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Exhibit (d)(2)
TENDER AGREEMENT
TENDER AGREEMENT, dated as of January 15, 2001 (the "Agreement"), by
and among Penske Truck Leasing Co., L.P., a Delaware limited partnership
("Parent"), Sun Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of Parent ("Purchaser"), and the persons listed on Schedule A
hereto (each a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, Purchaser and Xxxxxxx Truck Leasing Corp., 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,
the "Merger Agreement") providing for, among other things, 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 Purchaser for all of the issued and
outstanding shares of common stock, par value $1.00 per share, of the Company
(the "Company Common Stock") and the merger of the Company and Purchaser on the
terms and conditions set forth in the Merger Agreement (the "Merger"); and
WHEREAS, each Stockholder is the direct owner of the shares of Company
Common Stock set forth opposite such Stockholder's name on Schedule A hereto;
such shares, as such may be adjusted by stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by the Company being
collectively referred to herein as the "Securities" of such Stockholder;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein and intending to be
legally bound hereby, the parties agree as follows:
Section 1. Certain Definitions. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms in the Merger
Agreement.
Section 2. Representations and Warranties of the Stockholders. Each
Stockholder, severally and not jointly, represents and warrants to Parent and
Purchaser, as of the date hereof and as of the Consummation of the Offer, as
follows:
(a) Such Stockholder is the beneficial owner of, and has
good title to, all of the Securities, free and clear of any Lien, except as set
forth in this Agreement.
(b) The Securities set forth opposite his or its name on
Schedule A constitute all of the securities (as defined in Section 3(a)(10) of
the Exchange Act, which definition will apply for all purposes of this
Agreement) of the Company directly owned by such Stockholder.
(c) Such Stockholder holds exclusive power to vote the
Securities and has not granted a proxy to any other Person (as defined in the
Merger Agreement, which meaning will
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apply for all purposes of this Agreement) to vote the Securities, subject to the
limitations set forth in this Agreement.
(d) Such Stockholder has full legal capacity, power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and such execution, delivery and consummation
have been authorized by such Stockholder, and no other proceedings or actions by
such Stockholder are necessary therefor.
(e) This Agreement has been duly executed and delivered
by such Stockholder and, assuming due authorization, execution and delivery of
this Agreement by Parent and Purchaser, is a valid and binding obligation of
such Stockholder enforceable against such Stockholder in accordance with its
terms.
(f) Neither the execution and delivery of this Agreement
nor the performance by such Stockholder of his or its obligations hereunder will
conflict with, result in a violation or breach of, or constitute a default (or
an event that, with notice or lapse of time or both, would result in a default)
or give rise to any right of termination, amendment, cancellation, or
acceleration or result in the creation of any Lien on any Securities under, (i)
any contract, commitment, agreement, understanding, arrangement or restriction
of any kind to which such Stockholder is a party or by which such Stockholder is
bound or (ii) any injunction, judgment, writ, decree, order or ruling applicable
to such Stockholder; except for conflicts, violations, breaches, defaults,
terminations, amendments, cancellations, accelerations or Liens that would not
individually or in the aggregate be reasonably expected to prevent or materially
impair or delay the consummation by such Stockholder of the transactions
contemplated hereby.
(g) Neither the execution and delivery of this Agreement
nor the performance by such Stockholder of his or its obligations hereunder will
violate any law, decree, statute, rule or regulation applicable to the
Stockholder or require any order, consent, authorization or approval of, filing
or registration with, or declaration or notice to, any court, administrative
agency or other governmental body or authority, other than any required notices
or filings pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder (the "HSR
Act"), foreign antitrust or competition laws or the federal securities laws.
Section 3. Representations and Warranties of Parent and Purchaser.
Parent and Purchaser represent and warrant to the Stockholders, as of the date
hereof and as of the Closing, as follows:
(a) Each of Parent and Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has the requisite corporate or partnership power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered
by Parent and Purchaser and, assuming the due authorization, execution and
delivery of this Agreement by the
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Stockholders, is a valid and binding obligation of each of Parent and Purchaser,
enforceable against each of them in accordance with its terms.
(c) Neither the execution and delivery of this Agreement
nor the performance by Parent and Purchaser of their respective obligations
hereunder will conflict with, result in a violation or breach of, or constitute
a default (or an event that, with notice or lapse of time or both, would result
in a default) or give rise to any right of termination, amendment, cancellation,
or acceleration under, (i) their respective certificate of incorporation or
bylaws or partnership agreement, (ii) any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which Parent or
Purchaser is a party or by which Parent or Purchaser is bound or (iii) any
judgment, writ, decree, order or ruling applicable to Parent or Purchaser;
except in the case of clauses (ii) and (iii) for conflicts, violations, breaches
or defaults that would not individually or in the aggregate be reasonably
expected to prevent or materially impair or delay the consummation by Parent or
Purchaser of the transactions contemplated hereby.
