EXHIBIT 99.1
STOCKHOLDERS OPTION AGREEMENT
STOCKHOLDERS OPTION AGREEMENT (this "Agreement"), dated September 5, 1995
among TIE Acquisition Co., a Delaware corporation ("Buyer"), and ▇▇▇▇▇▇
Holdings, Inc. a Delaware corporation ("▇▇▇▇▇▇"), the holder of 1,796,681 shares
of common stock, par value $.10 per share (the "Company Common Stock"), of
TIE/communications, Inc., a Delaware corporation (the "Company") and The
Pritzker Family Philanthropic Fund, an Illinois not-for-profit corporation ("the
Fund", and together with ▇▇▇▇▇▇, the "Principal Stockholders") the holder of
1,197,788 shares of Company Common Stock.
WHEREAS, in order to induce Buyer to enter into the Agreement and Plan of
Merger (the "Merger Agreement"), of even date, among the Company, Buyer and TIE
Merger Co., a Delaware corporation and wholly-owned subsidiary of Buyer. Buyer
has requested that the Principal Stockholders, and the Principal Stockholders
have agreed, 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 agree as follows:
ARTICLE I.
STOCK OPTION
SECTION 1.01. Grant of Stock Option. Each of ▇▇▇▇▇▇ and the Fund hereby
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grants to Buyer an irrevocable option (the "▇▇▇▇▇▇ Option" in the case of the
shares of Company Common Stock owned or hereafter acquired by ▇▇▇▇▇▇ and the
"Fund Option" in the case of shares of Company Common Stock owned or hereafter
acquired by the Fund, and the ▇▇▇▇▇▇ Option and the Fund Option being
collectively, the "Options") to purchase the number of shares of Company Common
Stock presently owned by such party as set forth in the Preamble hereof and any
additional shares of Company Common Stock acquired by such stockholder (whether
by purchase, exercise of options or otherwise) after the date of this Agreement
(collectively, the "Principal Stockholder Shares") at a purchase price of $8.60
per Principal Stockholder Share (the "Purchase Price").
SECTION 1.02. Exercise of Option. (a) Subject to the conditions set forth
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in Section 1.05 hereof, each of the ▇▇▇▇▇▇ Option and the Fund Option may be
exercised by Buyer, in whole only and together only, at any time prior to the
later to occur of (i) the tenth business day after the termination of the Merger
Agreement as a result of one of the Trigger Events (as defined in the Merger
Agreement) described in Section 8.03(a)(i), (ii), (iv), or (v) of the Merger
Agreement and (ii) the third business day following the date on which all
waiting periods under the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended, and the rules and
regulations promulgated thereunder (the "HSR Act") applicable to the exercise of
the ▇▇▇▇▇▇ Option or the Fund Option shall have expired or have been earlier
terminated (the later to occur of such dates being the "Expiration Date").
In the event Buyer wishes to exercise the Options, Buyer shall send a
written notice (the "Exercise Notice") to the respective grantor of such option
specifying the place within the city of Chicago, Illinois, the date (not less
than three (3) or more than ten (10) business days from the date of the Exercise
Notice), and the time for the closing of such purchase. The closing of a
purchase of shares of Company Common Stock which are the subject of the Options
(the "Closing") shall take place at the place and on the date and time
designated by Buyer in the Exercise Notice; provided, that if, at the date of
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the Closing herein provided for, the conditions set forth in Section 1.05 hereof
shall not have been satisfied (or waived by the affected Principal Stockholder),
Buyer may postpone the Closing until a date within five (5) business days after
such conditions are satisfied (but not beyond the Expiration Date).
(b) Buyer shall not be under any obligation to deliver any Exercise Notice
and may allow the Options to expire without purchasing any shares of Company
Common Stock which are the subject thereof; provided, however, that once Buyer
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has delivered an Exercise Notice, subject to the terms and conditions of this
Agreement, Buyer shall be bound, subject to satisfaction of the conditions set
forth in Section 1.06 hereof, to effect the purchase as described in such
Exercise Notice.
