Exhibit 99.(d)
EXECUTION COPY
COMPANY STOCKHOLDER AGREEMENT
dated as of May 29, 2001, between
CHRISTIAN DALLOZ, a societe anonyme
duly incorporated and legally existing
under the laws of the Republic of
France ("Parent"), and BACOU SA, a
societe anonyme duly incorporated and
legally existing under the laws of the
Republic of France (the
"Stockholder").
WHEREAS Xxxxxx, Xxxxxx U. S. Sub, Inc., a Delaware corporation ("Sub"), and
BACOU USA, INC., 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"; capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement);
WHEREAS the Stockholder owns the number of shares of Company Common Stock
set forth opposite its name on Schedule A hereto (such shares of Company Common
Stock, together with any other shares of capital stock of the Company acquired
by the Stockholder after the date hereof and during the term of this Agreement,
being collectively referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that the Stockholder enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder hereby represents and warrants to Parent as of the date hereof as
follows:
(a) AUTHORITY; EXECUTION AND DELIVERY; ENFORCEABILITY. The Stockholder
has all requisite power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The Stockholder has
duly executed and delivered this Agreement, and this Agreement constitutes
the legal, valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms. Assuming approval of
the transactions contemplated by this Agreement by the Board of Directors of
the Company, the execution and delivery by the Stockholder of this Agreement
do not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, materially conflict with, or
result in any material violation of, or material default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancelation or acceleration of any obligation or to loss of a
material benefit under, or result in the creation of any material Lien upon
any of the properties or assets of the Stockholder under, any provision of
any material contract to which the Stockholder is a party or by which any
properties or assets of the Stockholder are bound or, subject to the filings
and other matters referred to in the next sentence, any provision of any
judgment or law applicable to the Stockholder or the properties or assets of
the Stockholder. No consent of, or registration, declaration or filing with,
any Governmental Entity is required to be obtained or made by or with
respect to the Stockholder in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, other than such reports under Sections 13(d) and 16 of
the Exchange Act as may be required in connection with this Agreement and
the transactions contemplated hereby.
(b) THE SUBJECT SHARES. The Stockholder is the record and beneficial
owner of, or is the trustee of a trust that is the record holder of, and
whose beneficiaries are the beneficial owners of, and has good and
marketable title to, the Subject Shares, free and clear of any Liens. The
Stockholder does not own, of record or beneficially, any shares of capital
stock of the Company
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other than the Subject Shares. The Stockholder has the sole right to vote
the Subject Shares, and none of the Subject Shares is subject to any voting
trust or other agreement, arrangement or restriction with respect to the
voting of the Subject Shares, except as contemplated by this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby
represents and warrants to the Stockholder as follows: Parent has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery by
Parent of this Agreement and consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of Parent.
Parent has duly executed and delivered this Agreement, and this Agreement
constitutes the legal, valid and binding obligation of Parent, enforceable
against Parent in accordance with its terms.
SECTION 3. COVENANTS OF THE STOCKHOLDER. The Stockholder covenants and
agrees as follows:
(a) (i) At any meeting of the stockholders of the Company called to seek
the Company Stockholder Approval or in any other circumstances upon which a
vote, consent or other approval (including by written consent) with respect
to the Merger Agreement, the Merger or any other Transaction is sought, the
Stockholder shall, including by executing a written consent solicitation if
requested by Parent, vote (or cause to be voted) the Subject Shares in favor
of granting the Company Stockholder Approval.
(ii) The Stockholder hereby irrevocably grants to, and appoints, Parent,
and any individual designated in writing by Parent, and each of them
individually, as the Stockholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of the
Stockholder, to vote the Subject Shares, or grant a consent or approval in
respect of the Subject Shares in a manner consistent with this Section 3.
The Stockholder understands and acknowledges that Parent is entering into
the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 3(a) 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 the Stockholder under this
Agreement. The Stockholder hereby further affirms that the irrevocable proxy
is coupled with an interest and may under no circumstances be revoked. The
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(e) of the DGCL. The irrevocable proxy granted hereunder shall
automatically terminate upon the termination of this Agreement in accordance
with Section 4.
(b) At any meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the Stockholder's vote,
consent or other approval is sought, the Stockholder shall vote (or cause to
be voted) the Subject Shares against (i) any merger agreement or merger
(other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company, (ii) any
Company Takeover Proposal and (iii) any amendment of the Company Charter or
the Company By-laws or other proposal or transaction involving the Company
or any Company Subsidiary, which amendment or other proposal or transaction
would in any manner impede, frustrate, prevent or nullify any provision of
the Merger Agreement, the Merger or any other Transaction or change in any
manner the voting rights of any class of Company Common Stock. The
Stockholder shall not commit or agree to take any action inconsistent with
the foregoing.
