STOCKHOLDER OPTION AGREEMENT
AGREEMENT, dated July 13, 1998, among ▇▇▇▇▇▇ KGaA, a
Kommanditgesellschaft auf Aktien (a partnership limited by shares), organized
under the laws of the Federal Republic of Germany ("PARENT"), Henkel
Acquisition Corp. II, a Delaware corporation and a wholly-owned subsidiary of
Parent ("PURCHASER"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("STOCKHOLDER").
W I T N E S S E T H :
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent, Purchaser and DEP Corporation, a Delaware corporation (the
"COMPANY"), are entering into an Agreement and Plan of Merger (as such
agreement may hereafter be amended from time to time, the "MERGER
AGREEMENT"), which provides, among other things, for the acquisition of the
Company by Parent by means of a cash tender offer (the "OFFER") by Purchaser
for all outstanding shares of Common Stock (as defined in Section 1 hereof)
and for the subsequent merger of Purchaser with and into the Company (the
"MERGER"), all on the terms and subject to the conditions set forth in the
Merger Agreement; and
WHEREAS, in accordance with the Merger Agreement, as soon as
practicable (and not later than five business days) after the announcement of
the execution of the Merger Agreement, Purchaser shall commence the Offer at
the Offer Price (as defined in Section 1 hereof); and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent and Purchaser have required that Stockholder agree,
and Stockholder agrees, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "BENEFICIALLY OWNED" or "BENEFICIAL OWNERSHIP" with respect to
any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT")), including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities Beneficially
Owned by a Person (as hereinafter defined) shall include securities
Beneficially Owned by all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d)(3) of the Exchange
Act.
(b) "COMMON STOCK" shall mean the shares of Common Stock, par
value $0.01 per share, of the Company.
(c) "OFFER PRICE" shall mean cash in the amount of $5.25 per share
of Common Stock or, if greater, the price per share paid by Purchaser in the
Offer.
(d) "PERSON" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
(e) Capitalized terms used and not defined herein shall have the
respective meanings ascribed to them in the Merger Agreement.
2. TENDER OF SHARES.
(a) In order to induce Parent and Purchaser to enter into the
Merger Agreement, Stockholder hereby agrees to validly tender (or cause the
record owner of such shares to validly tender), and not to withdraw, pursuant
to and in accordance with the terms of the Offer, not later than the fifth
business day after commencement of the Offer pursuant to Section 1.01 of the
Merger Agreement and Rule 14d-2 under the Exchange Act, the number of shares
of Common Stock set forth opposite Stockholder's name on Schedule I hereto
(the "EXISTING SECURITIES" and, together with any shares of Common Stock
acquired by Stockholder (whether beneficially or of record) after the date
hereof and prior to the termination of this Agreement by means of purchase,
dividend, distribution, exercise of options or other rights to acquire Common
Stock or in any other way, the "SECURITIES"), all of which are Beneficially
Owned by Stockholder. If Stockholder acquires Securities after the date
hereof, Stockholder shall tender (or cause the record holder to tender) such
Securities on or before such fifth business day or, if later, on or before
the second business day after such acquisition. Stockholder hereby
acknowledges and agrees that Parent's and Purchaser's obligation to accept
for payment, purchase and pay for the Securities in the Offer, including the
Securities Beneficially Owned by Stockholder, is subject to the terms and
conditions of the Offer.
(b) Stockholder hereby permits Parent and Purchaser to publish and
disclose in the Offer Documents and, if approval of the Merger by the
Company's stockholders is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the SEC) Stockholder's
identity and ownership of the Securities and the nature of Stockholder's
commitments, arrangements and understandings under this Agreement; provided
that Stockholder shall have a right to review and comment on such disclosure
a reasonable time before it is publicly disclosed.
3. OPTION.
(a) In order to induce Parent and Purchaser to enter into the
Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable
option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION
SECURITIES") at the Offer Price, subject to increase as set forth below (the
"PURCHASE PRICE"). The Securities Option may be exercised, in whole but not
in part, by written notice to Stockholder (as set forth below), for a period
of ten (10) business days (the "10 DAY PERIOD") following termination of the
Merger Agreement or termination of the Offer, whichever shall first occur;
PROVIDED that, prior to such termination, either (i) a Trigger Event shall
have occurred or (ii) (A) the Company shall have received a written proposal
from any
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person other than Parent, Purchaser or any affiliate of Parent or Purchaser
for an Acquisition Transaction, which proposal shall not have expired or been
withdrawn, (B) the Merger Agreement shall have been terminated by Parent
pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the
time of such termination the Minimum Condition shall not have been satisfied.
