EXHIBIT (d)(2)
EXECUTION COPY
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of December 16, 20O4
among PENCIL ACQUISITION CORP., a Delaware corporation (the "Purchaser"), and
the other persons executing this Agreement whose signatures appear on a
counterpart hereof (the "Stockholders").
WHEREAS, ▇▇▇▇▇ TICONDEROGA COMPANY, a Delaware corporation (the
"Company"), Fila-Fabbrica Italiana Lapis ▇▇ ▇▇▇▇▇▇ S.P.A., an Italian company
and sole stockholder of Purchaser, are concurrently herewith entering into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides, among other things, for the acquisition by Parent
of the Company through a tender offer (the "Offer") made by Purchaser for all of
the outstanding shares of the Company's Common Stock, $1.00 par value ("Common
stock"), and the subsequent merger (the "Merger") of Purchaser into the Company;
and
WHEREAS, each stockholder is the beneficial owner of that number of shares
of Common Stock (the "Shares") and is also indebted to the Company in the amount
set forth on Annex I attached hereto.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, representations, warranties, and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I. SALE AND PURCHASE OF THE SHARES
1.01 Subject to the terms and conditions of this Agreement, at the closing
provided for in Section 2.02 hereof (the "Closing"), each Stockholder will sell,
transfer, assign and deliver or cause to be delivered the Shares to Purchaser,
and Purchaser will purchase the Shares from each Stockholder. At Purchaser's
written request, each Stockholder shall tender to Purchaser in the Offer his or
her shares subject to this Agreement.
1.02 Subject to the terms and conditions of this Agreement, in reliance on
the representations, warranties and agreements of each Stockholder contained
herein and in full payment for the shares, Purchaser will deliver at the closing
by wire transfer of immediately available funds to each Stockholder
1
EXECUTION COPY
an aggregate amount equal to the product of (A) $7.00 in cash (or any higher
price which may be paid pursuant to the Offer) and (B) the number of Shares
beneficially owned by such Stockholder (such product, the "Purchase Price"). At
the Closing, each Stockholder will deliver, or cause to be delivered, to
Purchaser certificates representing the Shares duly endorsed to Purchaser or
accompanied by stock powers duly executed by such Stockholder in blank, together
with a duly executed Substitute Form W-9 or equivalent form for corporate
entities. In the event that any Stockholder receives, on or after the date
hereof, any dividend or distribution paid or distributed in respect of any
Shares purchased hereunder at any time, such Stockholder shall pay, or cause to
be paid, to Purchaser such dividend or distribution (and all dividends and
distributions and amounts received in respect of any securities or other assets
which are themselves payable pursuant to this sentence) upon either the Closing
or promptly following the receipt of any such dividend or distribution,
whichever occurs last, it being understood that nothing in this sentence shall
require such Stockholder to pay to Purchaser the Purchase Price received by it
hereunder. In the event that, after the date hereof, any Stockholder shall
become the beneficial owner of any shares of Common Stock in addition to the
number of shares appearing opposite such Stockholder's name at the foot of this
Agreement, such additional shares of Common Stock shall be deemed "Shares"
subject to purchase and sale pursuant to this Agreement and subject to all terms
and conditions of this Agreement.
1.03 The Purchaser shall be entitled to withhold from the Purchase Price
due to any Stockholder, and to pay to the Company, the amount of any
indebtedness (plus accrued interest, the "Indebtedness") due from such
stockholder to the Company. The amount of any such Indebtedness is set forth on
Annex I hereto.
ARTICLE II. CONDITIONS TO PARTIES' OBLIGATIONS, ETC.
2.01 (A) The obligations of Purchaser to purchase and pay for the Shares
pursuant to this Agreement .shall be subject to the fulfillment of the following
conditions: (a) no preliminary or permanent injunction or other order against
the delivery of the Shares or prohibiting the consummation of any of the
transactions contemplated hereby or by the Merger Agreement issued by any court
of competent jurisdiction shall be in effect, (b) the representations and
warranties made by each
2
EXECUTION COPY
Stockholder in Article III hereof shall be true in all material respects as of
the date of this Agreement and as of the time of the Closing, (c) all conditions
to the Offer set forth in Exhibit A to the Merger Agreement shall have been
satisfied or waived, and (d) Purchaser, substantially simultaneously with the
purchase of the Shares pursuant to this Agreement, shall have purchased all
shares of Common Stock (if any) validly tendered and not properly withdrawn
pursuant to the terms of such Offer.