SECTION 1.03. Closing. At the Closing (a) the Principal Stockholder shall
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(i) deliver to Buyer a certificate or certificates (the "Certificates")
representing such Principal Stockholder Shares owned by such stockholder duly
endorsed or accompanied by stock powers duly executed in blank or (ii) in the
event the shares are not certificated, cause to be made an appropriate book
entry delivery to an account designated by Buyer not less than two (2) business
days prior to the Closing, and (b) Buyer shall pay to the stockholder, by wire
transfer in immediately available funds, an amount equal to (i) the number of
shares of Company Common Stock being purchased at such Closing multiplied by
(ii) the Purchase Price (the "Purchase Amount").
SECTION 1.04. Agreement to Tender. (a) Each of the Principal
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Stockholders agrees to tender (and agrees that, without prior written
notification to Buyer, it will not withdraw), pursuant to and in accordance with
the terms of the offer to be made pursuant to the terms of the Merger Agreement
(the "Offer"), the Principal Stockholder Shares owned by such stockholder.
Within five (5) business days after the commencement of the Offer, each of the
Principal Stockholders shall deliver to the depositary designated in the Offer
(the "Depositary") (i) an appropriately completed and executed letter of
transmittal with respect to the Principal Stockholder Shares owned by such
stockholder complying with the terms of the Offer, (ii) Certificates or other
evidence of ownership, representing all of the Principal Stockholder Shares
owned by such stockholder and (iii) all other documents or instruments required
to be delivered pursuant to the terms of the Offer. No tender pursuant to this
Section 1.04 will excuse either of the Principal Stockholders from their
respective obligations contained in Article V, and in the case of ▇▇▇▇▇▇,
Article VI of this Agreement.
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(b) In the event that either of the Principal Stockholders shall, following
the giving of the notice to Buyer required by Section 1.04(a) hereof, withdraw
the tender of any of the Principal Stockholder Shares owned by such stockholder,
such stockholder and any of the Principal Stockholder Shares owned by such
stockholder shall thereafter remain subject to this Agreement.
(c) Notwithstanding Section 1.02(a) hereof, any Principal Stockholder
Shares tendered in accordance with this Section 1.04 shall be paid for at the
consummation of, and in accordance with the terms of, the Offer.
SECTION 1.05. Conditions to the Stockholders' Obligations. The obligation
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of each of the Principal Stockholders to sell Principal Stockholder Shares at
any Closing is subject to the following conditions:
(i) The representations and warranties of Buyer contained in Article
IV shall be true and correct in all material respects on the date thereof.
(ii) All waiting periods under the HSR Act applicable to the exercise
of the ▇▇▇▇▇▇ Option and the Fund Option shall have expired or have been
earlier terminated.
(iii) There shall be no preliminary or permanent injunction or other
order by any federal or state court or other agency or body, nor any
statute, rule, regulation or order promulgated or enacted by any
governmental authority, restricting, preventing, prohibiting or otherwise
restraining the exercise of the ▇▇▇▇▇▇ Option or the Fund Option.
(iv) The Closing with respect to the other Option shall occur
simultaneously with the Closing; provided, this condition shall be deemed
satisfied if the reason for the non-occurrence of the Closing of the other
Option is the result of any breach of any obligation under this Agreement
by the Principal Stockholder which is a party to such other Option.
Notwithstanding the foregoing, to the extent any Principal Stockholder Shares
are tendered and paid for pursuant to Section 1.04(a) hereof, the conditions of
this Section 1.05 shall not apply.
SECTION 1.06. Conditions to the Buyer's Obligation. The Obligation of
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Buyer to purchase Principal Stockholder Shares at any Closing is subject to the
following conditions:
(i) The representations and warranties of each Principal Stockholder
contained in Article III shall be true and correct in all material respects
on the date thereof.
(ii) All waiting periods under the HSR Act applicable to the exercise
of the ▇▇▇▇▇▇ Option and the Fund Option shall have expired or have been
earlier terminated.
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(iii) There shall be no preliminary or permanent injunction or other
order by any federal or state court or other agency or body, nor any
statute, rule, regulation or order promulgated or enacted by any
governmental authority, restricting, preventing, prohibiting or otherwise
restraining the exercise of the ▇▇▇▇▇▇ Option or the Fund Option.