Notwithstanding the foregoing, the Securities Option may not be exercised
until: (i) all waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR ACT"), required for the
purchase of the Securities upon such exercise shall have expired or been
waived and any other conditions under the other Antitrust Laws shall have
been satisfied and (ii) there shall not be in effect any preliminary
injunction or other order issued by any Governmental Entity prohibiting the
exercise of the Securities Option pursuant to this Agreement; provided that
if (i) all HSR Act waiting periods shall not have expired or been terminated
or (ii) there shall be in effect any such injunction or order, in each case
on the expiration of the 10 Day Period, the 10 Day Period shall be extended
until five (5) business days after the later of (A) the date of expiration or
termination of all HSR Act waiting periods, and (B) the date of removal or
lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities
Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder
identifying the date (not less than two (2) nor more than five (5) business
days from the date of the Notice) for the closing of such purchase, which
closing shall be held at the executive offices of the Company (or such other
place as the parties may agree). At the closing, Stockholder shall deliver
to Purchaser appropriate and effective instruments of transfer of the Option
Securities, against payment to Stockholder of the Purchase Price, in same day
funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser
pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES")
and, either before or at any time within the one-year period following such
acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall
acquire Common Stock (other than from the Company) at a price in excess of
the Purchase Price, then the Purchase Price hereunder shall be increased to
such higher price. If the purchase of the Acquired Securities has been
completed at the time of such increase, Stockholder shall be entitled to
receive, and Purchaser shall promptly (and in no event more than 48 hours
following such increase) pay to Stockholder, by wire transfer of same day
funds to such account as Stockholder shall designate, the amount of the
increase.
(d) In the event the Option Securities are acquired by Purchaser
pursuant to the exercise of the Securities Option, Stockholder shall be
entitled to receive, and Purchaser shall promptly (and in no event more than
48 hours following such Sale) pay to Stockholder, upon any subsequent
disposition, transfer or sale to an unaffiliated third party ("SALE") of all
or any portion of the Acquired Securities within the one-year period
following such acquisition, an amount per share in cash equal to the excess,
if any, of the net proceeds received per share in the Sale over the Purchase
Price. Any such payment shall be made by wire transfer of same day funds to
such account as Stockholder shall designate.
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4. ADDITIONAL AGREEMENTS.
(a) VOTING AGREEMENT. Stockholder shall, at any meeting of the
stockholders of the Company, however called, or in connection with any
written consent of the stockholders of the Company, vote (or cause to be
voted) all Securities then held of record or Beneficially Owned by
Stockholder (and, in the case of Securities not held of record by
Stockholder, subject to Stockholder's voting direction), (i) in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the Company Option Agreement and the approval of the terms of each thereof
and each of the other actions contemplated by the Merger Agreement, the
Company Option Agreement and this Agreement and any actions required in
furtherance thereof and hereof; and (ii) against any proposal relating to an
Acquisition Transaction and against any action or agreement that would
impede, frustrate, prevent or nullify this Agreement, or result in a breach
in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or the
Company Option Agreement or which would result in any of the conditions set
forth in Exhibit A to the Merger Agreement or set forth in Article VII of the
Merger Agreement not being fulfilled.
(b) NO INCONSISTENT ARRANGEMENTS. Stockholder hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, Stockholder shall not (i) offer to transfer (which term shall
include, without limitation, any sale, tender, gift, pledge (other than a
pledge which does not impair Stockholder's ability to perform under this
Agreement), assignment or other disposition), transfer or consent to any
transfer of, any or all of the Securities or any interest therein, (ii) enter
into any contract, option or other agreement or understanding with respect to
any transfer of any or all of the Securities or any interest therein, (iii)
grant any proxy, power-of-attorney or other authorization or consent in or
with respect to the Securities, (iv) deposit the Securities into a voting
trust or enter into a voting agreement or arrangement with respect to the
Securities or (v) take any other action that would in any way restrict, limit
or interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement or the Company
Option Agreement (including, without limitation, any action that would cause
the Merger to be subject to Section 1101 of the CGCL).
(c) GRANT OF IRREVOCABLE PROXY; APPOINTMENT OR PROXY.