(B) The obligations of each Stockholder to sell the Shares pursuant to
this Agreement shall be subject to the fulfillment of the conditions set forth
in clause (a) of section 2.01 (A) and to the further conditions that (i) the
representations and warranties made by Purchaser in Article IV hereof shall be
true in all material respects as of the date of this Agreement and as of the
time of the Closing, and (ii) Purchaser (or one of its affiliates) shall have
commenced the Offer and purchased all shares of Common Stock (if any) validly
tendered and not properly withdrawn pursuant to the terms of such offer.
2.02 The Closing of the purchase by Purchaser of the Shares contemplated
by Section 1.01 of this Agreement shall take place substantially simultaneously
with the closing of the Offer and immediately following the satisfaction (or
waiver by the party entitled to the benefit thereof) of the conditions set forth
in this Article II. The Closing shall take place at the offices of the
Purchaser's attorneys, or at such other place as the parties hereto shall
mutually agree.
2.03 Upon the termination of the Merger Agreement pursuant to the
provisions of Article VI thereof, this Agreement also shall terminate without
any adverse consequence to the Stockholders and without any further action by
the parties hereto.
2.04 It is expressly understood and agreed that the Stockholders are
entering into this Agreement solely in their capacity as stockholders of the
Company, and nothing contained herein shall restrict or limit their rights,
duties or fiduciary obligations as directors or officers of the Company,
including without limitation their rights, duties and obligations under Section
4.3 of the Merger Agreement.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder Represents and warrants to Purchaser as follows:
3
EXECUTION COPY
3.01 Such Stockholder has all necessary power and authority to execute
and deliver this Agreement and to sell, assign, transfer and deliver to
Purchaser the Shares pursuant to the terms and conditions of this Agreement.
Such Stockholder has sole voting power and sole power of disposition with
respect to all of the Shares with no restrictions material to this Agreement on
the Stockholder's voting rights or rights of disposition pertaining thereto, and
the Shares constitute all shares of Common Stock beneficially owned by the
Stockholder.
3.02 The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
such Stockholder, and no other proceedings on the part of the Stockholder are
necessary to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly and validly executed and delivered by
such Stockholder and, assuming it has been duly and validly authorized,
executed and delivered by Purchaser, such agreement constitutes a valid and
binding agreement of such Stockholder, enforceable against the Stockholder in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect generally affecting the rights of creditors and subject to
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Neither the execution and
delivery of this Agreement nor the consummation by such Stockholder of the
transactions contemplated hereby will conflict with or constitute a material
violation of or default under any contract, commitment, agreement, arrangement
or restriction of any kind to which such Stockholder is a party or by which such
Stockholder is bound. If this Agreement is being executed in a representative or
fiduciary capacity, the person signing this Agreement has full power and
authority to enter into and perform such agreement.
3.03 Each Stockholder has good title to the number of Shares appearing
opposite his or its name, free of all claims, liens, options, charges, security
interests or other legal or equitable rights and encumbrances of whatsoever
nature (collectively, "Encumbrances"), and there exist no restrictions on the
voting rights pertaining thereto, and Purchaser shall receive at the Closing
good title to all Shares purchased from such Stockholder, free of all
Encumbrances, and with no restriction on the voting rights pertaining thereto.
4
EXECUTION COPY
3.04 Such Stockholder's United States taxpayer identification number is as
set forth beneath his or its signature below or on Schedule I hereto.Such
Stockholder is not a foreign person as defined in Section 1445(f)(3) of the
Internal Revenue Code of 1986, as amended.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to each Stockholder as follows:
4.01 Purchaser is duly organized, validly existing and in good standing
under Delaware law and has all necessary power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
4.02 The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
Purchaser and no other corporate proceedings on the part of Purchaser are
necessary to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly and validly executed and delivered by
Purchaser, and, assuming this Agreement has been duly and validly authorized,
executed and delivered by each Stockholder, this Agreement constitutes a valid
and binding agreement of Purchaser enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws now or hereafter in
effect generally affecting the rights of creditors and subject to general
equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
4.03 Purchaser is acquiring the Shares for its own account and not with a
view to the public distribution thereof and will not offer to sell or otherwise
dispose of the Shares so acquired in violation of the Securities Act of 1933, as
amended.