(iv) The Closing with respect to the other Option shall occur
simultaneously with the Closing.
Notwithstanding the foregoing, to the extent any Principal Stockholder Shares
are tendered and paid for pursuant to Section 1.04(a) hereof, the conditions of
this Section 1.06 shall not apply.
SECTION 1.07. (a) Adjustment Upon Changes in Capitalization or Merger.
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In the event of any change in the Company's capital stock by reason of stock
dividends, stock splits, mergers, consolidations, recapitalizations,
combinations, conversions, exchanges of shares, extraordinary or liquidating
dividends, or other changes in the corporate or capital structure of the Company
which would have the effect of diluting or changing the Buyer's rights
hereunder, the number and kind of shares or securities subject to the ▇▇▇▇▇▇
Option or the Fund Option, as the case may be, and the purchase price per
Principal Stockholder Share (but not the total purchase price) shall be
appropriately and equitably adjusted so that the Buyer shall receive upon
exercise of the Option the number and class of shares or other securities or
property that the Buyer would have received in respect to the Principal
Stockholder Shares if the Option had been exercised immediately prior to such
event. Each of the Principal Stockholders shall take such steps in connection
with such consolidation, merger, liquidation or other such action as may be
necessary to assure that the provisions hereof shall thereafter apply as nearly
as possible to any securities or property thereafter deliverable upon exercise
of the ▇▇▇▇▇▇ Option or the Fund Option, as the case may be.
(b) In the event the consideration per share to be paid by Buyer pursuant
to the Offer is increased, the Purchase Price shall be similarly increased with
respect to the Principal Stockholder Shares; and, in the event the Closing
hereunder shall have occurred, Buyer shall promptly pay to each of the Principal
Stockholders the product of the amount of such increase in the Purchase Price
multiplied by the number of Principal Stockholder Shares purchased from such
stockholder by Buyer at the Closing.
ARTICLE II.
GRANT OF PROXY
Each of the Principal Stockholders hereby revokes any and all previous
proxies granted with respect to any of the Principal Stockholder Shares owned by
such stockholder. By entering into this Agreement, each of the Principal
Stockholders hereby grants a proxy appointing Buyer as such stockholder's
attorney-in-fact and proxy, with full power of substitution, for and in the
stockholder's name, to vote, express consent or dissent, or otherwise to utilize
such voting
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power to (a) vote such shares in favor of the Merger Agreement and the
transactions contemplated thereby; (b) vote such shares against any action or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement; and (c) vote such shares against any action or
agreement (other than the Merger Agreement and the transactions contemplated
thereby) that would impede, interfere with, delay, postpone or attempt to
discourage the Merger or the Offer, including without limitation any Acquisition
Proposal (as defined in the Merger Agreement). The proxy granted by each of the
Principal Stockholders pursuant to this Article II is irrevocable, is deemed to
be coupled with an interest, and is granted in consideration of Buyer's entering
into this Agreement and the Merger Agreement; provided, however, that such proxy
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shall be revoked upon termination of this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL STOCKHOLDERS
Each of the Principal Stockholders, severally and not jointly, represents
and warrants to the Buyer that:
SECTION 3.01. Authority. Such Principal Stockholder has all necessary
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corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by such Principal
Stockholder and the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of such Principal Stockholder and no other
proceedings are necessary to authorize this Agreement or the performance of all
obligations hereunder, or to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by such
Principal Stockholder and, assuming the due authorization, execution and
delivery by Buyer, constitutes the legal, valid and binding obligation of such
Principal Stockholder, enforceable against such stockholder in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors rights and
remedies generally, and subject as to enforceability to general principles of
equity whether raised at law or in equity.
