Exhibit 2
SHAREHOLDER'S AGREEMENT
SHAREHOLDER'S AGREEMENT (the "Agreement"), dated as of August 24, 2001, by
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and among Steelcase Inc., a Michigan corporation ("Parent"), PV Acquisition,
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Inc., a New York corporation and a wholly owned subsidiary of Parent ("Merger
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Sub"), and The Alpine Group, Inc. (the "Shareholder"), a Delaware corporation
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and a shareholder of PolyVision Corporation, a New York corporation (the
"Company"). Capitalized terms used and not defined herein have the meanings
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given them in the Agreement and Plan of Merger, dated as of the date hereof, by
and among Parent, Merger Sub and the Company (as the same may be amended or
supplemented from time to time, the "Merger Agreement").
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WHEREAS, concurrently herewith, Parent, Merger Sub and the Company are
entering into the Merger Agreement, pursuant to which, among other things: (i)
each outstanding share of Company Common Stock shall be canceled and shall be
converted automatically into the right to receive the Common Stock Merger
Consideration; (ii) each outstanding share of Series B Preferred Stock shall be
canceled and shall be converted automatically into the right to receive the
Series B Preferred Stock Merger Consideration; (iii) each outstanding share of
Series C Preferred Stock (all such outstanding shares, together with the
outstanding shares of Company Common Stock and Series B Preferred Stock being
referred to hereinafter collectively as the "Shares") shall be canceled and
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shall be converted automatically into the right to receive the Series C
Preferred Stock Merger Consideration; (iv) each outstanding share of Series D
Preferred Stock shall be cancelled and shall be converted automatically into the
right to receive the Series D Preferred Stock Consideration; and (v) Merger Sub
will be merged with and into the Company (the "Merger"), upon the terms and
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subject to the conditions set forth in the Merger Agreement;
WHEREAS, the Shareholder Beneficially Owns (as defined in Section 1(a))
6,820,113 shares of Company Common Stock, 255,000 shares of Series B Preferred
Stock, and 140,000 shares of Series C Preferred Stock;
WHEREAS, the Shareholder has received a true and correct copy of the Merger
Agreement; and
WHEREAS, in order to induce Parent and Merger Sub to enter into the Merger
Agreement and to perform their obligations thereunder and as a condition
thereof, the Shareholder is entering into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereby agree as follows:
Section 1. Agreement to Vote; Irrevocable Proxy. (a) The Shareholder
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hereby agrees that during the period commencing on the date of this Agreement
and continuing until (x) if the Option (as defined in Section 2(a)) is
exercised, the Option Closing (as defined in Section 2(c)) or (y) if the Option
is not exercised, the Option Expiration Time (as applicable, the "Voting
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Expiration Time"), at any meeting of the holders of any of the Shares, however
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called, or in connection with any written consent of the holders of any of the
Shares, the Shareholder shall vote (or cause to be voted) the Shares held of
record or Beneficially Owned by the Shareholder, whether owned on the date
hereof or hereafter acquired, (i) in favor of approval of the Merger Agreement,
all transactions contemplated thereby, and any actions required in furtherance
thereof and hereof; (ii) against any action or agreement that is intended, or
could reasonably be expected, to impede, interfere with, or prevent the Merger
or result in a breach in any material respect of any covenant, representation or
warranty or any other obligation or agreement of the Company or any of its
subsidiaries under the Merger Agreement; and (iii) except as specifically
requested in writing in advance by Parent, against any of the following actions
(other than the Merger and the transactions contemplated by the Merger
Agreement) that are submitted to a vote of the holders of the Shares: (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its Subsidiaries; (B) any
sale, lease, transfer or disposition by the Company or any of its Subsidiaries
of any assets which in the aggregate are material to the Company and its
Subsidiaries taken as a whole, or a reorganization, recapitalization,
dissolution or liquidation of the Company or any of its subsidiaries; (C)(1) any
change in the present capitalization of the Company or any amendment of the
Company's certificate of incorporation or by-laws; (2) any other material change
in the corporate structure or business of the Company or any of its
subsidiaries; or (3) any other action or agreement that is intended, or could
reasonably be expected, to impede, interfere with or prevent the Merger or the
transactions contemplated by the Merger Agreement.
