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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Imtec, Inc.
-----------------------
(Name of Issuer)
Common Stock
-----------------------
(Title of Class of Securities)
529091047
-----------------------
(CUSIP Number)
Mr. Lance Laifer With a copy to:
Laifer Capital Management, Inc. Gerald Adler, Esq.
Hilltop Partners, L.P. Swidler Berlin Shereff Friedman, LLP
450 Seventh Avenue 405 Lexington Avenue
New York, New York 10123 New York, New York 10174
(212) 268-8036 (212) 973-0111
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
December l3, 1999
--------------------------------
(Date of Event which Requires Filing of
this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(e), (f) or (g), check the following: [X].
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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SCHEDULE 13D
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CUSIP No. 529091047 Page 2 of Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Laifer Capital Management, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 130,900
BENEFICIALLY
OWNED BY ----------------------------------------------------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING 0
PERSON ----------------------------------------------------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
130,900
----------------------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
86,000
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
216,900
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.6%
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14 TYPE OF REPORTING PERSON*
CO, IA
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</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
<TABLE>
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SCHEDULE 13D
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CUSIP No. 529091047 Page 3 of Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lance Laifer
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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NUMBER OF 7 SOLE VOTING POWER
SHARES 130,900
BENEFICIALLY ---------------------------------------------------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 0
REPORTING ---------------------------------------------------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 130,900
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10 SHARED DISPOSITIVE POWER
86,000
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
216,900
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.6%
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14 TYPE OF REPORTING PERSON*
IN
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</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
<TABLE>
<S> <C>
SCHEDULE 13D
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CUSIP No. 529091047 Page 4 of Pages
---------------- ------- --------
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hilltop Partners, L.P.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 114,500
BENEFICIALLY ---------------------------------------------------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 0
REPORTING ---------------------------------------------------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 114,500
---------------------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
114,500
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.2%
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14 TYPE OF REPORTING PERSON*
PN
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</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Schedule 13D
Imtec, Inc.
This Statement on Schedule 13D is filed by Hilltop Partners, L.P.,
Laifer Capital Management, Inc. and Lance Laifer (collectively, the "Reporting
Persons").
Item 1. Security and Issuer.
- ------- --------------------
This Statement relates to the common stock (the "Common Stock") of
Imtec, Inc. (the "Company"). The address of the principal executive office of
the Company is One Imtec Lane, Bellows Falls, VT 05101.
Item 2. Identity and Background.
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(a) This Schedule 13D is being filed jointly by Hilltop Partners, L.P.,
a Delaware limited partnership ("Hilltop"), its general partner, Laifer Capital
Management, Inc., a Delaware corporation, and Lance Laifer, the President, sole
Director and principal stockholder of Laifer Capital Management, Inc.
(b), (c) and (f) The address of Hilltop is 450 Seventh Avenue, New
York, NY 10123. Hilltop is a Delaware limited partnership. Its principal
business is investments.
The address of the principal office of Laifer Capital Management, Inc.
is 450 Seventh Avenue, New York, NY 10123. Laifer Capital Management, Inc. is a
Delaware corporation. Its principal business is investment management.
Lance Laifer's principal occupation is investment management and his
business address is c/o Laifer Capital Management, Inc., 450 Seventh Avenue, New
York, NY 10123. Mr. Laifer is a United States citizen.
(d) and (e). During the past five years, none of the Reporting Persons
has been convicted in any criminal proceeding (excluding traffic violations or
similar misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds.
- ------- ---------------------------
The source of the funds used by Hilltop to purchase the securities of
the Company was working capital. The source of the funds used by Laifer Capital
Management, Inc. to purchase the securities of the Company was (i) the working
capital of Hilltop and (ii) the working capital or other funds of various
Wolfson family entities ("Wolfson") and Hilltop Offshore Limited ("Offshore"),
which are investment advisory clients of Laifer Capital Management, Inc. The
amount of funds used by the Reporting Persons to purchase Common Stock (net of
any sale) is as follows:
Page 5
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Hilltop $934,448
Wolfson $716,475
Offshore $141,981
Item 4. Purpose of the Transaction.