(i) Stockholder hereby irrevocably grants to, and appoints,
Parent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or either of them, in
their respective capacities as officers or representatives of Parent,
and any individual who shall hereafter succeed to any such office or
representation of Parent, and each of them individually, Stockholder's
proxy and attorney-in-fact (with full power of substitution), for and
in the name, place and stead of Stockholder, to vote the Securities,
or grant a consent or approval in respect of the Securities, in favor
of the various transactions contemplated by the Merger Agreement and
the Company Option Agreement and against any proposal relating to an
Acquisition Transaction.
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(ii) Stockholder represents that any proxies heretofore given in
respect of Stockholder's Securities are not irrevocable, and that any
such proxies are hereby revoked.
(iii) Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 4(c) is given in connection with the execution
of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of Stockholder under this
Agreement. Stockholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be
revoked. Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212 of the
DGCL. A legend reflecting the foregoing irrevocable proxy shall be
placed on the certificate or certificate representing the Securities.
(d) NO SOLICITATION. Stockholder hereby agrees, in the capacity
as a stockholder of the Company, that neither Stockholder nor any affiliates,
representatives or agents shall (and, if Stockholder is a corporation,
partnership, trust or other entity, Stockholder shall cause its officers,
directors, partners, and employees, representatives and agents, including,
but not limited to, investment bankers, attorneys and accountants, not to),
directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group (other than Parent,
Purchaser or any of their respective affiliates or representatives)
concerning any proposal relating to an Acquisition Transaction. Stockholder
will immediately cease any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any proposal relating
to an Acquisition Transaction. Stockholder will immediately communicate to
Parent, to the same extent as is required by the Company pursuant to Section
6.02 of the Merger Agreement, the terms, and other information concerning,
any proposal, discussion, negotiation or inquiry and the identity of the
party making such proposal or inquiry which Stockholder may receive in
respect of any such Acquisition Transaction. Any action taken by the Company
or any member of the Board of Directors of the Company, including any action
taken by Stockholder in Stockholder's capacity as a Director or officer of
the Company, in accordance with Section 6.02 of the Merger Agreement shall be
deemed not to violate this Section 4(d).
(e) REASONABLE EFFORTS. Subject to the terms and conditions of
this Agreement, each of the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable Laws to
consummate and make effective the transactions contemplated by this
Agreement. Each party shall promptly consult with the other and provide any
necessary information and material with respect to all filings made by such
party with any Governmental Entity in connection with this Agreement and the
transactions contemplated hereby.
(f) WAIVER OF APPRAISAL RIGHTS. Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that Stockholder may
have.
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5. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder
hereby represents and warrants to Parent and Purchaser as follows:
(a) OWNERSHIP OF SECURITIES. Stockholder is the record and
Beneficial Owner of the Existing Securities, as set forth on Schedule I. On
the date hereof, the Existing Securities constitute all of the Securities
owned of record or Beneficially Owned by Stockholder. Stockholder has sole
voting power and sole power to issue instructions with respect to the matters
set forth in Sections 2, 3 and 4 hereof, sole power of disposition, sole
power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Existing Securities with no limitations, qualifications or restrictions on
such rights, subject to applicable securities laws and the terms of this
Agreement.
(b) POWER; BINDING AGREEMENT. Stockholder has the power and
authority to enter into and perform all of Stockholder's obligations under
this Agreement. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes a valid and binding agreement of
Stockholder, enforceable against Stockholder in accordance with its terms,
except that such enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and (ii) is subject to general principles of
equity. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which Stockholder is a trustee, or any party
to any other agreement or arrangement, whose consent is required for the
execution and delivery of this Agreement or the consummation by Stockholder
of the transactions contemplated hereby.
(c) NO CONFLICTS. Except for filings under the HSR Act and the
Exchange Act (i) no filing with, and no permit, authorization, consent or
approval of, any Governmental Entity is necessary for the execution and
delivery of this Agreement by Stockholder, the consummation by Stockholder of
the transactions contemplated hereby and the compliance by Stockholder with
the provisions hereof and (ii) none of the execution and delivery of this
Agreement by Stockholder, the consummation by Stockholder of the transactions
contemplated hereby or compliance by Stockholder with any of the provisions
hereof, except in cases in which any conflict, breach, default or violation
described below would not interfere with the ability of Stockholder to
perform Stockholder's obligations hereunder, shall (A) conflict with or
result in any breach of any organizational documents applicable to
Stockholder, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, modification or acceleration)
under, any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of
any kind, including, without limitation, any voting agreement, proxy
arrangement, pledge agreement, shareholders agreement or voting trust, to
which Stockholder is a party or by which Stockholder or any of its properties
or assets may be bound, or (C) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to Stockholder or any
of Stockholder's properties or assets.