ARTICLE V. COVENANTS OF THE STOCKHOLDERS
5.01 Each Stockholder hereby covenants and agrees that, on and after the
date hereof and during the term of this Agreement, such Stockholder will not
sell, transfer, assign, pledge, hypothecate or otherwise dispose of or limit its
right to vote in any manner, or otherwise encumber, any of the Shares which are
the subject matter of this Agreement, or enter into any agreement to do any of
the foregoing, except pursuant to
5
EXECUTION COPY
Sections 1.01, 1.02 and 5.02 hereof. No Stockholder will take any action that
would have the effect of preventing or disabling such Stockholder from
performing his or its obligations under this Agreement.
5.02 Subject in all respects to Sections 2.03 and 2.04 hereof, effective
upon the execution of this Agreement, each Stockholder appoints ▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and each of them, with power of substitution in each, as
proxies. (a) to vote the shares at any meeting of stockholders of the Company or
any adjournment or adjournments thereof or (b) to execute and deliver consents
with respect to the Shares upon any and all such matters as each such proxy or
his substitute shall in his sole discretion deem proper. Each Stockholder
intends this proxy to be irrevocable and coupled with an interest. Each
Stockholder hereby revokes any proxy previously granted by such Stockholder with
respect to any of the Shares. Subject in all respects to Sections 2.03 and 2.04
hereof, effective upon the execution and delivery of this Agreement, each
Stockholder hereby agrees to vote the Shares in favor of the approval of the
Merger and adoption of the Merger Agreement at any meeting of stockholders of
the Company or any adjournment or adjournments thereof and in opposition to any
transaction or action inconsistent with the Merger or the Merger Agreement and,
if requested by Purchaser, to execute and deliver a consent to the approval of
the Merger and adoption of the Merger Agreement and in opposition to any
transaction or action inconsistent with the Merger or the Merger Agreement.
5.03 Each Stockholder shall, as soon as practicable after the execution
and delivery of this Agreement, take all reasonable action required, if any, (i)
to obtain all waivers, consents, approvals and agreements of any third parties,
including governmental authorities, necessary or advisable to authorize, approve
or permit the purchase and sale of Shares pursuant hereto, (ii) to release all
encumbrances, if any, on the Shares, and (iii) to cooperate with Purchaser in
defending any legal proceedings, whether judicial or administrative and whether
brought derivatively or on behalf of third parties (including government
agencies or officials), challenging this Agreement.
5.04 Simultaneously with the purchase of his Shares, each Stockholder who
is a director of the Company shall submit his written resignation as a director
of the Company effective as of the date of such resignation.
6
EXECUTION COPY
ARTICLE VI. MISCELLANEOUS
6.01 In the event the Company institutes any change in the Common Stock by
reason of a stock dividend, split-up, merger, recapitalization, combination,
conversion, exchange of shares or the like, the number and kind of shares
subject hereto and the Purchase Price shall be appropriately adjusted to reflect
changes made in the Common Stock.
6.02 This Agreement will be governed by and construed in accordance with
the internal laws of the State of Delaware, without regard to the principles of
conflicts of law. This Agreement may be executed simultaneously in
counterparts, each of which will be deemed to be an original but all of which
together will constitute one and the same instrument.
6.03 The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
6.04 From time to time, at Purchaser's request and without further
consideration, each Stockholder will execute and deliver to Purchaser such
documents and take such action as Purchaser may reasonably request in order to
consummate more effectively the transactions contemplated hereby and to vest in
Purchaser good title to the Shares being sold by such Stockholder, including,
but not limited to, using its best efforts to cause the Company's transfer
agent to transfer the shares on the transfer books of the Company to Purchaser.
6.05 This Agreement will be binding upon, inure to the benefit of and be
enforceable by (i) each Stockholder and such Stockholder's heirs, beneficiaries,
representatives, successors and assigns, and (ii) Purchaser's successors and
permitted assigns. Each Stockholder agrees that damages would be an inadequate
remedy for breach of this Agreement and that the obligations of the parties
hereto shall be enforced by the remedies of specific enforcement and injunctive
relief. This Agreement may not be assigned by the parties hereto, except that
Purchaser may assign its rights hereunder to any direct or indirect subsidiary
of Purchaser.