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Each of the Reporting Persons acquired its or his shares of Common
Stock for investment purposes. Each of the Reporting Persons may acquire or
dispose of securities of the Company, including shares of Common Stock, directly
or indirectly, in open-market or privately negotiated transactions, depending
upon the evaluation of the performance and prospects of the Company by the
Reporting Persons and upon other developments and circumstances, including, but
not limited to, general economic and business conditions and stock market
conditions.
Except for the foregoing and as disclosed below, no Reporting Person
has any present plans or proposals which relate to or would result in any of the
actions or events described in paragraphs (a) through (j) of Item 4 of Schedule
13D.
Item 5. Interest in Securities of Issuer.
- ------- ---------------------------------
(a) Hilltop is the beneficial owner of 114,500 shares (7.2%) of Common
Stock.
Laifer Capital Management, Inc. is the beneficial owner of 216,900
shares (13.6%) of Common Stock. The 216,900 shares of Common Stock beneficially
owned by Laifer Capital Management, Inc. includes:
(i) 114,500 shares of Common Stock beneficially owned by Laifer Capital
Management, Inc. in its capacity as General Partner and investment advisor to
Hilltop, which shares have been described above; and
(ii) 102,400 shares of Common Stock beneficially owned by Laifer
Capital Management, Inc. in its capacity as investment advisor to various other
clients. These clients include: (a) Wolfson, with an address at One State Street
Plaza, New York, New York 10004-1505, and (b) Offshore, a Cayman Islands
company, with an address c/o Consolidated Fund Management Limited, P.O. Box HM
2257, Par La Ville Place, 14 Par La Ville Road, Hamilton HMJX, Bermuda
(collectively, the "Clients").
Lance Laifer, as president, sole director and principal stockholder of
Laifer Capital Management, Inc., is deemed to have the same beneficial ownership
as Laifer Capital Management, Inc.
The number of shares beneficially owned by the Reporting Persons and
the percentage of outstanding shares represented thereby have been computed in
accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as
amended. There were 1,595,513 shares of Common Stock
Page 6
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of the Company outstanding as of October 29, 1999 as reported in the Company's
Quarterly Report on Form 10-Q.
(b) Hilltop has the sole power (i) to vote or to direct the voting of and
(ii) to dispose and to direct the disposition of the 114,500 shares of Common
Stock beneficially owned by it. Hilltop's power to vote and dispose of its
shares rests with Laifer Capital Management, Inc., in its capacity as the
General Partner of Hilltop.
Laifer Capital Management, Inc. has the sole power (i) to vote and to
direct the voting of and (ii) to dispose and direct the disposition of the
114,500 shares of Common Stock beneficially owned by it in its capacity as the
General Partner of Hilltop. Laifer Capital Management, Inc. (i) has sole power
to vote and to direct the voting of and sole power to dispose and direct the
disposition of 16,400 shares of Common Stock owned by Offshore and (ii) shares
with Wolfson the power to dispose and direct the disposition of 86,000 shares of
Common Stock owned by Laifer Capital Management, Inc. in its capacity as
investment advisor to Wolfson. Wolfson retains the sole power to vote and to
direct the voting of the shares of Common Stock owned by it.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
- ------- ---------------------------------------------------------------------
to Securities of the Issuer
---------------------------
On December 13, 1999, Laifer Capital Management, Inc. entered into the
attached Agreement with Brady Corporation ("Brady") pursuant to which, among
other things, Laifer Capital Management, Inc. granted a proxy and option to
Brady with respect to the shares of Common Stock beneficially owned by it and
agreed to tender certain shares of Common Stock beneficially owned by it into
Brady's tender offer for the Common Stock. Reference is made to the full text of
such agreement which is attached as Exhibit B hereto.