SECTION 3.02. Title. With respect to all Principal Stockholder Shares
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owned by such Principal Stockholder, such stockholder is the record and
beneficial owner of such shares with no restrictions on any voting rights or
rights of disposition pertaining thereto except as provided for under applicable
state and federal securities laws. At any Closing, such stockholder will convey
good and valid title to the Principal Stockholder Shares which are the subject
of such Closing, free and clear of any and all claims, liens, charges,
encumbrances, pledges, security interests, restrictions on transfer, conditional
sale or other retention device or arrangement (collectively, "Liens"). None of
the Principal Stockholder Shares owned by such stockholder are subject to any
voting trust or other agreement or arrangement with respect to the voting of
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such shares. Upon delivery of the Certificates and the receipt of payment
therefor as contemplated by this Agreement, the Buyer will receive good and
valid title to the Principal Stockholder Shares owned by such stockholder, free
and clear of Liens, and subject to no rescission or similar rights or equities
of any kind.
SECTION 3.03. Non-Contravention. The execution and delivery of this
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Agreement do not, and the performance of the obligations of such stockholder
hereunder and the consummation of the transactions contemplated hereby, will not
(i) conflict with or violate the Certificate of Incorporation, By-Laws or
similar organizational instruments of such stockholder, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to such
stockholder or by which any of its assets or property is bound or affected,
(iii) require any consent, approval, authorization or permit of, or filing with
or notification to any governmental or regulatory authority whether domestic or
foreign except for compliance with the applicable requirements of (A) the HSR
Act, (B) the Securities Exchange Act of 1934, as amended, (C) state securities
or "blue sky" laws, or (D) the Investment Canada Act of 1985 and Competition Act
(Canada), (iv) 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 right of termination, acceleration or cancellation of any
right or obligation of such stockholder or cause the loss of any benefit of such
stockholder under any material agreement, contract or other instrument to which
such stockholder is a party or by which the assets and properties of such
stockholder are bound or affected, except in the case of clauses (ii), (iii) or
(iv), any such conflicts, violations, breaches, defaults or other occurrences
which would not in any material respect prevent or delay the exercise by Buyer
of the ▇▇▇▇▇▇ Option or the Fund Option, as the case may be, or any other right
of Buyer under this Agreement.
SECTION 3.04. Total Shares. The number of shares set forth in the
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Preamble hereof represent the total amount of Principal Stockholder Shares owned
(of record or beneficially) by such stockholder and to the knowledge of such
Principal Stockholder any affiliates of such stockholder as of the date hereof,
and neither such stockholder nor, to the knowledge of such Principal
Stockholder, any affiliate of such stockholder owns any other rights to
subscribe for or otherwise acquire (upon the exercise of options or otherwise)
any equity securities of the Company and has no other interest in or voting
rights with respect to any equity securities of the Company. For purposes of
this Section 3.04, "affiliate" means any person or entity that, directly or
indirectly, through one or more intermediaries, controls or is controlled by or
is under common control with such stockholder.
SECTION 3.05. Finder's Fees. No broker, finder or investment banker is
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entitled to any brokerage fees, commissions or finders' fees in connection with
the transactions contemplated hereby based upon arrangements made by or on
behalf of the Principal Stockholders.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to each of the Principal Stockholders:
SECTION 4.01. Authority. Buyer has all requisite corporate power and
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authority to enter into this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by Buyer and the performance of its obligations hereunder and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Buyer, and no other proceedings
are necessary to authorize this Agreement, to perform its obligations hereunder,
or to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Buyer and, assuming the due authorization,
execution and delivery by ▇▇▇▇▇▇ and the Fund constitutes the legal, valid and
binding obligation of Buyer, enforceable against it in accordance with its
terms.
SECTION 4.02. Acquisition for Buyer's Account. Any Principal Stockholder
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Shares to be acquired upon exercise of the ▇▇▇▇▇▇ Option or the Fund Option will
be acquired by Buyer for its own account and not with a present intention of the
public distribution thereof in violation of the federal securities laws, and
will not be transferred except in compliance with the Securities Act of 1933.
SECTION 4.03. Adequate Financing. The Buyer has all funds, or appropriate
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commitments for funds necessary for the consummation of the exercise of the
▇▇▇▇▇▇ Option and the Fund Option.
ARTICLE V.