As used in this Agreement, the term "Beneficially Own" or "Beneficial
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Ownership" with respect to any securities means having "beneficial ownership" of
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such securities as determined pursuant to Rule 13d-3 under the Exchange Act,
including pursuant to any agreement, arrangement or understanding, whether or
not in writing, except that the term shall not include Shares which the
Shareholder has the right to acquire under any options to acquire Shares from
the Company ("Company Stock
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Options") unless such Shares have been acquired upon exercise of such Company
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Stock Options.
(b) Effective immediately upon the execution of this
Agreement, and in order to secure its obligations hereunder, the Shareholder
hereby grants to, and appoints Parent and any designee of Parent, and each of
them individually, with full power of substitution and resubstitution, the
Shareholder's true and lawful irrevocable (until the Voting Expiration Time)
proxy to vote the Shareholder's Shares, or grant a consent or approval in
respect of the Shareholder's Shares, solely on such matters and as indicated in
Section 1(a) above. The Shareholder (i) agrees to take such further action and
execute such other instruments as may be reasonably necessary to effectuate the
intent of this proxy, (ii) hereby represents that any proxy heretofore given in
respect of the Shareholder's Shares is not irrevocable, and (iii) hereby revokes
any proxy previously granted by the Shareholder with respect to its Shares. The
Shareholder understands and acknowledges that Parent and Merger Sub are entering
into the Merger Agreement in reliance on the Shareholder's execution and
delivery of this irrevocable proxy. The Shareholder hereby affirms that this
irrevocable proxy is given in connection with the execution of this Agreement
and the Merger Agreement, and further affirms that this irrevocable proxy is
coupled with an interest in this Agreement for the term stated herein and may
under no circumstances be revoked prior to the Voting Expiration Time. This
proxy is executed and intended to be irrevocable for the above-stated term in
accordance with the provisions of Section 609 of the BCL.
Section 2. Grant of Option. (a) Subject to the terms of this Section
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2, the Shareholder hereby grants to Parent and Merger Sub an irrevocable option
(the "Option") to purchase for cash all, but not less than all, of the Shares
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held of record or Beneficially Owned by the Shareholder at a purchase price per
Share equal to the Common Stock Merger Consideration, the Series B Preferred
Stock Merger Consideration, or the Series C Preferred Stock Merger Consideration
(in each case, as applicable, the "Per Share Amount").
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(b) Parent (or Merger Sub) may exercise the Option at any time
from and after any termination of the Merger Agreement and prior to 11:59 p.m.,
Eastern time, on the 30th day after the date of such termination (the "Option
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Expiration Time").
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(c) To exercise the Option, Parent (or Merger Sub) shall give
written notice (the "Notice") to the Shareholder specifying the time for the
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closing (the "Option Closing") of such purchase. The Option Closing shall be
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held at the office of
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Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP on the date that is 10 business days
after the date of the Notice, subject to the satisfaction of each of the
conditions set forth in Section 2(d) below, or such other date as may be agreed
to by the Shareholder and Parent.
(d) The occurrence of the Option Closing shall be subject to the
satisfaction of each of the following conditions:
(i) to the extent necessary, any applicable waiting
periods (and any extension thereof) under the HSR Act with respect to the
purchase of the Shareholder's Shares following the exercise of the Option
shall have expired or been terminated; and
(ii) no preliminary or permanent injunction or other order,
decree or ruling issued by any court of competent jurisdiction, and no
statute, law, rule or regulation enacted or promulgated by any Governmental
Entity, prohibiting the exercise of the Option or the delivery of the
Shareholder's Shares pursuant thereto shall be in effect.
(e) If Parent exercises the Option, Parent may sell or transfer
the Shares acquired upon exercise of the Option at any time, without the consent
of the Shareholder, to Merger Sub; provided, however, that no such sale or
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transfer shall relieve Parent of its liabilities and obligations hereunder,
including the obligation to pay the consideration described in Section 2(a) and
to comply with Section 10.
