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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustee of the Berglass Charitable
Remainder Trust UDT 7/8/98 ("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
10
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
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, AS TRUSTEE OF
THE BERGLASS CHARITABLE
REMAINDER TRUST UDT 7/8/98
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Trustee
13
SCHEDULE I
NAME OF
STOCKHOLDER NUMBER OF SHARES OF COMMON STOCK BENEFICIALLY OWNED
----------------------------------------------------------------------------
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, as 761,905
Trustee of the
Berglass
Charitable
Remainder Trust
UDT 7/8/98