COVENANTS OF THE PRINCIPAL STOCKHOLDERS
Each of the Principal Stockholders hereby covenants and agrees that:
SECTION 5.01. No Proxies for or Encumbrances on Stockholder Shares.
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Except pursuant to the terms of this Agreement, such stockholder shall not,
without the prior written consent of Buyer, directly or indirectly, (i) grant
any proxies or enter into any voting trust or other agreement or arrangement
with respect to, or (ii) acquire, sell, assign, subject to any Lien, transfer,
encumber or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the direct or indirect acquisition
or sale, assignment, transfer, encumbrance or other disposition of, any
Principal Stockholder Shares owned by such stockholder during the term of this
Agreement. Such stockholder shall not seek or solicit any such acquisition or
sale, assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or assignment or understanding and agrees
to notify Buyer in writing promptly and to provide all details requested by
Buyer if such
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stockholder shall be approached or solicited, directly or indirectly, by any
person with respect to any of the foregoing.
SECTION 5.02. No Shopping. Such stockholder shall not directly or
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indirectly initiate, solicit or encourage (including by way of furnishing non-
public information or assistance) or take any action to knowingly facilitate (or
authorize any person to initiate, solicit or encourage) any inquiries, or the
making of any proposals regarding any merger, sale of substantial assets, sale
of shares of capital stock (including, without limitation, by way of a tender
offer) or similar transactions involving the Company or any of its subsidiaries.
Such stockholder shall promptly advise Buyer of the terms of any communications
it may receive relating to any of the foregoing.
SECTION 5.03. Fiduciary Duties. Notwithstanding anything in this Article
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V to the contrary, the covenants and agreements set forth in Section 5.02 hereof
shall not be deemed to prevent any officer or director of any Principal
Stockholder from taking any action, subject to the applicable provisions of the
Merger Agreement, while acting in his capacity as director or officer of the
Company to the extent that the Board of Directors of the Company shall determine
in good faith (upon advice of counsel) that the Board is required to take any
such action in order to discharge its fiduciary duties.
ARTICLE VI.
ADDITIONAL AGREEMENTS
SECTION 6.01. Agreements with Respect to Revolving Credit Agreement and
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Revolving Funds Agreement. ▇▇▇▇▇▇ hereby agrees to execute such amendments and
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modifications to that certain Revolving Credit Agreement, dated as of June 18,
1991, among the Company, various subsidiaries of the Company and ▇▇▇▇▇▇ (as
successor to HCR Partners) and related documentation (collectively, the "Credit
Agreement") so as to (i) permit the transactions contemplated hereby and by the
Merger Agreement and (ii) continue the Credit Agreement in full force and effect
on the same terms and conditions in effect as of the date hereof; except that
(A) the maximum amount of all Loans (as therein defined) shall not at any time
exceed $3,000,000 and (B) the termination date of the Credit Agreement shall be
the earlier to occur of (A) the Effective Time (as defined in the Merger
Agreement) and (B) ninety (90) days following the date on which the Offer is
consummated or the Closing occurs pursuant to Section 1.03 hereof (such date
being, the "Transfer Date"). In addition, ▇▇▇▇▇▇ hereby agrees to terminate on
and as of the Transfer Date (i) the Revolving Funds Agreement, dated as of
January 1, 1992, by and between ▇▇▇▇▇▇ and the Company and deliver to the
Company any sums held on account of the Company, and (ii) the Administrative and
Consulting Agreement, dated as of January 1, 1995, between ▇▇▇▇▇▇ and the
Company.