(d) Neither the execution and delivery of this Agreement
nor the performance by Parent and Purchaser of their respective obligations
hereunder will violate any law, decree, statute, rule or regulation applicable
to Parent or Purchaser or require any order, consent, authorization or approval
of, filing or registration with, or declaration or notice to, any court,
administrative agency or other governmental body or authority, other than any
required notices or filings pursuant to the HSR Act, foreign antitrust or
competition laws or the federal securities laws.
Section 4. Transfer of the Securities. During the term of this
Agreement, except as otherwise expressly provided herein, each Stockholder
agrees that such Stockholder will not (a) tender into any tender or exchange
offer or otherwise sell, transfer, pledge, assign, hypothecate or otherwise
dispose of, or encumber with any Lien, any of the Securities, except for (i)
transfers to any spouse of such Stockholder, or any trust or retirement plan or
account for the benefit of such Stockholder, spouse or descendant; provided that
any such transferee agrees in writing to be bound by the terms of this Agreement
and (ii) transfers by operation of law provided that any such transferee shall
be bound by the terms of this Agreement, (b) acquire any Securities (otherwise
than in connection with a transaction of the type described in Section 5 or by
exercising any options to acquire shares of Company Common Stock), (c) deposit
the Securities into a voting trust, enter into a voting agreement or arrangement
with respect to the Securities or grant any proxy or power of attorney with
respect to the Securities, (d) enter into any contract, option or other
arrangement (including any profit sharing arrangement) or undertaking with
respect to the direct or indirect acquisition or sale, transfer, pledge,
assignment, hypothecation or other disposition of any interest in or the voting
of any Securities or any other securities of the Company, or (e) take any other
action that would in any way destroy, diminish or impair the voting power or
economic rights or other rights attributable to such Stockholder's Securities or
restrict, limit or interfere with the performance of such Stockholder's
obligations hereunder or the transactions contemplated hereby or which would
otherwise diminish the benefits of this Agreement to Parent or Purchaser.
Section 5. Adjustments.
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(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Securities or
the like or any other action that would have the effect of changing a
Stockholder's ownership of the Company's capital stock or other securities or
(ii) a Stockholder becomes the direct owner of any additional Securities of or
other securities of the Company, then the terms of this Agreement will apply to
the shares of capital stock held by such Stockholder immediately following the
effectiveness of the events described in clause (i) or such Stockholder becoming
the beneficial owner thereof, as described in clause (ii), as though they were
Securities hereunder.
(b) Each Stockholder hereby agrees, while this Agreement
is in effect, to promptly notify Parent and Purchaser of the number of any new
Securities directly acquired by such Stockholder, if any, after the date hereof.
Section 6. Tender of Securities. Each Stockholder hereby agrees that
such Stockholder will validly tender and sell (and not withdraw) pursuant to and
in accordance with the terms of the Offer not later than the fifth business day
after commencement of the Offer (or the earlier of the expiration date of the
Offer and the second business day after such Securities, as the case may be, are
acquired by such Stockholder if the Stockholder acquires Securities after the
commencement of the Offer) all of the then outstanding Securities owned by such
Stockholder (including the shares of Company Common Stock outstanding as of the
date hereof and set forth on Schedule A opposite such Stockholder's name). In
the event, notwithstanding the provisions of the first sentence of this Section
6, any Securities beneficially owned by a Stockholder are for any reason
withdrawn from the Offer or are not purchased pursuant to the Offer, such
Securities will remain subject to the terms of this Agreement. Each Stockholder
acknowledges that Purchaser's obligation to accept for payment and pay for
Securities tendered in the Offer is subject to all the terms and conditions of
the Offer.
Section 7. No Inconsistent Agreements. No Stockholder shall enter into
any agreement or understanding with any person or entity the effect of which
would be inconsistent or violative of the provisions of this Agreement.
Section 8. Termination. This Agreement will terminate upon the earlier
of (a) the termination of the Merger Agreement in accordance with its terms, (b)
with respect to each Stockholder, upon the mutual consent of such Stockholder
and Parent and (c) consummation of the Merger.
Section 9. Expenses. Except as otherwise expressly provided herein or
in the Merger Agreement, all costs and expenses incurred by any of the parties
hereto will be borne by the party incurring such costs and expenses.
Section 10. Further Assurances. Each party hereto will execute and
deliver all such further documents and instruments and take all such further
action as may be reasonably necessary in order to consummate the transactions
contemplated hereby.