(f) At the Option Closing, (i) Parent (or Merger Sub) shall pay,
by wire transfer of immediately available funds to an account designated by the
Shareholder, an amount (the "Option Exercise Price") equal to the sum of (A) the
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product of (x) the applicable Per Share Amount and (y) the number of shares of
Company Common Stock delivered at the Option Closing, (B) the product of (x) the
applicable Per Share Amount and (y) the number of shares of Series B Preferred
Stock delivered at the Option Closing and (C) the product of (x) the applicable
Per Share Amount and (y) the number of shares of Series C Preferred Stock
delivered at the Option Closing; and (ii) the Shareholder shall deliver or shall
cause to be delivered to Parent (or Merger Sub) a certificate or certificates
evidencing the Shareholder's Shares, and the Shareholder agrees that such Shares
shall be transferred free and clear of all liens. All such certificates
representing such Shares shall be duly endorsed in blank, or with appropriate
stock powers, duly executed in blank, attached thereto, in proper form for
transfer, and with all applicable taxes paid or provided for, subject to Section
15(i).
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Section 3. After-Acquired Shares. Notwithstanding anything herein to
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the contrary, any Shares acquired by the Shareholder after the date hereof,
whether by purchase or exchange, shall be subject to all of the representations,
warranties, covenants and agreements of the Shareholder contained herein. In the
event of a share dividend or distribution, or any change in the Shares by reason
of any share dividend, split-up, recapitalization, combination, exchange of
shares or the like, the term "Shares" shall be deemed to refer to and include
the Shares as well as all such share dividends and distributions and any shares
into which or for which any or all of the Shares may be changed or exchanged.
Section 4. Other Covenants, Agreements, Representations and
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Warranties. The Shareholder hereby represents, warrants and covenants to Parent
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and Merger Sub as of the date hereof and as of the Option Closing as follows:
(a) The Shareholder is the record and Beneficial Owner of the
number of Shares set forth in the Recitals hereto, which constitute all of the
Shares owned of record or Beneficially Owned by the Shareholder on the date
hereof. The Shareholder owns such Shares free and clear of all liens, claims,
charges, security interests, mortgages or other encumbrances, and such Shares
are not subject to any rights of first refusal, put rights, other rights to
purchase or encumber such Shares, or to any agreements other than this Agreement
as to the encumbrance, disposition or voting of such Shares. The Shareholder has
sole voting power and sole power to issue instructions with respect to such
Shares, sole power of disposition, sole power of conversion, sole power to
demand dissenters' rights and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of such Shares.
(b) The Shareholder is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
(c) The Shareholder has the requisite corporate power and
authority to execute and deliver this Agreement, and has the requisite corporate
power and authority to perform the transactions provided for or contemplated by
this Agreement. The execution, delivery and performance by the Shareholder of
this Agreement, and the consummation by it of the transactions contemplated
hereby, have been duly and validly authorized by the Shareholder's board of
directors, and no other corporate action on the part of the Shareholder is
necessary to authorize the execution and delivery by the Shareholder of this
Agreement and the consummation by it of the transactions contemplated hereby.
This Agreement has been duly executed and
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delivered by the Shareholder and, assuming due and valid authorization,
execution and delivery hereof by Parent and Merger Sub, is a valid and binding
obligation of the Shareholder enforceable against the Shareholder in accordance
with its terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency or other similar laws, now or hereafter in effect,
affecting creditors' rights and remedies generally, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(d) None of the execution, delivery or performance of this
Agreement by the Shareholder, the consummation by the Shareholder of the
transactions contemplated hereby or compliance by the Shareholder with any of
the provisions of this Agreement will (i) conflict with or result in any breach
of any provision of the certificate of incorporation or the by-laws of the
Shareholder, (ii) require any filing by the Shareholder with, or permit,
authorization, consent or approval of, any Governmental Entity (except for (A)
the filing with the SEC of such reports and statements under the Exchange Act as
may be required in connection with this Agreement and the transactions
contemplated hereby and (B) any filings as may be required under the HSR Act),
(iii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under, any of the terms,
conditions or provisions of any material note, bond, mortgage, lien, indenture,
lease, license, contract, agreement or other instrument or obligation to which
the Shareholder or any of its Subsidiaries (which, for the avoidance of any
doubt, does not include the Company and its Subsidiaries) is a party or by which
any of them or any of their respective properties or assets may be bound, except
for those as to which any required consents, approvals or waivers have been
obtained or (iv) violate any material order, writ, injunction, decree, statute,
rule or regulation applicable to the Shareholder, any of its Subsidiaries
(which, for the avoidance of any doubt, does not include the Company and its
Subsidiaries) or any of their respective properties or assets. The consummation
of the Merger will not conflict with or result in any breach of any of the terms
of the Series B Preferred Stock or the Series C Preferred Stock.