SECTION 6.02. Indemnification. ▇▇▇▇▇▇ hereby unconditionally agrees to
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indemnify each of the Company, Parent and Acquisition against all expense,
liability and loss (including attorneys' fees, judgments, fines or penalties and
amounts paid or to be paid in settlement), incurred or suffered by such person
and not otherwise paid by insurance in connection with any
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claim, action, suit, proceeding arising on or before the date which is one (1)
year following the Effective Time in which any of the Company, Parent,
Acquisition and/or any of their directors, officers, and, in the case of Parent
and Acquisition, stockholders, is, or is threatened to be made a party to any
action or proceeding by or on behalf of any current or former stockholder of the
Company alleging liability or damages resulting from the transactions
contemplated by the Merger Agreement and/or the process undertaken by the
Company which concluded with the execution and delivery of the Merger Agreement;
provided, however, that ▇▇▇▇▇▇ shall not be responsible for any payments
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hereunder in excess of $1,000,000 after application of the proceeds of any
coverage under applicable insurance policies for the benefit of the Company or
any such party. Except as set forth in the proviso contained in the previous
sentence, ▇▇▇▇▇▇ understands and agrees that any amounts paid pursuant to this
Section shall not be entitled to be reimbursed pursuant to any indemnification
provision of the Merger Agreement, any indemnification agreement with the
Company or any of its subsidiaries, or the certificates of incorporation or by-
laws of the Company or any of its subsidiaries. Buyer hereby agrees to use its
reasonable best efforts in its capacity as a stockholder to cause the Company or
the Surviving Corporation (as defined in the Merger Agreement) to seek coverage
for any matters which are the subject of this Section under any existing
insurance policies or any renewal thereof or substitutions thereof for the
benefit of the Company or any such party; it being understood that except as
provided in the Merger Agreement, neither Buyer, the Company nor the Surviving
Corporation shall have any obligation to secure any additional insurance
coverage or to amend, modify or extend any existing insurance coverage to
satisfy its obligations pursuant to this sentence.
SECTION 6.03. Certain Matters Relating to Buyer and the Surviving
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Corporation. Buyer hereby covenants and agrees for the benefit of the Company
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to be enforced by ▇▇▇▇▇▇ and/or the Fund on behalf of the stockholders of the
Company, other than Buyer, Acquisition or any of their respective affiliates as
of the date the Offer is consummated and as of the Effective Time, that (i) the
initial stockholders' equity in Acquisition as of the time the Offer is
consummated shall be at least $8,000,000, (ii) the initial stockholders' equity
in Surviving Corporation as of the Effective Time shall be at least $8,000,000,
(iii) from the date on which the Offer is consummated to the date which is
ninety-one (91) days following the date on which payment in full is made on all
accounts payable of the Company outstanding as of the date on which the Offer is
consummated as identified on a list to be prepared and delivered by the Company
to Parent promptly following the date on which the Offer is consummated, the
Surviving Corporation shall not declare, set aside or pay any dividend (other
than in the form of capital stock) or other distribution in respect of its
capital stock or redeem, repurchase or otherwise acquire any of its capital
stock if any such action would result in its stockholders' equity falling below
$8,000,000 and (iv) from the date on which the Offer is consummated to the date
which is one (1) year from such date, the Surviving Corporation shall not incur
any indebtedness secured by the assets of the Surviving Corporation which would
result in the Surviving Corporation, (x) becoming insolvent; (y) having
unreasonably small capital with which to engage in its business or (z) incurring
debts beyond its ability to pay as they become absolute and matured.
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ARTICLE VII.
MISCELLANEOUS
SECTION 7.01. Further Assurances. In the event the Buyer exercises the
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▇▇▇▇▇▇ Option and the Fund Option, the Buyer and each of the Principal
Stockholders will each execute and deliver or cause to be executed and delivered
all further documents and instruments and use their respective reasonable best
efforts to secure such consents and take all such further action as may be
reasonably necessary in order to consummate the transactions contemplated hereby
or to enable the Buyer to exercise and enjoy all benefits and rights of such
stockholder with respect to the Principal Stockholder Shares owned by such
stockholder.
SECTION 7.02. Additional Agreements. Subject to the terms and conditions
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of this Agreement, each of the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations and which may be required under any agreements, contracts,
commitments, instruments, understandings, arrangements or restrictions of any
kind to which such party is a party or by which such party is governed or bound,
to consummate and make effective the transactions contemplated by this
Agreement, to obtain all necessary waivers, consents and approvals and effect
all necessary registrations and filings, including, but not limited to, filings
under the HSR Act, responses to requests for additional information related to
such filings, and submission of information related to such filings, and
submission of information requested by governmental authorities, and to rectify
any event or circumstances which could impede consummation of the transactions
contemplated hereby.