Section 11. Stockholder Capacity. No person executing this Agreement
makes any agreement or understanding herein in such Stockholder's capacity as a
director or officer of the
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Company or any subsidiary of the Company. Each Stockholder signs solely in such
Stockholder's capacity as the beneficial owner of such Stockholder's Securities
and nothing herein shall limit or affect any actions taken by a Stockholder in
such Stockholder's capacity as an officer or director of the Company or any
Subsidiary of the Company.
Section 12. Enforcement. Each Stockholder acknowledges 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 by any Stockholder. It is accordingly agreed that Parent and Purchaser
will be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity. The
provisions of this paragraph are without prejudice to any other rights that
another party hereto may have against the another party hereto for any failure
to perform its obligations under this Agreement. In addition, each Stockholder
hereto (i) consents to submit such party to the personal jurisdiction of the
United States District Court for the District of Delaware and the Supreme Court
of the State of Delaware in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees not to attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court and (iii) 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. In furtherance of the foregoing, each
Stockholder hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in the courts of the United States
District Court for the District of Delaware and the Supreme Court of the State
of Delaware, and hereby further irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 13. Miscellaneous.
(a) Any provision of this Agreement may be waived at any
time by the party that is entitled to the benefits thereof. No such waiver,
amendment or supplement will be effective unless in writing and signed by the
party or parties sought to be bound thereby. Any waiver by any party of a breach
of any provision of this Agreement will not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement or one or more sections hereof will not
be considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(b) This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements among the parties with respect to such matters.
(c) This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of laws principles thereof.
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(d) The words "hereof," "herein" and "herewith" and words
of similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
article, section, paragraph, exhibit and schedule references are to the
articles, sections, paragraphs, exhibits and schedules of this Agreement unless
otherwise specified. Whenever the words "include," "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation." All terms defined in this Agreement shall have the defined meanings
contained herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such term. Any agreement, instrument, statute or rule defined or
referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument, statute or rule as from time to time amended,
modified or supplemented, including (in the case of agreements and instruments)
by waiver or consent and (in the case of statutes and rules) by succession of
comparable successor statutes and rules and all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns.
All notices and other communications hereunder will be in writing and will be
given (and will be deemed to have been duly given upon receipt) by delivery in
person, by telecopy, or by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to Parent or Purchaser to:
Penske Truck Leasing Co., L.P.
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
Vice President - Business Development, Treasurer
Telecopy: (000) 000-0000
with copies to:
Penske Truck Leasing Co., L.P.
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx
Assistant General Counsel
Telecopy: (000) 000-0000
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: F. Xxxxxxx Xxxxxxx, III
Telecopy: 000-000-0000
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If to a Stockholder, at the address set forth on Schedule A hereto.
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(e) This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one agreement.
(f) This Agreement is binding upon and is solely for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned by any of the
parties hereto without the prior written consent of the other parties, except
that Parent and Purchaser will have the right to assign to any direct or
indirect wholly-owned subsidiary of Parent or Purchaser any or all rights and
obligations of Parent or Purchaser under this Agreement, provided that any such
assignment will not relieve either Parent or Purchaser from any of its
obligations hereunder.
(g) In the event any term or provision of this Agreement
is determined to be invalid, illegal or incapable of being enforced by any rule
of law or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect. Upon any such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto will negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated by this
Agreement are consummated to the fullest extent possible.
(h) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative, and the exercise of any thereof by either party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
(i) The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
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IN WITNESS WHEREOF, each of Parent and Purchaser has caused this
Agreement to be signed by its officer or director thereunto duly authorized and
each Stockholder has signed this Agreement, all as of the date first written
above.
PENSKE TRUCK LEASING CO., L.P.
By: Penske Truck Leasing Corporation,
General Partner
By: /s/ Xxxxx Hard
------------------------------
Name: Xxxxx Hard
Title: President
SUN ACQUISITION CORPORATION
By: /s/ Xxxxx Hard
------------------------------
Name: Xxxxx Hard
Title: President
STOCKHOLDERS:
/s/ Xxxxx X. Xxxxxx
---------------------------
Estate of Xxxx X. Xxxxxxx
By: Xxxxx X. Xxxxxx, Executor
/s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxx, Xx.
---------------------------
Xxxx X. Xxxxxxx, Xx.
/s/ I. Xxxxx Xxxxx
---------------------------
I. Xxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxxxx
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SCHEDULE A
Estate of Xxxx X. Xxxxxxx 7,162,327
Xxxxx X. Xxxxxx 2,250,000
Xxxx X. Xxxxxxx, Xx. 1,152,025
I. Xxxxx Xxxxx 127,575
Xxxxxxx X. Xxxxxx 90,212
Xxxxx X. Xxxxxxxxxx 9,827
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