(e) No broker, finder or investment banker is entitled to any
brokerage, finder's or other similar fee or commission in connection with the
transactions contemplated by the Merger Agreement based upon arrangements made
by or on behalf of the Shareholder.
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(f) The Shareholder shall not, directly or indirectly,
encourage, solicit, participate in or initiate discussions or negotiations with
or provide any non-public information to any Person or group (other than Parent
and Merger Sub or any designees or Parent and Merger Sub) concerning any
Acquisition Proposal. In addition, the Shareholder will not, and will instruct
its agents and affiliates not to, directly or indirectly, make or authorize any
public statement, recommendation or solicitation in support of any Acquisition
Proposal made by any Person or group (other than Parent or Merger Sub).
Notwithstanding the foregoing, any action taken by the Company or any member of
the Company Board of Directors, in his capacity as such, in accordance with
Section 6.3 of the Merger Agreement shall be deemed not to violate this Section
4(f).
(g) The Shareholder shall not, directly or indirectly: (i)
tender its Shares in any tender offer or exchange offer for the Shares; (ii)
except as contemplated by this Agreement or the Merger Agreement, otherwise
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
its Shares or any interest therein; (iii) except as contemplated by this
Agreement, grant any proxies or powers of attorney, deposit any of its Shares
into a voting trust or enter into a voting agreement with respect to any Shares;
(iv) take any action that would make any representation or warranty of the
Shareholder contained herein untrue or incorrect in any material respect or have
the effect of preventing or impairing the Shareholder from performing its
obligations under this Agreement; or (v) enter into any agreement, arrangement
or understanding with the intent or effect of delaying, terminating, preventing
or affecting negatively the consummation of the Merger and the other
transactions contemplated by the Merger Agreement.
(h) The Shareholder hereby acknowledges and agrees that the
Series B Preferred Stock Merger Consideration and the Series C Preferred Stock
Merger Consideration, or any higher price as may be paid for any such Shares in
the Merger, as the case may be, are in full satisfaction of all obligations of
the Company to the Shareholder related to the Series B Preferred Stock and
Series C Preferred Stock, and upon receipt of such consideration, any and all
claims of the Shareholder against the Company or any of its affiliates relating
to the Series B Preferred Stock or the Series C Preferred Stock shall be waived
and released.
(i) The Shareholder understands and acknowledges that Parent and
Merger Sub are relying upon the foregoing representations, warranties and
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covenants by the Shareholder, and on the Shareholder's execution and delivery of
this Agreement in entering into the Merger Agreement.
Section 5. Other Representations and Warranties of Parent and Merger
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Sub. Parent and Merger Sub hereby represent and warrant to the Shareholder as of
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the date hereof and as of the Option Closing as follows:
(a) Each of Parent and Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Each of Parent and Merger Sub has the requisite corporate
power and authority to execute and deliver this Agreement, and has the requisite
corporate power and authority to perform the transactions provided for or
contemplated by this Agreement. The execution, delivery and performance by each
of Parent and Merger Sub of this Agreement, and the consummation by it of the
transactions contemplated hereby, have been duly and validly authorized by its
board of directors, and no other corporate action on the part of Parent or
Merger Sub is necessary to authorize the execution and delivery by Parent and
Merger Sub of this Agreement and the consummation by Parent and Merger Sub of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by each of Parent and Merger Sub and, assuming due and valid
authorization, execution and delivery hereof by the Shareholder, is a valid and
binding obligation of each of Parent and Merger Sub enforceable against Parent
and Merger Sub in accordance with its terms, except that (i) such enforcement
may be subject to applicable bankruptcy, insolvency or other similar laws, now
or hereafter in effect, affecting creditors' rights generally, and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(c) None of the execution, delivery or performance of this
Agreement by Parent and Merger Sub, the consummation by Parent and Merger Sub of
the transactions contemplated hereby or compliance by Parent and Merger Sub with
any of the provisions of this Agreement will (i) conflict with or result in any
breach of any provision of their respective certificates of incorporation and
by-laws, (ii) require any filing by Parent or Merger Sub with, or permit,
authorization, consent or approval of, any Governmental Entity (except for (A)
the filing with the SEC of such reports and statements under the Exchange Act as
may be required in connection with this Agreement and the transactions
contemplated hereby and (B) any filings as may be
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required under the HSR Act), (iii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, amendment, cancellation or acceleration)
under, any of the terms, conditions or provisions of any material note, bond,
mortgage, lien, indenture, lease, license, contract, agreement or other
instrument or obligation to which Parent or Merger Sub or any of their
respective Subsidiaries is a party or by which any of them or any of their
respective properties or assets may be bound, except for those as to which any
required consents, approvals or waivers have been obtained or (iv) violate any
material order, writ, injunction, decree, statute, rule or regulation applicable
to Parent or Merger Sub, any of their respective Subsidiaries or any of their
respective properties or assets.