(d) NO LIENS. Except as permitted by this Agreement, the Existing
Securities and the certificates representing such securities are now, and at all
times during the term hereof will
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be, held by Stockholder, or by a nominee or custodian for the benefit of
Stockholder, free and clear of all liens, proxies, voting trusts or
agreements, understandings or arrangements or any other rights whatsoever,
except for any such liens or proxies arising hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of Stockholder.
(f) RELIANCE BY PARENT. Stockholder understands and acknowledges
that Parent is entering into, and causing Purchaser to enter into, the Merger
Agreement in reliance upon Stockholder's execution and delivery of, and
representations and warranties contained in, this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER. Each
of Parent and Purchaser hereby represents and warrants to Stockholder as
follows:
(a) POWER; BINDING AGREEMENT. Parent and Purchaser each has the
corporate power and authority to enter into and perform all of its
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by each of Parent and Purchaser and constitutes a
valid and binding agreement of each of Parent and Purchaser, enforceable
against each of Parent and Purchaser in accordance with its terms, except
that such enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and (ii) is subject to general principles of
equity.
(b) NO CONFLICTS. Except for filings under the HSR Act, other
applicable Antitrust Laws and the Exchange Act, (i) no filing with, and no
permit, authorization, consent or approval of, any Governmental Entity is
necessary for the execution of this Agreement by each of Parent and
Purchaser, the consummation by each of Parent and Purchaser of the
transactions contemplated hereby and the compliance by Parent and Purchaser
with the provisions hereof and (ii) none of the execution and delivery of
this Agreement by each of Parent and Purchaser, the consummation by each of
Parent and Purchaser of the transactions contemplated hereby or compliance by
each of Parent and Purchaser with any of the provisions hereof, except in
cases in which any conflict, breach, default or violation described below
would not interfere with the ability of Parent or Purchaser to perform their
respective obligations hereunder, shall (A) conflict with or result in any
breach of any organizational documents applicable to either of Parent or
Purchaser, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, modification or acceleration)
under, any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of
any kind to which either of Parent or Purchaser is a party or by which either
of Parent or Purchaser or any of their properties or assets may be bound, or
(C) violate any order, writ, injunction, decree, judgment, order, statute,
rule or regulation applicable to either of Parent or Purchaser or any of
their properties or assets.
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7. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further lawful action
as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
8. STOP TRANSFER. Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Securities, unless such
transfer is made in compliance with this Agreement. In the event of a stock
dividend or distribution, or any change in the Common Stock by reason of any
stock dividend, split-up, recapitalization, combination, exchange of shares
or the like, the term "SECURITIES" shall refer to and include the Securities
as well as all such stock dividends and distributions and any shares into
which or for which any and all of the Securities may be changed or exchanged.
9. INDEMNIFICATION. For a period of four years from and after the
Effective Time, Parent shall indemnify Stockholder and hold Stockholder
harmless against any loss, cost or expense (including without limitation
reasonable attorneys' fees) in the event of any claim against Stockholder
relating to the actions of Stockholder, as stockholder, in connection with
the Merger Agreement, this Agreement and any of the transactions contemplated
thereby; PROVIDED that Stockholder shall have first sought indemnification
from the Company pursuant to insurance, the Company's charter or by-laws and
any indemnification agreement or other arrangement between the Company and
Stockholder; PROVIDED FURTHER, HOWEVER, that the obligations of Parent
hereunder shall be limited to the excess, if any, of Stockholder's loss, cost
or expense over the sum of (x) amounts actually recovered from the Company in
accordance with the preceding proviso plus (y) an aggregate amount for
Stockholder and all other stockholders executing agreements substantially the
same as this Agreement in connection with the Merger Agreement of $100,000.