6.06 In furtherance of this Agreement, each Stockholder hereby agrees to
cause, within five business days of the date hereof, all certificates for the
Shares to be legended to the effect that they are subject to the terms of this
Agreement (and
7
EXECUTION COPY
that this Agreement places limits on the voting and transfer of the Shares), and
each Stockholder acknowledges that the Company, pursuant to Section 4.11 of the
Merger Agreement, is issuing stop transfer instructions to the transfer agent
for the Common Stock with respect to any transfer of Shares other than to
Purchaser or any its affiliates.
6.07 This Agreement, and the documents referred to herein or delivered
pursuant hereto which form a part hereof, contain the entire understanding of
the parties hereto with respect to its subject matter, and each party hereto
represents and acknowledges that it has not relied in any way upon any other
agreements or understandings. There are no restrictions, agreements, promises,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein or therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. This Agreement may be amended only by a written
instrument duly executed by all parties hereto. Any condition to a party's
obligations hereunder may be waived by such party.
6.08 All notices, claims certificates, requests, demands and other
communications hereunder ("notices") will be given in writing and will be deemed
to have been duly given if delivered or mailed (registered or certified mail,
postage prepaid, return receipt requested) or by facsimile transmission as
follows (or at such other address for a party as shall be specified by like
notice):
(a) If to the Purchaser, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax no. ▇▇▇ ▇▇▇-▇▇▇▇
(b) If to any stockholder, to the address set forth below such
stockholder's signature below, with a copy to:
8
EXECUTION COPY
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
The Bayard Firm
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax. No. ▇▇▇ ▇▇▇-▇▇▇▇
6.09 In the event any party shall commence any legal proceeding to enforce
its rights under this Agreement, the prevailing party or parties in such
proceeding shall be entitled all legal fees and expenses incurred by it or them
in connection with such proceeding from the other party or parties. A party
commencing any proceeding shall not be deemed to be a prevailing party unless it
shall have obtained a final judgment in its favor in such proceeding that is no
longer subject to appeal.
6.10 The parties agree to cooperate in connection with obtaining all
regulatory approvals, if any, required to be obtained in connection with this
Agreement, so as to minimize costs to be incurred by each of the parties.
9
EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
/s/ ▇▇▇▇ ▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇, as trustee of
the ▇▇▇▇▇▇ ▇▇▇▇ Declaration
of Trust
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, individually
and as joint tenant with
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,(a)
individually, (b) as Trustee
of the Second ▇▇▇▇▇▇ ▇▇▇▇
Declaration of Trust, (c) as
Custodian Shares in the names
of ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and (d) as Joint Tenant With
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
10
EXECUTION COPY
PENCIL ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
11
EXECUTION COPY
ANNEX I
Indebtedness (including
No. of Shares accrued interest
Stockholder Beneficially Owned through 11/30/04)
----------- ------------------ -----------------
▇▇▇▇ ▇. ▇▇▇▇ 485,670 $208,997.38
▇▇▇▇ ▇. ▇▇▇▇ as Trustee of
▇▇▇▇▇▇ ▇▇▇▇ Trust dated
1/24/91 150,000
▇▇▇▇ ▇. ▇▇▇▇ as Custodian for
Grandchildren 12,800
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 42,145 $133,618.83
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇ jointly 3,310
▇▇▇▇▇▇ ▇▇▇▇▇ 2,900
▇▇▇▇▇▇ ▇▇▇▇▇ as Trustee for
UA dated 5/11/92 97,420
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 6,365 $ 19,087.04
▇▇▇▇▇▇ ▇▇▇▇▇ as Custodian for
▇▇▇▇ ▇▇▇▇▇ 5,800
▇▇▇▇▇▇ ▇▇▇▇▇ as Custodian for
▇▇▇▇ ▇▇▇▇▇ 9,120
▇▇▇▇▇▇ ▇▇▇▇▇ as Custodian for
▇▇▇▇▇ ▇▇▇▇▇ 9,120
▇▇▇▇▇▇ ▇▇▇▇▇ as Custodian for
▇▇▇▇▇▇ ▇▇▇▇▇ 9,120
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 8,094 $ 54,068.45
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 58,145 $130,485.10
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 11,815 $ 33,127.74
12