EXHIBIT 2
TERMINATION AGREEMENT
This Termination Agreement is made this 15 day of November, 1999 among
Portec, Inc., a Delaware corporation ("Parent"), ▇▇▇▇▇▇▇ Acquisition Corp., a
Delaware corporation ("Purchaser") and NDC Automation, Inc., a Delaware
corporation (the "Company").
RECITALS
A. Parent, Purchaser and the Company are parties to an Agreement and
Plan of Merger dated as of September 13, 1999 (the "Merger Agreement").
B. Parent, Purchaser and the Company have determined to terminate the
Merger Agreement by mutual consent.
Now, therefore, the parties agree as follows:
1. Termination. Pursuant to Section 6.1.1 of the Merger
Agreement, Parent, Purchaser and the Company hereby
terminate the Merger Agreement and the transactions
contemplated thereby by their mutual written consent
as set forth in this Agreement. Each party agrees to
comply with the provision of Section 6.2 of the
Merger Agreement and the Confidentiality Agreement
(as therein defined).
2. Consideration. Concurrent with the execution of this
Agreement, Parent is paying to the Company the sum
of $75,000 and the Company and J ▇▇▇▇▇▇▇ Industries,
LP, an affiliate of Parent are entering into a Stock
Purchase Agreement. The Company agrees that if on or
before November 12, 2000 the Company enters into an
agreement to effect a Subsequent Transaction (as
herein defined) and such Subsequent Transaction is
thereafter consummated, the Company will refund
$75,000 to Parent immediately upon consummation of
the Subsequent Transaction. As used herein, a
"Subsequent Transaction" means a transaction with a
third party pursuant to which a third party acquires
the Company pursuant to any tender or exchange
offer, any acquisition of all or substantially all
of the assets of the Company or a merger,
consolidation or other business combination with the
Company, in which the shareholders of the Company
receive more than $.75 per share in value (equitably
adjusted for any stock splits, stock dividends
recapitalization or similar transaction after the
date hereof).
3. Mutual Release.
(a) the Company hereby irrevocably releases the
Parent, Purchaser and their respective
directors, shareholders, officers,
employees and agents, including, without
limitation, attorneys and investment
bankers, from any and all claims and rights
(whether by or through the Company, its
directors, shareholders, officers,
employees or agents) arising out of or
related to the Merger Agreement or the
termination thereof; provided, however,
that the foregoing release does not apply
to the obligations of the parties under
this Termination Agreement or the Stock
Purchase Agreement.
(b) Parent and the Purchaser hereby irrevocably
release the Company and its directors,
principals, officers, employees and agents,
including, without limitation, attorneys
and investment bankers, from any and all
claims and rights (whether by or through
Parent or Purchaser or their respective
directors, shareholders, partners,
principals, officers, employees or agents)
arising out of or related to the Merger
Agreement or the termination thereof;
provided, however, that the foregoing
release does not apply to the obligations
of the parties under this Termination
Agreement or the Stock Purchase Agreement.
4. Miscellaneous.
(a) Public Announcements. Parent, Purchaser and
the Company will consult with each other
before issuing, and provide each other the
opportunity to review and comment upon, any
press release or other written public
statements with respect to the transactions
contemplated by this Termination Agreement
or the Stock Purchase Agreement, and shall
not issue any such press release or make
any such written 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. The parties agree that the
initial press release to be issued with
respect to the transactions contemplated by
this Termination Agreement will be in the
form agreed to by the parties hereto prior
to the execution of this Termination
Agreement.
(b) Notices. All notices required or permitted
to be given hereunder shall be given as
provided in the Merger Agreement.
2
(c) Expenses. Except as set forth in Section 2,
each party hereto shall bear all fees and
expenses incurred by such party in
connection with, relating to or arising out
of the negotiation, preparation, execution,
delivery and performance of this Termination
Agreement including financial advisors',
attorneys', accountants' and other
professional fees and expenses.
(d) Entire Agreement. This Agreement, the Stock
Purchase Agreement and the instruments to be
delivered by the parties pursuant to the
provisions hereof constitute the entire
agreement between the parties with respect
to the subject matter hereof.
(e) Counterparts. This Agreement may be executed
in multiple counterparts, each of which
shall be deemed to be an original, and all
such counterparts shall constitute but one
instrument.
(f) Applicable Law. This Agreement shall be
governed and controlled as to validity,
enforcement, interpretation, construction,
effect and in all other respects by the
internal laws of the State of Delaware
applicable to contracts made in that State.
(g) Binding Effect; Benefit. This Agreement
shall inure to the benefit of and be binding
upon the parties hereto, and their
successors and permitted assigns. Nothing in
this Agreement, express or implied, shall
confer on any person other than the parties
hereto, and their respective successors and
permitted assigns, any rights, remedies,
obligations or liabilities under or by
reason of this Agreement, including, without
limitation, third party beneficiary rights.
(h) Assignability. This Agreement shall not be
assignable by either party without the prior
written consent of the other party.
[signature page follows]
3
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
the parties hereto as of the day first above written.
NDC AUTOMATION, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
4
PORTEC,INC.
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
-------------------
Its: President
---------
▇▇▇▇▇▇▇ ACQUISITION CORP.
By: /s/▇▇▇▇▇ ▇ ▇▇▇▇▇
-----------------
Its: President
---------
5