(c) Other than as contemplated by this Agreement, the Stockholder shall
not (i) sell, transfer, pledge, assign or otherwise dispose of (including by
gift) (collectively, "Transfer"), or enter into any contract, option or
other arrangement (including any profit sharing arrangement) with respect
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to the Transfer of, any Subject Shares to any person other than pursuant to
the Merger or (ii) enter into any voting arrangement, whether by proxy,
voting agreement or otherwise, with respect to any Subject Shares and shall
not commit or agree to take any of the foregoing actions.
(d) The Stockholder shall not, nor shall it authorize or permit any
officer, director or employee of, or any investment banker, attorney or
other adviser or representative of, the Stockholder to, (i) directly or
indirectly solicit, initiate or encourage the submission of, any Company
Takeover Proposal, (ii) enter into any agreement with respect to any Company
Takeover Proposal or (iii) directly or indirectly participate in any
discussions or negotiations regarding, or furnish to any person any
information with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Company Takeover Proposal. The Stockholder
promptly shall advise Parent orally and in writing of any Company Takeover
Proposal or inquiry made to the Stockholder with respect to or that could
reasonably be expected to lead to any Company Takeover Proposal, the
identity of the person making any such Company Takeover Proposal or inquiry
and the material terms of any such Company Takeover Proposal or inquiry.
(e) The Stockholder shall use its best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by the
Merger Agreement. Neither Parent nor the Stockholder shall issue any press
release or make any other public statement with respect to the Merger or any
other transaction contemplated by the Merger Agreement other than in
accordance with the Master Agreement, except as may be required by
applicable law, court process or by obligations pursuant to any listing
agreement with any national securities exchange.
(f) The Stockholder hereby consents to and approves the actions taken by
the Company Board in approving the Merger and the other transactions
contemplated by the Merger Agreement. The Stockholder hereby waives, and
agrees not to exercise or assent, any appraisal rights under Section 262 in
connection with the Merger.
SECTION 4. TERMINATION. This Agreement shall terminate upon the earliest
of (a) the Effective Time, (b) the termination of the Merger Agreement in
accordance with its terms and (c) the Outside Date, other than with respect to
the liability of any party for breach hereof prior to such termination.
SECTION 5. ADDITIONAL MATTERS. The Stockholder shall, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as Parent may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
SECTION 6. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to Parent in accordance with
Section 9.02 of the Merger Agreement and to the Stockholder at its address
set forth on Schedule A hereto (or at such other address for a party as
shall be specified by like notice).
(c) INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
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interpretation of this Agreement. Wherever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(d) SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule or law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall 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 transactions contemplated hereby are
fulfilled to the extent possible.
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement.
This Agreement shall become effective against Parent when one or more
counterparts have been signed by Parent and delivered to the Stockholder.
This Agreement shall become effective against the Stockholder when one or
more counterparts have been executed by the Stockholder and delivered to
Parent. Each party need not sign the same counterpart.
(f) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(i) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
(g) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
(h) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or
in part, by operation of law or otherwise, by Parent without the prior
written consent of the Stockholder or by the Stockholder without the prior
written consent of Parent, and any purported assignment without such consent
shall be void. Subject to the preceding sentences, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties
and their respective successors and assigns.
(i) ENFORCEMENT. The parties agree 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. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any Delaware
state court or any Federal court located in the State of Delaware, this
being in addition to any other remedy to which they are entitled at law or
in equity. In addition, each of the parties hereto (i) consents to submit
itself to the personal jurisdiction of any Delaware state court or any
Federal court located in the State of Delaware in the event any dispute
arises out of this Agreement or any Transaction, (ii) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that it will not bring
any action relating to this Agreement or any Transaction in any court other
than a Delaware state court or any Federal court sitting in the State of
Delaware and (iv) waives any right to trial by jury with respect to any
claim or proceeding related to or arising out of this Agreement or any
transaction contemplated hereby.
(j) STOCKHOLDER CAPACITY. The Stockholder signs solely in its capacity
as the record holder and beneficial owner of the Subject Shares and nothing
herein shall limit or affect any actions taken by the Stockholder or any of
its officers and dirctors in its or their capacity as an officer or director
of the Company and no such action shall be deemed a breach of this
Agreement.
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IN WITNESS WHEREOF, each party has duly executed this Agreement, all as of
the date first written above.
CHRISTIAN DALLOZ,
by /s/ PHILIPPE ALFROID
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Name: Philippe Alfroid
Title: President
BACOU SA,
by /s/ PHILIPPE BACOU
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Name: Philippe Bacou
Title: President
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