(d) Either Parent or Merger Sub has available and has reserved
or has received written commitments from third-party lenders to obtain,
sufficient funds to consummate the Merger, the Offer and the other transactions
contemplated by the Merger Agreement or this Agreement, including payment in
full of (a) the Merger Consideration or the Option Exercise Price, (b) the
amounts payable under Sections 3.5, 3.6 and 3.7 of the Merger Agreement and (c)
all indebtedness (including principal, accrued interest, prepayment fees and
other charges) of the Company outstanding on the date of this Agreement.
Section 6. Conditions to Obligations of Parent and Merger Sub. The
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Shareholder acknowledges that the obligations of Parent and Merger Sub to
consummate the Merger are subject to the satisfaction or waiver (where
permissible) of each of the conditions set forth in the Merger Agreement,
including the compliance by the Shareholder with the provisions of this
Agreement.
Section 7. Further Assurances. From time to time, at Parent's
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reasonable request and without further consideration, the Shareholder agrees to
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.
Section 8. Stop Transfer; Form of Legend. The Shareholder agrees and
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covenants to Parent that the Shareholder shall not, prior to the Option Closing
or, if the Option is not exercised, prior to the Option Expiration Time, except
as otherwise provided herein or pursuant to the Merger Agreement, (a) transfer
or encumber or agree to transfer or encumber any of the Shareholder's Shares or
(b) request that the Company register the transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any of the Shareholder's
Shares, in either case without the consent of the
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Parent. If reasonably requested by Parent, any certificates representing the
Shareholder's Shares shall contain the following legend:
"The securities represented by this certificate are subject to certain
restrictions on transfer and other terms of a Shareholder's Agreement,
dated as of August 24, 2001, among Steelcase Inc., PV Acquisition, Inc.,
and The Alpine Group, Inc., a copy of which is on file in the principal
office of Steelcase Inc."
Section 9. Indemnification. (a) The Shareholder agrees to indemnify,
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defend and hold Parent, Merger Sub, their officers, directors, employees,
agents, representatives and affiliates ("Indemnified Parties") harmless from and
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in respect of any and all losses, damages, costs and expenses (including
demands, suits, claims, actions, assessments, liabilities, judgments, amounts
paid in settlement, expenses of investigation and reasonable fees and
disbursements of counsel and other professionals) (collectively, "Losses"), that
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they may incur arising out of or due to (i) the inaccuracy or breach of any
representation or warranty of the Shareholder contained in this Agreement, (ii)
the breach by the Shareholder of any covenant, undertaking or other agreement
contained in this Agreement and (iii) enforcing the indemnification rights
pursuant to this Section 9(a).
(b) If any Indemnified Party shall believe that such
Indemnified Party is entitled to indemnification pursuant to this Section 9,
such Indemnified Party shall promptly give to the Shareholder written notice
thereof. The failure of such Indemnified Party to give notice of any claim for
indemnification promptly shall not adversely affect such Indemnified Party's
right to indemnity hereunder, except to the extent that the Shareholder is
prejudiced by the delay in giving notice. All such claims for indemnification
shall be made not later than, and the representations and warranties of the
Shareholder contained in this Agreement (other than the representations and
warranties set forth in subsections (a), (b), (c) and (e) of Section 4, which
shall survive indefinitely) shall not survive beyond, midnight on the date that
is one year after the first to occur of the Effective Time and the Option
Closing. The right to indemnification hereunder shall not be affected by any
investigation or any knowledge acquired (or capable of being acquired) at any
time, whether before or after the execution and delivery of this Agreement.