Item 7. Material to be Filed as Exhibits.
- ------- ---------------------------------
Exhibit A. Agreement of Joint Filing.
Exhibit B. Agreement between Laifer Capital Management, Inc. and Brady
Corporation.
Page 7
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After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: December 22, 1999 HILLTOP PARTNERS, L.P.
By: LAIFER CAPITAL MANAGEMENT, INC.,
as General Partner
By: /s/ Lance Laifer
----------------------------
Lance Laifer
President
LAIFER CAPITAL MANAGEMENT, INC.
By: /s/ Lance Laifer
----------------------------
Lance Laifer
President
/s/ Lance Laifer
----------------------------
Lance Laifer
Page 8
<PAGE>
EXHIBIT A
---------
AGREEMENT OF JOINT FILING
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, as amended, the undersigned hereby agree to the joint filing with all
other Reporting Persons (as such term is defined in the Schedule 13D referred to
below) of a statement on Schedule 13D or any amendments thereto, with respect to
the Common Stock of Imtec, Inc. and that this Agreement be included as an
Exhibit to such filing.
This Agreement may be executed in any number of counterparts each of
which shall be deemed to be an original and all of which together shall be
deemed to constitute one and the same Agreement.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of
the 22nd day of December, 1999.
HILLTOP PARTNERS, L.P.
By: LAIFER CAPITAL MANAGEMENT, INC,
as General Partner
By: /s/ Lance Laifer
----------------------------
Lance Laifer, President
LAIFER CAPITAL MANAGEMENT, INC.
By: /s/ Lance Laifer
----------------------------
Lance Laifer, President
/s/ Lance Laifer
----------------------
LANCE LAIFER
<PAGE>
SHAREHOLDER OPTION AGREEMENT
SHAREHOLDER OPTION AGREEMENT, dated as of December 9, 1999
(the "Agreement"), among Brady Corporation ("Parent"), a Wisconsin corporation,
and Laifer Capital Management, Inc. (the "Shareholder").
R E C I T A L S:
WHEREAS, Parent has indicated its willingness to enter into an
agreement for the acquisition of Imtec, Inc., a Delaware corporation ("Company")
through an Agreement and Plan of Merger (the "Merger Agreement") which would
provide, among other things, for the acquisition of the Company by Parent by
means of a cash tender offer (the "Offer") by Parent or a subsidiary (in either
event, the "Purchaser") for all outstanding shares of Common Stock, par value
$0.01 per share, of the Company (the "Common Stock") and for the subsequent
merger of Purchaser with the Company (the "Merger"), all on the terms and
subject to the conditions to be set forth in the Merger Agreement;
WHEREAS, as an inducement and a condition to entering into
negotiation of the Merger Agreement, Purchaser has required that the Shareholder
agree, and the Shareholder has agreed, to enter into this Agreement; and
WHEREAS, the Board of Directors of the Company has approved
this Agreement and the transactions contemplated hereby prior to the date
hereof;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
1. Definitions. Capitalized terms have the meanings
provided herein.
2. Tender of Shares; Agreement to Sell.
(a) In order to induce Parent to enter into negotiation of the
Merger Agreement, the Shareholder 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 tenth business
day after commencement of the Offer, 109,377 shares of Common Stock (the
"Shares"), all of which are beneficially owned by Shareholder. The Shareholder
hereby acknowledges and agrees that Purchaser's obligation to accept for
payment, purchase and pay for shares in the Offer, including the Shares
beneficially owned by the Shareholders, is subject to the terms and conditions
of the Offer. Purchaser, by written notice delivered to the Shareholder, will
have the right to direct the Shareholder not to tender to, or to withdraw
<PAGE>
from, the Offer any Shares beneficially owned by such Shareholder and, upon
receipt of any such notice, the Shareholder shall comply with the direction
included in such notice.
