enforceable in accordance with its terms. Neither
the execution or delivery of this Agreement nor the consummation by such
Stockholder of the transactions contemplated hereby will (a) require any consent
or approval of or filing with any governmental or other regulatory body other
than filings required under the federal securities laws, or (b) constitute a
violation of, conflict with or constitute a default under, any material
contract, commitment, agreement, understanding, arrangement or other restriction
of any kind to which such Stockholder is a party or by which such Stockholder is
bound.
2.3. Finder's Fees. No person is, or will be, entitled to any
commission or finder's fees from either Stockholder in connection with this
Agreement or the transactions contemplated hereby exclusive of any commission or
finder's fees referred to in the Acquisition Agreement.
3. Representations and Warranties of Purchaser. Purchaser represents and
warrants to the Stockholders as follows:
3.1. Authority. Purchaser has full legal right, power and authority to
enter into and perform all of its obligations under this Agreement. The
execution and delivery of this Agreement by Purchaser will not violate any other
agreement to which Purchaser is a party. This Agreement has been duly executed
and delivered by Purchaser and constitutes a legal, valid and binding agreement
of Purchaser, enforceable in accordance with its terms. Neither the execution of
this Agreement nor the consummation by Purchaser of the transactions
contemplated hereby will (a) require any consent or approval of or filing with
any governmental or other regulatory body other than filings required under the
federal securities laws, or (b) constitute a violation of, conflict with or
constitute a default under, any material contract, commitment, agreement,
understanding, arrangement or other restriction of any kind to which Purchaser
is a party or by which it is bound.
3.2. Finder's Fees. No person is, or will be, entitled to any
commission or finder's fee from Purchaser in connection with this Agreement or
the transactions contemplated hereby exclusive of any commission or finder's
fees referred to in the Acquisition Agreement.
4. Termination. This Agreement shall terminate on the earlier of (a) the Closing
(as defined in the Acquisition Agreement), and (b) the termination of the
Acquisition Agreement.
5. Expenses. Each party hereto will pay all of its expenses in connection with
the transactions contemplated by this Agreement, including, without limitation,
the fees and expenses of its counsel and other advisers.
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6. Covenants
6.1. Except in accordance with the provisions of this Agreement, each
Stockholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, any of the Shares;
(b) grant any proxies, deposit any Shares into a voting trust
or enter into a voting agreement with respect to any Shares;
(c) take any action to encourage, initiate or solicit any
inquiries or the making of any Acquisition Proposal or engage in any
negotiations concerning, or provide any confidential information or data to, or
have any discussions with, any person relating to an Acquisition Proposal or
otherwise assist or facilitate any effort or attempt by any person or entity
(other than Purchaser, or its officers, directors, representatives, agents,
affiliates or associates) to make or implement an Acquisition Proposal. Such
Stockholder will immediately cease and cause to be terminated any existing
activities, discussions or negotiations on its part with any parties conducted
heretofore with respect to any of the foregoing, and will notify Purchaser
promptly if it becomes aware of any such inquiries or that any proposals are
received by, any such information is requested from, or any such negotiations or
discussions are sought to be instituted or continued with, the Company (or its
officers, directors, representatives, agents, affiliates or associates), such
notice to include the material terms communicated; provided, however, that the
foregoing shall not restrict the Stockholder (in his capacity as a director of
the Company) or any of its representatives on the Company's board of directors
from taking actions to the same extent and in the same circumstances permitted
for the Company and the Company's board of directors under Section 6.3 of the
Acquisition Agreement; or
(d) enter into any agreement which would interfere with its
obligations under this Agreement or the Transaction.
6.2. Such Stockholder agrees, while this Agreement is in effect, to
notify Purchaser promptly of the number of any shares of Common Stock acquired
by such Stockholder after the date hereof.
7. Survival of Representations and Warranties. All representations, warranties,
covenants and agreements made by each Stockholder or the Purchaser in this
Agreement shall survive the Closing and any investigation at any time made by or
on behalf of any party.
8. Notices. All notices or other communications required or permitted hereunder
shall be in writing (except as otherwise provided herein), given in the manner
provided in the Acquisition Agreement, and shall be deemed duly given when
received, addressed as follows:
(a) If to the Purchaser:
Numark Laboratories, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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With a required copy to:
▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Principal Stockholder:
Warburg, ▇▇▇▇▇▇ Investors, L.P.
c/o ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇:
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
In each case with a required copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
9. Entire Agreement; Amendment. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement among the parties
hereto with respect to the subject matter contained herein and supersede all
prior agreements and understandings among the parties with respect to such
subject matter. This Agreement may not be modified, amended, altered or
supplemented except by an agreement in writing executed by Purchaser and the
Stockholders.
10. Obligations of Stockholders. The representations, warranties, covenants,
agreements and obligations of the Stockholders contained in this Agreement shall
be deemed to be several, and not joint with any other Stockholder, and made with
respect to itself, himself, its Shares or his Shares only.
11. Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns and personal
representatives, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties.
12. Governing Law. Except as expressly set forth below, this Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. In addition, each of the Stockholders and
Purchaser hereby agree that any dispute arising out of this Agreement shall be
heard in the Supreme Court of the State of New York or in the United States
District Court for the Southern District of New York and, in connection
therewith, each party to this Agreement hereby consents to the jurisdiction of
such courts and
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agrees that any service of process in connection with any dispute arising out of
this Agreement may be given to any other party hereto by certified mail, return
receipt requested, at the respective addresses set forth in Section 8 above.
13. Injunctive Relief. The parties agree that in the event of a breach of any
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. The parties therefore agree that in the event of a breach of any
provision of this Agreement, the aggrieved party shall be entitled to obtain in
any court of competent jurisdiction a decree of specific performance or to
enjoin the continuing breach of such provision, in each case without the
requirement that a bond be posted, as well as to obtain damages for breach of
this Agreement. By seeking or obtaining such relief, the aggrieved party will
not be precluded from seeking or obtaining any other relief to which it may be
entitled.
14. Counterparts; Facsimile Signatures. This Agreement may be executed,
including execution by facsimile, in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same document.
15. Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
16. Further Assurances. Each party hereto shall execute and deliver such
additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
17. Third Party Beneficiaries. Nothing in this Agreement, expressed or implied,
shall be construed to give any person other than the parties hereto any legal or
equitable right, remedy or claim under or by reason of this Agreement or any
provision contained herein.
[Execution Page Follows]
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IN WITNESS WHEREOF, the Purchaser and the Stockholders have caused this
Agreement to be executed by their duly authorized officers, each as of the date
and year first above written.
Numark Laboratories, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Warburg, ▇▇▇▇▇▇ Investors, L.P.
By: ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Partner
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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ANNEX I
Name of Stockholder Number of Existing Shares
------------------- -------------------------
Warburg, ▇▇▇▇▇▇ Investors, L.P. 3,020,478
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 295,121
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