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Section 10. Obligation After Option Closing to Acquire All Minority
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Interests.
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(a) Parent agrees that, as promptly as reasonably practicable
(but, in any case, not later than five business days) after the Option Closing,
Parent shall commence (within the meaning of Rule 14d-2 under the Exchange Act)
an offer to purchase for cash (the "Offer") all, but not less than all, of the
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outstanding shares of Company Common Stock owned by the holders of Company
Common Stock (other than Parent and Merger Sub) and the outstanding shares of
Series D Preferred Stock (collectively, the "Company Securities"), (i) in the
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case of the Company Common Stock, at a price per share, net to the seller in
cash, that is not less than the Per Share Amount paid with respect to the
Company Common Stock as part of the Option Exercise Price (the "Common Stock
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Reference Price") and (ii) in the case of the Series D Preferred Stock, at a
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price per share, net to the seller in cash, that is not less than the Series D
Preferred Stock Merger Consideration (the "Series D Reference Price").
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The obligation of Parent to accept for payment and to pay for Company
Securities validly tendered in the Offer and not subsequently withdrawn shall be
subject only to (i) the condition that there shall not be any statute, rule,
regulation, judgment, order or injunction enacted, entered, enforced or
promulgated by any Governmental Entity which restrains, prevents or prohibits
the making or consummation of the Offer or the consummation of the Secondary
Merger (as defined below); provided, however, that Parent shall use commercially
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reasonable efforts to have any such statute, rule, regulation, judgment, order
or injunction vacated or lifted; and (ii) such conditions as, after consultation
with Parent's outside legal counsel, Parent determines in good faith are
required by applicable law with respect to the Offer.
(b) Following Parent's or Merger Sub's acceptance for payment
of and payment for Company Securities pursuant to the Offer (the "Acceptance
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Time"), Parent shall take all action reasonably necessary to cause consummation
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as promptly as reasonably practicable of a second-step merger (the "Secondary
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Merger") in which (i) the holders of the outstanding Company Securities will
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receive per-share consideration, net to such holders in cash, without interest
thereon and less any applicable withholding of taxes, equal to (A) the Series D
Reference Price, in the case of Series D Preferred Stock, or (B) the Common
Stock Reference Price, in the case of Company Common Stock, and (ii) each
option, warrant or other right to purchase Company Common Stock will (1) to the
extent consistent with the terms thereof, be canceled immediately prior to the
consummation of the Secondary Merger, in consideration for which cancellation
the holder of such option, warrant or right shall
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receive a payment of cash consideration equal to the product of (A) the total
number of shares of Company Common Stock subject to such option, warrant or
right immediately prior to the consummation of the Secondary Merger and (B) the
excess (if any) of (x) the Common Stock Reference Price over (y) the exercise
price per share subject to such option, warrant or right as in effect
immediately prior to the consummation of the Secondary Merger (such payment to
be without interest thereon and net of any withholding of taxes); (2) to the
extent consistent with the terms thereof, represent the right, from and after
the consummation of the Secondary Merger, upon exercise thereof and payment of
the aggregate exercise price with respect thereto, to receive in cash, without
interest, a single lump sum cash payment equal to the product of (A) the number
of shares of Company Common Stock that would have been subject to issuance upon
the exercise of such option, warrant or right, had such exercise occurred
immediately prior to the consummation of the Secondary Merger, and (B) the
Common Stock Reference Price (such cash payment to be reduced by any required
withholding of taxes); or (3) otherwise be treated in accordance with the terms
thereof.
Without limiting the generality of any of the foregoing, after
commencement of the Offer, Parent shall use its reasonable best efforts to
acquire (or to cause Merger Sub to acquire) pursuant to the Offer such number of
shares of Company Common Stock that, together with the shares of Company Common
Stock then owned by Parent and Merger Sub, will be sufficient to enable the
Secondary Merger to be consummated pursuant to Section 905 of the BCL (the
"Requisite Number"), and, if the Requisite Number is so acquired in the Offer,
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Parent shall, promptly following the Acceptance Time, take all action reasonably
necessary to cause the Secondary Merger to be so consummated as promptly as
reasonably practicable pursuant to Section 905 of the BCL.