(b) As promptly as practicable following the expiration of
the Offer (but in no event later than 10:00 a.m., Milwaukee time, on the first
trading day immediately after such expiration), the Shareholder hereby agrees to
sell to Purchaser, and Purchaser agrees to purchase, all Shares owned by such
Shareholder not tendered or validly withdrawn from the Offer pursuant to Section
2(a) at a price equal to $12.00 per Share or, if less, the price provided in the
Merger Agreement. The obligations of the Shareholder and Purchaser in this
Section 2(b) is conditioned upon Purchaser purchasing shares of Common Stock
pursuant to the Offer.
(c) Purchaser shall be entitled to deduct and withhold from
the consideration otherwise payable hereunder to the Shareholder any stock
transfer taxes and such amounts as are required to be withheld under the
Internal Revenue Code of 1986, as amended (the "Code"), or any applicable
provision of state, local or foreign tax law, as specified in the Offer
Documents. To the extent that amounts are so withheld by Purchaser, such
withheld amounts shall be treated for all purposes of this Agreement as having
been paid to the Shareholder in respect of which such deduction and withholding
was made by Purchaser.
(d) The Shareholder hereby permits Purchaser to publish and
disclose in the Offer Documents and, if approval of the Company's shareholders
is required under applicable law, any proxy statement (including all documents
and schedules filed with the SEC), the Shareholder's identity and ownership of
the Shares and the nature of the Shareholder's commitments, arrangements and
understandings under this Agreement; provided that the Shareholder shall have
the right to review and comment on such disclosure a reasonable time before it
is publicly disclosed.
3. Option. (a) In order to induce Parent to enter into
negotiation of the Merger Agreement, the Shareholder hereby grants to Purchaser
an irrevocable option (the "Option") to purchase the Shares (the "Option
Shares") at a price equal to $12.00 per Share, subject to adjustment in the
event of a stock-split, stock dividend or additional share issuance by the
Company. The Option granted by the Shareholder may be exercised in whole or in
part at any time after (i) sixty days from the date hereof if the Merger
Agreement has not been signed by the Company and Purchaser; (ii) the occurrence
of any event as a result of which Parent is entitled to receive a termination
fee under the Merger Agreement or (iii) such time as the Shareholder shall have
breached any of its agreements in the Merger Agreement.
(b) The Option that becomes exercisable under Section 3(a)
shall remain exercisable until the later of (i) the date that is 120 days after
the date the
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Option becomes exercisable and (ii) the date that is 60 days after the date that
all waiting periods under the Hart-Scott-Rodino Anti-Trust Improvements Act (the
"HSR Act") required for the purchase of the Shares upon such exercise shall have
expired or been terminated; provided that if at the expiration of such period
there shall be in effect any injunction or other order issued by any federal,
state, local or foreign governmental unit or agency (a "Governmental Entity")
prohibiting the exercise of the Option, the exercise period shall be extended
until 60 days after the date that no such injunction or order is in effect. In
the event that Purchaser wishes to exercise the Option, Purchaser shall send a
written notice to the Shareholder identifying the place and date (not less than
two nor more than ten business days from the date of the notice) for the closing
of such purchase.
4. Additional Agreements.
(a) Subject to Section 8 of this Agreement, the Shareholder
shall, at any meeting of the shareholders of the Company, however called, or in
connection with any written consent of the shareholders of the Company, vote (or
cause to be voted) all Shares then held of record or beneficially owned by such
Shareholder, (i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the approval of the terms thereof and each
of the other actions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance thereof and hereof and (ii) against any
proposal relating to an acquisition proposal by any person or entity other than
Purchaser (an "Acquisition Proposal") 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 which would
result in any of the conditions set forth in the Merger Agreement not being
fulfilled.