In the event of any claim for which indemnification is provided herein,
Stockholder shall promptly notify Parent, PROVIDED that the failure to give
such notice shall not relieve Parent from its obligations hereunder except
if, and to the extent that, it suffers actual prejudice thereby. Parent
shall have the right to undertake, with counsel of its choice (subject to the
reasonable approval of Stockholder and which counsel may be counsel to
Parent), the defense of such claim. Stockholder shall have the right to
employ its own counsel to participate (but not to control the defense) in any
such action, but the fees and expenses of such counsel shall be at the sole
expense of Stockholder unless (i) Parent or the Company shall have failed to
employ counsel to assume the defense of such claim within a reasonable time
after receiving notice thereof, or (ii) a conflict of interest shall prevent
the same counsel from representing Parent or the Company and the Stockholder.
Parent shall not be liable hereunder for any settlement effected without its
prior written consent (which consent shall not be unreasonably withheld).
10. TERMINATION. The covenants, agreements and proxy contained
herein with respect to the Securities shall terminate upon the earliest of
(a) the Effective Time, (b) the first anniversary of the date hereof, (c) the
termination of the Merger Agreement pursuant to Section 8.01(a), 8.01(c) or
8.01(d)(i) or, by the Company, pursuant to Section 8.01(f) thereof and (d)
the expiration of the 10 Day Period.
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11. NO LIMITATION. Nothing in this Agreement shall be construed
to prohibit Stockholder, or any officer or affiliate of Stockholder who is or
has designated a member of the Board of Directors of the Company, from taking
any action solely in his or her capacity as a member of the Board of
Directors of the Company or from exercising his or her fiduciary duties as a
member of such Board of Directors.
12. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement and the Merger Agreement and
Company Option Agreement constitute the entire agreement between the parties
with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
(b) BINDING AGREEMENT. This Agreement and the obligations
hereunder shall attach to the Securities and shall be binding upon the
parties and any person or entity to which legal or beneficial ownership of
the Securities shall pass, whether by operation of law or otherwise,
including, without limitation, Stockholder's administrators or successors.
Notwithstanding any transfer of Securities, the transferor shall remain
liable for the performance of all obligations of the transferor under this
Agreement.
(c) ASSIGNMENT. This Agreement shall not be assigned by operation
of law or otherwise without the prior written consent of Stockholder or
Parent and Purchaser, as the case may be, provided that Parent or Purchaser
may assign, in its respective sole discretion, its rights and obligations
hereunder to any direct or indirect subsidiary of Parent, but no such
assignment shall relieve Parent or Purchaser of its obligations hereunder if
such assignee does not perform such obligations.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or facsimile
transmission (with a confirmation copy sent for next day delivery via courier
service, such as Federal Express), or by any courier service, such as Federal
Express, providing proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses:
If to Stockholder:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o DEP Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Parent or Purchaser:
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Germany
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇) ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇-▇▇▇-▇▇▇▇
Copy to:
Henkel Acquisition Corp. II
c/o Henkel Corporation
The Triad
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction such
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invalidity, illegality or unenforceability will not affect any other
provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision
had never been contained herein. Notwithstanding anything to the contrary
contained in this Agreement, neither Parent nor Purchaser shall be deemed to
be the owner, nor shall Parent or Purchaser have the power to vote for the
election of directors, with respect to some or all of the Securities for
purposes of the CGCL until the purchase of, and payment for, such Securities
is actually consummated. The rights of Parent and Purchaser hereunder shall
be limited as provided in the preceding sentence.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain damages for which it
would not have an adequate remedy at law for money damages, and therefore in
the event of any such breach the aggrieved party shall be entitled to the
remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any
rights, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a
waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by or confer any
rights upon, any person or entity who or which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect
to the principles of conflicts of law thereof.
(l) WAIVER OF JURY TRIAL. Each party hereto hereby waives any
right to a trial by jury in connection with any action, suit or proceeding
brought in connection with this Agreement.
(m) DESCRIPTIVE HEADINGS. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
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(n) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same agreement.
(o) EXPENSES. Except as otherwise provide herein, neither Parent
and Purchaser, on the one hand, nor Stockholder, on the other hand, shall be
required to pay the expenses incurred by the other party in connection with
this Agreement.
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IN WITNESS WHEREOF, Parent, Purchaser and Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
▇▇▇▇▇▇ KGaA
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇. ▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Counsel
▇▇▇▇▇▇ ACQUISITION CORP. II
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
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SCHEDULE I
NAME OF NUMBER OF SHARES OF COMMON STOCK
STOCKHOLDER BENEFICIALLY OWNED
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 999,555