(c) The Offer and the Secondary Merger shall be conducted in
compliance with all applicable laws. Promptly after the Option Closing, Parent
shall make a public announcement stating that it intends promptly to commence
the Offer, describing the terms of the Offer, and stating that the Offer will
not be subject to any financing contingency and will be unconditional (except as
provided in the last sentence of Section 10(a)).
It is intended by the parties to this Agreement that the Company shall
have the right to take all measures it may deem, in its sole discretion, to be
necessary or desirable for the purpose of enforcing the provisions of this
Section 10.
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At all times prior to the date on which Parent or Merger Sub shall
have acquired all outstanding shares of Company Common Stock (other than shares
owned by Parent or Merger Sub) and options and warrants to purchase Company
Common Stock as provided in this Section 10, the authorization of the Continuing
Directors (as defined below) shall be required (and such authorization shall
constitute the authorization of the full Company Board of Directors and no other
action on the part of the Company, including any action by any other directors
of the Company, shall be required) to enforce on behalf of the Company and the
holders of Company Common Stock (other than Parent or Merger Sub) and options
and warrants to purchase Company Common Stock the provisions of this Section 10,
including any extension of the time for performance of any obligation or action
under this Section 10 or any waiver of compliance by Parent (or Merger Sub) with
the provisions of this Section 10.
For purposes of this Section 10(c), "Continuing Directors" means the
--------------------
members of the Special Committee as constituted on the date hereof or any
successor or substitute directors appointed by such members of the Special
Committee serving on the date hereof.
Section 11. Termination. This Agreement shall terminate at the
-----------
Option Expiration Time if the Option has not theretofore been exercised.
Section 12. Effect of Termination. In the event of a termination of
---------------------
this Agreement as provided in Section 11 hereof, this Agreement shall forthwith
become void and there shall be no liability or obligation hereunder on the part
of Parent, Merger Sub or the Shareholder thereafter; provided, however, that
--------
nothing herein shall relieve any party for liability for any willful breach
hereof prior to such termination
Section 13. Non-Competition. Except as set forth in this Section 13,
---------------
the Shareholder agrees that, to assure that Parent will retain the value of the
business of the Company and the Company Subsidiaries as a "going concern," for a
period of five years beginning on the earlier of the Effective Time or the
Option Closing, the Shareholder shall not, directly or indirectly, through one
or more affiliates, engage or have an interest, anywhere in the United States or
Europe, alone or in association with others, as partner or stockholder or
through the investment of capital, lending of money or property, or otherwise,
in any business that competes with the products and services provided by the
Company or any Company Subsidiary as of such date; provided, however, that it
shall not be a violation of this Section 13 for the Shareholder or any of its
affiliates to (i) invest in securities representing less than 10 percent of the
outstanding capital stock of any Person, the securities of which are publicly
traded or listed on any
13
securities exchange or automated quotation system, or (ii) invest in, own an
interest in or acquire, in a single transaction or series of transactions, all
or a majority of the equity interests in, or assets of, any Person that did not
derive at least 25 percent of its consolidated net revenue during its last
completed fiscal year from any business that competes with the products and
services provided by the Company or any Company Subsidiary as of the date
referenced above. During the three years beginning on the earlier of the
Effective Time or the Option Closing, the Shareholder shall not, directly or
indirectly, through one or more affiliates, on behalf of itself or any other
Person, (i) recruit or otherwise solicit or induce any person who is an employee
of, or otherwise engaged by, Parent, the Company or any Company Subsidiary or
any of their successors to terminate his or her employment or other relationship
with Parent, the Company or any Company Subsidiary or (ii) offer employment to
or employ a person who is at that time an employee (other than secretarial or
clerical employees) of Parent, the Company or any Company Subsidiary or who was
such an employee within two years of the time of such offer of employment. The
foregoing shall not, however, prohibit the Shareholder or any of its affiliates
from publishing any general public solicitation of employment opportunities.