(b) The Shareholder hereby covenants and agrees that, except
as contemplated by this Agreement and the Merger Agreement, it shall not (i)
offer to transfer (which term shall include, without limitation, any sale,
tender, gift, pledge, assignment or other disposition), transfer or consent to
any transfer of, any or all of the Shares 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 Shares or any interest therein, (iii) grant
any proxy, power-of-attorney or other authorization or consent in or with
respect to the Shares, (iv) deposit the Shares into a voting trust or enter into
a voting agreement or arrangement with respect to the Shares or (v) take any
other action that would make any representation or warranty of the Shareholder
contained herein untrue or incorrect or in any way restrict, limit or interfere
with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement.
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(c) The Shareholder hereby irrevocably grants to, and
appoints, Purchaser and any designee of Purchaser, and each of them
individually, the Shareholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of the Shareholder, to vote
the Shares, or grant a consent or approval in respect of the Shares, in the
manner specified in Section 4(a). The Shareholder represents that any proxies
heretofore given in respect of the Shares beneficially owned by the Shareholder
are not irrevocable and that any such proxies are hereby revoked. The
Shareholder hereby affirms that the irrevocable proxy set forth in this Section
4(c) is given in connection with the Purchaser's agreement to undertake
negotiation of the Merger Agreement and that such irrevocable proxy is given to
secure the performance of the duties of the Shareholder under this Agreement.
The Shareholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. The Shareholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof. Without limiting the generality of the
foregoing, such irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 212 of the Delaware Corporation Law.
(d) The Shareholder hereby agrees that neither the Shareholder
nor any of its affiliates, representatives or agents shall (and the Shareholder
shall cause its officers, directors, partners, and employees, representatives
and agents, including its investment bankers, attorneys and accountants, not
to), directly or indirectly, encourage, solicit, initiate or participate in any
way in any discussions or negotiations with, or provide any information to, or
afford any access to the properties, books or records of the Company or any of
its Subsidiaries to, or otherwise take any other action to assist or facilitate,
any person or group (other than Parent or Purchaser or any affiliate or
associate of Parent or Purchaser) concerning any Acquisition Proposal. The
Shareholder will immediately cease any existing activities, discussions or
negotiations conducted heretofore with respect to any Acquisition Proposal. The
Shareholder will immediately communicate to Purchaser the terms of any
Acquisition Proposal (or any discussion, negotiation or inquiry with respect
thereto) and the identity of the person making such Proposal or inquiry which it
may receive.
(e) 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.
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<PAGE>
(f) The Shareholder hereby waives any rights of appraisal or
rights to dissent from the Merger that it may have.
5. Representations and Warranties of the Shareholder.
The Shareholder hereby represents and warrants to Purchaser as follows:
(a) The Shareholder is the record and beneficial owner of the
Shares. The Shareholder 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 and waive 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 Shares with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(b) The Shareholder has the power and authority to enter into
and perform all of the Shareholder's obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by the Shareholder
and constitutes a legal, valid and binding agreement of the Shareholder,
enforceable against the Shareholder in accordance with its terms. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which the Shareholder 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 the Shareholder of the transactions
contemplated hereby.
(c) Except for filings under the HSR Act and the Securities
Exchange Act of 1934 (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 the Shareholder, the
consummation by the Shareholder of the transactions contemplated hereby and the
compliance by the Shareholder with the provisions hereof and (ii) none of the
execution and delivery 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 hereof, except in cases in which any
conflict, breach, default or violation described below would not interfere with
the ability of the Shareholder to perform the Shareholder's obligations
hereunder, shall (A) conflict with or result in any 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 the Shareholder is a
party or by which it or any of its properties or assets may be
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bound or (C) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to the Shareholder or any of its
properties or assets.
(d) Except as permitted by this Agreement, the Shares
beneficially owned by such Shareholder and the certificates representing such
shares are now, and at all times during the term hereof will be, held by the
Shareholder, or by a nominee or custodian for the benefit of the Shareholder,
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. The transfer by the Shareholder of the
Shares to Purchaser in the Offer or hereunder shall pass to and unconditionally
vest in Purchaser good and valid title to all Shares, free and clear of all
liens, proxies, voting trusts or agreements, understandings or arrangements or
any other rights whatsoever.