SECTION 7.03. Specific Performance. The parties hereto agree that
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irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof and injunctive and other
equitable relief in addition to any other remedy available to such party at law
or in equity.
SECTION 7.04. Termination; Effect of Termination.
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(a) This Agreement may be terminated:
(i) upon the mutual written consent of Buyer and each Principal
Stockholder; or
(ii) one business day following delivery of written notice thereof by
any of Buyer or any Principal Stockholder if the Offer shall not have been
commenced on or prior to September 12, 1995; provided, however, that
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neither Principal Stockholder may terminate this Agreement pursuant to this
Section 7.04(a)(ii) if any Principal Stockholder or any officer, director
or employee thereof shall have breached any covenant contained in Articles
V or VI hereof.
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(b) In the event of termination of this Agreement in accordance with
subclause (a) of this Section 7.04, this Agreement shall forthwith become void
and there shall be no obligation on the part of Buyer or any Principal
Stockholder hereunder.
SECTION 7.05. Notices. All notices and other communications required or
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permitted hereunder shall be in writing and delivered as follows:
(a) If to Buyer, to:
TIE Acquisition Co.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Suite 3100, Promenade II
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to ▇▇▇▇▇▇, to:
▇▇▇▇▇▇ Holdings, Inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Gerber, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(c) If to the Fund, to:
The Pritzker Family
Philanthropic Fund
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Diversified Financial Management Corp.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as may have been designated in a prior notice. All
notices hereunder shall be in writing and shall be given by delivery in person,
by facsimile (with confirmation) or by registered or certified mail (postage
pre-paid, return receipt requested). Notices sent by registered or certified
mail, postage prepaid and with return receipt requested, shall be deemed to have
been given two (2) business days after being mailed, and otherwise notices shall
be deemed to have been given when received.
SECTION 7.06. Survival of Representations and Warranties. All
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representations and warranties contained in this Agreement shall indefinitely
survive delivery of, and payment for, the Principal Stockholder Shares subject
to the option granted hereby; provided, however, that if the shares are tendered
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and payment received in connection with the tender offer, only the provisions of
the applicable Offer Documents (as defined in the Merger Agreement) shall
govern.
SECTION 7.07. Expenses. Except as otherwise set forth in the Merger
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Agreement, all costs and expenses incurred in connection with the transactions
contemplated hereby shall be paid by the party incurring such expenses.
SECTION 7.08. Amendments. This Agreement may not be modified, amended,
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altered or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
SECTION 7.09. Successors and Assigns. The provisions of this Agreement
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shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and
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assigns, provided that no party may assign, delegate or otherwise transfer any
of their respective rights or obligations under this Agreement without the
written consent of the other party hereto, except that Buyer may assign its
rights and obligations to any affiliate of Buyer, including, without limitation,
TIE Merger Co.
SECTION 7.10. No Strict Construction. The language used in this Agreement
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will be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against either
party.
SECTION 7.11. Headings. The headings in this Agreement are intended
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solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
SECTION 7.12. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same document.
SECTION 7.13. Entire Agreement. This Agreement and the agreements and
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documents referred to in this Agreement or delivered hereunder are the exclusive
statement of the agreement between the parties concerning the subject matter
hereof. All negotiations and prior agreements between the parties are merged
into this Agreement, and there are no representations, warranties, covenants,
understandings, or agreements, oral or otherwise, in relation thereto among the
parties other than those incorporated herein and to be delivered hereunder.
SECTION 7.14. Severability. Whenever possible, each provision of this
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Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
SECTION 7.15 Governing Law. This Agreement, including all matters of
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construction, validity and performance, shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, as applied to
contracts made, executed and to be fully performed in such state by citizens of
such state, without regard to conflict of laws principles.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇
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Vice President
THE PRITZKER FAMILY PHILANTHROPIC FUND
By: /s/▇▇▇▇ ▇▇▇▇▇▇
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Treasurer
TIE ACQUISITION CO.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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President
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