Section 14. Jurisdiction. Each of the parties hereto hereby
------------
expressly and irrevocably submits to the non-exclusive personal jurisdiction of
the United States District Court for the Southern District of New York, and to
the jurisdiction of any other competent court of the State of New York located
in New York County (collectively, the "New York Courts"), preserving, however,
---------------
all rights of removal to such federal court under 28 U.S.C. Section 1441, in
connection with all disputes arising out of or in connection with this Agreement
or the transactions contemplated hereby and agrees not to commence any
litigation relating thereto except in such courts. If the aforementioned courts
do not have subject matter jurisdiction, then the proceeding shall be brought in
any other state or federal court located in the State of New York, preserving,
however, all rights of removal to such federal court under 28 U.S.C. Section
1441. Each party hereby waives the right to any other jurisdiction or venue for
any litigation arising out of or in connection with this Agreement or the
transactions contemplated hereby to which any of them may be entitled by reason
of its present or future domicile.
Section 15. Miscellaneous.
-------------
(a) This Agreement (i) constitutes the entire agreement among
Parent, Merger Sub and the Shareholder with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, among such parties or any of them with respect to the subject matter
hereof and
14
(ii) except as provided in Section 9, and except for the Company's right to
enforce Section 10, is not intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
(b) 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.
(c) The failure of any party hereto to exercise any right,
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, 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.
(d) Subject to applicable law and as otherwise provided in
the Agreement, this Agreement may be amended, modified and supplemented in any
and all respects, by written agreement of Parent, Merger Sub and the
Shareholder, by action taken by their respective boards of directors or
equivalent governing bodies. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of Parent, Merger Sub and the
Shareholder; provided, that no such instrument that amends, modifies or
--------
supplements Section 10 shall be effective unless signed by the Company.
(e) If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by rule of 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 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 the
transactions contemplated hereby are fulfilled to the extent possible.
(f) All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or sent by a nationally recognized overnight courier service, such
as Federal
15
Express (providing proof of delivery), to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) if to Parent or Merger Sub, to:
Steelcase Inc.
000 - 00xx Xxxxxx, X.X.
Xxxxx Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Legal Officer
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
(ii) if to the Shareholder, to:
The Alpine Group, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Secretary
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
16
and
(iii) if to the Company, to:
PolyVision Corporation
0000 X. Xxx Xxxxxxxxx Xx.
Xxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile. (000) 000-0000
Attention: Xxxxxxx X. Xxxx,
President and Chief Executive Officer
with a copy to:
Xxxxxxxxx Traurig, LLP
The Met Life Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
(g) This Agreement shall be governed by and construed in
accordance with the internal (substantive and procedural) laws of the State of
New York, without regard to the conflicts of laws principles thereof.
(h) When a reference is made in this Agreement to Sections,
such reference shall be to a Section of this Agreement unless otherwise
indicated. Whenever the words "include", "includes" or "including" are used in
this Agreement they shall be deemed to be followed by the words "without
limitation." As used in this Agreement, the term "affiliates" shall have the
meaning set forth in Rule 12b-2 of the Exchange Act. 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.
(i) Except as provided in Section 9, all fees, costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fees, costs and
expenses except that any transfer, stamp or similar taxes shall be borne by
Parent.
17
(j) This Agreement shall not be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that Merger Sub may assign any or
all of its rights, interests and obligations hereunder to Parent, one or more
direct or indirect wholly-owned Subsidiaries of Parent, or a combination
thereof.
(k) Each of Parent, Merger Sub, the Shareholder and, for
purposes of Section 10 hereof, the Company acknowledges and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (a) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(b) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement.
(l) This Agreement may be executed manually or by facsimile
by the parties hereto, in any number of counterparts, each of which shall be
considered one and the same agreement and shall become effective when a
counterpart hereof shall have been signed by each of the parties and delivered
to the other parties.
[Signature page follows.]
18
IN WITNESS WHEREOF, the Shareholder, Parent and Merger Sub have caused
this Shareholder's Agreement to be duly executed as of the day and year first
above written.
STEELCASE INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial Officer
PV ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
THE ALPINE GROUP, INC.
By: /s/ Bragi X. Xxxxx
----------------------------
Name: Bragi X. Xxxxx
Title: EVP
Acknowledged and agreed to as of the
day and year first above written,
solely for the purpose of enforcing the
provisions of Section 10 hereof
POLYVISION CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: President & CEO