(e) 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 the Shareholder.
6. Stop Transfer. The Shareholder shall request that the
Company not register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any of the Shares, unless such transfer
is made in compliance with this Agreement.
7. Termination. This Agreement shall terminate with respect
to the Shareholder upon the earliest of (a) the effective time of the Merger
Agreement, (b) the first anniversary of the date hereof or (c) the termination
of the Merger Agreement (unless, in the case of this clause (c), Purchaser is or
may be entitled to receive a termination fee under the Merger Agreement
following such termination or prior to such termination the Shareholder has
breached Section 2(a), 4(a), 4(b) or 4(d)).
8. No Limitation. Nothing in this Agreement shall be
construed to prohibit the Shareholder, or any officer or affiliate of the
Shareholder 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 to the extent specifically permitted by
the Delaware General Corporation Law, as may be modified by the terms of the
Merger Agreement.
9. Miscellaneous. (a) This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
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(b) This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of the Shareholder (in the case
of any assignment by Purchaser) or Purchaser (in the case of an assignment by
the Shareholder), provided that Purchaser may assign its rights and obligations
hereunder to any direct or indirect subsidiary of Parent, but no such assignment
shall relieve Purchaser of its obligations hereunder.
(c) Without limiting any other rights Purchaser may have
hereunder in respect of any transfer of Shares, the Shareholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any person to which legal or beneficial ownership of the Shares
shall pass, whether by operation of law or otherwise, including, without
limitation, such Shareholder's heirs, guardians, administrators or successors.
(d) This Agreement may not be amended, changed, supplemented
or otherwise modified except by an instrument in writing signed on behalf of the
Shareholder and Purchaser.
(e) 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 by facsimile
transmission with confirmation of receipt, as follows:
If to a Shareholder:
Laifer Capital Management, Inc.
Hilltop Partners, L.P.
45 West 45th Street
New York, New York 10036
Fax: (212) 268-8036
If to Parent or Purchaser:
Brady Corporation
6555 W. Good Hope Road
Milwaukee, Wisconsin 53223
Attention: Gary Johnson
Facsimile No.: (414) 438-6840
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With a copy to:
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, WI 53202
Attention: Conrad G. Goodkind
Facsimile No.: (414) 271-3552
or to such other address or facsimile number as the person to whom notice is
given may have previously furnished to the others in writing in the manner set
forth above.
(f) 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
this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction such 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.
(g) 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.
(h) 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.
(i) This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to confer upon any other person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
(j) This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware.
(k) 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
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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, 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 (A) consents to submit itself to the personal jurisdiction of any
Delaware state court or any Federal court located in Delaware in the event any
dispute arises out of this Agreement or by any transaction contemplated by this
Agreement, (B) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (C)
agrees that it will not bring any action relating to this Agreement or any
transaction contemplated by this Agreement in any court other than any such
court and (D) waives any right to trial by jury with respect to any action
related to or arising out of this Agreement or any transaction contemplated by
this Agreement. The parties irrevocably and unconditionally waive any objection
to the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in the courts of the State of
Delaware or in any Federal court located in Delaware, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
(l) 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.
(m) This Agreement may be executed in counterparts, each of
which (including facsimile copies) shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same agreement.
(n) Except as otherwise provided herein, each party shall pay
its, his or her own expenses incurred in connection with this Agreement.
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IN WITNESS WHEREOF, Purchaser and the Shareholder have caused
this Agreement to be duly executed as of the day and year first above written.
BRADY CORPORATION
By: /s/ David W. Schroeder
------------------------------------
Name: David W. Schroeder
Title: Group Vice President
LAIFER CAPITAL MANAGEMENT, INC.
By: /s/ Ranie Hotis
------------------------------------
Name: Ranie Hotis
Title: Vice President
